Lowe v. Cardinal Health Inc
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/14/2014. (AVC)
2014 Oct-14 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CARDINAL HEALTH INC.,
Civil Action Number
Jasminda Lowe pursues this claim against Cardinal Health Inc. for
sexual harassment and retaliation under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (Title VII), and under Alabama law for
invasion of privacy and negligent and/or wanton training, supervision,
and/or retention. Doc. 1 at 1. Lowe contends that Cardinal Health discharged
her because she rebuffed the alleged sexual advances of her supervisor,
Ralph Ruggs, and that Ruggs had direct input into the majority of the
disciplinary actions that led to her discharge. Id. at 7. Cardinal Health moves
for summary judgment on all of Lowe’s claims, doc. 28, and the motion is
fully briefed and ripe for review, docs. 28, 34, and 36. Based on a review of
the evidence and the law, the court finds that genuine material factual
disputes exist regarding whether the alleged sexual harassment resulted in a
tangible job detriment and whether a causal link exists between Lowe’s
protected activity and her discharge that precludes summary judgment on
her sexual harassment and retaliation claims. However, summary judgment
is due on Lowe’s invasion of privacy and negligent and/or wanton
supervision, training, and/or retention claims because Ruggs’s alleged
behavior does not entitle Lowe to recovery and because Lowe has not
established that Cardinal Health failed to exercise due and proper diligence
in response to Lowe’s reports of sexual harassment. For these reasons,
Cardinal Health’s motion is due to be granted in part and denied in part. 1
I. SUMMARY JUDGEMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as
Cardinal Health also argues that the court should dismiss Lowe’s complaint,
because Lowe failed to amend the defendant’s name from “Cardinal Health, Inc.” to
“Cardinal Health 200, LLC” after notification that she improperly named the defendant.
Doc. 28 at 27. This issue is moot in light of Lowe’s unopposed motion to correct
misnomer of defendant, doc. 48.
Separately, Lowe also moves for sanctions against Cardinal Health for its alleged
spoliation of evidence. Doc. 37 at 5–6. Spoliation is the “destruction of evidence or the
significant and meaningful alteration of a document or instrument.” Green Leaf Nursery
v. E.I. Dupont De Nemours and Co., 341 F.3d 1292, 1308 (11th Cir. 2008) (quotation
marks omitted). Lowe argues that Cardinal Health meaningfully altered and then
destroyed surveillance video and destroyed quality and productivity records. Doc. 37 at
2–4. The court will carry this issue with the case to give the parties an opportunity to
argue their respective positions.
to any material fact and the movant is entitled to judgment as a matter of
law.” “Rule 56 mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original).
The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (citation and internal
quotation marks omitted). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The court must construe the evidence and all reasonable inferences
arising from it in the light most favorable to the non-moving party. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S.
at 255 (all justifiable inferences must be drawn in the non-moving party’s
favor). Any factual disputes will be resolved in the non-moving party’s favor
when sufficient competent evidence supports that party’s version of the
disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002) (a court is not required to resolve disputes in the non-moving
party’s favor when that party’s version of events is supported by insufficient
evidence). However, “mere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II. FACTUAL ALLEGATIONS
The following facts reflect an assessment of the record in the light
most favorable to Lowe. On May 23, 2011, Lowe began work at Cardinal
Health as a warehouse associate. Doc. 1 at 3. In 2012, Ralph Ruggs became
Lowe’s direct supervisor. Id; doc. 28-1 at 9. As a warehouse associate,
Lowe’s responsibilities included taking and collecting, or “pulling,”
products from the shelves to organize customer orders. Id. at 8, 18.
The disciplinary steps that ultimately culminated in Lowe’s discharge
began on March 6, 2012, when Ruggs disciplined Lowe by placing her on
Coach and Counsel for “continued high error volume” and “continuous
consumer complaints.” Id. at 53. The form Ruggs prepared informed Lowe
that “[f]ailure to improve upon these errors will result in discipline through
the proper step progression, and may result in further corrective action
including termination.” Id. Coach and Counsel is the first step of Cardinal
Health’s disciplinary policy. The other three steps are: Step Two— Written
Warning; Step Three— Final Warning; and Step Four— Termination. Id. at
52. Although it is intended as a progressive discipline policy, Cardinal
Health may “bypass steps within the corrective action process depending on
the seriousness of the nature of the offense.” Id. at 53.
On May 15, 2012, Ruggs called Lowe and another employee into his
office to discuss productivity rates. Id. at 14. During this meeting, Ruggs
informed Lowe that she was not meeting the newly implemented
productivity standards for the month of May, 2 and that she needed to
improve her productivity rates or Cardinal Health would discharge her. Id.
Lowe signed the Quality and Productivity Requirements for Inbound/Outbound
Hourly Associates on March 15, 2012. Doc. 28-1 at 50. The requirements stated that
employees “must not exceed two errors for items flagged hard to pick/pack,” “errors
resulting in a high inventory loss will be evaluated on a case by case basis and may be
subject to corrective action,” and employees should achieve an eighty-five percent
monthly productivity rate. Id. at 51. Cardinal Health enacted this policy in 2012, and only
expected associates to achieve a seventy-five percent productivity rate for the months of
April and May. Doc. 28-3 at 23.
