Jones v. Allstate Insurance Co
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 8/12/16. (SAC )
2016 Aug-12 PM 01:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMILIA D. JONES,
CIVIL ACTION NO.
ALLSTATE INSURANCE CO.,
consider multiple “but-for” employment discrimination claims in
light of the Eleventh Circuit’s recent opinion in Savage v.
Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th
Cir. May 25, 2016).
In Savage, the Eleventh Circuit broadly
read Federal Rule of Civil Procedure 8(d) to allow alternative
and contradictory theories of liability to avoid deciding the
“but-for” issue on a motion to dismiss during the pleading stage
of litigation.1 Id. at *1.
Yet unlike Savage, the above-entitled
The Eleventh Circuit’s curt per curiam opinion did not
explain how such a broad reading of Rule 8 squares with the
heightened pleading requirements for a prima facie case
outlined in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Instead, the
Eleventh Circuit reads Rule 8(d) in such a way as to lower the
talisman of Rule 8(a) to the bygone era of notice pleading and
liberal discovery. Cf. Conley v. Gibson, 355 U.S. 41, 47
(1957) abrogated by Twombly, 550 U.S. at 562-63.
action is well beyond the pleading
stage, the parties have
defendant Allstate Insurance Co. requests summary judgment on
all of the claims by plaintiff Jamilia D. Jones, namely Count I
(“ADA”), Count II alleging violation of the Family and Medical
Leave Act (“FMLA”), Count III alleging sexual harassment in
violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), and Count IV alleging retaliation in violation of Title
VII. (Doc. 33).
While the focus of a Rule 12(b)(6) motion to dismiss is
failure to state a plausible claim for relief, summary judgment
is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. Proc. 56(a). The court must “examine the
evidence in the light most favorable to the non-moving party,”
drawing all inferences in favor of such party. Earl v. Mervyns,
Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).
function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (per
curiam) (quoting Anderson v Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986))(emphasis added).
those determinations of the trial judge, in its gatekeeper
function at summary judgment, is the allowance of multiple “butfor” claims to be submitted to a jury.
While alternative pleading under Rule 8 may be enough to
permit multiple “but-for” claims on a motion to dismiss, “[a]
theories when one theory precludes the other or is mutually
exclusive of the other.”
Brookhaven Landscape & Grading Co. v.
J. F. Barton Contracting Co., 676 F.2d 516, 523 (11th Cir.
1982), adhered to, 681 F.2d 734 (11th Cir. 1982) (emphasis
“The pleading will not amount to an election unless a
choice is made with the full and clear understanding of the
problem, facts and remedies essential to the exercise of an
intelligent choice.” Allstate Ins. Co. v. James, 779 F.2d 1536,
1541 (11th Cir. 1986) (citing Guy James Constr. Co. v. Trinity
Industries, Inc., 644 F.2d 525 (5th Cir. May 8, 1981) (emphasis
added); see generally, C. Wright & A. Miller, Federal Practice
and Procedure: Civil § 1482 (1969 & Supp. 1985).
In this case
evident that Jones has a full and clear understanding of the
problem, facts, and remedies essential to the exercise of an
intelligent choice necessary to make an informed election of
remedies for the “but-for” cause of her injury.
See Guy James
Const. Co. v. Trinity Indus., Inc., 644 F.2d 525,
summary judgment stands as a bulwark against multiple “but-for”
claims beyond even the broadest reading of Rule 8 alternative
For the reasons stated below, defendant’s motion will be
granted as to all counts.
against her in violation of the ADA.
“To establish a prima
facie case of ADA discrimination, [plaintiff] ha[s] to show (1)
a disability, (2) that she was otherwise qualified to perform
the job, and (3) that she was discriminated against based upon
the disability.” Cleveland v. Home Shopping Network, Inc., 369
F.3d 1189, 1193 (11th Cir. 2004).
Jones’ PTSD is a disability, it argues that there is no genuine
issue of material fact that Jones was not a qualified individual
and that Jones suffered no adverse employment action because of
A. Qualified Individual
“[A]n ADA plaintiff must show either that [s]he can perform
the essential functions of h[er] job without accommodation, or
. . . that [s]he can perform the essential functions of h[er]
job with a reasonable accommodation.” Holly v. Clairson Indus.,
L.L.C., 492 F.3d 1247, 1256 (11th Cir. 2007).
