Howze v. Jefferson County Committee for Economic Opportunity et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/28/2012. (JLC)
2012 Aug-28 PM 01:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 2:11-CV-52-VEH
COMMITTEE, FOR ECONOMIC )
OPPORTUNITY (“JCCEO”), et al., )
Plaintiff Yvonne Howze (“Howze” or “Plaintiff”) initiated this job
discrimination action against her former employer, Defendant Jefferson County
Committee for Economic Opportunity (“JCCEO”) and other individual Defendants
associated with the JCCEO.1 (Complt., Doc. 1). Howze maintains that the JCCEO
terminated her because of her hearing disability and because of her age. (Id. at 5).
Against the JCCEO, therefore, she brings claims under the Americans with
In addition to suing her employer, the JCCEO, Howze additionally named as
Defendants the following individuals: Rev. T.L. Lewis (“Lewis”), President of the JCCEO Board
of Directors; Gayle Cunningham (“Cunningham”), Executive Director of the JCCEO; Theodore
Debro, Jr. (“Debro”), Deputy Director of the JCCEO; and Geraldine Collins (“Collins”),
JCCEO’s Personnel Manager. (Complt., Doc. 1 at 3-4).
Disabilities Act, as amended (“ADAAA”), 42 U.S.C. §12101 et seq. and Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. §701 et seq. (“Count I”); the Age
Discrimination in Employment Act (“ADEA”), and the Alabama Age Discrimination
in Employment Act (“AADEA”) (“Count II”); as well as state law claims for
intentional infliction of emotional distress (“Count III”) and for negligence in hiring,
training, supervision and retention (“Count IV”). Against the individual Defendants
and the JCCEO, she also states a claim for outrage under state law (“Count V”).
Pending before the court is the Motion for Summary Judgment (Doc. 22) (the
“Motion”) jointly filed by all Defendants. Defendants contend that they are entitled
to summary judgment in their favor as to all claims asserted against them in Howze’s
Complaint. Howze filed her response in opposition (Doc. 23), and the Defendants
filed their reply (Doc. 24). The matters have been fully briefed, the Motion is now
ripe for determination. The court has carefully considered the Motion, the parties’
arguments, the factual record in the light most favorable to the Plaintiff, and the
relevant law. For the reasons explained below, the Motion is due to be granted in part
and denied in part.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper only
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”2
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis for
its motion, and identifying those portions of the pleadings or filings which it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the
moving party has met its burden, Rule 56(c) requires the nonmoving party to go
beyond the pleadings and, by its own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are resolved in favor of the
nonmovant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A
dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
Rule 56 was recently amended in conjunction with a general overhaul of the Federal
Rules of Civil Procedure. The Advisory Committee was careful to note, however, that the
changes “are intended to be stylistic only.” Adv. Comm. Notes to FED. R. CIV. P. 56 (2007
Amends.) (emphasis supplied). Consequently, cases interpreting the previous version of Rule 56
are equally applicable to the revised version.
for the nonmoving party.” Anderson, 477 U.S. at 258. “If the evidence [presented
by the nonmoving party to rebut the moving party’s evidence] is merely colorable, or
is not significantly probative, summary judgment may be granted.” Id. at 249
(internal citations omitted).
The method used by the party moving for summary judgment to discharge its
initial burden depends on whether that party bears the burden of proof on the issue
at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing United States v. Four Parcels of
Real Property, 941 F.2d 1428 (11th Cir. 1991) (en banc)). If the moving party bears
the burden of proof at trial, then it can meet its burden on summary judgment only by
presenting positive evidence that demonstrates the absence of a genuine issue of
material fact; i.e., facts that would entitle it to a directed verdict if not controverted
at trial. Id. at 1115. Once the moving party makes such a showing, the burden shifts
to the nonmoving party to produce significant, probative evidence demonstrating a
genuine issue for trial. Id.
If the moving party does not bear the burden of proof at trial, it can satisfy its
initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the
moving party may produce affirmative evidence negating a material fact, thus
demonstrating that the nonmoving party will be unable to prove its case at trial. Id.
at 1116. Once the moving party satisfies its burden using this method, the nonmoving
party must respond with positive evidence sufficient to resist a motion for a directed
verdict at trial. Id.
The second method by which the moving party who does not bear the burden
of proof at trial can satisfy its initial burden on summary judgment is to affirmatively
show the absence of any evidence in the record in support of a judgment for the
nonmoving party on the issue in question. Id. This method requires more than a
simple statement that the nonmoving party cannot meet its burden at trial but does not
require evidence negating the nonmovant’s claim; it simply requires the movant to
point out to the court that there is an absence of evidence to support the nonmoving
party’s case. Id. at 1115-16. If the movant meets its initial burden by using this
second method, the nonmoving party may either point to evidence in the court record,
overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the
nonmoving party may come forward with additional evidence sufficient to withstand
a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at
1116-17. However, when responding, the nonmovant can no longer rest on mere
allegations, but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S.
343, 358 (1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Employment Discrimination Generally
A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-12 (1993); Nix v. WLCY
Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984). Although the Supreme
Court previously established the basic allocation of burdens and order of proof in a
disparate treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Desert Palace v.
Costa, 539 U.S. 90 (2003), that allocation scheme applies only in cases in which there
is no direct evidence of discrimination. Grigsby v. Reynolds Metals Co., 821 F.2d
590, 595 (11th Cir. 1987).3
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
As the Eleventh Circuit has explained, “only the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of age, . . . constitute direct evidence of
discrimination.” Carter v. City of Miami, 870 F.2d 578, 782 (11th Cir. 1989) (footnote omitted).
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-54; Desert Palace,
539 U.S. at 101-02.
Special standards govern age discrimination cases. The ADEA provides that
“[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). To fall under the ADEA’s protections, an
employee must be “at least 40 years of age[,]” 29 U.S.C. § 631(a), and the plaintiff
“retains the burden of persuasion to establish that age was the ‘but-for’ cause of the
employer’s adverse action.”4 Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343,
The Gross “but-for” standard is distinguishable from the “motivating factor” standard
that applies in Title VII and other discrimination lawsuits. In Gross, the Supreme Court held that:
[A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove,
by a preponderance of the evidence, that age was the ‘but for’ cause of the challenged
employer action. The burden of persuasion does not shift to the employer to show
that it would have taken the action regardless of age, even when a plaintiff has
produced some evidence that age was one motivating factor in that decision.
