Atkins v. Greene County Hospital Board et al
Filing
56
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/14/2017. (PSM)
FILED
2017 Dec-14 PM 01:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARILYN ATKINS,
Plaintiff,
vs.
GREENE COUNTY
HOSPITAL BOARD, and
ELMORE PATTERSON,
Defendants.
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7:16-cv-00567-LSC
MEMORANDUM OF OPINION
Before the Court is Defendants’ Greene County Hospital Board (“GCHB”)
and Elmore Patterson’s (“Mr. Patterson”) (collectively, “Defendants”), Rule 56
motion for summary judgment as to all claims asserted in Plaintiff’s Complaint.
(Doc. 51.) The motion has been fully briefed and is now ripe for decision. Upon
consideration of the motions, briefs, and evidentiary submissions, Defendants’
motion is due to be GRANTED.
I.
BACKGROUND1
1
The facts set out in this opinion are gleaned from the parties' submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the Court's own examination of
the evidentiary record. 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). The Court is not required to identify unreferenced evidence supporting a
party’s position. As such, review is limited to exhibits and specific portions of the exhibits
Page 1 of 23
Greene County Hospital Board operates a hospital, physician clinic, and
residential care facility in Eutaw, AL. Elmore Patterson is the Chief Executive
Officer of GCHB. Marilyn Atkins (“Plaintiff” or “Atkins”) began working as a
GCHB registration clerk in early July 2011. When she began her employment,
Atkins was provided with an Employee Handbook which notified employees that
unauthorized absence from work is grounds for disciplinary action, up to and
including termination. (Doc. 53-1 at 134.) In December 2013, GCHB implemented
an attendance and disciplinary action policy providing that a “No-call, No-show
equals termination.” (Doc. 53-2 at 5-6.) Atkins asserts that the revised policy was
not distributed to any GCHB employee who received the older version of the
Employee Handbook, including herself. The version of the Handbook she received
provided that the “no call/no show” penalty was a three day suspension, and a
“2nd no show no call [would] result in termination.” (Doc. 53-1 at 134; Atkins
Dep. at 113; 226.)
In early September 2, 2011, Atkins enrolled in the Employees’ Retirement
System of Alabama (“ERS”), which is a defined benefit pension retirement plan
through the Retirement Systems of Alabama (“RSA”). (See Doc. 53-1 at 150.)
specifically cited by the parties. See Chavez v. Sec’y, Fla. Dept. of Corr., 647 F.3d 1057, 1061 (11th
Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts buried in a
massive record . . . .”) (internal quotes omitted).
Page 2 of 23
Participation in the ERS defined benefit plan 2 is mandatory for all non-temporary,
full-time GCHB employees. Once enrolled, employees are required to continue
participation in the ERS plan until their employment is terminated. (Patterson Dec.
¶ 5.) Vested members of the RSA pension plan are eligible to receive a monthly
retirement benefit from RSA upon reaching retirement age. Individuals must
participate in the plan for at least ten years to be vested. Atkins was not vested at
the time of her termination as she participated in the plan for less than ten years.
Before being paid to the RSA, retirement contributions deducted from
employees’ paychecks each month were put into a general fund from which general
expenses were paid, instead of going into a separate payroll account. These
contributions generally totaled $23,000 to $30,000 per month. JoAnne Cameron,
Greene County Hospital Board office manager, testified that ERS deductions paid
to the RSA are due “somewhere around” the tenth of the following month, and
that they were almost never made within that time period by GCHB. (Cameron
Dep. at 31.) Some payments 3 were delayed as many as three months. 4 (Atkins Dep.
2
A defined benefit plan for ERISA purposes “consists of a general pool of assets, rather than
individualized dedicated accounts. Such a plan, ‘as its name implies, is one where the employee,
upon retirement, is entitled to a fixed periodic payment.’” Hughes Aircraft Co. v. Jacobson, 525
U.S. 423, 439 (1999) (citing Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 154,
(1993).
