Duncan v. Willis et al

Filing 27

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 08/05/2013. (MSN)

FILED
2013 Aug-06 AM 09:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JEWELL DUNCAN,
Plaintiff,
vs.
LEWIS WILLIS, DAVID
DEVILLE, TACALA, LLC, d/b/a
TACO BELL, formerly known as
TRICALA, LLC,
Defendants.

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6:12-CV-1649-LSC

MEMORANDUM OF OPINION
I.

Introduction
In the above-entitled action, Jewell Duncan (“Plaintiff”) claims that her former

employer Tacala, LLC (“Tacala”), and former managers Lewis Willis (“Willis”) and
David Deville1 (“Deville”) (collectively, “Defendants”), created a hostile work
environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”)
when Willis subjected Plaintiff to sexual harassment, and retaliated against her in
violation of Title VII after she complained to management and to the EEOC about

1

The complaint in this case was filed against “David Deville,” however, the parties refer to
him as “David Davila” in their briefs. The Court will address him as David Deville for purposes of
this opinion.
Page 1 of 25

Willis’ sexual harassment. Plaintiff also asserts state law claims of emotional distress
and negligent hiring against the Defendants. Before the Court is the Motion for
Summary Judgment (Doc. 18), filed by the Defendants following discovery. The
motion has been fully briefed and is now ripe for decision.
II.

Facts2
Tacala owns and operates Taco Bell restaurants, including a Taco Bell

restaurant located in Jasper, Alabama. Plaintiff was hired by Tacala on August 6, 2009,
and was employed at all relevant times in a Team Member position. In November of
2009, Tacala completed a third-party background check on Willis that revealed no
prior criminal history, then hired him as Restaurant General Manager for the Jasper
Taco Bell restaurant.(Gisin Dec. ¶ 6.) Willis began managing the Jasper restaurant in
January of 2010. Around the same time, Tacala assigned Deville to serve as Area
Coach over multiple restaurants, including the Jasper restaurant.
Between January and July of 2010, Willis made several inappropriate comments
to Plaintiff. Once, he told Plaintiff that he would not purchase an expensive
2

The facts set out in this opinion are gleaned from the parties’ individual submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the Court’s own
examination of the evidentiary record. All reasonable doubts about the facts have been resolved in
favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224
(11th Cir. 2002). These are the “facts” for summary judgment purposes only. They may not be the
actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir.
1994).
Page 2 of 25

Valentine’s gift “unless somebody gave him some.” (Pla. Depo. 88:10–15.) On less
than five occasions, Willis made comments about having sex with his wife. (Id.
90:12–91:11.) Willis told Plaintiff twice that he would like to “hit her from behind” and
once that she had “big ole titties.”(Id. 81:14–23.) Once, Willis told Plaintiff in front
of her coworkers that she was too old and too big to be working in a restaurant. (Id.
135:20–136:20.) Finally, Willis would apparently hide employment applications in the
trunk of his car, and only provide them to young females who inquired about
employment at Taco Bell. (Terry Depo. 48:18–22.)
On July 28, 2010, Willis told Plaintiff that Deville did not like her dreadlocks,
and that Deville did not want her on the premises, so she was terminated. That
afternoon, Plaintiff called Tacala’s Director of Employee Administration, Angelique
Gisin (“Gisin”), and left the following message: “Good afternoon. My name is Jewell
Duncan . . . . I am calling from the Jasper store. Ma’am, I need to speak with you. It
is very important, thank you, ma’am.” (Gisin Decl. ¶ 7; Pla. Depo. 99:17–100:22.) She
eventually got in touch with someone from human resources, who told her to go back
to work. (Pla. Depo. 133:6–15.)
After receiving Plaintiff’s message, Tacala’s human resources department
performed an investigation at the Jasper restaurant in which employees were asked to