Id. at 2352. Further, the Eleventh Circuit has determined that Gross does not overrule the
McDonnell-Douglass framework for circumstantial evidence age discrimination cases; therefore,
courts are to apply both standards. See, e.g., Vahey v. Philips Electronics N. Am. Corp., 461 F.
2351 (2009) (emphasis added).
The Eleventh Circuit “has adopted a variation” of the prima facie case standard
articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases
arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565,
566 (11th Cir.1992). “Under this variation of the McDonnell Douglas test for
establishing a prima facie case of discrimination, the plaintiff must show that he (1)
was a member of the protected group of persons between the ages of 40 and 70, (2)
was subject to adverse employment action, (3) was replaced with [or not selected for
a position over] a person outside the protected group, and (4) was qualified to do the
job.” Mitchell, 967 F.2d at 566 (citation omitted); see also Standard v. A.B.E.L.
Services, Inc., 161 F.3d 1318, 1333 (11th Cir. 1998) (“To establish his prima facie
case of discriminatory failure to promote, Standard must show that (1) he was in a
protected group; (2) he was not given the promotion; (3) he was qualified for the
position and (4) someone outside of the protected group was given the position.”)
“If this is done, the defendant has the burden of going forward and articulating
App’x 873, 874 (11th Cir. 2012) (“Because the Supreme Court did not overrule this precedent in
Gross, we review Vahey's claims under both McDonnell Douglas and Gross.”); Thomas v.
Humana Health Plan, Inc., 457 F. App'x 819, 821-22 (11th Cir. 2012) (“Accordingly, we analyze
Thomas's age discrimination claims under both the Gross test and the McDonnell Douglas
a legitimate, non-discriminatory rationale for the [adverse employment action].”
Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
“Finally, if the defendant rebuts the presumption of discrimination, the plaintiff must
prove by a preponderance of the evidence that the employer’s asserted reason is
merely a pretext for a discriminatory [action].” Id. (footnote omitted).
The JCCEO and its Programs
The JCCEO is a non-profit agency that, by its very nature, is dependent on
grant funding. The agency’s practice has been to reassign program coordinators to
another grant-funded program whenever their program’s funding is terminated. (Doc.
23-1 at 11).
One such grant-funded program operated by the JCCEO is the Homelessness
Prevention and Rapid Re-Housing Program (“HPRP”). The HPRP helps local
Keeping in mind that when deciding a motion for summary judgment the court must
view the evidence and all factual inferences in the light most favorable to the party opposing the
motion, the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel
Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection
with summary judgment, a court must review all facts and inferences in a light most favorable to
the non-moving party). This statement does not represent actual findings of fact. See In re
Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this
statement simply to place the court’s legal analysis in the context of this particular case or
controversy. Further, due to the nature of this court’s decision on summary judgment, the
foregoing statement of facts is limited in scope. More specifically, facts that are not material to
the court’s ruling on summary judgment have not been included in this background.
residents who are in jeopardy of losing their home (in an effort to prevent them from
becoming homeless) and individuals who have already lost their home (in an effort
to mitigate their situation and get them back into a stable housing environment). The
original funding source for the grants supporting the HPRP comes from the federal
government and is administered by the U.S. Department of Housing and Urban
Development (“HUD”). HUD provides funding to the State of Alabama, Jefferson
County, and the City of Birmingham, each of which participated in making grants to
the JCCEO to administer the HPRP. (Debro Aff. ¶¶ 7,8). Accordingly, strict rules
and procedures are implemented by the federal government, the State of Alabama,
Jefferson County, and the City of Birmingham concerning implementation of the
HPRP and reporting program activity. For instance, potential recipients of assistance
must meet specific criteria set forth by the funding sources. These criteria include
verifying appropriate residency.6
The HPRP program is not intended to provide assistance to all homeless or
potentially homeless persons. Instead, it is targeted at a specific population, which
is defined by the applicable criteria. Properly verifying that individuals are qualified
For example, County funds could only be used to assist individuals with verified
residency in unincorporated Jefferson County. City of Birmingham funds could only be used to
assist persons with verified residency within the City limits of Birmingham. There are also
several other qualifying criteria that must be verified for an individual to receive assistance.
to receive HPRP assistance and that they meet the criteria is critical to the success of
the program. (Debro Aff. ¶ 8). As part of administering the program, the HPRP is
also required to input data with respect to applicants and recipients of aid into various
databases, including a national homeless database, which allows the federal
government and other entities involved in the national continuum of care to monitor
the homelessness issue and judge the success of various programs designed to combat
this issue. Proper, timely and accurate entry of the data into these databases is critical
to the success of the program. (Debro Aff. ¶ 9).
Howze’s Employment History
Debro, Deputy Director of the Community Services Division of the JCCEO,
was responsible for initially hiring Howze to work for the JCCEO. (Debro Aff. ¶ 3).
Howze worked for the JCCEO as an employee at will in various capacities for 11
years until she was terminated by Debro in April 2010. (Howze Depo. at 68; 242-43).
During her employment with the JCCEO, Howze was assigned to several
different programs. (Howze Aff. ¶ 4). At all times, she worked under the immediate
supervision of Debro, who became a family friend after Howze started working for
him. (Howze Depo. at 47, 68). Howze and Debro would socialize together with their
families during her employment with the JCCEO. (Id).
Howze’s last job title with the JCCEO was Coordinator of the HPRP. (Debro
Aff. ¶ 4; Howze Depo. at 242-43). In her role as HPRP Coordinator, Howze
acknowledges that properly screening and qualifying applicants and making sure that
they met the funding criteria was vitally important to the program’s success. She
further acknowledges that failure to properly administer the program could expose
Debro and Gayle Cunningham, the Executive Director, to criminal prosecution.
Howze acknowledges that it was her responsibility to ensure compliance to avoid
such consequences. (Howze Depo. at 28-29).