3
“On more than one occasion, Greene County Hospital remitted delinquent contribution to
ERS. Because the ERS retirement plan established pursuant to 36-27-1, et. seq. is a defined benefit
plan, the delay in contributions had no negative consequences to any Greene County Hospital
Page 3 of 23
at 93-96.) Despite the tardy payments, the overall actuarial record valuation of the
RSA shows that the pension plan for GCHB employees has been consistently 100%
overfunded since at least 2010. (Doc. 53-1 at 169-171.) However, while in the
general pool, funds were used by GCHB to pay various expenses. Employees
complained about the late RSA payments and Mrs. Atkins brought the late
payments to the attention of the Tiffany Grisby, who is the CFO, in addition to Mr.
Inyang. On October 20, 2015, Atkins attended a board meeting to discuss her
concerns surrounding the late RSA payments. At the meeting the board instructed
Atkins to gather documentation and return with it for the next Board meeting.
After Atkins addressed the Board, it was rumored that Patterson was looking for a
reason to terminate her. Atkins again expressed concern to the Board at the
November 2015 meeting and then again in early 2016.
In August of 2014, Atkins was assigned as a logistics clerk under the
supervision of Etebom Inyang (“Inyang”). On a 2015 performance evaluation, she
received an overall rating of “average” with a “below average” rating for
participant. No Greene County Hospital employee had any financial loss due to the
delay.”(Kelley Affidavit, Doc. 54-4 at 2-3.)
4
For example, “in 2014, the October payment was not posted until December 2. The December
payment was not posted until February 3. The February payment was not posted until April 14.
The March payment was not posted until May 8. The April payment was not posted until June 3.
The July payment was not posted until September 15. The August payment was not posted until
October 6. Late payments were also made in 2012 and 2015.” (Doc. 54-1 at 2; see Doc. 53-4 at 1820; see also Doc. 53-1 at 166-68.) In 2012 one payment was late, and ten of the twelve payments
made in 2015 were delinquent. (Id. at 168.)
Page 4 of 23
dependability. (Doc. 53-1 at 40-41.) Over the course of her employment, Atkins was
given a number of disciplinary warnings on account of her tardiness. In August of
2015, she was suspended for one day for being late on four occasions during one
pay period, and suspended for two days for being argumentative with a supervisor.
(Doc. 53-1 at 141-45.) Atkins would document her absences before each pay period
ended. If she wanted to take off of work, Atkins was required to obtain approval
from Inyang by sending time off requests to him via Microsoft Outlook calendar
invitations. Inyang would deny or approve the requests by either accepting or
declining the invitation. On October 21, 2015, Atkins sent an Outlook invitation to
Inyang making a request to be off of work on October 26, 2015. Atkins did not
report to work October 26, 2015, and returned to work the following day on the
27th. 5 On October 29, 2015, two days after returning, Atkins was terminated.
On December 16, 2015 Atkins submitted a request for a “lump sum
payment” the “full distribution of [her] account.” (Doc. 63-1 at 152.) The RSA
mailed Atkins’ refund check accounting for the entire amount of her retirement
contributions plus accrued interest. Upon receipt, Atkins cashed the check. (Atkins
Dep. 78-80.)
While Atkins insists Mr. Inyang verbally approved her request on October 23, 2015, and knew
Atkins would be out of the office because he directed Ms. Murray to telephone Atkins to inquire
about a purchasing question, Inyang contends he never approved Atkins’ request.
5
Page 5 of 23
II.
STANDARD
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact 6 and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Id. A
genuine dispute as to a material fact exists “if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in its favor.”
Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir.
2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2001)). The trial judge should not weigh the evidence, but determine whether there
are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal
Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However,
“unsubstantiated assertions alone are not enough to withstand a motion for
6
A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v. Kaplan
Univ., 780 F. 3d 1039, 1049 (11th Cir. 2015).
Page 6 of 23
summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.
1987). Conclusory allegations and “mere scintilla of evidence in support of the
nonmoving party will not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young
v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion
for summary judgment, “the moving party has the burden of either negating an
essential element of the nonmoving party’s case or showing that there is no
evidence to prove a fact necessary to the nonmoving party’s case.” McGee v.
Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the
trial courts must use caution when granting motions for summary judgment,
“[s]ummary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III.