Page 3 of 25

submit written statements identifying any issues they may have had in the restaurant.
Plaintiff submitted a handwritten statement on July 30, 2010, alleging inappropriate
treatment by Willis and Deville, but not referencing sexual harassment or any
inappropriate sexual comments by Willis. Plaintiff’s handwritten statement concluded
with, “P.S. there is a whole lot more!!!” (Doc. 20-4 at 55.)
On September 10, 2010, Plaintiff submitted an intake questionnaire to the Equal
Employment Opportunity Commission (“EEOC”) alleging, inter alia, sexual
harassment by Willis. The EEOC received the questionnaire on September 15, 2010.
(Doc. 20-4 at 64–70.)
A few months after Plaintiff submitted her handwritten statement to Tacala’s
human resources department, Willis came into the restaurant and stated that
“[s]omeone has filed a sexual harassment case on me. I don’t know who it is, but I’m
going to find out.” (Pla. Depo. 123:20–126:2.) A few minutes later, Willis informed
Plaintiff, “they told me don’t talk to you, you have a sexual harassment case on me.”
(Id. 129:3–8.) Thereafter, Willis selected Plaintiff more frequently to go home when
the restaurant was overstaffed. (Id. 129: 18–22.) In October of 2010, Willis also told
Plaintiff that the reason she had not received a raise was because she “didn’t like to
do favors.” (Id. 157:18–22.)

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On December 7, 2010, the EEOC sent Plaintiff a letter informing her that she
needed to take some steps to file an EEOC charge. (Doc. 20-4 at 71.) Plaintiff followed
the EEOC’s instructions and filed a charge on December 17, 2010. (Doc. 20-4 at
72–75.)
Plaintiff filed the present action on April 23, 2012, alleging sexual harassment
and retaliation in violation of Title VII, and emotional distress and negligent hiring
under Alabama law. (Doc. 1.) Following discovery, the Defendants filed their Motion
for Summary Judgment. (Doc. 18.)
III.

Standard
Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The party moving for
summary judgment “always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the evidence] which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting
evidence showing that there is no genuine dispute of material fact, or by showing that

Page 5 of 25

the nonmoving party has failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–23. In
evaluating the arguments of the movant, the court must view the evidence in the light
most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996).
Once the movant has met its burden, Rule 56(e) “requires the nonmoving party
to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers
to interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e)).
“A factual dispute is genuine only if a ‘reasonable jury could return a verdict for the
nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224
(11th Cir. 2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428,
1437 (11th Cir. 1991)).
IV.

Discussion
A.

Hostile Work Environment

Plaintiff alleges that she endured a hostile work environment in violation of the
Title VII. Initially, the Court notes that Plaintiff brings this claim against all
Defendants, not just Tacala. “[R]elief under Title VII is available against only the

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employer and not against individual employees whose actions would constitute a
violation of the Act.” Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). Plaintiff
presented no evidence that Willis and Deville were her employers. Accordingly, she
cannot maintain a Title VII claim against them.
In order to prove that Tacala is liable for a hostile work environment Plaintiff
must show that:
(1) [s]he belongs to a protected group; (2) [s]he was subjected to
unwelcome harassment; (3) the harassment was based on [her]
membership in the protected group; (4) it was severe or pervasive
enough to alter the terms and conditions of employment and create a
hostile or abusive working environment; and (5) the employer is
responsible for that environment under a theory of either vicarious or
direct liability.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation marks
omitted). Additionally, “[o]nly conduct that is ‘based on’ a protected category, such
as [gender], may be considered in a hostile work environment analysis.” Id. (citing
Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584 (11th Cir. 2000)). “Innocuous
statements or conduct, or boorish ones that do not relate to the [gender] of the actor
or of the offended party (the plaintiff ), are not counted.” Id. (citation omitted).
The Defendants argue that Plaintiff cannot show that the conduct she complains
of was severe or pervasive enough to alter the terms and conditions of her

