Smith v. The Library Board of the City of Homewood Public Library et al

Filing 37

MEMORANDUM OPINION - For the reasons explained above, the Court grants the defendants motion for summary judgment as to all of Ms. Smiths claims. The Court will enter a separate order closing this case. Signed by Judge Madeline Hughes Haikala on 4/30/2018. (KEK)

FILED
2018 Apr-30 PM 01:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DONA HERRING SMITH,

}
}
Plaintiff,
}
}
v.
}
}
THE LIBRARY BOARD OF THE }
CITY OF HOMEWOOD and }
DEBORAH FOUT,
}
}
Defendants.
}

Case No.: 2:15-cv-02094-MHH

MEMORANDUM OPINION
Plaintiff Dona Herring Smith brings this case pro se against her former
supervisor and employer, defendants Deborah Fout and the Library Board of the
City of Homewood. (Doc. 1). 1 Ms. Smith brings claims against the defendants for
retaliation under Title VII, disability discrimination under the Americans with
Disabilities Act, age discrimination under the Age Discrimination in Employment
Act, and denial of her rights under the Family Medical Leave Act. (Doc. 1). Ms.
Smith also asserts a claim for defamation against Ms. Fout. (Doc. 1, p. 10). The
defendants ask the Court to enter summary judgment on all of Ms. Smith’s claims.
(Doc. 21). The defendants also ask the Court to strike Ms. Smith’s response to
1

Ms. Smith filed this action pro se, but the Court appointed counsel to assist her in the limited
task of responding to the defendants’ motion for summary judgment. (See Doc. 31).
1

their motion for summary judgment. (Doc. 35).2 For the reasons stated below, the
Court grants the defendants’ motion for summary judgment.
I. FACTUAL BACKGROUND
Dona Herring Smith began working for the Homewood Public Library as a
library assistant in 1989. (Doc. 1, pp 3, 15; Doc. 34, p. 1). By the time of her
termination in 2014, Ms. Smith was the head of the library’s children’s department,
a position she had held since 2001. (Doc. 1, ¶ 12). Ms. Smith is over 40 years of
age and has “a debilitating physical disorder” that manifests itself as “flare-up[s],”
which make it difficult for her to walk. (Doc. 1, ¶¶ 11, 26, 28; Doc. 22, p. 18).
Ms. Smith has been receiving treatment for this condition since 2013, and Ms. Fout
was aware of the condition. (Doc. 1, ¶¶ 5, 26, 28). Deborah Fout began serving as
Homewood Public Library’s director in 2009, and as director, she supervised Ms.
Smith until Ms. Smith’s termination. (Doc. 22, p. 6).
Ms. Smith filed an EEOC charge of discrimination against Homewood
Public Library in June 2012 while she still was a library employee. (Doc. 1, p. 15;
Doc. 22, p. 52). Ms. Smith asserted that the library denied her a promotion based
on her age and gave the position to a younger employee. (Doc. 1, p. 15; Doc. 22,

2

Consistent with the status conference held on November 30, 2017, the Court denies the
defendants’ motion to strike Ms. Smith’s response. (Doc. 34). For the purpose of resolving the
defendants’ motion for summary, the Court treats Ms. Smith’s complaint as a verified complaint
and accepts the allegations therein as though they were presented in an affidavit.
2

p. 52). This was Ms. Smith’s only EEOC complaint while she worked at the
library.3 After Ms. Smith filed her EEOC complaint, she alleges that Ms. Fout
became upset with her and made comments like “I will not forget this,” “[I] could
hold a grudge for you filing the complaint,” and “I knew you wouldn’t win because
I know how to write these things.” (Doc. 1, ¶¶ 15–16). According to Ms. Smith,
Ms. Fout “created an adversarial hostile working environment” because of the
EEOC complaint. (Doc. 34, p. 2). Ms. Smith states that Ms. Fout issued written
warnings to her for confrontations with other library employees, exercised more
direct oversight of the children’s department, and relieved Ms. Smith of certain
managerial responsibilities including the hiring of children’s department staff.
(Doc. 1, ¶¶ 17–24, 37).
Ms. Fout issued written warnings to Ms. Smith on two occasions after Ms.
Smith filed the EEOC charge. (Doc. 22, pp. 20–22, 24–25). In June of 2013, one
year after Ms. Smith filed her EEOC charge, Ms. Fout counselled Ms. Smith for
publically reprimanding a member of the library custodial staff in front of library
patrons. (Doc. 22, p. 24). Ms. Fout acknowledged that Ms. Smith had reason to
correct the employee, but, after soliciting feedback from employees with

3

In her complaint, Ms. Smith also references “numerous internal complaints” that she made
while employed by the library. (Doc. 1, ¶ 14). Ms. Smith does not indicate the number, nature,
or basis for these complaints. Ms. Smith filed a second EEOC charge of discrimination against
Homewood Public Library after her termination and before filing this lawsuit. (Doc. 1, pp. 14–
16).
3

knowledge of the incident, Ms. Fout determined that the public and condescending
nature of Ms. Smith’s reprimand was unacceptable.

(Doc. 22, pp. 24–25).

Although this was Ms. Smith’s first formal write-up, Ms. Fout indicated in the
warning notice that Ms. Smith had previously received informal correction for the
same type of behavior towards her co-workers. (Doc. 22, p. 25).
Ms. Fout issued a second written warning to Ms. Smith on July 14, 2014,
two years following the EEOC charge. (Doc. 22, p. 20). On that occasion,
Amanda Pierce, another children’s department employee, had emailed Ms. Smith
to express her dismay that Ms. Smith had publically reprimanded and intimidated
her on three occasions in the preceding week. (Doc. 22, pp. 6–7, 12). Ms. Pierce
copied Ms. Fout on her email. (Doc. 22, p. 12). Ms. Fout sent an email to Ms.
Pierce, Ms. Smith, and Mary Eller, another children’s department employee,
setting a meeting with the recipients for 1:00 p.m. the next day to address Ms.
Pierce’s concerns. (Doc. 22, pp. 7, 14). Ms. Fout called Ms. Smith at her office
the next morning to remind her of the meeting. (Doc. 22, pp. 7, 16). Ms. Smith
said she could not attend because she had experienced a “flare-up” and needed to
see a doctor. (Doc. 1, ¶ 26; Doc. 22 pp. 16, 18). Shortly after their phone
conversation, Ms. Smith sent an email to Ms. Fout in which she expressed her
frustration at the incident with Ms. Pierce and stated that she would not feel