This discussion did not result in a write-up and, as a result, Lowe remained
at step one of the four-step process.
The following day, Lowe contacted Cardinal Health’s Advice and
Counsel Center (“ACC”) 3 and relayed to Martha Cotton that Ruggs
threatened to discharge her because she had a “slow” rate of productivity. Id.
at 14. Lowe also informed Cotton that Ruggs had asked her to stay in his
hotel room during a company meeting, made frequent comments to her such
as “you look so sexy,” “you look so good,” and “you smell sex,” and that on
one occasion Ruggs placed his hands on her shoulders when he commented,
“you look so sexy.” Id. at 10, 15. In addition, Lowe reported that Ruggs was
involved in a romantic relationship with a subordinate, Afiya Burwell, who
held the same position as Lowe. Id. at 15, 19.
Cardinal Health launched an investigation that consisted of Lori
LeDuc, a Human Resources employee, Raul Valdez, Manager of Warehouse
Operations, and Everett Posey, Director of Operations, interviewing Lowe,
Ruggs, Burwell, and several other employees on May 17, 2012. Doc. 28-1 at
17–18. In their respective interviews Ruggs and Burwell denied being
involved in a romantic relationship, and Ruggs denied any inappropriate
conduct towards Lowe or Burwell. Doc. 28-2 at 14, 27. The focus of Lowe’s
The ACC is an ethics hotline that employees can use to report concerns about a
violation of the ethics policy. Doc. 28-1 at 14, 48.
interview turned inevitably to her allegations concerning the alleged
relationship between Ruggs and Burwell, with Posey and LeDuc asking her
to disclose any information that she had regarding the alleged relationship.
Id. at 31. Lowe also submitted a written statement after the interview. Doc.
28-1 at 57. A week later, Lowe contacted Posey and relayed that Burwell
had told her that Burwell and Ruggs engaged in sex at work and that Ruggs
had shown Burwell his penis during a one-on-one performance conversation.
Id. at 20–21.
On May 29, 2012, Cardinal Health informed Lowe that it could not
substantiate her allegations. Id. at 44. Additionally, to make matters worse
for Lowe, the management team found that Lowe initially had withheld
information about the alleged relationship between Burwell and Ruggs, by
waiting until a week after her interview to disclose that Ruggs and Burwell
had sex at work and that Ruggs showed Burwell his penis at work. Id. at 31.
As a result, on June 6, 2012, Lowe received a Written Warning for “failing
to be forthcoming and not providing pertinent information in a timely
manner in an investigation.” Id. at 54. This written warning advanced Lowe
to Step Two of the disciplinary process. Id.
Apparently, Lowe was not the first employee to report the alleged
relationship between Ruggs and Burwell. Prior to Lowe, Doug Brown had
informed Posey that Ruggs was engaged in a romantic relationship with
Burwell. Doc. 28-2 at 11. Posey’s investigation failed to substantiate the
allegations. 4 Id. During the subsequent investigation of Lowe’s allegations,
Brown came forward with new information about the nature of the romantic
relationship between Ruggs and Burwell. Doc. 47-10 *SEALED* at 1–3. In
his statement, Brown explained that “[a]t one time, in a conversation with
Everett Posey, I expressed concerns that something along the Burwell/Ruggs
situation might be happening without directly stating that it was going on.”
Id. at 3. Brown’s statement also contains information that could substantiate
his allegations about Burwell and Ruggs’s purported affair, which he
appears not to have previously disclosed to Posey. 5 Id. at 1– 3. However,
unlike Lowe, Brown received no discipline for providing this additional
information. See generally doc. 47-13 *SEALED* (Brown’s personnel file).
A week after the written warning, Ruggs informed Lowe that she had
failed to meet the required productivity rate for the month of May, and
This investigation was in response to Brown and other employees’ concern that
Ruggs was showing favoritism toward Burwell regarding workplace benefits. Docs. 28-2
at 15; 47-14 *SEALED* at 3.
5 Brown alleged that Burwell and Ruggs shared lunch in Ruggs’s office, that
Ruggs drove Burwell home from work, and that he overheard Burwell making explicit
remarks in a telephone conversation, and that she may have been talking to Ruggs. Doc.