While “the ADA
does not require the employer to eliminate an essential function
of the plaintiff's job . . . the ADA may require an employer to
restructure a particular job by altering or eliminating some of
its marginal functions.” Id. at 1256.
Jones worked as a claims specialist for Allstate where an
essential function of her job duties included answering customer
phone calls. (Doc. 33-1 at 11).
While Jones argues that with a
reasonable accommodation of more “breaks” she is a qualified
already allowed her 5 to 10 minute breaks (Doc. 31-1 at 31) and
that she could not recall being denied a break when she asked
(Doc. 33-1 at 31).
Further, after Jones returned from FMLA
leave in April 2012 (Doc. 33-1 at 10), she reported for work
only four days in May, zero days in June, and one full day in
July. (Doc. 33-4 at 43).
Jones argument for further breaks as
eliminate an essential function of her job.
See Williams v.
Revco Disc. Drug Centers, Inc., 552 F. App'x 919, 922 (11th Cir.
2014)(“an employer is not required to accommodate an employee in
any manner in which that employee desires . . . [n]or does the
ADA require an employer to eliminate an essential function of an
employee's job or reallocate job duties to change the essential
functions of a job”).
Jones herself admits that attendance was
required in order to perform her job at Allstate. (Doc. 33-1 at
Therefore, because Jones is not a “qualified individual”,
Allstate is entitled to summary judgment on Count I.
ADA discrimination and “but-for” causation
Despite Jones’ claim in Count I of discrimination on the
basis of a disability, she also claims Allstate took various
retaliation, sexual harassment in violation of Title VII, and
Therefore, summary judgment is appropriate because in light of
these other causes “a disability cannot be the ‘but-for’ cause
of [her] termination.” Thomas v. Kamtek, Inc., 143 F. Supp. 3d
1179, 1186 (N.D. Ala. 2015).
Jones own testimony illustrates the importance of a trial
court erecting “but-for” causation as a bulwark against multiple
Univ. of Texas Sw. Med. Ctr. v. Nassar, –––
U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) and Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d
Jones cannot show her disability was the “but-for”
cause of any adverse employment action by Allstate. (Doc. 33-1
Specifically, Jones claims an adverse change in her job
duties (Doc. 24 at 8), yet there is
evidence that her
disability was the “but-for” cause of this employment action
having no reason to believe it was related to her complaint of
sexual harassment, her FMLA claim, or her PTSD. (Doc. 33-1 at
Jones claims she was adversely denied breaks during the
disability was the “but-for” cause of this employment action
being unable to recall one instance when she was not permitted
to take a break (Doc. 33-1 at 31).
Finally, Jones claims she
was constructively discharged (Doc. 24 at 7-8), yet there is no
evidence that her disability was the “but-for” cause of this
employment action having been granted her requested transfer
(Doc. 33-1 at 9-10), given significant FMLA leave (Doc. 33-1 at
10), received numerous breaks during the day (Doc. 33-1 at 31),
and voluntarily resigning with two weeks written notice (Doc.
33-1 at 6, 30); see Siudock v. Volusia Cty. Sch. Bd., 568 F.
App'x 659, 664 (11th Cir. 2014) (“[a] constructive discharge
substantial evidence that employment conditions were intolerable
. . . we do not consider a plaintiff's subjective feelings about
his employer's actions, but whether a reasonable person in the
plaintiff's position would be compelled to resign”).
summary judgment on Count I is appropriate because even in the
light most favorable to Jones, she cannot show her disability
was the “but-for” cause of any of her alleged adverse employment
“[T]he FMLA creates two types of claims: interference
claims, in which an employee asserts that his employer denied
or otherwise interfered with his substantive rights under the
Act, see 29 U.S.C. § 2615(a)(1), and retaliation claims, in
which an employee asserts that his employer discriminated
against him because he engaged in activity protected by the
Act, see 29 U.S.C. § 2615(a)(1) & (2); 29 C.F.R. §
825.220(c).” Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (emphasis
In Count II, Jones does not allege Allstate
interfered with her FMLA rights, but instead alleges that
Allstate retaliated against her for taking FMLA leave time.