4

prepared to deal with the matter until the conclusion of the library’s summer
reading program in two weeks’ time. (Doc. 22, p. 18).
Ms. Fout wrote back emphasizing the importance of resolving the conflict
quickly and advising Ms. Smith that, unless her doctor’s appointment directly
conflicted, Ms. Smith needed to attend the meeting. (Doc. 22, pp. 7, 18). Ms.
Smith did not respond to Ms. Fout’s email, and she did not attend the meeting that
afternoon. (Doc. 22, pp. 7, 16). Ms. Fout wrote a memo recording the exchange.
She characterized Ms. Smith’s failure to attend the meeting as “deliberate
insubordination.” (Doc. 22, p. 16; Doc. 1, ¶ 27). Ms. Fout sent Ms. Smith a copy
of the written warning and directed Ms. Smith to sign it and return it by July 18,
along with any response Ms. Smith wanted to make. (Doc. 22, pp. 7, 22). Ms.
Smith wrote Ms. Fout to say that she could not properly respond to the warning
until after the summer program. (Doc. 22, pp. 21, 28).
The library’s summer reading program concluded on July 24, 2017. (Doc.
22, p. 8). Ms. Smith had returned a signed copy of the warning on July 22, but had
not made any further response to Ms. Pierce’s and Ms. Fout’s complaints. (Doc.
22, pp. 8, 21–22). On July 31, 2014, Ms. Fout issued a notice of “Contemplated
Disciplinary Action” to Ms. Smith because Ms. Smith still had not responded to
the July 14th incident. (Doc. 22, p. 30). The notice referenced Ms. Smith’s
habitual mistreatment of her co-workers and her failure to address this issue as the
5

basis for the contemplated action. (Doc. 22, pp. 30–31). In addition to the incident
with Ms. Pierce, the notice cites seven separate instances in which Ms. Smith
behaved in a confrontational or intimidating manner towards her coworkers. (Doc.
22, p. 31). Ms. Fout placed Ms. Smith on paid administrative leave pending the
outcome of a hearing on the notice. (Doc. 22, p. 31). According to Ms. Smith, this
suspension came a day after she had asked Ms. Fout about the possibility of taking
FMLA leave to care for her father who had recently been hospitalized. (Doc. 1, p.
5).
As library director, Ms. Fout held a disciplinary hearing on August 6, 2014
that resulted in a decision to terminate Ms. Smith’s employment with the library
effective August 15, 2014. (Doc. 22, pp. 35–36). Ms. Fout based her decision in
part on the testimony of Ms. Smith’s co-workers. Ms. Smith states that Ms. Fout
actively solicited negative testimonials from these persons during the disciplinary
proceedings. (Doc. 1, p. 10). The library’s notice of the decision to Ms. Smith
lists a number of reasons for her termination including her “fail[ure] to treat
Library employees with courtesy, consideration, respect and professionalism,” her
coercion or intimidation of library employees, and her insubordination. (Doc. 22,
p. 35). Ms. Smith appealed the decision which, upon review, was upheld by an ad
hoc committee of the Library Board, and then by the full board of trustees. (Doc.
22, pp. 38, 43, 47).
6

On December 3, 2014, Ms. Smith filed her second EEOC charge against the
Homewood Public Library, claiming that, in deciding to end her employment, the
defendants had discriminated against her on the basis of her age, her disability, and
her prior EEOC complaint. (Doc. 1, pp. 14–16). The EEOC issued Ms. Smith a
notice of dismissal and right to sue on August 20, 2015. (Doc. 1, p. 17). Ms.
Smith then filed this action on November 18, 2015. (Doc. 1).
II. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that 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. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). When considering a summary judgment motion, the Court must
view the evidence in the record and draw reasonable inferences in the light most
favorable to the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789
F.3d 1188, 1191 (11th Cir. 2015).

“The court need consider only the cited

materials, but it may consider other materials in the record.” Fed. R. Civ. P.
7

56(c)(3).
III. DISCUSSION
a. MS. SMITH’S RETALIATION CLAIM
Ms. Smith claims that the defendants “intentionally discriminated against
[her] in retaliation [for] her earlier EEOC complaint” in violation of Title VII.
(Doc. 1, p. 7). Although, Ms. Smith states that this claim arises under Title VII,
the record indicates that her original EEOC complaint — the protected activity that
allegedly caused the retaliation — was based on age and disability discrimination.
(Doc. 22, p. 52). Title VII does not cover either of these categories. See 42 U.S.C.
§ 2000e–2(a)(1) & (2) (prohibiting employment discrimination on the basis of
race, color, religion, sex, or national origin). Because the Court liberally construes
a pro se filing, the Court recognizes that Ms. Smith asserts a claim for retaliation in
violation of the ADA and ADEA. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,
1253 (11th Cir. 2017). But the framework for the Court’s analysis of this claim is
the same as if it had been a Title VII claim. Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1328 (11th Cir. 1998).
Ms. Smith contends that there are genuine issues of fact regarding “the
connection between the filing of the EEOC Complaint in 2012” and the
defendants’ efforts “to create an untenable working condition and to ultimately

8

amass sufficient notations in the Plaintiff’s work file to mask the real intent of the
Defendants – to retaliate for her filing the EEOC Complaint.” (Doc. 34, p. 5).
Ms. Smith argues that Ms. Fout’s comments about Ms. Smith’s EEOC
complaint and the fact that each of the disciplinary actions occurred after Ms. Fout
knew of the complaint indicate that the defendants intended to retaliate against Ms.
Smith. (Doc. 34, p. 3). The defendants argue that too much time separates Ms.
Smith’s EEOC complaint from Ms. Fout’s written warnings to create an inference
of retaliation. (Doc. 21–1, p. 7). The defendants also argue that Ms. Smith’s
disciplinary history and insubordination gave Ms. Fout and the Library Board
legitimate cause to end Ms. Smith’s employment. (Doc. 21–1, p. 8).
Both the ADA and ADEA prohibit employers from retaliating against
employees for engaging in protected activity, which includes complaints of an
employer’s discriminatory practice which the employee believes in good faith to be
unlawful. See 29 U.S.C. § 623(d); 42 U.S.C. § 12203(a); Pipkins v. City of Temple
Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001). A plaintiff may prove her
retaliation claim through direct or circumstantial evidence that her employer
retaliated against her because she engaged in protected activity.

Cofield v.

