Whisenant v. CSX Transportation Inc et al

Filing 40

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/11/15. (SAC )

FILED
2015 Mar-11 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT D. WHISENANT,
Plaintiff,
v.
CSX TRANSPORTATION, INC., et
al,
Defendants.

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CIVIL ACTION NO.
2:13-CV-1730-WMA

MEMORANDUM OPINION
The complaint filed by plaintiff Robert D. Whisenant
contains a claim of retaliation under Title VII against defendant
CSX Transportation, Inc (“CSX”) and two claims against defendant
Camille Lockhart under Alabama state law for tortious
interference and defamation. (Doc. 1 at 4-5).

Before the court

are motions for summary judgment1 respectively filed by CSX (Doc.

1

Summary judgment must be granted if “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Where there is a dispute, the facts are presented in the light
most favorable to the non-moving party. “The movant ‘bears the
initial responsibility of informing the district court of the
basis of its motion’ by identifying those portions of the record
that demonstrate the absence of genuine issues of material fact.”
Baldwin County, Ala. v. Purcell Corp., 971 F.2d 1558, 1563 (11th
Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Thereafter, the burden shifts to the non-movant to go
beyond the pleadings and present specific evidence showing that
there is a genuine issue of material fact or that the moving
party is not entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(e); see also Celotex, 477 U.S. 317, 324. Conclusory
allegations or legal conclusions are not enough. See Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
1

31) and Lockhart (Doc. 33).

For the reasons stated below, both

defendants’ motions for summary judgment will be granted.
I.

Retaliation
Under Title VII, a prima facie case for retaliation requires

a plaintiff to show that “(1) [he] participated in a statutorily
protected activity; (2) [he] suffered a materially adverse
employment action; and (3) there is a causal connection between
the two.” Evans v. Books-A-Million 762 F.3d 1288, 1298 (11th Cir.
2014).

“Even if an employment practice is not as a matter of

fact unlawful, a plaintiff can establish a prima facie case of
Title VII retaliation if he shows that he had a good faith,
reasonable belief that the employer was engaged in unlawful
employment practices.” Dixon v. The Hallmark Companies, Inc., 627
F.3d 849, 857 (11th Cir. 2010).
However, it is “the bedrock principle [of Title VII] that
not all objectionable conduct or language amounts to
discrimination under Title VII . . . general vulgarity or
references to sex that are indiscriminate in nature will not,
standing alone, generally be actionable.

Title VII is not a

‘general civility code.’” Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 809 (11th Cir. 2010) (quoting
City of Boca Raton, 524 U.S. 775, 788 (1998)).

Faragher v.

“[I]n order to be

actionable under the [Title VII] statute, a sexually
objectionable environment must be both objectively and
2

subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so.” Faragher, 524 U.S. at 787.

“Properly applied, they

will filter out complaints attacking the ordinary tribulations of
the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing.” Id. at 787-88
(quotation marks omitted).
In this case, Whisenant alleges that CSX retaliated against
him for complaining to a supervisor about a single off-color
joke2 he overheard another of his supervisors tell at a meeting
in an adjacent room. (Doc. 32-14 at 34-35).

While Whisenant may

have personally thought his supervisor’s joke to be offensive
(Doc. 32-14 at 34), “no reasonable person could have believed
that the single incident . . . violated Title VII’s standard.”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001).
Whisenant himself admits that “you can expect men to tell that
joke in front of men,” finding the incident offensive merely
“[i]n the context of a woman telling that joke in front of about
seven, eight, nine men.” (Doc. 32-14 at 34).

Whisenant further

admits that the “joke by [his supervisor] is the only comment
that [he is] referring to that [he] thought was offensive.” (Doc.
32-14 at 35).

Title VII protection does not extend to the mere

2

Whisenant alleges the joke in question is “Who was the
most popular man at a nudist camp? . . . it’s the man that can go
get two cups of coffee and 13 doughnuts.” (Doc. 32-14 at 33).
3

“simple teasing, offhand comments, and isolated incidents” common
in certain work environments. Breeden, 532 U.S. at 271.

When

construed in the light most favorable to Whisenant, at best, this
single off-color joke constituted no more than an uncomfortable
workplace occurrence well short of the kind of sexual harassment
Title VII protects from retaliation after being complained of.
Therefore, summary judgment in favor of CSX is appropriate
because Whisenant fails to raise sufficiently a protected
activity under Title VII.
II.

Tortious interference
The court could dismiss without prejudice the claims brought

under Alabama tort law for lack of subject matter jurisdiction
because of the disappearance of the federal question as to which
they are appended.

But, because of statute of limitations

concerns and judicial economy, the court chooses to continue its
exercise of supplemental jurisdiction.
Under Alabama law, the tort of intentional interference with
a contractual or business relationship requires “(1) the
existence of a protectible business relationship; (2) of which
the defendant knew; (3) to which the defendant was a stranger;
(4) with which the defendant intentionally interfered; and (5)
damage.” White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14
(Ala. 2009) (emphasis added).