47-10 *SEALED* at 2.
issued her a Final Warning (Step Three) for having a low productivity rate. 6
Doc. 28-1 at 12. Lowe’s productivity rate was 72.7 percent for the month of
May. Id. at 55. The final warning meant Lowe’s next discipline would result
The final infraction occurred a few weeks later, when, on July 3,
2012, Lowe approached Ruggs to inquire about an approved vacation
request that was omitted from the display board listing approved requests for
paid time off (“PTO”). Id. at 22. Lowe reminded Ruggs that Cardinal Health
approved her PTO on May 15, 2012, either told or screamed at Ruggs to “do
his job,” and began to cry. Id. Ruggs responded “yeah, all the crap you
brought up . . . I’ll do it for you, go away.” Id. Although Lowe denies that
she yelled at Ruggs, id., James Stubblefield and Danny Marshall, coworkers
who witnessed the incident, provided written statements at Ruggs’s request
that stated, respectively, that Lowe “repeatedly raised her voice and
interrupted [Ruggs],” id. at 59, and that Marshall told Lowe to calm down,
id. at 58. Ruggs sent an email detailing the incident to Posey on July 5, in
which he included the Marshall and Stubblefield statements. Doc. 28-2 at
Lowe remained under Ruggs’s supervision throughout the process. After she
reported Ruggs, Lowe testified that LeDuc asked her if she was “scared . . . [to] work
with [Ruggs].” Doc. 28-1 at 20. According to Lowe, LeDuc offered to place Lowe on a
different shift, but never followed through on the offer. Id.
After a review of Ruggs’s reports and the statements Ruggs obtained,
Posey and Valdez determined that Lowe’s behavior violated Cardinal
Health’s standards of conduct. Doc. 28-1 at 56. Because Lowe previously
had received three corrective actions, Posey and Valdez determined the next
disciplinary step to take was discharge. Cardinal Health discharged Lowe
upon her return from PTO on July 16, 2012. Id.
Lowe raises Title VII claims for sexual harassment and retaliation and
state law tort claims. The court will begin with the sexual harassment claim,
followed by the retaliation claim, and finally the state law claims.
A. Sexual Harassment
Lowe contends that Ruggs sexually harassed her and took an adverse
employment action against her after she rebuffed his sexual advances. Doc.
34 at 24–30. To establish a prima facie case of sexual harassment under Title
VII a plaintiff must show that:
(1) she belongs to a protected group; (2) she has been subjected to
unwelcome sexual harassment; (3) the harassment was based on her
sex; (4) the harassment was sufficiently severe or pervasive to alter
the terms and conditions of employment and create a discriminatorily
abusive working environment; and (5) a basis for holding the
employer liable exists.
Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004)
(citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 2004);
Johnson v. Booker T. Washington Broad Serv., 234 F.3d 501, 508 n. 7 (11th
Cir. 2000)). The Eleventh Circuit has referred to these elements as the
“Mendoza factors.” See, e.g., Johnson, 234 F.3d at 508 n. 7. Cardinal Health
contends that Lowe fails to meet her burden with regards to the fourth and
fifth Mendoza factors. Doc. 28 at 11–19. Cardinal Health’s argument is ill–
founded, because it is premised on an overly narrow characterization of
Lowe’s sexual harassment claim, i.e. that Lowe is only pursuing a hostile
work environment theory of liability.
There are two instances in which sexual harassment amounts to a Title
VII violation. The first is if the “employee’s refusal to submit to a
supervisor’s sexual demands results in a tangible employment action being
taken against her.” Hulsey, 367 F.3d at 1245. A tangible employment action
is “‘a significant hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant
change in benefits.’” Id. at 1245 (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)). “An employer is liable under Title VII if it (even
unknowingly) permits a supervisor to take a tangible employment action
against an employee because she refused to give in to his sexual overtures.”
Id. Secondly, sexual harassment can constitute a Title VII violation “if it is
sufficiently severe and pervasive to effectively result in a change . . . in the
terms and conditions of employment, even though the employee is not
discharged, demoted, or reassigned.” Id. (citing Burlington Indus., 524 U.S.
at 754). Lowe’s complaint and response to Cardinal Health’s motion for
summary judgment clearly indicate that she is alleging both a hostile work
environment and a tangible employment action theory of recovery. 7 Doc. 34
at 25–28. Therefore, as shown below, focusing only on the severe and
pervasive standard, as Cardinal Health suggests, would miss the mark on the
tangible employment action claim.
As to Lowe’s hostile work environment theory, in order to determine
whether a working environment is “hostile” or “abusive,” and consequently
whether a plaintiff has established the fourth Mendoza factor––at least in the
context of a hostile work environment theory––courts consider various
factors including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
This circuit’s case law explicitly establishes that a plaintiff may pursue a sexual
harassment claim based on both a hostile work environment and a tangible employment
action theory of recovery, even if both theories are premised on the same underlying
harassment. See Hulsey, 367 F.3d at 1246.
Construing the evidence in the light most favorable to Lowe, the court
agrees with Cardinal Health that Ruggs’s alleged conduct is insufficiently
severe or pervasive to support recovery on a hostile work environment
theory. Lowe alleged that Ruggs stated on multiple occasions, “you look so
sexy” and “you smell sex,” invited her to spend the night with him in a hotel
room, and touched her shoulders on one occasion and said, “you look so
sexy.” Doc. 28-1 at 10, 15. With the exception of one time that Ruggs placed
his hands on Lowe’s shoulders, Lowe does not contend that Ruggs touched
her inappropriately and she presented no evidence showing that Ruggs’s
conduct was “physically threatening or humiliating” or that the cumulative
effect of this conduct “unreasonably interfered” with her job duties. See
Harris, 510 U.S. 17, 23. While the alleged conduct was inappropriate and
unwelcomed, it simply fails to reach the high threshold necessary in this
circuit to meet the severe and pervasive standard. By point of comparison, in
Baldwin v. Blue Cross/Blue Shield of Ala., the court found that the following
conduct was not sufficiently severe or pervasive: a supervisor propositioning
an employee at a company banquet and on the drive home, asking her to
spend the night in his hotel room, cornering her in his office and
propositioning her by saying “hey, babe, blow me,” approaching her on
more than one occasion and saying “hey, babe” while playing with his
zipper, and approaching her from behind two or three times and saying “hey,
babe” while breathing down her neck. 480 F.3d 1287, 1302 (11th Cir. 2007).