Goldkist, Inc., 267 F.3d 1264, 1267 n. 6 (11th Cir. 2001). “[D]irect evidence is
evidence proving, without inference, that illegal reasons motivated an adverse
employment action. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 n. 5
9

(11th Cir. 2016) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th
Cir. 2004)). “‘[O]nly the most blatant remarks, whose intent could mean nothing
other than to discriminate on the basis of some impermissible factor, constitute
direct evidence of discrimination.’” Jones v. Gulf Coast Health Care of Del., LLC,
854 F.3d 1261, 1270 (11th Cir. 2017) (quoting Wilson, 376 F.3d at 1086.).
In the vein of direct evidence, the Court examines Ms. Fout’s alleged
statements in response to Ms. Smith’s EEOC complaint: “I knew you wouldn’t win
because I know how to write these things,” “I will not forget this,” and “i [sic]
could hold a grudge for you filing the complaint.” (Doc. 1, ¶¶ 15, 16).4 The first
statement is not direct evidence because it does not relate to Ms. Fout’s purported
acts of retaliation. Whatever the statement indicates about Ms. Fout’s attitude
towards Ms. Smith’s EEOC complaint, the comment cannot be linked with the
defendants’ later alleged retaliatory acts without certain inferences. The second
and third statements indicate that Ms. Fout was negatively disposed towards Ms.
Smith because of her EEOC complaint and suggest that Ms. Fout might remain so
disposed for some time. But these statements require an inferential step to connect

4

The Court may consider these statements against Ms. Fout because they are the statements of a
party opponent offered against that party and therefore are not hearsay. See Fed R. Evid.
801(d)(2)(A). The Court also may consider Ms. Fout’s statements in assessing Ms. Smith’s case
against the Library Board because Ms. Fout was the Board’s agent with the authority to
terminate library employees. (Doc. 21, ¶3; Doc. 22, p. 6). As statements made within the scope
of Ms. Fout’s employment relationship with the library, the Court may impute these statements
to the Library Board. See Fed R. Evid. 801(d)(2)(D).
10

the statements to the purported retaliation: that in disciplining and eventually firing
Ms. Smith, Ms. Fout was acting on the basis of her grudge. Cf. Perry v. City of
Avon Park, Fla., 662 Fed. Appx. 831, 837 (11th Cir. 2016).

Although the

statements are strongly suggestive of Ms. Fout’s animus towards Ms. Smith, they
are not direct evidence of retaliation.5
Without direct evidence of retaliation, the Court assesses the sufficiency of
Ms. Smith’s circumstantial case for retaliation under the framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
overruled in part on other grounds Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58
(2006). Under that framework, a plaintiff first must establish a prima facie case.
Wilson, 376 F.3d at 1087 (citing Combs v. Plantation Patterns, 106 F.3d 1519,
1527–28 (11th Cir. 1997)). If the plaintiff succeeds, then the burden shifts to the
employer to articulate a legitimate reason for the adverse employment actions
taken. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016).
If the employer offers a legitimate reason, then the burden returns to the plaintiff to
show by a preponderance of the evidence that the employer’s legitimate reason is a
pretext for discrimination. Furcron, 843 F.3d at 1310–1311 (citing Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)).
5

The second statement is too vague. The third is not stated in the affirmative; had Ms. Smith
alleged that Ms. Fout said “I will hold a grudge against you for filing the complaint” the record
might produce a different analysis.
11

A plaintiff establishes a prima facie case of retaliation by showing that: “(1)
[s]he engaged in statutorily protected activity; (2) [s]he suffered a materially
adverse action; and (3) there was a causal connection between the protected
activity and the adverse action.” Howard v. Walgreen Co., 605 F.3d 1239, 1244
(11th Cir. 2010). By filing an EEOC complaint based on age discrimination, Ms.
Smith has shown that she engaged in activity protected by both the ADA and
ADEA. See 29 U.S.C. § 623(d); 42 U.S.C. § 12203(a). Under the second prong,
an employer’s action is considered materially adverse if it “might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotations omitted). Here, there is little doubt that a jury could find that the
written warnings and eventual termination alleged by Ms. Smith might have
dissuaded a reasonable worker from complaining of discrimination.6

6

In passing, Ms. Smith references two other forms of retaliation by the defendants. First, Ms.
Smith argues that the defendants retaliated against her by denying her “the benefit of any yearly
evaluations or appraisals” after she filed her EEOC complaint. (Doc. 34, p. 3). Ms. Smith
argues that this affected her employment because it “prevent[ed] her from learning of any issues
in her performance and being able to address such issues.” (Doc. 34, p. 3). The record
contradicts Ms. Smith’s assertion. The performance issues cited by the defendants are Ms.
Smith’s habit of confrontation with co-workers and her refusal to timely address these issue
when asked to do so by Ms. Fout. (Doc. 21–1, p. 8). The record contains multiple notices that
Ms. Fout sent to Ms. Smith, informing Ms. Smith of these issues. (Doc. 22, pp. 20–21, 24–25).
The last notice bears Ms. Smith’s acknowledgement and signature. (Doc. 22, pp. 21, 33). The
warning notices indicate that both Ms. Fout and other library employees brought Ms. Smith’s
performance issues to her attention. (Doc. 22, pp. 12, 21, 24–25, 31). For that reason, the Court
is not persuaded that the lack of annual reviews provides Ms. Smith with a tenable basis for her
retaliation claims.
12

The question, then, is whether Ms. Smith provides evidence to support an
inference that the defendants’ actions were retaliatory responses to her EEOC
complaint. At the first stage of the inquiry, the plaintiff can prove causation
simply by showing “that the protected activity and the negative employment action
are not completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir. 2001) (internal quotation marks omitted). Ms. Smith filed her first
EEOC complaint alleging age discrimination in June of 2012. (Doc. 1, p. 15; Doc.
34, ¶ 7). More than a year elapsed before Ms. Fout issued a first written warning
to Ms. Smith on July 15, 2013. (Doc. 22, p. 24). Standing alone, the temporal
relation between the cause (the EEOC complaint) and its purported effect (the first
warning) does not help Ms. Smith’s case because the gap is too great to create an
inference that the events are related. 7 See Thomas v. Cooper Lighting, Inc., 506

Ms. Smith also argues that the defendants retaliated against her by “removing certain duties from
Plaintiff including the ability to conduct hiring for Plaintiff's department and requirement [sic]
Plaintiff’s employees to report to Fout or other supervisors.” (Doc. 1, ¶ 18). The record
indicates that Ms. Fout possessed authority over personnel matters and supervisory authority
over the children’s department by virtue of her position as the director of the library. (Doc. 22,
p. 6). Ms. Smith offers no explanation of or further factual support for this claim apart from the
statement quoted above. She does not cite evidence of a situation in which Ms. Fout usurped a
power that rightfully belonged to her (Ms. Smith). Apart from the disciplinary write-ups, the
record does not contain evidence that Ms. Fout exercised her powers to the detriment of Ms.
Smith’s position. The lack of evidentiary support for this form of alleged retaliation is fatal to
this retaliation theory.
7