Under Alabama’s “stranger”

requirement:

4

One cannot be guilty of interference with a contract even if
one is not a party to the contract so long as one is a
participant in a business relationship arising from
interwoven contractual arrangements that include the
contract. In such an instance, the participant is not a
stranger to the business relationship and the interwoven
contractual arrangements define the participant's rights and
duties with respect to the other individuals or entities in
the relationship. If a participant has a legitimate economic
interest in and a legitimate relationship to the contract,
then the participant enjoys a privilege of becoming involved
without being accused of interfering with the contract.
Walter Energy, Inc. v. Audley Capital Advisors LLP, 2015 WL
731152, at *6 (Ala. Feb. 20, 2015) (quoting

Waddell & Reed, Inc.

v. United Investors Life Ins. Co., 875 So. 2d 1143, 1157 (Ala.
2003)).
Generally speaking, an independent contractor’s relationship
with the party for whom it performs work, is independent from
that entity’s relationships with its employees, Latham v.
Precision Strip, Inc., 2013 WL 6196105, at *4 (N.D. Ala. Nov. 27,
2013).

In this case Lockhart’s particular contractual

arrangement with CSX established certain rights and duties vis-avis Lockhart and CSX employees.

In her contract with CSX,

Lockhart agreed in pertinent part:
. . . to periodically meet with CSX Transportation Inc.
Management personnel to discuss any issues concerning
cleaning responsibilities and safety matters . . . [and] to
route concerns, observations and or comments to the
management of CSX Transportation Inc. (Doc. 34-2 at 2).
Lockhart additionally agreed “to cooperate with CSX [] employees
to accommodate the property in providing cleaning services at
such other time as any is requested from time to time.” (Doc. 345

2 at 2).

Consistent with these contractual rights and duties,

Lockhart discussed with CSX the issues and concerns involving
Whisenant that her staff had raised with her. (Doc. 34-1 at 3-19;
Doc. 34-3 at 1-2; Doc. 37-5 at 1-2).

Therefore, even though

Lockhart was not a party to Whisenant’s employment relationship
with CSX, Lockhart is not a stranger to the relationship given
the interwoven contractual arrangements between her, CSX, and CSX
employees.

Lockhart’s contract with CSX defined her rights and

duties not only with respect to CSX but other entities in the
relationship, including CSX employees.

Within the domain of

performing her company’s cleaning duties at CSX, Lockhart enjoyed
the privilege of becoming involved with CSX and its employees
without being subject to a legally cognizable claim of
interfering with the contracts of CSX employees.

Therefore, on

Whisenant’s claim for tortious interference, summary judgment in
favor of Lockhart is appropriate because Lockhart is not a
stranger to the contract.
III.

Defamation
In Alabama, “[t]o establish a prima facie case of

defamation, the plaintiff must show [1] that the defendant was at
least negligent, . . . [2] in publishing [3] a false and
defamatory statement to another [4] concerning the plaintiff . .
. , [5] which is either actionable without having to prove
special harm (actionable per se) or actionable upon allegations

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and proof of special harm (actionable per quod).” Gary v. Crouch,
867 So. 2d 310, 315 (Ala. 2003).

“Where a party makes a

communication, and such communication is prompted by duty owed
either to the public or to a third party . . . the communication
is privileged.” Ex parte Blue Cross & Blue Shield of Alabama, 773
So. 2d 475, 478-79 (Ala. 2000) (quoting Berry v. City of New York
Ins. Co., 98 So. 290, 292 (1923)).

“The duty under which the

party is privileged to make the communication need not be one
having the force of legal obligation, but it is sufficient if it
is . . . moral in its nature.” Id.
Here, Lockart’s communication with CSX about Whisenant is
privileged because it was made pursuant to her contractual
obligations as an independent contractor of CSX.

Under the

contract, Lockhart agreed to “route concerns, observations and or
comments to the management of CSX.” (Doc. 34-2 at 2).

In accord

with this contractual duty, Lockhart communicated to CSX her own
workers’ concerns and observations about Whisenant. (Doc. 34-1 at
8-12).
Alternatively, Whisenant asserts that Lockhart exceeded the
scope of the privilege by including alleged specific vulgar
statements about his supervisor being a “bitch” and “fucking her
way to the top,” which were not included in the written statement
provided by Lockhart’s employee, Pamela Rice. (Doc. 36 at 30;
Doc. 37-2 at 2-5).

Whisenant’s argument overlooks the fact that

7

in addition to relying on, and later transmitting to CSX, Rice’s
written statement, Lockhart’s communication to CSX about
Whisenant was also largely based on Lockhart’s in person meeting
with her employees (which included Rice). (Doc. 34-1 at 8-12;
Doc. 39 at 2-3).

Whisenant does not dispute the fact that such a

meeting occurred or that Lockhart’s employees told her about the
specific vulgar statements in question, but instead Whisenant
offers a theory of mistaken identity where the “Robert” that
Lockhart and her employees reported to CSX was not Whisenant, but
another “Robert.” (Doc. 32-14 at 25-26).

Even if Whisenant’s

mistaken identity theory could be proven, it would not put
Lockhart’s communication to CSX outside the scope of the
privilege.

Consistent with her contractual duty to CSX, Lockhart

communicated to CSX specific concerns about a “Robert,”
communication that fully enjoys privilege from liability for
defamation. (Doc. 34-3 at 1-2).

Therefore, on Whisenant’s claim

for defamation, summary judgment in favor of Lockhart is
appropriate because her communication to CSX was privileged.
CONCLUSION
For the reasons detailed above, the court will by separate
order grant defendants’ motions for summary judgment as to all
claims.

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DONE this 11th day of March, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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