Lowe’s allegations of a few remarks, one physical touch, and a single
invitation to share a hotel room are even less severe and pervasive than the
allegations in Baldwin. 8 Simply put, Ruggs’s alleged misconduct fails to
meet the severe or pervasive standard in light of this circuit’s case law, and
consequently cannot sustain a hostile work environment claim.
The court’s analysis of Lowe’s sexual harassment claim does not end
here however, because, as explained above, Lowe also contends that
Ruggs’s sexual harassment led to her discharge. The Eleventh Circuit has
clearly stated that district courts must evaluate Title VII liability according
to the Mendoza factors regardless of whether a plaintiff premises employer
liability on a tangible employment action theory or a hostile work
environment theory. See Johnson, 234 F.3d at 508 n. 7 (stating that because
the court “[s]ee[s] no important distinction between a prima facie case under
quid pro quo as opposed to hostile environment claims, we will apply the
Mendoza factors to [the plaintiff’s] claims, irrespective of the terms ‘quid
For an additional point of comparison, see Mendoza, in which the court held the
following conduct insufficiently severe and pervasive to sustain a Title VII claim: “(1)
one instance in which [a supervisor] said to plaintiff, ‘I’m getting fired up’; (2) one
occasion in which [supervisor] rubbed his hip against [plaintiff’s] hip while touching her
shoulder and smiling; (3) two instances in which [supervisor] made a sniffing sound
while looking at [the plaintiff’s] groin area. . .” 195 F.3d 1238 (11th Cir. 1999).
pro quo’ and ‘hostile environment’”); see also Pipkins v. City of Temple
Terrace, Fla., 267 F.3d 1197, 2000 (11th Cir. 2001) (noting that “[a]lthough
the elements for a prima facie case for these two kinds of claims formerly
were analyzed under slightly varying tests, this court has indicated a
willingness to abandon the distinction”) (citing Johnson, 234 F.3d at 508 n.
7). However, there is a crucial difference regarding the application of the
fourth Mendoza factor, i.e. whether “the harassment was sufficiently severe
or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment,” Hulsey, 367 F.3d at 1244
(citing Mendoza, 195 F.3d at 1245), depending on whether a plaintiff is
proceeding under a hostile work environment theory or a tangible
employment action theory. 9 Under the tangible employment action theory,
“if a supervisor retaliates against a worker for failing to give in to sexual
advances, those advances will rise to the level of ‘severe or pervasive.’”
Hulsey, 367 F.3d at 1245–49, in which the plaintiff contended that the defendant
was liable to her based on both theories, provides a good illustration of the difference
between the application of the fourth Mendoza factor to a tangible employment action
theory and its application to a hostile work environment theory. Only when analyzing
liability on the hostile work environment theory did the court consider whether the
wrongdoer’s actions were of a frequency, degree, and nature that would qualify as
‘severe and pervasive.’ Id. Additionally, the Eleventh Circuit has described the difference
between the two theories of liability as follows: “To prove sexual harassment in violation
of Title VII, a plaintiff may rely on one of two theories. Under the first theory, the
plaintiff must prove that the harassment culminated in a ‘tangible employment action’
against her. Under the second or ‘hostile work environment’ theory, the plaintiff must
prove that she suffered ‘severe or pervasive conduct.’” Cotton v. Cracker Barrel Old
Country Store, 434 F.3d 1227, 1231 (11th Cir. 2006).
Johnson, 234 F.3d at 508 n. 7. Consequently, when, as here, a plaintiff
alleges liability for sexual harassment based on a tangible employment
action theory, whether she satisfies the fourth and fifth Mendoza factor
collapses into one inquiry: whether there is a basis for holding the employer
liable because a supervisor took tangible employment action against the
plaintiff for failing to comply with the supervisor’s sexual demands.
Whether the supervisor’s alleged harassment was of a frequency, degree,
and nature that would qualify as ‘severe and pervasive’—as Cardinal Health
contends Ruggs’s does not—is irrelevant to the court’s analysis of a tangible
employment action claim.