The record does not indicate precisely when Ms. Fout became aware of Ms. Smith’s EEOC
complaint, but in her complaint, Ms. Smith states that Ms. Fout began her write-up campaign
“[i]mmediately following [Ms. Smith’s] filing of the 2012 charge.” (Doc. 1, ¶ 17). This
indicates that Ms. Fout became aware of the complaint shortly after Ms. Smith filed it with the
13

F.3d 1361, 1364 (11th Cir. 2007) (“The burden of causation can be met by
showing close temporal proximity between the statutorily protected activity and
the adverse employment action. But mere temporal proximity, without more, must
be very close.”) (internal citations and quotations omitted). The gap between the
protected conduct and the alleged retaliation widens when one looks to the second
written warning and the termination decision, both of which occurred more than
two years after Ms. Smith filed her EEOC complaint. (Doc. 22, pp. 20, 35).
Ms. Smith also offers Ms. Fout’s statements indicating that Ms. Fout became
negatively disposed towards Ms. Smith as a result of the EEOC complaint. (Doc.
1, ¶¶ 15, 16). Ms. Fout’s statements that she would not forget the complaint and
that she could hold a grudge against Ms. Smith raise the possibility that Ms. Fout
was simply waiting for an opportunity to retaliate under circumstances that would
provide cover for her decision. The Court accepts this explanation for the delay
because the Court must make all reasonable inferences in Ms. Smith’s favor for
purposes of this motion. In light of this evidence, and the plaintiff’s light initial
burden, Ms. Smith has established her prima facie case for retaliation.
EEOC on June 11, 2012. (Doc.22, p. 52). Therefore the Court uses the date of filing as the
rough point of reference for assessing the lapse of time between Ms. Smith’s protected activity
and any acts that could be construed as retaliation. Because Ms. Smith does not provide a date
for the statements made by Ms. Fout, the Court also assumes that these were made shortly after
Ms. Smith filed her EEOC complaint. The Court considers this assumption reasonable because
Ms. Smith’s complaint lays out the events in rough chronological order, and the statements
appear before the campaign of retaliation that Ms. Smith alleges in her statement of facts. (Doc.
1, ¶¶ 15–17).
14

Therefore, the burden shifts to the defendants to offer a non-retaliatory
explanation for the actions they took against Ms. Smith. To bear their burden, the
defendants must offer legitimate reasons for their actions that “might motivate a
reasonable employer,” but the defendants do not have to prove that the proffered
reasons were the actual motivation for the actions they took. Chapman v. AI
Transp., 229 F.3d 1012, 1024, 1030 (11th Cir. 2000) (en banc)); see also Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1205 (11th Cir. 2013). The defendants have
borne this burden because they offer plausible, lawful reasons for each adverse
action taken against Ms. Smith.
The first written warning that Ms. Fout issued to Ms. Smith was based on
the complaint of a member of the library custodial staff about the public reprimand
that Ms. Smith had given her. (Doc. 22, pp. 24–25). Other library employees
spoke to Ms. Fout expressing their concerns about this encounter. (Doc. 22, p. 24).
In the warning, Ms. Fout articulates a non-discriminatory reason for her
disciplinary action that reasonably relates to the underlying circumstances. (Doc.
22, pp. 24–25). The same is true for the second written warning which was based
on a similar complaint about Ms. Smith from Amanda Pierce. (Doc. 22, pp. 20–
21). In both instances, Ms. Smith’s co-workers, not the defendants, raised the
complaints that led to disciplinary action. As for the defendants’ decision to
terminate Ms. Smith, they cite Ms. Smith’s pattern of confrontational interactions
15

with co-workers and the deliberate insubordination she demonstrated by failing to
address Ms. Fout’s concerns about the incident with Amanda Pierce.

(Doc. 22,

pp. 7–8, 16, 30–31, 35–36). The defendants also note that Ms. Smith’s pattern of
behavior affected the morale of her fellow employees and that some of Ms.
Smith’s subordinates quit because of the treatment they received from her. (Doc.
22, pp. 21, 30–31).
The defendants have offered legitimate reasons for their actions, and thus the
burden shifts back to Ms. Smith to demonstrate that the defendants’ reasons are a
pretext for retaliation. An employer’s reasons are pretextual “if (1) the reasons
were false and (2) retaliation was the real reason for the employment decision.”
Mealing v. Ga. Dep’t of Juv. Just., 564 Fed. Appx. 421, 427 (11th Cir. 2014)
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). A plaintiff can
show that the employer’s lawful reason is pretextual “either directly by persuading
the court that a discriminatory reason more likely than not motivated the employer
or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir.
2012) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254,
(1981)).

An employer’s explanation is unworthy of credence if it displays

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions.”
McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). As the plaintiff, Ms.
16

Smith has “‘[t]he ultimate burden of proving by a preponderance of the evidence
that the reason provided by the employer is a pretext for prohibited, retaliatory
conduct remains on the plaintiff.’” Trask v. Sec’y, Dep’t of Veterans Affairs, 822
F.3d 1179, 1194 (11th Cir. 2016) (quoting Pennington, 261 F.3d at 1266.). Ms.
Smith has not carried this burden.
The record here contains no such inconsistencies or contradictions. Ms.
Smith’s co-workers repeatedly complained about her conduct, and Ms. Smith was
counselled more than once for her conduct. There is nothing in the record that
suggests that Ms. Fout trumped up complaints about Ms. Smith’s condescending
treatment of her co-workers.
The fact that Ms. Fout’s decision to fire Ms. Smith for cause was twice
reviewed and upheld, first by an ad hoc committee of the library and then by the
full library board further diminishes any potential inference of retaliatory intent.
(Doc. 22, pp. 40, 42 – 43, 47). Ms. Fout was not a member of either review panel.
(See Doc. 22, pp. 42, 47). Ms. Smith does not contend that the library board
members harbored retaliatory motives or that the board members were aware of
her EEOC complaint.