(Doc. 24 at 8-9; Doc. 33-1 at 31).
To establish a prima facie
case of FMLA retaliation, a plaintiff must show that “(1) she
engaged in a statutorily protected activity; (2) she suffered
an adverse employment decision; and (3) the decision was
casually related to a protected activity.” Pereda v. Brookdale
Senior Living Communities, Inc., 666 F.3d 1269, 1275 (11th
FMLA Retaliation Requires “But-for” Causation
Unlike FMLA interference, “a plaintiff bringing a
retaliation claim faces the increased burden of showing that
his employer's actions were motivated by an impermissible
retaliatory or discriminatory animus.” Strickland, 239 F.3d at
Because this increased burden to show an employer’s
intent also requires a heightened level of causation, the
Eleventh Circuit has analyzed FMLA retaliation congruently
with Title VII retaliation borrowing applicable case law. See
e.g., Brungart v. BellSouth Telecommunications, Inc., 231 F.3d
791, 798 (11th Cir. 2000) ("When evaluating a claim of
retaliation under the FMLA . . . we apply the burden-shifting
framework . . . for evaluating Title VII retaliatory discharge
While Nassar directly addressed “but-for” causation for
Title VII retaliation, the Eleventh Circuit has only
occasioned once to address the "but-for" issue for FMLA
retaliation, wherein it declined to address the issue.
Coleman v. Redmond Park Hosp., LLC, 589 F. App'x 436, 438-39
(11th Cir. 2014) ("we decline to address Redmond's argument
that we should require Coleman to prove that her FMLA leave
was the "but-for" cause of its decision not to rehire her,
given the posture of the case and the fact that the argument
was not raised below").
Unlike Coleman, this case requires
adjudication of the “but-for” issue on Jones’ FMLA retaliation
claim as contained in Count II.
This court applies the Gross
and Nassar “but-for” requirement to FMLA retaliation in light
of its text, structure, and history.
See Nassar, 133 S. Ct.
at 2534 (“[t]he text, structure, and history of Title VII
demonstrate that a plaintiff making a retaliation claim under
§ 2000e–3(a) must establish that his or her protected activity
was a but-for cause of the alleged adverse action by the
The Supreme Court’s “insistence on but-for causality has
not been restricted to statutes using the term “because of”
but rather extended to a panoply of commonplace synonyms.
Burrage v. United States, 134 S. Ct. 881, 889 (2014).
statutory text for FMLA retaliation states that “[i]t shall be
unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(1)(2)
While the FMLA does not use the precise
phrase “because of,” its use of the word “for” is within the
range of phrases whose ordinary meaning indicates a “but-for”
causal relationship. See Oxford English Dictionary 411 (1933)
(“Because of, on account of”); American Heritage Dictionary
(1976) (“conj. Because; Since”); and Webster's Ninth New
Collegiate Dictionary 481 (1986) (“for conj. (12c) : for the
reason that : on this ground:
Consistent with this
common usage of “for,” the Eleventh Circuit interprets FMLA
retaliation to require an employee to “assert that his
employer discriminated against him because he engaged in an
activity protected by the Act." Pereda v. Brookdale Senior
Living Communities, Inc., 666 F.3d 1269, 1272 (11th Cir. 2012)
“Just as Congress' choice of words is presumed to be
deliberate, so too are its structural choices.” Nassar, 133 S.
Ct. at 2529 (quoting Gross, 557 U.S. at 177, n.5).
when Congress amended Title VII, it displaced the framework of
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and wrote
the motivating factor provision in subsection § 2000e-2 at the
exclusion of all other Title VII claims, namely retaliation.
Nassar, 133 S. Ct. at 2529.
In 1993, when Congress adopted
the FMLA, it modeled FMLA retaliation after Title VII
Section 105(a)(2) makes it also unlawful for an employer
to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by
this title. This “opposition” clause is derived from
title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e–3(a)) and is intended to be construed in the same
manner. Under section 105(a) of this Act, as under title
VII of the Civil Rights Act, an employee is protected
against employer retaliation for opposing any practice
that he or she reasonably believes to be a violation.