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employment. A determination of whether harassment is severe or pervasive enough
to alter the terms and conditions of employment includes both a subjective and
objective component. Jones, 683 F.3d at 1299. “The burden is on [P]laintiff to
demonstrate that [s]he perceived, and that a reasonable person would perceive, the
working environment to be hostile or abusive.” Id. At summary judgment, the Court
must accept that Plaintiff subjectively perceived that the harassment rose to this level.
Id.
In determining whether a reasonable person would perceive the working
environment to be hostile or abusive, a court must look at the totality of circumstances
and consider, inter alia: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276
(11th Cir. 2002). Conduct is objectively severe when the workplace is permeated with
intimidation, ridicule, and insult. Id. at 1276–77. The Supreme Court has repeatedly
emphasized that simple teasing, offhand comments, and isolated incidents, unless
extremely serious, will not amount to discriminatory changes in the terms and
conditions of employment. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

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75, 81 (1998); Harris, 510 U.S. at 21–22.3
With that guidance in mind, the Court considers the evidence of sexual
harassment presented in the instant case. Initially, much of the conduct Plaintiff
alleges does not constitute “harassing conduct” to which the totality of circumstances
test can be applied.4 The remaining, harassing conduct includes Willis telling Plaintiff
twice that he would like to “hit her from behind” and once that she had “big ole
3

For example, the Eleventh Circuit has found that a female plaintiff was not subjected to a
sex-based hostile work environment where a male supervisor (1) told her he was “getting fired up,”
(2) rubbed his hip against her hip while smiling and touching her shoulder, (3) twice made a sniffing
sound while looking at employee’s groin area, and (4) constantly followed her and stared at her in
a very obvious manner. Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999), cert. denied, 529
U.S. 1068 (2000).
4

First, Plaintiff argues that she was harassed when Willis told her in front of coworkers that
she was too old and too big to be working in a restaurant. (Pla. Depo. 135:20–136:20.) However,
Willis’ comment was not sexual in nature, nor did it relate to Plaintiff’s gender, and it will not be
considered in evaluating Plaintiff’s Title VII hostile work environment claim. See Mendoza, 195 F.3d
at 1247–48 (circumstances surrounding an allegedly harassing comment must objectively indicate
that it had a sexual or other gender-related connotation).
Next, Plaintiff argues that she was harassed because Willis would apparently hide
employment applications in the trunk of his car, and only provide them to young females who
inquired about employment at Taco Bell. (Terry Depo. 48:18–22.) However, Plaintiff has presented
no evidence that she was aware of this hiring tactic, that it was directed at her, and this conduct
would only constitute harassment based on Plaintiff’s age, not her gender. See Buckhanon v. Huff Ft
Associates Const. Co., Inc., 506 F. Supp.2d 958, 966 (M.D. Ala. 2007) (finding that testimony of
witness to racial slurs and derogatory comments by supervisor was irrelevant to hostile work
environment claim where plaintiffs testified that they were not aware of the supervisor's comments).
Finally, Plaintiff argues that Tacala created a hostile work environment when it failed to
address her sexual harassment complaint. However, it is undisputed that Tacala’s human resources
department performed an investigation in July of 2010, and there is no evidence that Plaintiff or any
other employee reported sexual harassment to Tacala. Thus, Tacala’s failure to address Plaintiff’s
complaints cannot be based on a protected category under Title VII.
Page 9 of 25

titties”(Pla. Depo. 81:14–23); Willis’ comment that he would not purchase an
expensive Valentine’s gift “unless somebody gave him some” (id. 88:10–15); five
occasions when Willis made comments about having sex with his wife (id.
90:12–91:11); and Willis’ comment to Plaintiff that the reason she had not received a
raise was because she “didn’t like to do favors.” (Id. 157:18–22.)5
After resolving all reasonable doubts in favor of Plaintiff, it is clear that Willis’
comments and actions were isolated and only occurred on a few occasions. The
Eleventh Circuit considers an incident a week to be sufficiently frequent to bolster a
plaintiff's case but considers an incident every two months to be insufficiently frequent
to do so. Compare Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d
501, 509 (11th Cir. 2000) (fifteen instances in four months “was not infrequent”) with
Mendoza v. Borden, Inc., 195 F.3d 1238, 1249 (11th Cir. 1999) (en banc) (five
inappropriate instances in eleven months were “far too infrequent” to support a
sexual harassment claim) and Gupta, 212 F.3d at 579, 584–85 (eight instances of
touching, partial exposure, staring and complimenting in six or seven months, plus
repeated invitations to lunch during the same period, was not frequent). Here, Plaintiff