Ms. Smith suggests that Ms. Fout imported her own

retaliatory motives into the review proceedings by soliciting negative feedback
from co-workers. (Doc. 1, ¶ 36). But Ms. Fout’s decision to fire Ms. Smith was
based in part on the repeated complaints of co-workers. (Doc. 22, p. 35). Given
17

this fact, it is unclear why it would be improper for Ms. Fout to place these
complaints in the record.
Ms. Smith does not allege that the statements made by her co-workers were
false. Ms. Smith’s co-workers came independently to Ms. Fout to complain of
their negative interactions with Ms. Smith. Ms. Smith has not offered evidence
indicating that the complaints of her co-workers were unfounded. Ms. Fout’s
disciplinary write-ups are consistent with the supporting complaints and her
response is not an obviously disproportionate reaction to these complaints. The
defendants also offer evidence supporting their contention that Ms. Smith’s
response to Ms. Fout’s concerns was delayed and half-hearted. (Doc. 22, pp. 16,
18, 22, 28, 33).
Ms. Smith does not offer comparators to discredit the defendants’ proffered
justifications for her termination. Although Ms. Smith contends that others who
did not file EEOC complaints were not similarly disciplined, (Doc. 1, ¶ 39), she
does not point to a co-worker who engaged in same type of misconduct without
receiving the same sort of disciplinary response. The nearest Ms. Smith comes to
naming a comparator is when she states that “Defendant Fout placed a write-up in
Plaintiff’s personnel file on August 31, 2012 concerning issues with a co-worker
from July 2012 to the date of the write-up. Defendant Fout did not place a writeup in the co-worker’s file the same date.” (Doc. 1, ¶¶ 21, 22). Apart from Ms.
18

Smith’s statement, the record does not contain evidence of an August 2012
warning, and it is not clear whether Ms. Smith is referring to one of the two written
warnings noted in the record or whether she is referring to a separate incident.8
But without more detail, the unnamed co-worker is not a useful comparator
because the Court cannot assess whether this person was in fact similarly situated
to Ms. Smith and whether there was any basis for the defendants’ differing
treatment. See Gilbert v. Wal-Mart Stores, Inc., 2010 WL 11565278, at *7 (N.D.
Ala. Jul. 30, 2010) (citing Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306,
1310 (11th Cir. 1998), modified in part, 151 F.3d 1321 (11th Cir. 1998)).
Ms. Smith has not offered evidence indicating that retaliation was more
likely than not the reason for her termination. The statements by Ms. Fout, on
which Ms. Smith relies, raise the possibility that the defendants’ proffered reasons
may not be worthy of credence, but in the face of the evidence supporting the
defendants’ legitimate rationale, the board’s review of the termination decision,
and the lack of temporal proximity, Ms. Smith has not produced sufficient

8

Ms. Fout’s first written warning to Ms. Smith references a past instance of similar misconduct
by Ms. Smith. (Doc. 22, p. 25). The warning, however, places this incident on May 19, 2012,
before Ms. Smith filed her EEOC complaint. (Doc. 22, p. 25). The notice of disciplinary action
provided by Ms. Fout to Ms. Smith references eight total instances of Ms. Fout’s confrontational
or intimidating behavior towards her co-workers, but none of them align with Ms. Smith’s
reference to a July 2012 incident. (See Doc. 22, p. 31). To the extent that Ms. Fout made formal
notations of Ms. Smith’s misconduct, the parties have produced evidence of only two. (Doc. 22,
pp. 20–21, 24–25).
19

evidence to require submission of her retaliation claim to a jury. Therefore, the
Court grants the defendants’ motion with respect to this claim.
b. MS. SMITH’S ADEA CLAIM
Ms. Smith claims that the defendants discriminated against her on the basis
of her age when Ms. Fout issued warnings to her and when the library terminated
her employment. Ms. Smith was sixty-one years old when the defendants ended
her employment with the library. (Doc. 15, p. 1). In her complaint, Ms. Smith
states that “other employees that are younger than Plaintiff are not written up for
similar acts.” (Doc. 1, ¶ 38). The record also shows that Ms. Smith’s replacement
was thirty-one years old when the defendants hired her as the new head of the
children’s department. (Doc. 21–1, p. 10, n. 1). The defendants argue that they
terminated Ms. Smith for cause and that her age played no role in their decision.
“The ADEA provides, in relevant part, 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 compensation, terms,
conditions, or privileges of employment, because of such individual’s age.’”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (quoting 29 U.S.C. §
623(a)(1)) (emphasis in Gross).

To qualify for the ADEA’s protections, the

plaintiff must have been at least forty years old at the time of the alleged
20

discrimination. 29 U.S.C. § 631(a). The plaintiff’s burden is to persuade the
finder of fact “that age was a ‘but-for’ cause of the employer’s adverse action.”
Gross, Inc., 557 U.S. at 176.
Without direct evidence of age discrimination, Ms. Smith must rely on
circumstantial evidence to sustain her claim. The Court assesses a circumstantial
case for age discrimination under the McDonnell Douglas burden shifting
framework. Kragor, 702 F.3d at 1308. Initially, the plaintiff must establish her
prima facie case by demonstrating:
(1) that she was a member of the protected group of persons between
the ages of forty and seventy; (2) that she was subject to adverse
employment action; (3) that a substantially younger person filled the
position that she sought or from which she was discharged; and (4)
that she was qualified to do the job for which she was rejected.

Id. at 1308 (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1359 (11th Cir. 1999). If the plaintiff makes the prima facie showing, then the
burden shifts to the defendants to offer a non-discriminatory reason for their
actions. Id. If the defendants discharge this burden, then the plaintiff must provide
evidence showing that the defendants’ reason is a pretext for age discrimination.
Id.
Ms. Smith was within the protected age range when she was terminated, she
suffered an adverse employment action (termination), and her replacement was
21

roughly thirty years her junior. (Doc. 15, p. 1; Doc. 21–1, p. 12). The defendants
do not contend that Ms. Smith was unqualified for the job, and the evidence in the
record does not suggest that Ms. Smith’s qualifications were an issue.9 Thus, Ms.
Smith has satisfied the elements of her prima facie case.
The defendants, then, must respond to Ms. Smith’s prima facie showing with
a legitimate, non-discriminatory reason for the adverse action. The defendants do
so for the same reasons that they adequately responded to Ms. Smith’s prima facie
case for retaliation: the defendants contend that they fired Ms. Smith for cause, a
reason that would motivate a reasonable employer, and they offer evidence to
support the conclusion that such cause existed. (See pp. 13–14 supra; see also Doc
22, pp. 20–21, 24–25). Therefore, Ms. Smith must offer evidence showing that
defendants’ purported cause was not the real reason for her termination.
Ms. Smith does not point to evidence beyond her prima facie showing to
support an inference that the defendants’ proffered reasons are pretextual.
Although her complaint includes an allegation that “[o]ther employees that are
younger than Plaintiff are not written up for similar acts,” Ms. Smith again fails to
offer a relevant comparator for consideration. (Doc. 1, ¶ 38). Specifically, Ms.