Howze began working in the role of HPRP Coordinator, which was a newly
created position when she was assigned to the role, sometime in the fall of 2009.7
Difficulties Implementing HPRP Procedures
According to Howze, the HPRP was still in the developmental stages of its
implementation as late as December 30, 2009. (Howze Aff. ¶ 10). As such, she was
“constantly being asked to review, revise and change the procedures.” (Id.). She also
encountered frustrations in implementation due to the HPRP’s lack of access to the
reporting system in their office, which caused them to rely on outside sources to
complete the reporting process. Debro shared in these frustrations, as evidenced by
his e-mail to the executive director of a partner agency (“MSBH”) on December 31,
Howze does not recall exactly when she started working as HPRP Coordinator, but
believes it was not until October 1, 2009. Debro contends that she assumed the position in
2009, which raised “several concerns” and stated that “MBSH is handicapping much
of the HPRP progress at this point” because of delays by MBSH in producing the
required reports. (Doc. 23, Ex. F). Debro’s e-mail inquired about a report required
by Jefferson County that was two weeks overdue. Specifically, the e-mail, directed
to Michelle Farley, Executive Director of MBSH, stated:
The report required by the County was the report that you said you
would submit through HMIS, E-snaps? The report was due two weeks
ago. There should not have been any activity during this period, but a
report was not submitted. I just need us to come to some type of
understanding of who will submit and when the reports will be
submitted. This is a learning process and somethings (sic) we don’t
know to answer or we don’t know how to act until it happens. The
failure to report has happened and we need to deal with it pronto.
(Id.). In Michelle Farley’s return e-mail to Debro, she agreed, in relation to the
reporting procedures, that “this is a learning process, but it is a certainly a frustration
for MBSH that the learning process has been as slow and labored as it has been.”
Circumstances Surrounding Howze’s Termination
Howze recalls that, sometime in 2009, Debro started making remarks about
getting “new blood” and younger employees to work for the JCCEO. (Howze Depo.
at 167). For instance, she remembers him saying that the JCCEO had good
employees, but that they were all old, and that he wanted to surround himself with
“young blood” and “new ideas.” (Howze Depo. at 168-69). She says he made those
type of comments on three or four occasions, and that she started taking offense to the
statements in April 2010. (Howze Depo. at 172). Howze testified that she knew of
no one else who had witnessed those type of statements, but that Debro made those
type of comments to her directly and repeatedly. (Howze Depo. at 169). Howze said,
“I knew [Debro] was serious about it when he made the move to move older people
out of his office. He said he wanted young blood around him.” (Howze Depo. at
170). The office maneuvering Howze referenced relates to her testimony that three
JCCEO employees “who were 50 or close to 50 and above” and considered “old” by
Debro – Shirley Hill, Nadine Smith, and Rae Patterson – were moved from Debro’s
office to other buildings sometime in 2009 or early 2010, “and that their move was
accompanied with his statement that he wanted young blood around him.” (Howze
Depo. at 208-10). Howze also recalled that one day when she was apparently
squinting after looking at the computer monitor for a long time, Debro said to her,
“Well, the first to go is the eyes, then the hearing, then the hair and then the sex.”
(Howze Depo. at 171).
On April 13, 2010, Debro sent a letter to Howze that addressed three areas of
inadequate job performance. (Doc. 11, Ex. D).8 Howze describes this letter as the
beginning of Debro’s “paper trail” against her, building his case for her termination,
because, as she testified, “Mr. Debro would only terminate if he has documentation.”
(Howze Depo. at 193). The letter identified Howze’s (1) delay in application
processing and payment to providers for services rendered, (2) inconsistent and vague
application of guidelines, rules, and regulations for services, and (3) a “[h]igh
potential of service providers withdrawing from the program as partners.” (Doc. 22,
Ex. D). The letter concluded by saying, “I will make a decision by Friday, April 16,
2010 on ways to correct this problem. I am open to receive a suggested corrective
action plan from you as coordinator before my decision is made.” (Id.). However,
Howze did not submit a suggested corrective action plan because she understood that
Debro was going to “get back with [her]” and that they would have a meeting.
(Howze Depo. at 190).
The corrective meeting never occurred. Instead, Jefferson County pulled its
funding from the HPRP and announced on the local news that it was withdrawing
funding because it had not received the required HPRP reports for months. (Howze
Depo. at 192). Following the news conference, Debro decided to terminate Howze,
Howze contends that “Debro never counseled, admonished or reprimanded [her] for
any reason” prior to the April 13, 2010, letter. (Howze Aff. ¶ 19).
and he memorialized that decision in a latter dated April 22, 2010. (Doc. 22, Ex. 4).
The letter cited the “television news report” from the evening before that featured
Jefferson County’s accusations of the missing HPRP reports. Debro’s letter then
stated, “I have no evidence that you submitted these reports as required. I am
therefore dismissing you from your position as coordinator.” (Howze Depo. at 195).
Howze disputes that any of her reports to the county were untimely (Howze
Depo. at 160-66), and she considers the county’s decision to pull funding as Debro’s
“excuse” for terminating her. (Howze Depo. at 188, 198). However, she does not
contend that Debro influenced the county’s decision to pull funding. (Howze Depo.
at 199 (Q: “You’re not suggesting that Mr. Debro had anything to do with the County
pulling funding, are you?” A: “I’m not suggesting that. I’m saying that it was – it
contributed to his decision. . . . And that it served as an excuse.”)).
Howze testified that in her view, Debro’s decision to fire her was actually
motivated by her hearing loss, her age, and “because [she] was no longer perfect.”
(Howze Depo. at 217). Based on her conversations with Debro, Howze believed he
harbored a disdain for imperfection. (Howze Depo. at 200). She testified that Debro
knew that she had a hearing impairment because she informed him of the impairment
in mid-December of 2009. Howze has worn a hearing aid on and off since 1996, but
she believes Debro was not aware of her hearing issues until she informed him of
such in December 2009. (Howze Depo. at 216-17).
At the time she was terminated, Howze was one of five Coordinators in the
Community Services Division, who were ages 47, 57, 59, 61 and 66. All of these
Coordinators were under Debro’s direct supervision, and he was responsible for each
of them being appointed as a Coordinator. During Howze’s employment, there were
100 employees in the division of Community Services, and approximately 25 percent
were 60 years of age or older; approximately 25 percent were at or below the age of
30; and approximately 50 percent were between the ages of 30 and 60. Howze
recalled a statement from Debro “that JCCEO could not be charged with age
discrimination because everybody was old and they had old people on staff, that the
receptionist was over 70 years old, that the coordinators were old.” (Howze Depo.
at 171-72). Debro himself was 67 years of age at the time Howze was terminated.