DISCUSSION
A. Plaintiff’s Breach of Fiduciary Duty Claim
1) Removal
Plaintiff requests reconsideration of the Court’s previous ruling on the
motion to remand, (doc. 8), “because the employee retirement benefits received
through Retirement Systems of Alabama (“RSA”) are exempt from the Employee
Page 7 of 23
Retirement Income Security Act of 1974 (“ERISA”).” (Doc. 54-1 at 7.) The Court
upholds its previous ruling. This case was properly removed for the reasons set
forth in its July 27, 2016 Memorandum of Opinion. (Doc. 12.)
Atkins was given leave to file an amended complaint restating her claims
under ERISA and to state her non-ERISA claims separately. On August 17, 2016,
she did so, asserting an ERISA breach of fiduciary duty claim, and adding a new
ERISA “whistle-blower” retaliation claim based on her termination. (Doc. 23 at
10-11.) Atkins insists her case is due to be remanded because she abandoned any
reliance on the group insurance plans in her second amended complaint which was
filed post-removal, and is now solely basing her breach of fiduciary duty claim only
on the RSA plan, a non-ERISA plan. However, at the time of removal, Atkin’s
complaint asserted claims covered by ERISA which were subject to complete
preemption. In cases removed from state to federal court, “the district court must
look at the case at the time of removal to determine whether it has subject-matter
jurisdiction.” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 n. 2 (11th
Cir. 2007) (per curiam) (citing Poore v. American-Amicable Life Ins. Co. of Texas, 218
F.3d 1287 (11th Cir. 2000)); 7 see also Behlen v. Merrill Lynch, Phoenix Inv. Partners,
7
The Eleventh Circuit's holding in Poore was subsequently overruled on other grounds in Alvarez
v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007) (citing Powerex Corp. v. Reliant Energy
Services, Inc., 551 U.S. 224 (2007)).
Page 8 of 23
Ltd., 311 F.3d 1087 (11th Cir. 2002) (holding that the district court must determine
whether a federal question exists at time of removal using original complaint). As
such, this Court properly maintained jurisdiction over the case and presently
continues to have jurisdiction.
Even if Plaintiff’s subsequent abandonment of reliance on the prior
insurance contract for her breach of fiduciary duty claim could oust the Court of
jurisdiction, her addition of the whistleblower retaliation claim is covered by
ERISA. Consequently, the Court has jurisdiction over the action. See Doc. 23 at 10
(“[Atkins] was terminated as a result of those complaints and in direct retaliation
for attempting to exhaust her administrative remedies as provided by ERISA.”); see
also Cotton v. Mass. Life Ins. Co., 402 F.3d 1267, 1280 (11th Cir. 2005) (“[B]ecause
the post-removal amended complaint asserted claims under ERISA, we have
jurisdiction even if removal was initially improper.”) (citing Pegram v. Herdrich,
530 U.S. 211, 215 n. 2 (2000)).
2) Standing
The Court must first evaluate whether Atkins has standing under ERISA to
sue as a participant in the RSA plan. Plaintiff asserts she has standing to sue on
behalf of the Plan because she was a participant in the RSA plan at the time of the
misconduct and also because the Plan is “entitled to injunctive relief to ensure
Page 9 of 23
Defendants remit payments on time every month and do not continue the same
behavior.” (Doc. 54-1 at 13.) Though Atkins maintains the RSA/ERS is not
covered by ERISA, in her response brief, Atkins argues “assuming arguendo” that
if the plan does fall within the auspices of ERISA, she possesses standing to sue for
breach of fiduciary duty. The Court, therefore, will address this assertion of
standing. In her deposition, Atkins testified that in January 2016, months before
this action was commenced, she fully withdrew from the RSA plan and all her
contributions were refunded. (Doc. 53-1 at 78-80.) The question for the Court thus
becomes whether Atkins can be categorized as a “participant” in the RSA plan for
the purposes of standing even though she has withdrawn from the plan at issue and
has received all payment she was due in full.