5

Plaintiff appears to admit that Willis’ comment was not in reference to “sexual favors” (Pla.
Depo. 157:22–158:10); however, the Court will consider this comment as sexual for the purposes of
summary judgment.
Page 10 of 25

alleges no more than nine instances of verbal sexual harassment over a ten month
period. Since the frequency in Gupta exceeded one incident a month, the frequency
of conduct in this case does not support Plaintiff’s claim.
Additionally, Willis’ sexual comments did not permeate the workplace with
intimidation, ridicule, and insult. Willis never physically threatened Plaintiff. In fact,
Plaintiff admits that he never touched her in a sexual manner. (Pla. Depo. 92:17–20.)
Accordingly, the Court has considered the effect of these acts on the working
environment, “in context, not as isolated acts,” Mendoza, 195 F.3d at 1246, and finds
that, in their totality, the alleged incidents do not satisfy the Eleventh Circuit’s
“baseline” for severity or pervasiveness that is required to survive summary judgment.
Id. at 1244. Thus, Plaintiff’s hostile work environment claim is due to be dismissed.6
B.

Retaliation

Plaintiff alleges that she was retaliated against in violation of Title VII for
making complaints of sexual harassment. As previously mentioned, Plaintiff cannot
maintain a Title VII claim against Willis or Deville because there is no evidence that
they were her employers. See Dearth, 441 F.3d at 933. However, she may be able to
6

Tacala also argues that Plaintiff cannot show that it is responsible for the alleged conduct.
However, because the Court has determined that the conduct she complains of was not severe or
pervasive enough to alter the terms and conditions of her employment, there is no need to determine
whether the Defendants are entitled to a Faragher defense. See Faragher v. City of Boca Raton, 524
U.S. 775, 807 (1998).
Page 11 of 25

maintain a retaliation claim against Tacala.
Because Plaintiff is relying exclusively on circumstantial evidence, the burden
of proof in her retaliation claim is governed by the Mcdonnell-Douglas framework.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The McdonnellDouglas framework first “requires the plaintiff to create an inference of [retaliation]
through her prima facie case.” Springer v. Convergys Customer Management Group, Inc.,
509 F.3d 1344, 1347 (11th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)). Once a plaintiff establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, non-retaliatory reason for its actions.
McDonnell Douglas, 411 U.S. at 802; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the employer meets this burden, the plaintiff must show that the
proffered reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511
(1993).
Tacala maintains that it is entitled to summary judgment because Plaintiff
cannot establish a prima facie case of retaliation, and even if she could, Tacala has a
legitimate, non-retaliatory reason for its actions.
1.

Prima Facie Case

“A plaintiff establishes a prima facie case of retaliation by showing that: (1) she

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‘engaged in statutorily protected activity’; (2) she ‘suffered a materially adverse
action’; and (3) ‘there was a causal connection between the protected activity and the
adverse action.’” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (citing
Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010)) (emphasis added).
Tacala argues that Plaintiff cannot show that she engaged in protected activity,
suffered a materially adverse action, or that there was a causal connection between any
protected activity and adverse action.
i.