Turning now to the specific contentions before the court, Cardinal
Health argues that Lowe’s alleged harassment did not result in a tangible
employment action because Ruggs was not Lowe’s supervisor since he did
not have the authority to discharge her or participate in the decision to
discharge her. Doc. 28 at 17. At a minimum, an issue of fact exists on the
supervisory issue because Lowe contends, and the evidence (including
Ruggs’s warnings to Lowe about her production) supports Lowe’s
contention, that Ruggs had supervisory authority over her. Moreover,
whether Ruggs lacked the authority to discharge or participate in the
decision to discharge is not dispositive because, in this circuit, “a ‘cat’s paw’
theory of recovery may apply when a biased actor recommends that an
adverse employment action be taken against an employee, [even though] the
biased actor is not the ultimate decision-maker.” Williamson v. Adventist
Health Sys./Sunbelt. Inc., 372 F. App’x 936, 938 (11th Cir. 2010) (citing
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999)).
Furthermore, even if an:
employer does attempt to confine decision[-]making power to a small
number of individuals, those individuals will have a limited ability to
exercise independent discretion when making decisions and will likely
rely on other workers who actually interact with the affected
employee. . . . Under those circumstances, the employer may be held
to have effectively delegated the power to take tangible employment
actions to the employees on whose recommendations it relies.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2452 (2013). When viewed under
this framework, although Cardinal Health insists that Valdez and Posey
alone decided to discharge Lowe, a jury question exists because the record
indicates that they sought out Ruggs’s opinion and assistance. See docs. 28-2
at 10–11 (describing the formal process used to investigate an employee who
curses at a supervisor, which includes gathering statements); 28-3 at 39, 41–
42 (explaining that Ruggs notified Posey of the incident via email and
gathered all of the witness statements in the formal investigation).
In addition to Ruggs’s involvement in the incident that triggered the
discharge, Ruggs also played a role in the earlier disciplinary steps that
culminated ultimately in the discharge. These earlier disciplinary incidents
that advanced Lowe to the next level show that the so-called decisionmakers in the discharge had “a limited ability to exercise independent
discretion . . . [that they] likely rel[ied] on other workers who interact[ed]
with the affected employee . . . [and may] have effectively delegated the
power to take tangible employement action . . . .” Vance, 133 S. Ct. at 2452.
Ruggs’s involvement in Lowe’s discipline began on March 6, when Ruggs
issued a Coach and Counsel notice to Lowe for “high error volume” and
“continuous customer complaints.” Doc. 28-1 at 53. Lowe made her
complaint against Ruggs on May 16. Doc. 28-1 at 14. On June 5, Lowe
received a Written Warning from Posey for initially withholding information
about the alleged inappropriate relationship between Burwell and Ruggs
when Lowe reported Ruggs on May 16.10 Id. at 54. Six days after this
discipline, Ruggs issued Lowe’s Final Warning for alleged low productivity
rates. Id. at 55. Following Lowe’s alleged outburst, on July 3, Ruggs sent
Posey an email detailing the event, and gathered statements from other
employees about the incident, knowing that any discipline would result in
Lowe’s discharge. Docs. 28-3 at 41, 45; 28-2 at 35. After Posey read
Interestingly, although another employee also reported that Ruggs had a sexual
relationship with Burwell, there is no indication from the record that Cardinal Health
disciplined Ruggs. Rather, the only person disciplined was Lowe for purportedly
withholding information about the alleged Ruggs/Burwell relationship.
Ruggs’s email, Posey stated, “the termination was relatively cut and dry in
my opinion,” doc. 28-2 at 35, even though there is no indication he or
anyone else in management ever directly spoke to the employees from
whom Ruggs collected the statements. As the record plainly shows, without
the earlier disciplinary write-ups issued by Ruggs, Lowe never would have
advanced to the later steps, and without Ruggs’s input and investigation into
the July 3rd incident, Posey and Valdez would have had no cause to
discharge Lowe. Id. In sum, there is evidence that Ruggs, at a minimum,
played a role in three of the four disciplinary actions that culminated in
Lowe’s discharge. Therefore, whether Ruggs influenced Posey’s and
Valdez’s decision based on discriminatory animus is a question for a jury.
In the final analysis, the record contains sufficient evidence to indicate
that an issue of material fact exists as to whether Ruggs took an adverse
employment action against Lowe or influenced the decision in a manner that
could render Cardinal Health liable to Lowe. Consequently, Cardinal
Health’s motion on Lowe’s sexual harassment claim is due to be denied. 11
Although Cardinal Health proffers a legitimate, nondiscriminatory reason for
Lowe’s termination, namely that she violated Cardinal’s Standards of Conduct, and the
record contains evidence supporting Cardinal Health’s contention, in this circuit, the
McDonnell Douglas-Burdine burden-shifting framework is not applicable to sexual
harassment claims: “We are unwilling to read the McDonnell Douglas-Burdine
framework into non-retaliation sexual harassment cases at this point. These types of cases
have evolved quite separately from other Title VII cases, and applying a burden-shifting
Lowe alleges that Cardinal Health discharged her in retaliation for
reporting Ruggs’s sexual harassment. Doc. 34 at 14–18. When evaluating a
claim of retaliation under Title VII, in the absence of direct evidence, courts
apply the burden-shifting framework laid out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under this standard, the first step is for the
plaintiff to establish a prima facie case, which in the retaliation context
requires that “a plaintiff must demonstrate that (1) she engaged in statutorily
protected activity; (2) she suffered a materially adverse employment action;
and (3) there was a causal link between the protected activity and the
subsequently materially adverse employment action.” Brush v. Sears
Holding Corp., 466 F. App’x 781, 786 (11th Cir. 2012) (citing Butler v. Ala.