Pursuant to 29 U.S.C. § 1132(a)(2), only “a participant, beneficiary, or
fiduciary” of a plan may sue for “appropriate relief under 29 U.S.C. § 1109,”which
imposes liability for breaches of fiduciary duty. See also Cagle v. Bruner, 112 F.3d
1510, 1514 (11th Cir. 1997). Consequently, standing to sue under ERISA for breach
of fiduciary duty is restricted. As the Supreme Court made clear in a recent
opinion, “ERISA sets forth those parties who may bring civil actions under ERISA
and specifies the types of actions each of those parties may pursue. Thus, civil
actions under ERISA are limited only to those parties and actions Congress
Page 10 of 23
specifically enumerated.” WestRock RKT Company v. Pace Industry UnionManagement Pension Fund, 856 F.3d 1320 (2017) (internal quotations omitted)
(citing Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1524 (1987) (Gulf Life denotes
Section 1132 as a “standing provision” which “must be construed narrowly”)).
Under ERISA,
(7) The term “participant” means any employee or former employee
of an employer, or any member or former member of an employee
organization, who is or may become eligible to receive a benefit of
any type from an employee benefit plan which covers employees of
such employer or members of such organization, or whose
beneficiaries may be eligible to receive any such benefit.
28 U.S.C. § 1002 (7) (emphasis added).
In Nugent v. Jesuit High School, the Fifth Circuit found that the definition of
“participant” under ERISA could not be read to include a former, non-vested
employee. 625 F.2d 1285, 1288 (5th Cir. 1980); 8 see also Jackson v. Sears, Roebuck
and Co., 648 F.2d 225, 228-29 (5th Cir. 1981) (agreeing with Nugent). In Firestone
Tire and Rubber Co. v. Bruch, the Supreme Court explained that, “[a] former
employee who has neither a reasonable expectation of returning to covered
employment nor a colorable claim to vested benefits . . . simply does not fit within
the [phrase] ‘may become eligible.’” 489 U.S. 101, 118 (1989) (quoting Saladino v.
8
See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc ), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
Page 11 of 23
I.L.G.W.U. Nat’l Retirement Fund, 754 F.2d 473, 476 (2nd Cir. 1985)). It is
undisputed that Atkins is a former employee and was not vested at the time of her
termination. As such, she cannot qualify as a participant under ERISA and thus
lacks standing to pursue a claim for breach of fiduciary duty.
Standing under Article III is also lacking. Standing must exist when the
action commences. See Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528
U.S. 167 (2000). Because Atkins was no longer eligible for the benefits under the
RSA plan when her complaint was filed, Atkins did not then possess standing
under Article III.
Atkins likewise lacks standing to seek declaratory and injunctive relief. The
Eleventh Circuit has explained that, “[a] plaintiff has standing to seek declaratory
or injunctive relief only when he ‘allege[s] facts from which it appears there is a
substantial likelihood that he will suffer injury in the future.’” 9 Bowen v. First
Family Fin. Serv., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) (citing Malowney v. Fed.
Collection Deposit Grp., 193 F.3d 1342, 1346-47 (11th Cir. 1999)). Due to the fact
that Atkins has withdrawn from the RSA plan and has received her benefits in full,
she is not at risk for harm in the future. Thus, she cannot pursue her breach of
fiduciary duty claim under 29 U.S.C. § 1132.
9
“Ms. Atkins has not been penalized in any way due to any delays in her employer’s remittance
of her retirement contributions to ERS.” (Kelley Dec., Doc. 53-4 at 2.)
Page 12 of 23
3) Breach of Fiduciary Duty Claim
Even assuming arguendo that Atkins possesses the requisite standing to
pursue her claim (which the Court has already determined she does not supra)
summary judgment is still due to be granted as to her breach of fiduciary duty
claim. In her deposition, Atkins stipulated that her breach of fiduciary duty claim is
based only on the RSA plan. (Atkins Dep. at 92.) Atkins’ main qualm with
GCHB’s actions regarding the RSA payments is their tardiness. GCHB asserts that
as a rural hospital, it often has difficulties with cash flow and consequently cannot
always remit “various payments promptly.” (Doc. 52 at 3.) It is undisputed that
payments were made by GCHB to the RSA. Thus, the question becomes whether
the fact that payments were late and used to pay for GCHB’s general bills in the
meantime, constituted an actionable breach of fiduciary duty.