Statutorily Protected Activity

The Eleventh Circuit has described protected activity under Title VII as
follows:
Title VII’s retaliation provisions do protect certain kinds of activity.
Under the opposition clause, an employer may not retaliate against an
employee because the employee “has opposed any practice made an
unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3
(a). And, under the participation clause, an employer may not retaliate
against an employee because the employee “has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” Id. . . .
The participation clause covers participation in “an investigation . . .
under this subchapter,” that is, an investigation under subchapter VI of
Chapter 21 of Title 42 (42 U.S.C. §§ 2000e-2000e-17). 42 U.S.C. §
2000e-3(a). This clause protects proceedings and activities which occur
in conjunction with or after the filing of a formal charge with the EEOC;
it does not include participating in an employer’s internal, in-house
investigation, conducted apart from a formal charge with the EEOC. See
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Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978) (stating that
participation means “participation in the machinery set up by Title VII
to enforce its provisions”).
E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). To
demonstrate that she engaged in a protected activity under the opposition clause,
Plaintiff “must show that she ‘had a good faith, reasonable belief that the employer
was engaged in unlawful employment practices.’” Weeks v. Harden Mfg. Corp., 291
F.3d 1307, 1312 (11th Cir. 2002) (quoting Little v. United Tech., Carrier Transicold Div.,
103 F.3d 956, 960 (11th Cir. 1997)). “It . . . is not enough for a plaintiff to allege that
[her] belief in this regard was honest and bona fide; the allegations and record must
also indicate that the belief, though perhaps mistaken, was objectively reasonable.”
Little, 103 F.3d at 960.
In this case, Plaintiff’s EEOC charge is protected by the participation clause of
Title VII, as is her questionnaire. See Eastland v. Tennessee Valley Authority, 704 F.2d
613, 627 (11th Cir. 1983) (noting that contacting an EEO officer is protected activity).
Further, Plaintiff’s questionnaire is protected by the opposition clause of Title VII
because her belief that she was being sexually harassed was objectively reasonable in
light of Willis’ purported comments.
However, none of her other complaints constitute protected activity under the

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participation clause because they occurred as part of Tacala’s internal, in-house
investigation, conducted apart from a formal charge with the EEOC. Moreover, none
of her other complaints constitute protected activity under the opposition clause
because there is no evidence that Plaintiff “explicitly or implicitly communicate[d] a
belief that the [conduct she complained about] constitute[d] unlawful employment
discrimination.” EEOC Compl. Man. (CCH) §§ 8–II–B(2) (2006); see Crawford v.
Metro. Gov’t, 555 U.S. 271 (2009) (using the EEOC manual in interpreting the
opposition clause of the antiretaliation statute). Plaintiff’s July 28, 2010, message with
Tacala’s Director of Employee Administration did not mention sexual harassment, or
any unlawful treatment, and did not identify either Willis or Deville. (Pla. Depo.
99:17–100:22.) Plaintiff’s July 30, 2010, statement made no reference to sexual
harassment by Willis or anyone else. (Gisin Dec., ¶ 9.d; Doc. 23-1, ¶ 3.) Further,
Plaintiff has presented no evidence that she ever verbally communicated her
complaints about Willis’ sexual harassment to Tacala.
ii.

Materially Adverse Action

A materially adverse employment decision for purposes of retaliation only
requires that the employer’s actions “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington Northern & Santa Fe

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Railway Co. v. White, 548 U.S. 53, 68 (2006). In speaking of material adversity, the
Supreme Court felt it “important to separate significant from trivial harms.” Id. The
Court went on to stress that the exercise of protected activity does not “immunize [an]
employee from those petty slights or minor annoyances that often take place at work
that all employees experience.” Id. This Court’s determination of whether the
Defendants’ actions were materially adverse is inherently fact-specific and “depend[s]
upon the particular circumstances” of the case. Id. at 69. See also Crawford v. Carroll,
529 F.3d 961, 973 n.13 (11th Cir. 2008) (noting that Burlington Northern “strongly
suggests that it is for a jury to decide whether anything more than the most petty and
trivial actions against an employee should be considered ‘materially adverse’ to him
and thus constitute adverse employment actions”).
Plaintiff claims that the following events constitute materially adverse actions:
(1) on July 28, 2010, Willis told Plaintiff that Deville did not like her hair and that she
was terminated and (2) during the fall of 2010, Willis sent Plaintiff home when the
restaurant was overstaffed more frequently. These events satisfy the Burlington
Northern standard for materially adverse employment action. Terminating an
employee is certainly a materially adverse employment action. Moreover, Willis
reduced Plaintiff’s hours by two every day. (Pla. Depo. 118:7–13.) Plaintiff worked four