(Debro Aff. ¶ 23).
The individual who initially replaced Howze as Acting HPRP Coordinator was
40 years of age at the time. He was subsequently replaced by another individual, who
currently serves as HPRP Coordinator, and who was 47 years of age at the time he
was hired in that role. (Debro Aff. ¶ 24).
Other than her termination, no other adverse employment actions were taken
against Howze during her JCCEO employment. (Howze Depo. at 67). Having
worked on grant funded programs all 11 years of her employment, Howze felt JCCEO
would have found her a subsequent position should funding cease for any given
program. (Howze Depo. at 244-46). Before April 13, 2010, Howze never felt that
her employment was in jeopardy. (Howze Aff. ¶ 7).
A. Individual Defendants
Howze only asserts the claim of outrage against the individual Defendants –
Lewis, Cunningham, Debro, and Collins. (Complt., Doc. 1 ¶¶ 1, 53-56).9 The court
agrees with the individual Defendants that Howze has not, and cannot, successfully
demonstrate a claim for outrage against them. As such, these Defendants are entitled
to summary judgment and are due to be dismissed from the case.
The court notes that, in her brief opposing the Defendants’ Motion for
Summary Judgment, Howze fails to respond to any of the specific arguments for
summary judgment raised by the individual Defendants. (See generally Doc. 23-1).
Moreover, she fails to counter the legal authorities cited by the Defendants with any
legal analysis or citations to any legal authority whatsoever. (Id.).
Presumably, Howze elected not to raise her ADAAA and ADEA discrimination claims
against the individual defendants because those claims would not be maintainable as a matter of
law. See Mason v. Stallings, 82 F. 3d 1007, 1009 (11th Cir. 1996) (“We hold that the Disabilities
Act does not provide for individual liability, only for employer liability.”); Smith v. Lomax, 45 F.
3d 402, 403 n.4 (11th Cir. 1995) (citing cases that demonstrate there is no individual liability for
an alleged violation of the ADEA).
Howze’s failure to articulate any arguments in opposition to Defendants’
Motion – much less cite to any evidence in support of her claims – is not without
significant repercussions. As explained by Judge Steele in Williams v. Quality
Filters, Inc., No. 07-0015-WS-B, 2007 WL 4219201, *1 (S.D. Ala. Nov. 27, 2007):
Courts are not obligated to read a party’s mind or to construct arguments
that it has failed to raise and that are not reasonably presented in the
court file. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587,
599 (11th Cir. 1995) (“There is no burden upon the district court to
distill every potential argument that could be made based upon the
materials before it . . . .”); see also Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (declaring that a “party
who aspires to oppose a . . . motion must spell out his arguments
squarely and distinctly, or else forever hold his peace,” as district court
may ignore arguments not adequately developed by nonmovant).
Clearly, “the onus is upon the parties to formulate arguments.”
Resolution Trust, 43 F.3d at 599; Bowden ex rel. Bowden v. Wal-Mart
Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) (“It is not for
the court to manufacture arguments on Plaintiff's behalf.”).
Accordingly, plaintiff’s decision not to respond to the Motion is at her
Williams, 2007 WL 4219201, *1. Nevertheless, “[t]he district court cannot base the
entry of summary judgment on the mere fact that the motion was unopposed, but,
rather, must consider the merits of the motion.” United States v. One Piece of Real
Property, 363 F.3d 1099, 1101 (11th Cir. 2004).
To establish an outrage claim under Alabama law, a plaintiff must prove that
the conduct at issue was “extreme and outrageous.” Potts v. Hayes, 771 So. 2d 462,
465 (Ala. 2000). The bar for prevailing on an outrage claim is particularly high in
Alabama. Historically, Alabama courts have only recognized the tort of outrage in
three types of cases. In Potts, the Alabama Supreme Court stated:
The tort of outrage is an extremely limited cause of action. It is so
limited that this Court has recognized it in regard to only three kinds of
conduct: (1) wrongful conduct in the family-burial context, Whitt v.
Hulsey, 519 So. 2d 901 (Ala.1987); (2) barbaric methods employed to
coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen,
447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby
v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L.
Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed.
1996). In order to recover, a plaintiff must demonstrate that the
defendant's conduct “(1) was intentional or reckless; (2) was extreme
and outrageous; and (3) caused emotional distress so severe that no
reasonable person could be expected to endure it.” Green Tree
Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990) (citing
American Road Service Co. v. Inmon).
Potts, 771 So. 2d at 465.
Here, Howze has not argued – much less proven – facts remotely sufficient to
support a claim of outrage against Lewis, Cunningham, Debro, and Collins. She has
not demonstrated that these individual Defendants have intentionally or recklessly
exhibited “extreme and outrageous” conduct that “caused [her] emotional distress so
severe that no reasonable person could be expected to endure it.” Id. All of Howze’s
claims stem from her allegation that she was wrongfully terminated based on a
discriminatory animus. After discovery, the undisputed evidence demonstrates
neither Lewis nor Collins were personally involved in making the decision to
terminate her. Howze even admitted that neither individual discriminated against
anyone at JCCEO to her knowledge. (Howze Depo. at 221 (“Q: Do you have any
basis for believing that Reverend Lewis has discriminated against anyone, at any
time, for any reason? A: I have no knowledge, no personal knowledge of his
discriminating against anyone at JCCEO.”); id. at 222 (“Q: What evidence do you
have that Ms. Collins has ever discriminated against you or anyone else, on any
basis? A: I have no knowledge of Ms. Collins discriminating against anyone.”)). As
for Cunningham10 and Debro, to the extent that they were personally involved in the
decision to terminate Howze, their conduct, viewed in the light most favorable to
Howze, still does not rise to the level of extreme and outrageous sufficient to meet the
prima facie elements for outrage.