The Supreme Court has held that, a participant in a defined benefit plan
such as the RSA, has an interest in fixed payments only, not the assets of the
pension fund. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439-41 (1999) (holding
that former employer's change to plan did not implicate fiduciary duty under
ERISA). The Third Circuit in applying Hughes, explained that “diminution in plan
assets, without more, is insufficient to establish actual injury to any particular
participant.” Perelman v. Perelman, 793 F.3d 368, 374 (3rd Cir. 2015) (citing
Page 13 of 23
Hughes, 525 U.S. at 439-41). In determining whether a participant in a defined
benefit program qualifies as “injured,” the Supreme Court has said that
“[m]isconduct by the administrators of a defined benefit plan will not affect an
individual's entitlement to a defined benefit unless it creates or enhances the risk of
default by the entire plan” because such a plan “consists of a general pool of assets
rather than individual dedicated accounts.” LaRue v. DeWolff, 522 U.S. 248, 255
(2008). Consequently, this injury is simply too attenuated prior to default of the
plan to maintain a breach of fiduciary duty claim. While there is no doubt that the
RSA payments were not submitted in a timely fashion, the record shows that the
plan has been consistently overfunded and is not at risk of default despite the
lateness of the payments or any alleged misconduct by administrators.
Likewise, the Fifth Circuit recently noted, in observing the holdings of sister
circuits that, “constitutional standing for defined-benefit plan participants requires
imminent risk of default by the plan, such that the participant's benefits are
adversely affected; in turn, those courts have held that fiduciary misconduct,
standing alone without allegations of impact on individual benefits, is too removed
to establish the requisite injury.” Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 546
(5th Cir. 2016) (citing David v. Alphin, 704 F.3d 327, 338 (4th Cir. 2013); Harley v.
Minn. Mining & Mfg. Co., 284 F.3d 901, 906 (8th Cir. 2002), Perelman v. Perelman,
Page 14 of 23
919 F.Supp.2d 512, 517–520 (E.D. Pa. Jan. 24, 2013), aff'd, 793 F.3d 368 (3rd Cir.
2015). All the cases cited by the Lee court were plans which remained overfunded
after the allegedly fiduciary misconduct, as was the case here. Consequently,
though not binding, they are all persuasive authority for this Court. 10 In her
complaint and response brief, Plaintiff presented evidence demonstrating fiduciary
misconduct, however, “without more” such a showing is insufficient to survive a
motion for summary judgment. See id.
Atkins testified that GCHB ultimately submitted all employee retirement
contribution to the RSA, including contributions for her in particular which further
undermines her claim. (Atkins Dep. at 93.) She has presented no evidence
exhibiting that the RSA plan is at risk of default, let alone imminently so. On the
contrary, the record shows that the RSA defined benefit plan has been continuously
overfunded for the past five years and documentation denotes that the plan’s assets
exceed its liabilities as its most recent funded ratio is 117.3 percent. (See Doc. 53-1
at 169-171.) In sum, summary judgment is due to be rendered in favor of the
Defendants on Atkins’ breach of fiduciary duty claim both on account of her lack of
standing, and as a matter of law.
B. Whistleblower retaliation claim 29 U.S.C. § 1140.
10
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
Page 15 of 23
Atkins asserts that her termination was in retaliation for her raising concerns
about the RSA payments at the Greene County Hospital Board meeting; while
Defendants insist that the reason for Atkins termination was her violation of the
newly implemented “no call/no show” policy, which is grounds for automatic
termination.
ERISA protects employees against retaliation for asserting claims to benefits
under an ERISA plan. See 29 U.S.C. § 1140 (making it unlawful to “discharge” a
“participant” in an ERISA plan for asserting a claim for benefits). Where, as in
Atkins’ case, a plaintiff attempts to establish her retaliation claim by proving
intentional discrimination using circumstantial evidence, the Court applies
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework.