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days every week. (Id. 173:7–12.) This would effectively cut eight hours out of Plaintiff’s
work week. Plaintiff was originally only working twenty-four hours each week. (Id.
173:13–19.) For an hourly employee, cutting one-third of their hours is substantial, and
could dissuade a reasonable employee from filing a charge of discrimination with the
EEOC.
iii.

Causal Connection

The Eleventh Circuit has described the causal connection requirement as
follows:
We construe the causal link element broadly so that “a plaintiff merely
has to prove that the protected activity and the . . . [adverse] action are
not completely unrelated.” Olmsted v. Taco Bell Corp., 141 F.3d 1457,
1460 (11th Cir. 1998). “A plaintiff satisfies this element if [s]he provides
sufficient evidence” of knowledge of the protected expression and “that
there was a close temporal proximity between this awareness and the
adverse ... action.” [Shotz v. City of Plantation, Fla., 344 F.3d 1180 n.3
(11th Cir. 2003)] (quoting Farley v. Nationwide Mut. Ins. Co., 197 F.3d
1322, 1337 (11th Cir. 1999)). A “close temporal proximity” between the
protected expression and an adverse action is sufficient circumstantial
evidence of a causal connection for purposes of a prima facie case. See
Olmsted, 141 F.3d at 1460. We have held that a period as much as one
month between the protected expression and the adverse action is not
too protracted. See [Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457
(11th Cir. 1998)] (citing Donnellon v. Fruehauf Corp., 794 F.2d 598, 601
(11th Cir. 1986)).
The Supreme Court has stated that “mere temporal proximity between
. . . knowledge of protected activity and an adverse . . . action . . . must be
‘very close.’” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121
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S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (citations omitted). The Court
cited with approval decisions in which a three to four month disparity
was found to be insufficient to show causal connection. See id. (citing
Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997) (3-month period
insufficient) and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.
1992) (4-month period insufficient)). If there is a substantial delay
between the protected expression and the adverse action in the absence
of other evidence tending to show causation, the complaint of retaliation
fails as a matter of law. In Wascura v. City of South Miami, we held that
“Wascura failed to present evidence from which a reasonable jury could
find any causal connection between Wascura’s notice to the
Commissioners in January 1995 of her potential need to take time off to
care for her son and her subsequent termination on May 16, 1995.” 257
F.3d 1238, 1248 (11th Cir. 2001)
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2011).
In this case, the only protected activity Plaintiff participated in was her EEOC
activity, commenced in September of 2010. Plaintiff’s allegations that she was
terminated on July 28, 2010, cannot be causally related to Plaintiff’s EEOC charge
because no one at Tacala could have had knowledge that Plaintiff engaged in protected
conduct. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)
(citation omitted). However, there is a causal connection between Plaintiff being sent
home early in the fall of 2010 and her EEOC activity. Plaintiff contends that Willis,
who sent Plaintiff home on several occasions when the restaurant was overstaffed,
stated that “[s]omeone has filed a sexual harassment case on me. I don’t know who it

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is, but I’m going to find out.” (Pla. Depo. 123:20–126:2.)7 This is enough for a
reasonable jury to infer that Willis harbored a retaliatory animus towards the employee
that initiated the sexual harassment case. Further, Willis’ comment to Plaintiff that
“they told me don’t talk to you, you have a sexual harassment case on me”
demonstrates that he had knowledge that Plaintiff was the employee that initiated the
sexual harassment case against him. (Id. 129:3–8.) This is sufficient evidence to prove
that the reduction of Plaintiff’s working hours and her EEOC intake questionnaire
complaining about sexual harassment were not completely unrelated.
2.