Dep’t of Transp., 536 F.3d 1209, 1212 (11th Cir. 2008)). Cardinal Health
challenges only the third prong, and contends that Lowe has failed to show
that a causal link exists between her report of sexual harassment and her
discharge. Doc. 28 at 22–23.
To satisfy the causation requirement, a plaintiff must produce
evidence that the employer’s “desire to retaliate” against the protected
analysis to them would be a departure from precedent.” Johnson, 234 F.3d at 511 (citing
Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th Cir.1982)).
activity was the “but-for cause” of the adverse employment action. Univ. of
Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2521 (2013). Additionally,
the Supreme Court has held “if a supervisor performs an act motivated by
discriminatory animus that is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable . . . .” Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1194 (2011). Also,“[t]he burden of causation can be
met by showing close temporal proximity between the statutorily protected
activity and the adverse action.” Adams v. City of Montgomery, 569 F.
App’x 769, 773 (11th Cir. 2014) (citing Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007)). “But mere temporal proximity,
without more, must be ‘very close.’” Id. (quoting Thomas, 506 F.3d at
1364). The Eleventh Circuit has provided little guidance regarding how
much time must elapse between protected activity and an adverse action
before temporal proximity, alone, is insufficient to establish causation, aside
from remarking, several times, that “a three month interval between the
protected expression and the employment action . . . is too long.” Brown v.
Ala. Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010) (citing Thomas,
506 F.3d at 1364); see also Jiles v. United Parcel Serv., Inc., 360 F. App’x
61, 65–66 (11th Cir. 2010) (citing Thomas, 506 F.3d at 1364; Higdon v.
Jackson, 393 F.3d 1211, 1220–21 (11th Cir. 2004)).
Here, the interval between the protected activity and the beginning of
adverse action is much shorter than the three-month lapse rejected as
insufficient by the Eleventh Circuit. Lowe engaged in protected activity
when she reported Ruggs’s harassment to Cardinal Health’s ACC hotline on
May 16, 2012. Doc. 28-1 at 14. Just three weeks later, on June 6, 2012, she
received a written warning for failing to fully disclose her knowledge about
Ruggs’s relationship with Burwell during her initial interview with LeDuc
and Posey. Id. at 54. Five days after that, Ruggs issued an additional warning
to her for failing to meet production goals. Id. at 55. A month later, on July
16, 2012, after her confrontation with Ruggs, Cardinal Health discharged
her. Id. at 56. In sum, beginning just three weeks after she engaged in
protected activity, Lowe was subjected to three adverse employment actions
over the course of two months: two warnings and, ultimately, discharge. The
court finds that this temporal proximity is sufficient evidence of causation to
satisfy Lowe’s burden of establishing a prima facie case of retaliation.
Under the McDonnell Douglas framework, “the successful assertion
of a prima facie case then creates a rebuttable presumption that the employer
unlawfully discriminated against the plaintiff.” Rioux v. City of Atlanta, 520
F.3d 1269, 1275 (11th Cir. 2008) (citations omitted) (internal quotation
marks omitted). The burden then shifts to the employer to produce evidence
that it had a legitimate non-discriminatory reason for the challenged action.
Id. Cardinal Health contends that Lowe’s consistently low productivity
rates, failure to be forthcoming in an investigation, and confrontation with
Ruggs were the causes of its progressive disciplinary actions against Lowe,
as well as the causes for its ultimate decision to discharge her. Doc. 28 at
21–22. These reasons are sufficient to satisfy Cardinal Health’s burden.
Consequently, the burden shifts back to Lowe to “show that the proffered
reason really is a pretext for unlawful discrimination.” Rioux, 520 F.3d at
1275 (citations omitted) (internal quotation marks omitted). To demonstrate
pretext Lowe must show “that the employer’s proffered reason [for her
discharge] was false and that the true motive for the action was
discriminatory.” Thomas v. CVS/Pharmacy, 336 F. App’x 913, 914 (11th
Cir. 2009) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 151 (1993)).
“To survive summary judgment, [Lowe] need only show that a genuine issue
of material fact in dispute could lead a rational trier of fact to make a finding
of pretext.” Id. (citing Chapman v. AI Transp., 229 F.3d 1012, 1024–25.