See Wolf v. Coca-Cola Co., 200 F.3d 1337 (2000). In order to establish a prima facie
case for § 1140 retaliation Atkins must show, “(1) that [s]he is entitled to ERISA's
protection, (2) was qualified for the position, and (3) was discharged under
circumstances that give rise to an inference of discrimination.” Id. at 1343 (citing
Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 559 (11th Cir. 1997)). If
the plaintiff meets her initial burden of establishing a prima facie case, the burden
then shifts to the defendant to “articulate some legitimate nondiscriminatory
reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.
Page 16 of 23
Once the defendant proffers such a reason, the burden shifts back to the plaintiff
who must then prove that the defendant’s legitimate reason was a mere pretext for
discrimination. Id. at 804.
1) Atkins’ voicing her complaint at an open floor meeting was
not protected conduct under ERISA.
Defendants insist that Atkins assertions are insufficient to support a claim of
retaliation because an “internal complaint does not qualify as protected conduct
under ERISA.” (Doc. 52. at 2, 26.) This Court agrees. While there is no binding
Eleventh Circuit case law on this issue, the Sixth Circuit has construed protections
under ERISA’s whistleblower provision as precluding “employees who oppose,
report or complain about unlawful practices,” and instead being confined only to
those “who participate, testify or give information in inquiries, investigations,
proceedings or hearings.” See Sexton v. Panel Processing, Inc., 754 F.3d 332, 336 (6th
Cir. 2014), petition for certiorari denied, 135 S. Ct. 677 (2014). Unlike other federal
whistleblower statutes, ERISA § 510 protects only persons who provide
information in response to an “inquiry.” 11 The protections afforded by the antiretaliation provision in ERISA are far narrower than those provided by similar
provisions in statutes such as Title VII of the Civil Rights Act of 1964.
11
29 U.S.C.A. § 1140 (“It shall be unlawful for any person to discharge, fine, suspend, expel, or
discriminate against any person because he has given information or has testified or is about to
testify in any inquiry or proceeding relating to this chapter . . . .”).
Page 17 of 23
Other circuits have come to similar conclusions. See Edwards v. A.H. Cornell
& Son, 610 F.3d 217, 225–26 (3d Cir. 2010) (concluding that “unsolicited internal
complaints are not protected” under “the anti-retaliation provision of Section 510
of ERISA, 29 U.S.C. § 1140,” based on a plain reading of the provision's
terms); King v. Marriott Int'l, Inc., 337 F.3d 421, 428 (4th Cir. 2003) (concluding
that “the most compelling interpretation of the statutory language” excludes
workplace complaints and therefore ERISA's whistleblower provision covers only
activities more formal than a written or oral complaint to a supervisor); Nicolaou v.
Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir. 2005) (per curiam) (reasoning
that § 1140 covers a complaint only if the employee made it in response to an
“inquiry” or a “request for information”). As such, Atkins was not engaging in
protected conduct under ERISA by raising the issue of the late payments at the
board meeting because her complaint was not made in response to any inquiry, nor
was it in a proceeding or given as official testimony. The first prong required for a
prima facie showing of retaliation is not satisfied, however, the Court will
nonetheless address the other prongs required to state a claim under Section 1140.
2) Atkins’ was qualified for her position
Though Defendants do point to poor performance evaluations and
disciplinary action taken against Atkins on account of her tardiness, they do not
Page 18 of 23
expressly contest Atkins’ qualifications for her position. As such, this prong is
deemed satisfied.
3) Atkins has not shown she was discharged under
circumstances that
discrimination.
give
rise
to
an
inference
of
Atkins asserts that because she was fired the week after having voiced
complaints at the board meeting. While “[t]he burden of causation can be met by
showing close temporal proximity between the statutorily protected activity and
the adverse employment action . . . mere temporal proximity, without more, must
be “‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007)
(per curiam) (three month lapse of time between employee’s complaints and
termination not very close temporal proximity) (quoting Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268 (2001)); see also Drago v. Jenne, 453 F.3d 1301 (11th Cir.