Legitimate, Non-Retaliatory Reasons

Because Plaintiff has met her burden of demonstrating a prima facie case based
on the reduction of Plaintiff’s working hours, the burden shifts to Tacala to articulate
a legitimate, non-retaliatory reason for its actions. McDonnell Douglas, 411 U.S. at 802;
Burdine, 450 U.S. at 253. Tacala contends that Plaintiff was “sent home early on a few
occasions when the restaurant was overstaffed.” (Doc. 19 at 24.) Accordingly, Tacala
has articulated a legitimate, non-retaliatory reason for sending Plaintiff home early,
and Plaintiff must now show that the proffered reason was pretextual. Hicks, 509 U.S.

7

Resolving all reasonable doubts in favor of Plaintiff, it is possible that the EEOC initiated
an investigation after Plaintiff submitted her questionnaire, making Willis aware of Plaintiff’s
complaints, and this was the “sexual harassment case” he was referring to.
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at 511.
3.

Pretext

To establish pretext, Plaintiff must “demonstrate that the proffered reason was
not the true reason for the employment decision.” Jackson v. State of Ala. State Tenure
Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). “A reason is not pretext for
[retaliation] unless it is shown both that the reason was false, and that [retaliation] was
the real reason.” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160,
1163 (11th Cir. 2006) (quotation marks and citation omitted). Plaintiff can meet her
burden “either directly by persuading the court that a [retaliatory] reason more likely
motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Id. When determining whether Tacala’s
proffered reason for sending Plaintiff home early was pretextual, it is the motive of the
decisionmaker–Willis in this case–in selecting Plaintiff more frequently that is at issue.
See Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989).
Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury
could infer that Willis harbored a retaliatory animus based on his statement that he was
“going to find out” who filed a sexual harassment case against him. (Pla. Depo.
123:20–126:2.) Further, a reasonable jury could find that a retaliatory reason more

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likely motivated Willis in selecting Plaintiff to go home early because he was clearly
aware that it was Plaintiff who complained based on his conversation with her (Id.
129:3–8), and he selected Plaintiff to go home early more frequently only after this
conversation. (Id. 129: 18–22.) Accordingly, there is sufficient circumstantial evidence
from which a jury could reasonably infer that Tacala’s articulated reasons are a pretext
for retaliation.
C.

Emotional Distress

Plaintiff alleges that the Defendants’ conduct caused her emotional distress.
Concerning the tort of intentional infliction of emotional distress, or outrage, the
Supreme Court of Alabama has held:
The tort of outrage is an extremely limited cause of action. It is so limited
that this Court has recognized it in regard to only three kinds of conduct:
(1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.
2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an
insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d
133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal
Sys. Corp., 551 So.2d 322 (Ala.1989). See also Michael L. Roberts and
Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996). In order
to recover, a plaintiff must demonstrate that the defendant’s conduct
“(1) was intentional or reckless; (2) was extreme and outrageous; and (3)
caused emotional distress so severe that no reasonable person could be
expected to endure it.” Green Tree Acceptance, Inc. v. Standridge, 565 So.
2d 38, 44 (Ala. 1990).
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). In determining whether the alleged