Based on a review of the record, there are at least two grounds for
finding that the reasons articulated by Cardinal Health were pretextual. First,
as explained more thoroughly above, Ruggs, the alleged tortfeasor, played a
crucial role in three of the four disciplinary actions that culminated in
Lowe’s discharge. Moreover, for the last two, he did so with the knowledge
that Lowe had accused him of sexual harassment and after expressing
resentment toward her and a desire for her to face consequences for her
complaint against him. See Doc. 28-2 at 26–27 (Posey’s testimony that when
he interviewed Ruggs regarding Lowe’s allegations, Ruggs became upset
and said “What are you going to do with Jasminda. She is lying”; see also
doc. 28-1 at 22 (Lowe’s testimony that Ruggs referenced “all that crap you
brought up” during their July 3, 2012 confrontation). Critically, Ruggs
testified that, prior to reporting the July 3 confrontation between himself and
Lowe, he knew that Lowe was on Final Warning and any additional
disciplinary incident would result in her discharge. Doc. 28-3 at 45.
Second, the record contains evidence that Cardinal Health failed to
discipline other employees who engaged in similar conduct as Lowe. “A
typical means of establishing pretext is through comparator evidence.”
Walker v. St. Joseph’s/Candler Health Sys., 506 Fed. App’x. 886 (11th Cir.
2013) (citing Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th
Cir. 2001); Sparks v. Pilot Freigh Carriers, Inc., 830 F.2d 1554, 1563 n. 20
(11th Cir. 1987)). Specifically, Cardinal Health issued a written warning to
Lowe on June 6, 2012 (advancing her to Step Two), when Posey and LeDuc
determined Lowe initially withheld information during their investigation of
the allegations she made in her May 16 telephone call to Cardinal Health
hotline because she subsequently provided additional information about the
alleged Ruggs/Burwell relationship. Docs. 28-1 at 54; 28-2 at 17. However,
when Brown, another warehouse associate, also provided additional
information about the same relationship, he was not disciplined. 12 See
generally doc. 47-13 *SEALED* (Brown’s personnel file). Finally, although
Cardinal Health contends it ultimately discharged Lowe in response to her
July 3, 2012 altercation with Ruggs, Lowe testified that she witnessed
Burwell yelling and cursing at Ruggs on multiple occasions, and that
Cardinal Health never disciplined Burwell. Doc. 28-1 at 16–17. In addition,
Posey also stated that he had heard other employees cursing but did not
discipline them, and would not do so unless someone complained about the
language. Doc. 28-2 at 10. These discrepancies are sufficient for Lowe to
raise a jury issue.
Brown also provided information regarding the alleged relationship between
Ruggs and Burwell to Posey in 2012. Doc. 47-12 *SEALED* at 3. Brown followed up
after his additional interview and provided additional information about the relationship.
Id. In his May 17, 2012 statement, Brown states “[a]t one time, in a conversation with
Everett Posey, I expressed concerns that something along the Burwell/Ruggs situation
might be happening without directly stating that it was going on.” Id. Cardinal Health did
not discipline Brown for providing additional information. Doc. 47-13 *SEALED*.
In sum, Lowe has presented evidence that could lead a reasonable jury
to conclude, if it is so inclined, that Cardinal Health’s proffered reasons for
her discharge were pretext for retaliation. As is often the case in the Title VII
context, the resolution of Lowe’s retaliation claim—and, indeed, her sexual
harassment claim, hinges on whether the jury believes Lowe’s version of
events or that of the alleged tortfeasor, Ruggs. Because credibility
determinations are the proper province of a jury, see Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007), Cardinal
Health’s motion on Lowe’s retaliation claim is also due to be denied.
C. Invasion of Privacy
Lowe seems to contend that by asking her to spend the night with him
at a hotel and touching her shoulders while saying “you look sexy,” Ruggs
committed the tort of invasion of privacy, for which Cardinal Health can be
held vicariously liable. Doc. 1 at 10–11. Invasion of privacy is “the wrongful
intrusion into one’s private activities in such a manner as to outrage or cause
mental suffering, shame, or humiliation to a person of ordinary sensibilities.”
McIssac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala. 1986). However,
Alabama courts have consistently required allegations of egregious conduct
to sustain a claim. See id. at 152 (noting that “[e]ven the dire affront of
inviting an unwilling woman to illicit intercourse has been held by most
courts to be no such outrage as to lead to liability” for the tort of invasion of
privacy) (citing Logan v. Sears, Roebuck & Co., 466 So. 2d 121, 124 (Ala.