9

To the extent that Ms. Smith must introduce evidence that she was qualified for her job, her
lengthy tenure with the library, more than a decade of which she spent as the head of the
children’s department, suggests that she had the ability to perform the essentials of her job.
(Doc. 1, ¶¶ 11, 12; Doc. 22, p. 33).
22

Smith has not submitted evidence that a younger employee committed similar
misconduct without receiving the same disciplinary response from the defendants.
Standing alone, the fact that the defendants replaced Ms. Smith with someone
younger does not inevitably create an inference of age discrimination; if it did, then
every prima facie case for age discrimination would survive the McDonnell
Douglas inquiry. Therefore, Ms. Smith has failed to create a genuine issue of fact
on her claim for age discrimination, and the Court grants the defendants’ motion
with respect to this claim.
c. MS. SMITH’S ADA CLAIM
Ms. Smith claims that the defendants discriminated against her on the basis
of her disability when they refused her request for a reasonable accommodation.
(Doc. 1, p. 8). Ms. Smith contends that she requested an accommodation when she
informed Ms. Fout that she would not attend the meeting scheduled to discuss the
incident with Ms. Pierce because she (Ms. Smith) was having a flare-up and
needed to see a doctor. (Doc. 1, ¶¶ 26, 27). Ms. Smith argues that Ms. Fout denied
her a reasonable accommodation when she deemed Ms. Smith’s absence from the
meeting insubordinate and later cited this insubordination as a reason supporting
Ms. Smith’s termination. (Doc. 1, ¶¶ 27, 41). The defendants dispute whether Ms.
Smith suffered from a disability covered by the ADA and whether Ms. Smith
informed them of this disability. (Doc. 21–1, p. 14). Additionally, the defendants
23

contend that even if Ms. Smith has created genuine issues about these elements of
her ADA claims, she has failed to show that the defendants denied her a requested
accommodation. (Doc. 21–1, p. 15).
The ADA, in relevant part, prohibits covered employers from discriminating
against “qualified individual[s] on the basis of disability in regard to . . . the hiring,
advancement, or discharge of employees.” 42 U.S.C. § 12112(a). An employer’s
failure to make reasonable accommodations for a qualified individual with a
disability is a form of actionable discrimination under the ADA. See 42 U.S.C. §
12112(b)(5)(A). “To establish a prima facie case for disability discrimination, a
plaintiff must produce sufficient evidence to permit a jury to find that she: (1) is
disabled, (2) is a qualified individual, and (3) was discriminated against because of
her disability.” Lewis v. City of Union City, 877 F.3d 1000, 1009 (11th Cir. 2017).
A plaintiff also must prove that there is a reasonable accommodation that would
allow her to perform her job. Willis v. Conopco, Inc., 108 F.3d 282, 284–86 (11th
Cir. 1997).
Here, whether Ms. Smith is disabled within the meaning of the ADA turns
on whether she has “a physical or mental impairment that substantially limits one
or more [of her] major life activities.” 42 U.S.C. § 12102(1)(A). The ADA
defines “major life activities” to include “caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
24

speaking, breathing, learning, reading, concentrating, thinking, communicating,
and working.” 42. U.S.C. § 12102(2)(A). According to Ms. Smith, her condition
causes her knee pain which results in difficulty walking when she is experiencing a
flare-up. (Doc. 1, ¶¶ 26, 28). Ms. Smith’s condition affects a major life function,
walking, and the ADA’s definition of disability is broad enough to cover episodic
conditions like Ms. Smith’s. See 42 U.S.C. § 12102(4)(D). But the plaintiff bears
the burden of offering evidence to support a finding that the condition substantially
impairs the major life function at issue; it is not enough for the plaintiff to show
that she suffers from a physical impairment. Lewis, 877 F.3d at 1010.
Ms. Smith indicates that she was suffering from a flare-up on the day that
Ms. Fout asked to meet with her regarding the incident with Ms. Pierce. (Doc. 1, ¶
26). Ms. Smith, however, does not offer “evidence of the severity, frequency, and
duration of these episodes.” Lewis, 877 F.3d at 1010. The Court accepts that Ms.
Smith suffers from a condition that at least occasionally impairs her ability to walk,
but Ms. Smith has not offered evidence from which a jury could conclude that her
condition substantially limits her ability to walk or that it prevents her from
performing the demands of her former job. As such, Ms. Smith has not satisfied
the first element of her prima facie case.
Even were the Court to assume that a reasonable fact finder could find that
Ms. Smith suffers from a substantial physical impairment on the basis of her
25

verified complaint alone, Ms. Smith faces difficulties proving that the defendants
discriminated against her on the basis of her disability. Ms. Smith alleges that the
defendants discriminated against her by failing to grant her request for an
accommodation. If Ms. Smith is qualified for her job, an issue which the parties
do not contest, then the ADA requires the defendants to provide her with a
reasonable accommodation for her disability, so long as Ms. Smith requested one.
See Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th Cir. 2016) (“an employer’s
duty to provide a reasonable accommodation is not triggered unless a specific
demand for an accommodation has been made.”) (internal quotations omitted).
However, “an employer is not required to accommodate an employee in any
manner in which that employee desires.” Earl v. Mervyns, Inc., 207 F.3d 1361,
1367 (11th Cir. 2000). An “accommodation is ‘reasonable’ and necessary under
the ADA . . . only if it enables the employee to perform the essential functions of
the job.” Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1256 (11th Cir. 2007).
The Court accepts that Ms. Smith’s need to see a doctor on the day of the
scheduled meeting was due to her condition. Still, the Court is not persuaded that,
by informing Ms. Fout that she would not attend the meeting, Ms. Smith was
requesting an accommodation under the ADA. Ms. Smith’s desire to see a doctor
on this occasion does not necessarily implicate her ability to perform the essential
functions of her position. Although frequent absences necessitated by medical
26

treatment could raise a question of Ms. Smith’s ability to perform her duties, that
issue does not arise here. Instead, the limited record before the Court indicates that
Ms. Smith’s desire to leave work to see a doctor on this occasion was an isolated
incident. Neither Ms. Smith nor the defendants reference other medically-related
absences or a problem with Ms. Smith’s attendance. Consequently, it is unclear
from the record whether Ms. Smith actually needed an accommodation or whether
there was simply a scheduling conflict on the day in question.
The exchange between Ms. Fout and Ms. Smith regarding the scheduled
meeting and Ms. Smith’s need for treatment calls into doubt the necessity of the
accommodation Ms. Smith allegedly requested.