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conduct was extreme and outrageous, “plaintiffs must necessarily be expected and
required to be hardened to a certain amount of rough language and to occasional acts
that are definitely inconsiderate and unkind.” Surrency v. Harbison, 489 So.2d 1097,
1105–06 (Ala. 1986) (quoting Restatement (Second) of Torts, § 46, Comment (d)
(1965)).
In this case, Plaintiff has alleged that Willis made several inappropriate
comments to her (Pla. Depo. 81:14–23, 88:10–15, 90:12–91:11, 157:18–22), attempted
to terminate her because of her hair style (Terry Depo. 44:20–45:13), and sent her
home more frequently in retaliation for filing a complaint against him. (Id. 129: 18–22.)
However, Plaintiff admits that Willis never touched her in a sexual manner. (Id.
92:17–20.) These allegations wholly fail to establish conduct “so outrageous in
character and so extreme in degree as to go beyond all possible bounds of decency, and
to be regarded as atrocious and utterly intolerable in a civilized society.”American
Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). See also O’Rear v. B.H., 69
So. 3d 106 (Ala. 2011) (outrage judgment affirmed where family physician provided
teenage boy with addictive prescription drugs in exchange for sex); Busby v. Truswal
Systems Corp., 551 So. 2d 322 (Ala. 1989) (outrage claim cognizable where supervisor
made several inappropriate sexual comments and gestures to plaintiffs, attempted to

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follow one of the plaintiffs into the restroom to “help her,” followed another plaintiff
one night, openly stared at the plaintiffs’ sexual anatomy, and put his arm around the
plaintiffs, grabbed their arms, and stroked their necks). While sexual harassment is
inappropriate in the workplace and has no place in civilized society, the comments
purportedly made by Willis cannot be said to “go beyond all possible bounds of
decency.” Surrency, 489 So. 2d at 1105–06.
D.

Negligent Hiring

Plaintiff claims that the Defendants were negligent in hiring Willis. However,
because the evidence clearly demonstrates that only Tacala hired Willis, this claim
may only be brought against Tacala. To establish a negligent hiring claim, Plaintiff
must show “by affirmative proof that the alleged incompetence of the employee was
actually known to the employer or was discoverable by the employer if it had exercised
care and proper diligence.” Portera v. Winn Dixie, 996 F.Supp. 1418, 1437 (M.D. Ala.
1998). See Gilmer v. Crestview Mem. Funeral Home, Inc., 35 So. 3d 585, 596 (Ala. 2009)
(“To prove a claim of negligent [hiring], a plaintiff must show that the employer knew,
or in the exercise of ordinary care should have known, that its employee was
incompetent.”); Rhodes v. Arc of Madison County, Inc., 2013 WL 366176 (N.D. Ala. Jan.
25, 2013) (“Thus, the requirement that a defendant have actual or constructive

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knowledge of an employee’s unfitness applies to claims for negligent hiring.”).
Plaintiff has not provided sufficient evidence to establish that Tacala knew or
should have known that prior complaints of sexual harassment had been made against
Willis. Moreover, Plaintiff admits she has no knowledge about whether anyone ever
alleged that Willis had engaged in sexual harassment or misconduct at any of his prior
places of employment. (Pla. Depo. 137:21–139:11.) Although Plaintiff heard that Willis
was terminated from Ryan’s restaurant for getting into a fight (Id. 138:8–15), this does
not relate to sexual harassment—Willis’ underlying wrongful conduct. See Voyager Ins.
Companies v. Whitson, 867 So. 2d 1065, 1073 (Ala. 2003) (“A party alleging negligent
. . . hiring must also prove the underlying wrongful conduct of employees.”); Jones
Exp., Inc. v. Jackson, 86 So. 3d 298, 305 (Ala. 2010) (“[I]mplicit in the tort of negligent
hiring, retention, training, and supervision is the concept that, as a consequence of the
employee’s incompetence, the employee committed some sort of act, wrongdoing, or
tort that caused the plaintiff’s injury.”).
V.

Conclusion
For the aforementioned reasons, the Defendants’ Motion for Summary

Judgment is due to be GRANTED in part and DENIED in part. The Defendants’
request to dismiss Plaintiff’s hostile work environment, emotional distress, and

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negligent hiring claims, and Willis and Deville’s request to dismiss Plaintiff’s
retaliation claim is due to be GRANTED. Tacala’s request to dismiss Plaintiff’s
retaliation claim is due to be DENIED. The only claim remaining will be Plaintiff’s
Title VII retaliation claim against Tacala. A separate order consistent with this opinion
will be entered.
Done this 5th day of August 2013.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
171032

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