S. Rep. No. 103-3, 103rd Cong., 1st Sess. (1993) at 34,
reprinted in 1993 U.S.C.C.A.N. 2 at 36; H.R. Rep. No.
103-8(I), 103rd Cong., 1st Sess. (1993).
also squares with the statute’s sex discrimination purpose
similar to Title VII.
Consistent with the FMLA’s text and structure, the
Eleventh Circuit has construed Title VII and FMLA retaliation
provisions together. See Hyde v. K.B. Home, Inc., 355 F. App'x
266, 272-73 (11th Cir. 2009).
In fact, just last year the
Eleventh Circuit summarily rejected an FMLA retaliation claim
“[f]or the same reasons as her Title VII retaliation claim.”
Green v. MOBIS Alabama, LLC, 613 F. App'x 788, 795 (11th Cir.
2015). Similarly, a parallel construction has been given by
other circuits. See e.g., Adams v. Anne Arundel Cty. Pub.
Sch., 789 F.3d 422, 429 (4th Cir. 2015) (“Retaliation claims
brought under the FMLA are analogous to those brought under
Title VII.”). Given this longstanding parallel construction,
the “but-for” principle in Nassar for Title VII ought to
similarly be applied to the FMLA. Sparks v. Sunshine Mills,
Inc., 2013 WL 4760964, at *17, n.4 (N.D. Ala. Sept. 4, 2013)
(“Thus, the Supreme Court’s determination that the “but for”
causation standard applies where an employee alleges
discrimination because he engaged in some protected activity
also applies in the FMLA context”).
Administrative law wrinkle
In Nassar, despite language in the EEOC Compliance Manual
stating that causation for retaliation was satisfied where
“there is credible direct evidence that retaliation was a
motive for the challenged action,” the Supreme Court found the
statutory language clear and of settled judicial construction
and further found the EEOC’s reasoning “circular,”
“unpersuasive,” and not entitled to any agency deference.
Nassar, 133 S. Ct. at 2533 (citing Skidmore v. Swift & Co.,
323 U.S. 134 (1944)).
Similar to the EEOC in Nassar, the
Department of Labor, the agency tasked with administering the
FMLA, has advocated a mixed-motive framework for FMLA claims.
See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d
294, 302 (3d Cir. 2012) (noting that the Department of Labor
took the position that Gross does not preclude FMLA mixedmotive claims in an amicus brief). However, unlike the EEOC’s
argument in Nassar, the Department of Labor’s argument is
grounded in the language of one of the agency’s regulations,
29 C.F.R. § 825.220(c) (2013).
The regulation provides:
The Act's prohibition against interference prohibits an
employer from discriminating or retaliating against an
employee or prospective employee for having exercised or
attempted to exercise FMLA rights. For example, if an
employee on leave without pay would otherwise be entitled
to full benefits (other than health benefits), the same
benefits would be required to be provided to an employee
on unpaid FMLA leave. By the same token, employers cannot
use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or
disciplinary actions; nor can FMLA leave be counted under
no fault attendance policies.
29 C.F.R. § 825.220(c) (emphasis added).
The Department of
Labor argues that this regulation “prohibits retaliation for
the exercise of one's FMLA rights, and does so even when the
exercise of those FMLA rights is only a motivating factor in
the retaliation [and that] [t]his regulation is entitled to
controlling deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984).” Brief for the
Secretaryy of Labor as Amicus Curiae in Support of
Plaintiff–Appellant, Document #1299263, Breeden v. Novartis
Pharm. Corp., 646 F.3d 43 (D.C. Cir. 2011) (Nos. 10–7073;
As an agency regulation, the Sixth Circuit already
has given controlling deference to this language under
Chevron. Bryant v. Dollar Gen. Corp., 538 F.3d 394, 399 (6th
Cir. 2008); see Hunter v. Valley View Local Sch., 579 F.3d
688, 691-92 (6th Cir. 2009) (relying on the “a negative
factor” language in 29 C.F.R. § 825.220(c) to conclude that
the FMLA allows a mixed-motive claim); cf. Ion v. Chevron USA,
Inc., 731 F.3d 379, 390 (5th Cir. 2013) (leaving unanswered
whether Nassar applies to FMLA-retaliation claims and
acknowledging the added wrinkle of the Department of Labor’s
regulation in 29 C.F.R. § 825.220(c)).