After receiving Ms. Pierce’s

complaint regarding Ms. Smith, Ms. Fout emailed both women to set a meeting for
the next day at 1:00 p.m. (Doc. 22, p. 14). When Ms. Fout followed up with Ms.
Smith by phone on the morning of the meeting, Ms. Smith informed Ms. Fout that
she needed to see a doctor because of a flare-up in her condition. (Doc. 1, ¶ 26;
Doc. 22, p. 16). Moments later, Ms. Smith wrote Ms. Fout an email in which she
stated that she wanted to “avoid addressing [her] issues until [she] felt better,” and
that she “just feel[s] to [sic] bad to address” the concerns raised by Ms. Pierce.
(Doc. 22, p. 18). The email does not reference a doctor’s appointment. Ms. Fout
replied to Ms. Smith stating that the issue could not wait and that “[u]nless you
specifically have a doctor’s appointment at 1:00, we need to meet today. It will not
27

take long and I hope we can get things cleared up.” (Doc. 22, p. 18). Ms. Smith
left the library prior to the meeting and without responding to Ms. Fout’s email.
Ms. Smith’s claim might be stronger if she could show that a scheduled
doctor’s appointment conflicted with the meeting, but she does not offer evidence
that such a conflict existed. Ms. Smith also does not expressly argue in either her
complaint or her response to the defendants’ motion that her doctor’s appointment
conflicted with the meeting. The process of finding a reasonable accommodation
is not one-sided; it involves an interactive exchange between the parties through
which they determine what accommodation is necessary to allow a disabled person
to continue performing the necessary functions of the job.

See 29 C.F.R. §

1630.2(o)(3). To the extent Ms. Smith needed an ongoing accommodation for her
disability, she did not engage in that process when she left the library without
responding to Ms. Fout’s email. Ms. Smith has not shown that the defendants
denied her a reasonable accommodation, and her claim for disability discrimination
fails for this reason.

Therefore, the Court grants the defendants’ motion for

summary judgment with respect to Ms. Smith’s ADA claim.
d. MS. SMITH’S CLAIM FOR DENIAL OF HER FMLA RIGHTS
Ms. Smith states that she asked Ms. Fout about taking “FMLA leave” to care
for her (Ms. Smith’s) hospitalized father on July 30, 2014. (Doc. 1, ¶ 31). Ms.
28

Fout placed Ms. Smith on administrative leave the following day “[b]efore [Ms.
Smith] could execute any necessary paperwork” to take FMLA leave. (Doc. 1, ¶¶
31–33, 62). Ms. Smith argues that Ms. Fout’s decision to suspend her was due in
part to the fact that Ms. Smith requested FMLA leave and that the suspension
denied Ms. Smith the benefit of FMLA leave. (Doc. 1, ¶ 40; Doc. 34, ¶¶ 10, 11).
The defendants dispute whether Ms. Smith in fact requested FMLA leave. (Doc.
21–1, p. 17).
The FMLA provides eligible employees with up to twelve weeks of leave
from work during a twelve month period in certain circumstances, including when
the employee needs “to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son daughter, or parent has a serious health condition.”
29 U.S.C. § 2612(a)(1)(C). The FMLA permits both claims for interference with
protected benefits and claims for retaliation against employees who use those
benefits. See Jones, 854 F.3d at 1267. Ms. Smith appears to assert both types of
claims in so far as she argues that her suspension interfered with her use of FMLA
leave, and as she suggests that the defendants’ decision to institute disciplinary
proceedings against her was motivated by her request for FMLA leave. (Doc. 1, ¶
40).
To pursue a claim for interference with rights conferred by the FMLA, a
plaintiff must show “by a preponderance of the evidence that [s]he was entitled to
29

the benefit denied.” Jones, 854 F.3d at 1267 (quoting Strickland v. Waterworks
and Sewer Bd. of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001)). The
plaintiff does not have to show that the employer intended to interfere with the
FMLA benefit in question. Jones, 854 at 1267.
Here, Ms. Smith’s claim for FMLA interference is closely intertwined with
her retaliation theory. Ms. Smith contends that the defendants’ retaliatory actions
—the disciplinary proceedings and eventual termination of Ms. Smith’s
employment — denied her the leave she was entitled to under the FMLA. But Ms.
Smith would be entitled to take leave from her employment only so long as she
remained employed by the library. If the actions that prevented Ms. Smith from
taking FMLA leave were legitimate, then Ms. Smith cannot claim that she was
entitled to the FMLA benefit that the library’s termination decision denied her.
Thus, to assess the viability of Ms. Smith’s FMLA interference claim, the Court
first must assess the viability of her FMLA retaliation claim.
A claim of FMLA retaliation based upon circumstantial evidence, such as
Ms. Smith’s claim, is subject to the same McDonnell Douglas burden shifting
framework as Ms. Smith’s other claims of discrimination. See Strickland, 239
F.3d at 1207. A plaintiff’s prima facie case consists of showing that: “(1) [s]he
engaged in a statutorily protected activity; (2) [s]he suffered an adverse
employment decision; and (3) the decision was causally related to the protected
30

activity.” Strickland, 239 F.3d at 1207. For purposes of this discussion, the Court
assumes that Ms. Smith has met the first requirement. Ms. Smith had a permissible
reason for taking FMLA leave. See 29. U.S.C. § 2612(a)(1)(C). According to Ms.
Smith, she asked Ms. Fout about taking FMLA leave to care for her recently
hospitalized father. (Doc. 1, ¶ 31). Although the defendants dispute whether Ms.
Smith actually asked Ms. Fout about taking FMLA leave, this is a question of fact
on which there is conflicting testimony. (Compare Doc. 1, ¶ 31 with Doc. 22, p.
3).
Ms. Smith’s argument on the second and third prongs of the prima facie
showing appears to be that the defendants instituted disciplinary proceedings
against her the day after she requested leave, at least in part, because of her request
for FMLA leave. Ms. Smith can meet the causation prong simply by showing that
defendants’ disciplinary action and her protected conduct were not unrelated, and
she can accomplish this by as little as a showing that the decision-maker was aware
of the protected conduct. Jones, 854 F.3d at 1272. Again, though the defendants
dispute that Ms. Smith ever made her request to Ms. Fout, this only creates an
issue of material fact. For purposes of this motion, the Court accepts Ms. Smith’s
testimony that she asked Ms. Fout for leave, and thus Ms. Fout was aware of the
protected activity at issue. (Doc 1, ¶ 31).