Defendants persuasively argue as follows:
A review of Alabama decisions addressing employment cases in this
context clearly demonstrates that the facts in this case are grossly
insufficient to support this cause of action. American Road Service Co.
v. Inmon, 394 So. 2d 361 (Ala. 1980) (holding that plaintiff’s claim that
he was accused of being involved in a kickback scheme, his honesty
questioned, and he was harassed, investigated without cause, humiliated,
accused of improper dealings, treated uncustomarily and ultimately
Howze accuses Cunningham only of “fail[ing] to follow the [JCCEO]’s policy manual
by refusing to provide Howze with a termination letter as proscribed by the manual.” (Doc. 23 at
terminated without justification was not sufficient to support the cause
of action, as a matter of law); Whaley v. Sony Magnetic Products, Inc.
of America, 894 F. Supp. 1517 (N.D. Ala. 1995) (dismissing plaintiff’s
outrage claim based upon allegations of age discrimination in an
employment context as “lacking the required degree of egregiousness to
warrant sending the tort of outrage claim to the jury”); Jackson v.
Colonial Banking Co., 507 So.2d 1310 (Ala. 1987) (holding that
plaintiff’s claim that his employer harassed and retaliated against him
due to his disability was not sufficient to support the cause of action);
Surrency v. Harbison, 489 So.2d 1097 (Ala. 1986) (holding that
plaintiff’s claim that his employer harassed him over a period of two
years, including threats of physical harm, were insufficient to support
the cause of action); Grantham v. Vanderzyl, 802 So.2d 1077 (Ala.
2001) (holding that nurse’s claim that physician intentionally hit her
with a surgical drape exposing her to potential HIV infection and stating
“I don’t give a damn” was insufficient to support the claim, as a matter
of law); McIsaac v. WZEW-FM Corp., 495 So.2d 649 (Ala. 1986)
(holding that a plaintiff female employee’s claim that she was sexually
harassed, propositioned and pursued by the President of her employer
and fired, because she would not have sex with him was insufficient to
support the cause of action); Potts v. Hayes, 771 So.2d 462 (Ala. 2000)
(holding that plaintiff’s claim that she had been falsely accused of
having a drug problem by her employer which resulted in an
investigation by the Nursing Board, which brought formal charges
against her, and she was not allowed to return to work was insufficient
to support the cause of action), and Thomas v. Williams, 21 So.3d 1234
(Ala. Civ. App. 2008) (affirming trial court’s dismissal of plaintiff’s tort
of outrage claim on the basis that the defendant had facilitated the
plaintiff’s termination in retaliation for the plaintiff making a medical
(Doc. 22 at 23-25).
Thus, as demonstrated by the foregoing cases, Alabama courts do not
recognize that age/disability employment discrimination cases of this nature are
sufficient to support a cause of action for intentional infliction of emotional distress
or the tort of outrage. Moreover, Howze has not proven that her resulting emotional
distress is “so severe” in nature “that no reasonable person could be expected to
endure it.” Potts, 771 So. 2d at 465; cf. Doc. 23 at 13-14 (describing evidence of
sleeplessness, crying, headaches, hurt feelings, humiliation, stress, embarrassment,
and fear she will not be able to find another job). In sum, Howze’s state law claim
for outrage (Count V) fails against the individual Defendants because the facts and
allegations do not rise to the level of conduct required to support such claims under
Accordingly, because summary judgment is due to be granted as the only claim
asserted against the individual Defendants, Lewis, Cunningham, Debro, and Collins
stand to be dismissed from this lawsuit.
B. The JCCEO
Having determined that the JCCEO is the only remaining Defendant, the court
addresses Howze’s claims against the JCCEO in turn.
1. Disability Discrimination Under the ADAAA
In Count I, Howze brings an ADAAA claim against the JCCEO, alleging that
it intentionally discriminated against her on the basis of her hearing disability.11
The ADA Amendments Act of 2008 (“the ADAAA”), Pub. L. No. 110-325,
122 Stat. 3553, became effective on January 1, 2009. The conduct made the basis of
the Howze’s lawsuit occurred after the effective date of the ADAAA because her
termination was effected in April 2010. Accordingly, Howze’s claim of disability
discrimination should not be reviewed under the narrow and restrictive disability
standards articulated by the U.S. Supreme Court in Toyota Motor Mfg., Kentucky, Inc.
v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines, Inc., 527 U.S. 471,
(1999). With the passage of the ADAAA, Congress specifically removed the
stringent standards previously used to determine whether an individual was a
Generally, there are two types of age discrimination claims.
An ADA discrimination claim can be based on either a conventional “disparate
treatment” theory, or a theory that the defendant failed to make “reasonable
accommodations,” or both. Disparate treatment involves discriminatory intent and
occurs when a disabled person is singled out for disadvantage because of her
disability. By contrast, a failure to make reasonable accommodations claim requires
no animus and occurs when a covered entity breaches its affirmative duty to
reasonably accommodate the known physical or mental limitations of an otherwise
qualified person. This is because the ADA not only protects against disparate
treatment, “it also creates an affirmative duty in some circumstances to provide
special, preferred treatment, or ‘reasonable accommodation.’ ” Henrietta D. v.
Bloomberg, 331 F.3d 261, 275–276 (2nd Cir. 2003) (quoting Dunlap v. Ass'n of Bay
Area Gov'ts, 996 F. Supp. 962, 965 (N.D. Cal.1998)).
Forbes v. St. Thomas Univ., Inc., 768 F. Supp. 2d 1222, 1227 (S.D. Fla. 2010) (emphasis added).
In this case, it is clear from Howze’s Complaint and summary judgment submissions that her
claim is based on disparate treatment. In fact, Howze expressly disclaims requesting any
reasonable accommodation for her disability because she “did not feel that [she] needed that.”
(Howze Depo. at 220).
“qualified individual with a disability.” Indeed, the new regulations state that:
The primary purpose of the ADAAA is to make it easier for people with
disabilities to obtain protection under the ADA. Consistent with the
Amendments Act's purpose of reinstating a broad scope of protection
under the ADA, the definition of ‘disability’ in this part shall be
construed broadly in favor of expansive coverage to the maximum
extent permitted by the terms of the ADA.