Yet deference under Chevron “is rooted in a background
presumption of congressional intent: namely, that Congress,
when it left ambiguity in a statute administered by an agency,
understood that the ambiguity would be resolved, first and
foremost, by the agency, and desired the agency (rather than
the courts) to possess whatever degree of discretion the
ambiguity allows.” City of Arlington, Tex. v. F.C.C., 133 S.
Ct. 1863, 1868 (2013) (quotes omitted).
only applies “if the statute is silent or ambiguous with
respect to the specific issue, [and next] the question for the
court is whether the agency's answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843.
FMLA clearly uses the word “for” in § 2615(a)(1)(2) leaving no
room for the Department of Labor to interpret the causation
required for a retaliation claim.
construction and determining levels of causation are
decisively judicial functions appropriate for evaluation by
courts rather than committed to the agency expertise of the
Department of Labor.
Therefore, the Department of Labor’s
interpretation is not entitled to controlling deference under
Furthermore, the Department of Labor’s interpretation is
not even entitled to persuasive authority under Skidmore.
Similar to the clear text, structure, and history of Title VII
in Nassar, the text, structure, and history of the FMLA
provide a strong basis for rejecting insertion of a mixedmotive framework. Additionally, persuasive “[d]eference is
undoubtedly inappropriate . . . when the agency's
interpretation is plainly erroneous or inconsistent with the
regulation.” Christopher v. SmithKline Beecham Corp., 132 S.
Ct. 2156, 2166 (2012).
Here, the Department of Labor’s
interpretation applying a motivating factor framework
contradicts its own official comment accompanying its
regulation, where the agency acknowledged that the FMLA and
Title VII are to be construed “in the same manner.” The Family
and Medical Leave Act of 1993, 60 FR 2180-01 (Jan. 6, 1995)
(“This opposition clause is derived from Title VII of the
Civil Rights Act of 1964 and is intended, according to the
legislative history, to be construed in the same manner. Thus,
FMLA provides the same sorts of protections to workers who
oppose, protest, or attempt to correct alleged violations of
the FMLA as are provided to workers under Title VII.”).
Therefore, the Department of Labor’s interpretation lacks any
persuasive force and is not entitled to any deference. See
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S. Ct.
468, 473-74, 102 L. Ed. 2d 493 (1988) (“Deference to what
appears to be nothing more than an agency's convenient
litigating position would be entirely inappropriate”).
B. Jones’ FMLA retaliation claim and “but-for” causation
Despite Jones’ claim in Count II of FMLA retaliation, she
also claims Allstate took various adverse employment actions
against her based on her disability, sexual harassment in
violation of Title VII, and retaliation in violation of Title
VII. (Doc. 24 at 4-16).
Therefore, summary judgment is
appropriate because in light of these other causes FMLA
retaliation cannot be the “but-for” cause of her termination.
See Kamtek, 143 F. Supp. at 1186; see also Nassar, 133 S.Ct.
2517 and Gross, 557 U.S. 167.
Jones cannot show her disability was the “but-for” cause
of any adverse employment action by Allstate. (Doc. 33-1 at
Specifically, Jones claims an adverse change in job
duties when placed on inbound calls only (Doc. 24 at 9), yet
there is no genuine issue of material fact that FMLA
retaliation was not the “but-for” cause of this employment
action having no reason to believe it was related to her
complaint of sexual harassment, her FMLA claim, or her PTSD.
(Doc. 33-1 at 39-40).
Jones claims she was adversely denied
breaks during the day (Doc. 24 at 4-8), yet there is no
evidence that FMLA retaliation was the “but-for” cause of this
employment action being unable to recall one instance when she
was not permitted to take a break (Doc. 33-1 at 31).
Jones claims she was constructively discharged (Doc. 24 at 78), yet there is evidence that FMLA retaliation the “but-for”
cause of this employment action having been granted her
requested transfer (Doc. 33-1 at 9-10), given significant FMLA
leave (Doc. 33-1 at 10), numerous breaks during the day (Doc.