31

Even making these assumptions in Ms. Smith’s favor, she does not establish
a causal connection between her protected activity and the defendants’ alleged
retaliation because the evidence indicates that the defendants contemplated taking
disciplinary action against Ms. Smith before she requested FMLA leave. “[W]hen
an employer contemplates an adverse employment action before an employee
engages in protected activity, temporal proximity between the protected activity
and the subsequent adverse employment action does not suffice to show
causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (citing Cotton v.
Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006)
(citing in turn Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)).
As discussed above, the record in this case indicates that the events which
precipitated the defendants’ disciplinary actions occurred before Ms. Smith
requested FMLA leave. Therefore, Ms. Smith’s temporal proximity evidence does
not create an inference of causation without additional support. Because Ms.
Smith does not offer additional evidence, she is not entitled to an inference of
retaliation. And because the record demonstrates that the defendant’s acted within
the bounds of the law in terminating Ms. Smith, she cannot show that she was
entitled to FMLA leave. Therefore, her FMLA interference claim necessarily fails
as a matter of law. Accordingly, the Court grants the defendants’ motion as to Ms.
Smith’s FMLA claims.
32

e. MS. SMITH’S DEFAMATION CLAIM AGAINST MS. FOUT
Ms. Smith’s claim for defamation rests on her testimony that, during Ms.
Smith’s disciplinary proceedings, Ms. Fout solicited unfavorable letters from Ms.
Smith’s co-workers and Ms. Fout informed other libraries that Ms. Smith was
subject to disciplinary proceedings. (Doc. 1, ¶¶ 36, 41, 66, 67).
To establish a prima facie case of defamation under Alabama law, a 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 and proof of special harm (actionable per quod).” Ex
parte Bole, 103 So. 3d 40, 51 (Ala. 2012) (quoting Ex parte Crawford Broad. Co.,
904 So. 2d 221, 225 (Ala. 2004)) (emphasis and internal quotation marks omitted).
If a court determines that a plaintiff in a defamation action is “a public official,
public figure, or limited-purpose public figure,” then the plaintiff must establish by
clear and convincing evidence “that the defamatory statement was made with
‘actual malice’—that is, with knowledge that it was false or with reckless disregard
to whether it was false or not.” Cottrell v. Nat’l Collegiate Athletic Ass’n, 975 So.
2d 306, 333 (Ala. 2007) (citing New York Times, Co. v. Sullivan, 376 U.S. 254,
280 (1964)).

33

Whether a plaintiff is a public figure, and thus subject to the higher burden
proof, is a matter of law determined by the Court. See Ex parte Rudder, 507 So. 2d
411, 416 (Ala. 1987). Although Ms. Smith was a public employee with certain
managerial responsibilities, the Court finds that she is not a public figure for
purposes of her defamation claim. The Alabama Supreme Court has defined a
public official as someone who:
hold[s] a position that would invite public scrutiny of the person
holding it, apart from the scrutiny and discussion occasioned by the
allegedly defamatory remarks. Furthermore, the “public office”
should be one of such importance that the public has a particular
interest in the qualifications and performance of the person holding
that office beyond the public’s general interest in the qualifications
and performance of all governmental employees.

Barnett v. Mobile Cty. Personnel Bd., 536 So. 2d 46, 54 (Ala. 1988).
The director of the library’s children’s department is not an individual whose
work is likely to invite public scrutiny. Although it is desirable to have wellqualified employees in all forms of public employment, the public does not have a
“particular interest in the qualifications and performance” of the children’s
department director at the public library. Although Ms. Smith may have had some
control over her own department, there is no evidence that she was charged with
such responsibilities as allocating and spending public funds or that she otherwise
exercised “control over[] the conduct of government affairs.” Barnett, 536 So. 2d
34

at 54 (citing Rosenblatt v. Baer, 383 U.S. 75, 86 (1965)). Therefore, Ms. Smith is
not a public figure, and she does not have to prove actual malice to sustain her
defamation claim.
Despite this lighter burden, Ms. Smith has not offered enough evidence to
support her defamation claim. Although Ms. Fout may have caused needless
embarrassment to Ms. Smith when she told other libraries that Ms. Smith was
subject to disciplinary proceedings, such a statement was not defamatory because it
was truthful. Ms. Smith was in fact subject to disciplinary proceedings by the
Homewood Public library, and “[t]ruthful statements cannot, as a matter of law,
have a defamatory meaning.” Bole, 103 So. 3d at 51 (quoting Fed. Credit, Inc. v.
Fuller, 72 So. 3d 5, 10 (Ala. 2011)). Therefore, Ms. Fout’s statements to other
libraries cannot sustain Ms. Smith’s defamation claim.
Ms. Smith’s defamation claim fares little better to the extent she bases it on
Ms. Fout’s solicitation of negative feedback from other library employees during
Ms. Smith’s disciplinary proceedings. First, Ms. Smith says only that “[Ms.] Fout
added letters of negative reports from other library employees.” (Doc. 1, ¶¶ 36,
66). 10 Ms. Smith does not testify that her co-workers’ reports were false. Even if

10

The Court is not certain that the facts as stated by Ms. Smith satisfy the publication element of
defamation. A plausible reading of her complaint is that the letters in her file where published to
the Library Board as part of the process of appealing the termination decision. Even if the
statements were published in this manner, the statements arguably may be subject to qualified
35

the Court assumes that Ms. Smith means to imply that her co-workers’ reports
were both negative and false, Ms. Smith has not explained what her co-workers
reported or how their reports cast her in a defamatory light. Because Ms. Smith
does not testify as to what the defamatory statements were, a reasonable juror
would not have sufficient evidence from which to conclude that one of Ms.
Smith’s co-workers defamed her.
An additional difficulty for Ms. Smith is that she brings her defamation
claim against Ms. Fout only, although Ms. Fout did not make the defamatory
statements. Although Ms. Fout could have defamed Ms. Smith by republishing
false statements, Ms. Fout could be held liable only if she “knew at the time when
the statement was published that it was false, or acted in reckless disregard for its
truth or falsity.” Lovingood v. Discovery Comm., Inc., 5:14–cv–00684–MHH,
2017 WL 3268951, at *4 (N.D. Ala. Aug. 1, 2017). Because Ms. Smith has not
offered evidence of the false statements made by her co-workers, a reasonable
juror would not have sufficient evidence to conclude that Ms. Fout was aware of or
recklessly disregarded the falsity of those statements. Therefore, Ms. Smith has
not created a genuine issue of material fact as to her defamation claim, and the
Court grants the defendants’ motion with respect to this claim.

privileged as the defendants claim. See Barnett, 536 So. 2d at 53; (Doc. 21–1, p. 19). The Court
need not reach this issue given the more fundamental deficiencies with Ms. Smith’s evidentiary
showing.
36

IV. CONCLUSION
For the reasons explained above, the Court grants the defendants’ motion for
summary judgment as to all of Ms. Smith’s claims. The Court will enter a separate
order closing this case.
DONE and ORDERED this April 30, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

37