29 C.F.R. § 1630.1(c)(4).
The ADAAA amendments, however, do not affect the elements of a plaintiff’s
prima facie case. See Barlow v. Walgreen Co., 8:11-CV-71-T-30EAJ, 2012 WL
868807, at *4 (M.D. Fla. Mar. 14, 2012) (“Despite the changes brought about by the
ADAAA, the elements of a plaintiff's prima facie case remain the same.”).
Specifically, a plaintiff still must show that: (1) she is disabled, (2) she was a
“qualified individual” at the relevant time, meaning that she could perform the
essential functions of the job with or without reasonable accommodations, and (3) she
was unlawfully discriminated against because of her disability. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); accord Beatty v. Hudco Indus.
Products, Inc., 2:10-CV-3051-JHH, 2012 WL 3030100, at *9 (N.D. Ala. July 23,
2012) (evaluating ADAAA claim using the three-point prima facie requirement
presented in Lucas). Further, “[d]espite the changes brought about by the ADAAA,
courts still utilize the same McDonnell Douglas burden-shifting analysis used in
ADA and Title VII cases.” Beatty, 2012 WL 3030100, at *6.
The Equal Employment Opportunity Commission (“EEOC”) in its regulations
implementing the equal employment provisions of the ADAAA defines “disability”
with respect to an individual as:
A physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
A record of such an impairment; or
Being regarded as having such an impairment.
29 C.F.R. § 1630.2(g). Additionally, the definition of disability requires that a person
have a physical or mental impairment that substantially limits a major life activity,
such as, caring for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). An individual’s
impairment must “substantially limit” his or her ability to perform a major life
activity that the average person in the general population can perform; or is
significantly restricted as to the condition, manner or duration under which he or she
can perform a particular major life activity as compared to the condition, manner or
duration under which the average person in the general population can perform the
same major life activity. 29 C.F.R. § 1630.2(j)(1).
In this case, Howze alleges that she has a bilateral hearing loss. For summary
judgment purposes, the court finds that Howze has adequately demonstrated that she
suffers from hearing loss (see Doc. 23, Ex. J (medical records evidencing hearing
impairments)), which is remedied by her hearing aids to the extent that she can still
perform her job duties despite her hearing disability (see Howze Depo. at 220
(testifying that she was “able to adequately perform [her] job with the hearing aids”)),
and that Debro knew of her hearing disability because she informed him of such in
December, 2009. (See Howze Depo. at 216 (“Q: How long had Mr. Debro known
that you had a hearing impairment? A: I informed him of that in mid December. Q:
Of 2009? A: Yes.”)). Thus, the court concludes that Howze has satisfied elements
one and two of her prima facie ADAAA case.
However, Howze has not met the third element of her prima facie ADAAA
case because she has not established the causal nexus that she was fired in relation
to her hearing disability.12 Put simply, she has not provided any corroborative
evidence that demonstrates (directly or circumstantially) that her termination was
motivated by her hearing loss. Howze claims that Debro made multiple comments
about generally wanting to surround himself with “young blood” and “new ideas,” but
she did not claim that Debro or any other JCCEO decisionmaker made any comments
demonstrating a discriminatory animus specific to a hearing disability. Howze’s
Because the court finds Howze has not presented a prima facie ADAAA case, the
court need not engage in the McDonnell Douglas burden-shifting analysis.
subjective suspicions that Debro fired her because he learned of her hearing disability
is not enough to establish a prima facie case of disability discrimination. Cf. Barlow,
2012 WL 868807, at *5 (finding that plaintiff’s ADAAA claim survived summary
judgment where “Plaintiff present[ed] evidence that [her manager] told [her] that she
could no longer work for Walgreens because she was disabled, and therefore a
liability to Walgreens” (emphasis added)).
Accordingly, summary judgment is due to be granted on Howze’s ADAAA
claim against the JCCEO because Howze has not prima facially established an
actionable claim under this count.
2. Age Discrimination Under the ADEA and AADEA
In Count II, Howze brings an age discrimination claim against the JCCEO
under the ADEA and AADEA.13
The ADEA prohibits an employer from discriminating against an employee
The construction of the AADEA is obviously patterned after that of the ADEA, and the
operative language is virtually identical. As such, Alabama courts have made it expressly clear
that ADEA principles govern in AADEA cases. Robinson v. Alabama Central Credit Union,
946 So.2d 1225, 1228 (Ala. 2007); Bonham v. Regions Mortgage, Inc., 129 F. Supp 2d 1315,
1321 (N.D. Ala. 2001). Furthermore, Ala. Code § 25-1-29 expressly states: “. . .any employment
practice authorized by the Federal Age Discrimination in Employment Act shall also be
authorized by this article in the remedies, defenses and statute of limitations under the article
shall be the same as those authorized by the Federal Age Discrimination in Employment Act
except that a plaintiff shall not be required to pursue any administrative action or remedy prior to
filing suit under this article.” Therefore, the court will analyze Howze’s age discrimination
claims together under the ADEA.
who is over forty years old “because of” her age. 29 U.S.C. §§ 623(a)(1), 631(a). A
plaintiff can establish a prima facie case of age discrimination through either direct
or circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201,
1204 (11th Cir. 2010). Direct evidence consists of “[o]nly the most blatant remarks,
whose intent could be nothing other than to discriminate on the basis of age.” Van
Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir.
2008) (quotation marks omitted). Evidence that merely suggests a discriminatory
motive is, by definition, circumstantial evidence. Burrell v. Bd. of Tr. of Ga. Military
Coll., 125 F.3d 1390, 1393–94 (11th Cir. 1997).14
To prove her prima facie case of age discrimination under the ADEA and
AADEA, Howze must prove that: (1) she was a member of a protected group, (2) she
was discharged, (3) she was replaced with a person outside the protected group, and
(4) she was qualified to do her job. Stanfield v. Answering Service, Inc., 867 F.2d
1290 (11th Cir. 1989); Lambert v. Mazer, 33 So.3d 18 (Ala. Civ. App. 2009).
In this case, the JCCEO strongly argues that “the undisputed evidence
overwhelmingly demonstrates that Howze cannot put forth even a prima facie case.”