2006) (three months too long of a gap between protected activity and adverse
employment action). In Farley v. Nationwide Mut. Ins. Co, the Eleventh Circuit
determined that a seven week timeframe between an employee’s EEOC complaint
and their termination was “sufficiently proximate to create a causal nexus for
purposes of establishing a prima facie case” when his supervisor knew about the
complaint. 197 F.3d 1322, 1337 (11th Cir. 1999). Here, Atkins was terminated just
nine days after she allegedly confronted the Board. However, the record, including
Page 19 of 23
Atkins’ own testimony, shows that her supervisor, Mr. Inyang, was not present at
the board meeting. (Atkins Dep. at 108; Inyang Dec. ¶ 9.) Atkins has presented no
evidence, aside from her own testimony, of Inyang’s knowledge of her lodging the
complaint with the Board. Additionally, Inyang testified that at the time he
terminated Atkins, he had no knowledge of any such complaints.
To show a causal nexus required by Farley, ‘a plaintiff need only show ‘that
the protected activity and the adverse action were not wholly unrelated.’” Clover v.
Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (quoting Simmons v.
Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985)). To succeed in
establishing that the two are not entirely unconnected, “a plaintiff must generally
show that the decision maker was aware of the protected conduct at the time of the
adverse employment action.” Brungard v. BellSouth Telecommunications, Inc., 231
F.3d 781, 799 (2000). Mr. Inyang, Atkins’ supervisor testified that he is the only
one who made the decision to terminate Atkins’ employment, and did so based on
her failure to report to work on October 26, 2015 despite that fact that he had not
approved her request for time off that day. (Inyang Dec. ¶ 6.) Atkins testified in her
deposition that Mr. Inyang was not present at the October 26th Board meeting at
which she voiced her complaints. (Atkins Dep. at 108.) She has presented no
evidence showing Mr. Inyang was aware of Atkins’ conduct in complaining at the
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meeting, and therefore has not proven retaliatory motive required for the third
prong of her prima facie case—that she was terminated under circumstances giving
rise to an inference of discrimination.
4) Defendants’ legitimate reasons and pretext
Atkins insists that because “[a]t the time of her termination, [she] had not
received a refund of her contributions, nor had she withdrawn from the RSA Plan .
. . consequently, Defendants’ reasons for terminating Ms. Atkins are pretextual.”
(Doc. 54-1 at 12.) The Court finds this argument unpersuasive.
Defendants have proffered a legitimate reason for terminating Atkins—the
updated December 2013 GCHB “no-call/no-show” policy—which provides that
the first time an employee does not call and subsequently does not show up for
work is grounds for automatic termination. (Patterson Dec. ¶ 4.) See Flowers v.
Troup County, Ga., School Dist., 803 F.3d 1327, 1138 (11th Cir. 2015) (“Put frankly,
employers are free to fire their employees for ‘a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason.’”)(citing Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d
1181, 1187 (11th Cir. 1984)). The burden is on Atkins to show that the Defendants’
proffered reason is mere pretext. Atkins explains that she was unaware of the
updated policy because it was not distributed, and that a “no call/no show” was
Page 21 of 23
not grounds for termination under the terms of the handbook she received when
she began working for Greene County Hospital. Atkins’ ignorance of the updated
policy is insufficient to show that her adverse employment action was on account of
a discriminatory reason. It is undisputed that Atkins did not report to work on
October 26, 2015 even though her time off request had not received approval via
the Windows Outlook calendar system. However, even if the updated policy was
inapplicable to Atkins on account of her not having received a copy, record
evidence shows that she had already been suspended for a total of three days for
other various violations which included excessive tardiness. Pursuant to the plain
language of the version of the handbook Atkins had received, “Poor attendance and
excessive tardiness are disruptive. Either may lead to disciplinary action, up to and
including termination of employment.” (Doc. 53-1 at 134.) Atkins was aware that
perpetual tardiness and failure to report to work could result in termination, as
such, even under the handbook policy instead of the updated “no call/no show”
policy, Atkins’ has not provided evidence sufficient to show how Defendants’
proffered reason for her termination was mere pretext as required by McDonnell
Douglas. 411 U.S. at 804. As such, summary judgment is due to be granted on
Atkins’ retaliation claim.
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IV.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment
(doc. 51) is due to be GRANTED as to all claims. An Order consistent with this
Memorandum of Opinion will be entered herewith.
DONE and ORDERED on December 14, 2017.
_____________________________
L. Scott Coogler
United States District Judge
190685
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