33-1 at 31), and voluntarily resigning with two weeks written
notice (Doc. 33-1 at 6, 30); see Siudock, 568 F. App'x at 664.
Therefore, summary judgment is appropriate on Count II because
even in the light most favorable to Jones, she cannot show
FMLA retaliation was the “but-for” cause of any of her alleged
adverse employment actions.
“To prove a hostile work environment, the plaintiff must
show (1) that he or she belongs to a protected group; (2) that
the employee has been subject to unwelcome sexual harassment,
such as sexual advances, requests for sexual favors, and other
conduct of a sexual nature; (3) that the harassment must have
been based on the sex of the employee; (4) that 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.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d
798, 808 (11th Cir. 2010).
In order to litigate a claim for sexual harassment under
Title VII, “[i]n a non-deferral state, such as Alabama, a
plaintiff must file an employment discrimination charge with
the EEOC within 180 days after the date of the alleged
discrimination.” Rizo v. Alabama Dep't of Human Res., 228 F.
App'x 832, 835 (11th Cir. 2007) (citing 29 C.F.R. § 1626.7(a)
and Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208,
1241 n. 2, 1220 (11th Cir. 2001).
“Failure to file a timely
charge with the EEOC results in a bar of the claims contained
in the untimely charge . . . [and] [t]he plaintiff has the
burden of establishing that he filed a timely charge of
discrimination.” Jordan v. City of Montgomery, 283 F. App'x
766, 767 (11th Cir. 2008) (citation omitted).
In Count III of Jones’ amended complaint, she alleges a
violation of Title VII by Allstate under a theory of
supervisory liability for sexual harassment by her supervisor
Jermaine Johnson. (Doc. 26 at 10-15).
The basis for holding
the employer liable “differs depending on whether the
harassment was perpetrated by a co-worker or a supervisor . .
. [and courts are required to] analyze the alleged incidents
of co-worker harassment separately from the alleged incident
involving a supervisor.” Terrell v. Paulding Cty., 539 F.
App'x 929, 932 (11th Cir. 2013).
It is undisputed that the
alleged incidents Johnson committed towards Jones while her
supervisor occurred in 2011 (Doc. 33-1 at 18; Doc. 33-2 at
29), more than 180 days before Jones filed her EEOC charge
(Doc. 33-4 at 24; Doc. 38 at 23).
Therefore, her claims under
a theory of supervisory liability in Count III are time
29 C.F.R. § 1626.7(a).
No liability under either supervisory and co-worker
While Jones argues that Johnson’s alleged conduct
continued even after no longer being her supervisor when he
would “come by and stare at her” (Doc. 38 at 24), Allstate is
not liable under either supervisory or co-worker theories of
employer liability under Title VII.
“To establish th[e] [Faragher/Ellerth] defense, the
employer must prove by a preponderance of the evidence that
(a) it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior and (b) the plaintiff
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.” Arnold v. Tuskegee Univ., 212 F. App'x 803,
809 (11th Cir. 2006); see Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524
U.S. 775 (1998).
“An employer may demonstrate reasonable care
to prevent sexual harassment by showing the development of ‘an
effective and comprehensive anti-sexual harassment policy,’
which is ‘thoroughly disseminated,” and to which the employer
‘demonstrate[s] a commitment to adhering.’” Arnold, 212 F.
App'x at 809 (quoting Farley v. American Cast Iron Pipe Co.,
115 F.3d 1548, 1554 (11th Cir.1997)).
“Although an employer
need not act instantaneously, it must act in a reasonably
prompt manner to respond to the employee's complaint.” Id. at
Here, Jones knew Allstate had a policy prohibiting sexual
harassment, knew that Allstate had a human resources
department, and knew that after she eventually reported
Johnson’s behavior that Allstate discharged Johnson. (Doc. 331 at 24).
Jones alleges Johnson’s conduct occurred as early
as 2011 when he was her supervisor, yet Jones did not report
the alleged conduct to Allstate until April 23, 2012. (Doc.
33-1 at 13).