In this case, Howze presents only circumstantial evidence of age discrimination. The
comments by Debro complaining that JCCEO staff were too “old” and that he wanted to
surround himself with “young blood” and “new ideas” are enough for a reasonable juror to infer
a discriminatory animus in terminating Howze for her age, but his statements are not enough to
constitute direct evidence that he specifically intended to fire her for her age.
(Doc. 22 at 16). The court disagrees, finding that Howze has sufficiently presented
a prima facie case, and, further, there are sufficient genuine issues of material fact for
a reasonable juror to find in favor of either party on the issue of pretext.
As to the prima facie elements, Howze is clearly a member of the protected
group as she was age 57 at her termination. There is also no dispute that she was
terminated. She was replaced by employees who, even though they were both 40
years of age or older, were 10 and 17 years younger than Howze, and the Eleventh
Circuit has held that an age difference as little as 3 years is “substantially younger.”
See Carter v. Decision One Corp. Through CT Corp., 122 F. 3d 997 (11th Cir. 1997)
(explaining that the Eleventh Circuit has found a three-year age difference to be
“legally significant for ADEA purposes”); see also Carter v. City of Miami, 870 F.2d
578, 582-83 (11th Cir. 1989) (finding that a prima facie ADEA case was established
when a 49-year-old plaintiff was replaced by a 46-year-old woman). Thus, the court
can readily conclude that the third element of Howze’s prima facie case is met.
The JCCEO disputes the fourth element: that Howze was qualified to do her
job. However, viewing the facts in the light most favorable to Howze, the court finds
that she has presented evidence for a reasonable juror to conclude that she was
qualified for the job. According to Howze’s deposition testimony and supporting
evidence, she was working diligently to meet the requirements of a newly created
position that was experiencing transitionary obstacles and miscommunications
beyond her control. Moreover, she presented evidence that her supervisor, Debro,
was aware of certain factors affecting the HPRP’s productivity beyond Howze’s
control. (See, e.g., Doc.23, Ex. F (e-mail between Debro and MBSH’s executive
director discussing communications breakdowns and MBSH’s failure to provide
timely reports to the HPRP)). Howze also testified that she never received a
complaint about her work until the week before her termination. Also, as to her
academic qualifications, there appears to be no dispute that she had the requisite
degrees and educational background to qualify (if not over qualify) for the position.
As to experience, that qualification would be difficult to measure, given the new
nature of the position.
Assuming that Howze has demonstrated a prima facie case, the court turns to
the burden-shifting framework. The court easily finds that the JCCEO has articulated
a legitimate nondiscriminatory reason justifying Howze’s termination based on its
April 13, 2010, letter addressing three perceived inadequacies in Howze’s job
performance, followed by its April 22, 2010, letter informing Howze that her position
was being terminated because of Jefferson County’s announcement about dropping
its funding based on missing reports. Thus, the burden shifts back to Howze to
establish sufficient evidence of pretext. McDonnell Douglas, 411 U.S. at 802-05.
As to pretext, the court finds that Howze has presented sufficient evidence for
a reasonable juror to conclude that age discrimination was the actual (“but-for”)
reason for Debro’s decision to terminate Howze. See Gross, 129 S. Ct. at 2352.15
Given Debro’s multiple complaints to Howze about the age of JCCEO’s employees;
his repeated desire to introduce “young blood” and “new ideas” into the agency; his
decision to move three “old” employees out of his building to other buildings; and
Howze’s clean track record of working for the JCCEO for eleven years without the
types of complaints about her job performance that were cited in the sudden decision
to terminate her, a reasonable juror could conclude that Howze is correct in saying
that the county’s withdrawal of its funding was nothing more than a convenient
The JCCEO makes much ado over the statement of Howze’s counsel in her brief in
opposition to summary judgment that
Howze was a double liability. She was old and she was disable[d]. Howze might
have survived had she been a member of only one of the protected classes however,
by being a member of both protected classes, Cunningham and Debro wanted her
gone and they used the termination of the Agency’s HPRP contract by the County as
a cover for their actions.
(Doc. 23-1 at 20). The JCCEO argues that this “admission” of double liability is fatal to
Howze’s age claim because of the Gross “but-for” standard. (Doc. 22 at 17-20). However,
statements of counsel are not evidence. United States v. Jacoby, 955 F.2d 1527, 1541 (11th
Cir.1992) (recognizing that “statements of counsel are not evidence”). Moreover, the
undersigned interprets Gross to still allow for pleading of alternative theories, even up to the
point of trial. See Goodridge v. Siemens Energy, Inc., No. 4:11–CV–240–VEH, 2011 WL
4552504, at *2 & n.1 (N.D. Ala. Sept. 28, 2011). Finally, the “but-for” issue is effectively
rendered moot in light of the court’s decision to grant summary judgment on Howze’s disability
“excuse” to terminate her for another reason—to usher out the “old” and make room
for “young blood” in the organization.
“The resolution of this case depends on whose account of the pertinent
conversations a jury would credit.” Mora v. Jackson Mem'l Found., Inc., 597 F.3d
1201, 1204 (11th Cir. 2010). Considering the facts in the light most favorable to
Howze for the purposes of summary judgment, the court concludes that the record
contains “‘evidence of such quality and weight that reasonable and fairminded men
in the exercise of impartial judgment might reach different conclusions.’” See
MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir. 1991) (quoting
Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041,1045 (11th Cir. 1998)).
More particularly, as to pretext, “[t]he evidence presented by plaintiff is sufficient
to allow a jury in the exercise of impartial judgment to conclude that [the JCCEO’s]
proffered explanations are unworthy of belief.” MacPherson, 922 F.2d at 776; see
also Mora, 597 F.3d at 1204 (“We conclude that a reasonable juror could accept that
[the decisionmaker] made the discriminatory-sounding remarks and that the remarks
are sufficient evidence of a discriminatory motive which was the ‘but for’ cause of
Plaintiff's dismissal.”). Alternatively, a reasonable jury could equally conclude that
the JCCEO’s articulated reasons for firing Howze are legitimate and not a pretext for
discrimination under the ADEA or the AADEA.
Therefore, because material factual disputes preclude the entry of summary
judgment as to Howze’s ADEA and AADEA claims against the JCCEO, summary
judgment on those claims is due to be denied.