1985); W. Prosser, Law of Torts, 54–55 (4th ed. 1971)). Specifically,
Alabama courts have generally required invasion of privacy claims to allege
both ongoing, persistent verbal harassment and unwanted physical contact. 13
In light of these stringent requirements, and in the absence of any
legal support for Lowe’s contention, the court concludes that no reasonable
jury could find Ruggs liable for the tort of invasion of privacy based solely
on one inquiry to share a hotel room, a single incident of physical contact
and comments such as “you look sexy” and “you smell sex.” Doc. 28-1 at 9–
10. Consequently, Cardinal Health’s motion on the invasion of privacy claim
See, e.g., Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1194 (Ala. 1998)
(substantial evidence supported lower court’s finding that defendant committed invasion
of privacy when the plaintiff presented evidence that the defendant repeatedly touched
her in a manner that was unwelcome and with sexual overtones, “made several lewd
comments[,] asked [the plaintiff] to meet him outside of work for other than business
purposes[,] . . . [and] looked up [the plaintiff’s] skirt on more than one occasion”));
Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 711 (Ala. 1983) (finding that the
facts of the case supported an invasion of privacy claim when the plaintiff testified that
the defendant called her into his office, locked the door, and interrogated her about her
sexual relationship with her husband, repeatedly demanded sexual favors from her,
reacted violently when she refused, “[o]n one occasion struck her across the buttocks
with his hand[, and o]n still another occasion, . . . began papering his office window, thus
obscuring the view of those in the surrounding area, in pursuit of what he hoped would be
the consummation of lurid propositions to [the p]laintiff”); Cunningham v. Dabbs, 703
So. 2d 979, 980–81, 982 (Ala. Civ. App. 1997) (finding that a reasonable jury could
conclude the defendant intruded on the plaintiff’s privacy when the uncontested evidence
showed that the defendant “frequently rubbed [the plaintiff’s] shoulders and repeatedly
made lewd and suggestive comments to her, including suggestions that they have sex”
and on one occasion “leaned over her as if he were going to whisper something to her and
stuck his tongue in her ear”).
is due to be granted. See Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143, 155
(Ala. 2005) (stating that “the dismissal of the tort claims against the agent . .
. exonerated the principal . . . from liability for those alleged torts”).
D. Negligent/Wanton Training, Supervision, and/or Retention
Finally, Lowe asserts that because Ruggs sexually harassed her and
she experienced an adverse employment action after she reported the
harassment, Cardinal Health was negligent and/or wanton in its training,
supervision, and/or retention of Ruggs. Doc. 34 at 30. To establish this
claim, a plaintiff must show that the employer:
“(1) had actual knowledge 14 of the tortious conduct of the
offending employee and that the tortious conduct was directed at and
visited upon the complaining employee; (2) that based upon this
knowledge, the employer knew, or should have known, that such
conduct constituted sexual harassment and/or a continuing tort; and
(3) that the employer failed to take ‘adequate’ steps to remedy the
Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999)
(quoting Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992)).
Courts have been inconsistent with their scienter requirements for these causes
of action. See e.g., Baldwin, 480 F.3d at 1309 (citing Stevenson v. Precision Standard,
Inc., 762 So. 2d 820, 824 (Ala. 1999); Thompson v. Havard, 235 So. 2d 853, 858 (Ala.
1970)) (“As to [the plaintiff’s] negligence claims, she must show that Blue Cross had
actual knowledge of Head's harassment and did nothing about it (for negligent retention)
or would have known about the harassment had it exercised due and proper diligence (for
negligent training and supervision.”). A thorough discussion of the matter is unnecessary
here because the disposition of Lowe’s negligent/wanton training, supervision and/or
retention claims hinges on whether Cardinal Health took adequate steps to remedy the
Lowe has not presented any evidence that Cardinal Health could have
known about the alleged sexual harassment prior to her report on May 16,
2012. Nonetheless, Lowe seems to argue that Cardinal Health is liable
because it did not take adequate steps to investigate her report and failed to
discipline Ruggs. The court disagrees because although Lowe received a
copy of Cardinal Health’s anti-harassment policy, she failed to report the
sexual harassment at the time it occurred. Doc. 28-1 at 30. Moreover, when
Lowe reported Ruggs on May 16, 2012, Cardinal Health promptly
investigated the allegations––including obtaining written statements and
conducting interviews. Docs. 28-1 at 31, 60–61; 28-2 at 31, 57. Ultimately,
Cardinal Health was unable to substantiate Lowe’s allegations, doc. 28-2 at
44, and, perhaps as a result, chose not to discipline Ruggs. The failure to
discipline Ruggs, however, does not mean that Cardinal Health “did nothing
about [the alleged harassment].” Baldwin, 480 F.3d at 1309; see also Walton
v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1288 (11th Cir. 2003)
(citing EEOC Notice No. 915.002) (stating that, in the Title VII context
“remedial measures should be designed to stop the harassment, correct its
effects on the employee, and ensure that the harassment does not recur”);
Debord v. Mercy Health Sys. Of Kan., Inc., 737 F.3d 642, 654 (10th Cir.
2013) (“[C]orrective action does not always require discipline” of the
harasser.); c.f. Mills v. Wex-Tex Indus., 991 F. Supp. 1370, 1390–91 (M.D.
Ala. 1997) (denying the defendant’s motion for summary judgment on the
plaintiff’s Alabama negligent/wanton retention claim because “[t]he facts
establish[ed] that even after [the defendant] took some remedial measures,
the harassing conduct continued”). The key inquiry, under these
circumstances, is whether the alleged sexual harassment continued after
Lowe’s complaint and, from the record here, it did not. Consequently,
Cardinal Health’s motion for summary judgment on Lowe’s negligent and/or
wanton supervision, training and/or retention claim is due to be granted.
For the reasons fully explained above, Cardinal Health’s motion for
summary judgment is due to be denied on the Title VII sexual harassment
and retaliation claims and granted on the state law claims. The court will
enter a separate order consistent with this opinion.
DONE the 14th day of October, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT
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