Allstate investigated the allegations and took
immediate and corrective action terminating Johnson on May 8,
2012. (Doc. 33-1 at 13; Doc. 33-3 at 24-25).
Allstate took reasonable care to prevent and correct the
harassment and Jones unreasonably delayed taking advantage of
Allstate’s remedial mechanisms. See Madray v. Publix
Supermarkets, Inc., 208 F.3d 1290 (11th Cir. 2000).
When “the alleged harassment is committed by co-workers .
. . a Title VII plaintiff must show that the employer either
knew (actual notice) or should have known (constructive
notice) of the harassment and failed to take immediate and
appropriate corrective action.” Watson v. Blue Circle, Inc.,
324 F.3d 1252, 1259 (11th Cir. 2003) (citing Breda v. Wolf
Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000)).
In this case, as discussed above, as soon as Allstate had
actual notice of Johnson’s alleged conduct, it promptly
investigated and subsequently terminated Johnson. See supra
part III, section B, subsection ii.
Further, Jones argument
is unpersuasive that Allstate had constructive notice given
two prior investigations of Johnson for conduct towards other
employees. (Doc. 38 at 24-35).
While these two prior
investigations concluded that the claims against Johnson were
unsubstantiated (Doc. 33-6; Doc 33-7), Allstate still gave
Johnson a formal coaching session after the first
investigation (Doc. 33-6 at 4) and Allstate warned Johnson
that he would be terminated if Allstate received another
complaint about him after this second investigation . (Doc.
33-4 at 6).
Accordingly, when Allstate received Jones’
complaint, Johnson was terminated.
Therefore, whether under a supervisory or co-worker
theory of liability, Allstate is entitled to judgment as a
matter of law as to Count III..
Title VII Retaliation
“To establish a prima facie case of retaliation under
Title VII, “the plaintiff must show (1) that she engaged in
statutorily protected expression; (2) that she suffered an
adverse employment action; and (3) that there is some causal
relation between the two events.” Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
Despite Jones’ claim in Count IV of retaliation, she also
claims Allstate took various adverse employment actions
against her based on her disability in violation of the ADA,
through FMLA retaliation, and sexual harassment in violation
of Title VII. (Doc. 24 at 4-16).
Therefore, summary judgment
is appropriate because in light of these other causes
“retaliation cannot be the “but-for” cause of [her]
termination.” Kamtek, 143 F. Supp. 3d at 1187.
deposition again illustrates the importance of a trial court
erecting “but-for” causation as a bulwark against multiple
Nassar, 133 S.Ct. 2517 and Gross, 557 U.S.
Although Jones’ human resources complaint and initial
EEOC charge constitute protected activity, she cannot show
that these actions were the “but-for” cause of any adverse
employment action by Allstate. (Doc. 33-1 at 25).
Specifically, Jones claims an adverse change in job duties
(Doc. 24 at 8), yet there is no evidence to support this was
the “but-for” cause of this employment action wherein Jones
herself admits having no reason to believe it was related to
her complaint of sexual harassment, her FMLA claim, or her
PTSD. (Doc. 33-1 at 39-40). Jones claims she was adversely
denied breaks during the day (Doc. 24 at 4-8), yet there is no
evidence to support that retaliation was the “but-for” cause
of this employment action wherein Jones herself is unable to
recall one instance when she was not permitted to take a break
(Doc. 33-1 at 31).
Finally, Jones claims she was
constructively discharged (Doc. 24 at 7-8), yet there is no
evidence to support that retaliation was the “but-for” cause
of this employment action wherein Allstate granted Jones’
transfer request (Doc. 33-1 at 9-10), granted her significant
FMLA leave (Doc. 33-1 at 10), and gave her numerous breaks
during the day (Doc. 33-1 at 31).
Further, Jones voluntarily
resigning with two weeks written notice (Doc. 33-1 at 6, 30);
see Siudock, 568 F. App'x at 664.
Therefore, summary judgment
on Count IV is appropriate because even in the light most
favorable to Jones, she cannot show retaliation was the “butfor” cause of any of her alleged adverse employment actions.
For the reasons stated above, the court will by separate
order grant Allstate’s motion for summary judgment (Doc. 33).
DONE this 12th day of August, 2016.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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