3. State Law Claims
a) Outrage and Intentional Infliction of Emotional Distress
The court finds for the same reasons discussed supra in Section IV.A. that
summary judgment is due to be granted on Howze’s outrage (Count V) and IIED
claim (Count III) against the JCCEO. In short, Howze has not presented facts or
evidence that rise to the level of extreme or outrageous conduct required under
Alabama law. See Potts, 771 So. 2d at 465. The facts of this are not anywhere near
the level of the facts presented in the three categories of cases in which the tort of
outrage has been recognized in Alabama. See id. Moreover, Howze’s asserted
emotional distress is not “so severe” in nature “that no reasonable person could be
Both parties in their briefing treat the torts of outrage and IIED together. Indeed, case
law in Alabama supports the conclusion that these torts are treated the same. See, e.g., Wal-Mart
Stores, Inc. v. Smitherman, 872 So.2d 833, 836 (Ala. 2003) (noting in dicta that claim for
intentional infliction of emotional distress is really a claim for tort of outrage); Harrelson v. R.J.,
882 So.2d 317, 321 (Ala. 2003) (describing plaintiff's claim as one for “intentional infliction of
emotional distress, i.e., the tort of outrage”). In fact, Judge Steele of the Southern District of
Alabama has gone so far as to hold that the two torts are synonymous, and thus, redundant. See
Lees v. Sea Breeze Health Care Ctr., Inc., 391 F. Supp. 2d 1103, 1105-06 (S.D. Ala. 2005)
(Steele, J.) (collapsing claims for IIED and outrage under Alabama law into a single cause of
action for outrage, and dismissing plaintiff’s claim for IIED “as duplicative”). Therefore, it is
appropriate for the court to analyze Howze’s Plaintiff’s claim for outrage and for IIED together
under the legal standards for outrage.
expected to endure it.” Compare Potts, 771 So. 2d at 465, with Doc. 23 at 13-14.
Accordingly, Howze’s outrage/IIED claims against the JCCEO are due to be
b) Negligent Hiring, Training, Supervision, and Retention
Lastly, the JCCEO argues that Howze’s claims against it for negligent hiring,
training, supervision and retention (Count IV) fail as a matter of law because the
claims lack sufficient legal and factual support. The court agrees.
In a very analogous case where a federal court has addressed similar Alabama
tort claims in an employment discrimination case, the court summarily dismissed
plaintiff’s claims of negligent training, supervision, and retention. In Norman v. So.
Guarantee Ins. Co., 191 F. Supp. 2d 1321 (N.D. Ala. 2002), Judge Thompson
persuasively dismissed such claims in the context of an FMLA and ADA case. In
finding the plaintiff’s allegations insufficient, Judge Thompson stated:
The claims of negligent training, supervision, and retention, in
addition, would also deserve to be dismissed on their merits. Alabama
recognized a cause of action for negligent training or supervision in
Big B, Inc. v. Cottingham, 634 So. 2d 999, 1002–03 (Ala. 1993).
According to that court, “liability depends upon its being established
by affirmative proof that such incompetency was actually known by
the master or that, had he exercised due and proper diligence, he would
have learned that which would charge him in the law with such
knowledge.” Id. at 1003 (quoting Lane v. Central Bank of Alabama,
N.A., 425 So.2d 1098, 1100 (Ala. 1983)). Evidence of this actual or
constructive knowledge may consist of specific acts of incompetency
brought to the master's attention or a pattern of incompetent acts such
that the character, frequency, and seriousness of the acts must have
brought the incompetency to the master's attention in the exercise of
due care. Id. A plaintiff must also show that the above breach of the
employer's duty to reasonably supervise his or her employees
proximately caused the plaintiff's injury. Keel v. Banach, 624 So. 2d
1022, 1026 (Ala. 1993) (stating that there are four elements of
negligence in Alabama: (1) a duty; (2) breach of the duty; (3)
proximate cause; and (4) injury arising therefrom).
Based on this view of the alleged wrongs, for a negligent
supervision and training claim to exist regarding these alleged
failures, Southern Guaranty must or should have known not of its
employees' propensity to misapply the FMLA or ADA, but rather of
their propensity to intentionally discriminate or retaliate against an
employee taking advantage of the protections of those statutes.
Norman has not alleged a continuing pattern of violations, nor, indeed,
any prior discrimination or retaliation, such that the company should
have been aware of the problem. Even if there was evidence that would
put Southern Guaranty on notice, there is no proof that the negligent
training and supervision caused the injuries in this case.
For substantially similar reasons, summary judgment should also
be entered on the negligent retention claim. An employer “must use due
care to avoid the ... retention of an employee whom [the employer]
knows or should know is a person unworthy, by habits, temperament, or
nature, to deal with the persons [he will be in contact with during his
employment].” Brown v. Vanity Fair Mills, 291 Ala. 80, 277 So.2d 893,
894 (1973). To recover for negligent retention in Alabama, a plaintiff
must show breach of the employer's above duty and that such breach
proximately caused the plaintiff's injury. Id. There is no evidence of
such actual or constructive knowledge, nor is there an adequate causal
link between this alleged breach and the injury.
Norman, 191 F. Supp. at 1337 (italics in original; underline added) (footnote
The court finds the reasoning of Norman highly persuasive and analogous to
this case. Similarly to Norman, in this case there is neither sufficient evidence to
support these causes of action, “nor is there an adequate causal link between this
alleged breach and the injury.” See id. Howze’s claim is premised on a theory that
Debro terminated her for several reasons, some of which are legally impermissible.
The evidence affirmatively establishes that the JCCEO had a well known and
publicized policy prohibiting any illegal discriminatory conduct by any of its
employees. In her deposition, Howze acknowledged that Debro was well aware of
the applicable anti-discrimination laws. As such, there is clearly no failure on the part
of JCCEO or the other individual defendants to train or educate Debro. Further, there
is no evidence that Cunningham or Debro demonstrated a pattern of discriminatory
conduct. As such, the claims asserted in Count IV fail, as a matter of law.
Accordingly, for the reasons stated above, the Defendants’ Motion for
Summary Judgment is due to be granted in part and denied in part as set out above.
A separate order will be entered consistent with this Memorandum Opinion.
DONE and ORDERED this the 28th day of August, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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