Peebles v. Greene County Hospital Board et al

Filing 41

MEMORANDUM OPINION. Signed by Judge R David Proctor on 5/23/2018. (KAM)

FILED
2018 May-24 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

WENNOA PEEBLES,
Plaintiff,
v.
GREENE COUNTY HOSPITAL BOARD,
et al.,

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Case No.: 7:16-cv-01803-RDP

Defendants.

MEMORANDUM OPINION
This case is before the court on the Motion for Summary Judgment filed by Defendants
Greene County Hospital Board (“GCH”) and Elmore Patterson (“Patterson”) (collectively
“Defendants”). (Doc. # 30). The Motion is fully briefed, and the parties have filed evidentiary
submissions. (Docs. # 30-40). After careful review, the court concludes that the Motion is due
to be granted.
I.

Relevant Undisputed Facts1
GCH operates a hospital, physician clinic, and residential care facility in Eutaw,

Alabama. (Doc. # 32-1 at ¶ 2). In September 2013, GCH hired Patterson as its Chief Executive
Officer (“CEO”). (Id. at ¶ 1). Also in September 2013, GCH hired Plaintiff Wennoa Peebles
(“Plaintiff” or “Peebles”) to work as a Certified Nursing Assistant at the residential care facility.
(Doc. # 32-2 at p. 12). When she was hired, GHC provided her with a copy of the GCH
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. 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 “facts” for summary judgment
purposes only. They may not be the actual facts that could be established through live testimony at trial. See Cox v.
Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

Employee Handbook, which instructs employees to report all incidents of sexual harassment to
their supervisor, administrator, or any other member of the management. (Id. at p. 18, 157-58).
Plaintiff applied to be Patterson’s Executive Assistant in October 2013. (Id. at p. 15). In
November 2013, Plaintiff was selected for the Executive Assistant position. (Doc. # 32-1 at ¶ 3).
Plaintiff held the positions of Executive Assistant and Accounts Payable Clerk and worked in the
GCH business office until her termination. (Docs. # 32-1 at ¶¶ 3, 5; 32-4 at p. 22-23). All of the
employees stationed to work in the business office were female. (Docs. # 32-1 at ¶ 5; 32-2 at p.
28). As Executive Assistant, Peebles received and directed phone calls, managed Patterson’s
schedule, and performed other secretarial duties. (Doc. # 32-1 at ¶ 3). As Accounts Payable
Clerk, Peebles issued checks to pay bills as directed by her supervisors and communicated with
bill collectors and vendors. (Doc. # 32-2 at p. 16). Plaintiff’s direct supervisor was JoAnne
Cameron (“Cameron”), the Business Office Manager.

(Id. at p. 16-17).

Patterson also

supervised Peebles. (Id. at p. 18).
Within two to three months of Patterson becoming CEO, former board member Charles
Robertson (“Robertson”) sent Patterson a letter addressing the unprofessional attire that some
female employees were wearing in the workplace and the overt and disrespectful statements
Robertson had heard that Patterson was making to female employees. 2 (Doc. # 36 at p. 172-73).
After beginning to work with Patterson, Peebles noticed that Patterson used profanity in the
workplace. (Doc. # 32-4 at p. 18). At least once during a meeting, Patterson told Peebles that
she was “just part of the room” and was “not to speak.” (Docs. 32-2 at p. 39-40; 32-4 at p. 24;
36 at p. 130, 155). Plaintiff alleges (and Defendants deny) that Patterson made several other
derogatory comments to herself and to other female employees. (Docs. # 34 at p. 6; 40 at p. 2-3).
2

Defendants deny that this letter was about sexual harassment. (Doc. # 40 at ¶ 12). Patterson contends that
the letter was about employee issues generally. (Doc. # 32-4 at p. 18-19).

2

For instance, Peebles alleges (and Defendants deny) that Patterson referred to females as
“opossums,” stated that he would not sleep with the “opossums,” and commented about paddling
a female employee. (Doc. # 32-2 at p. 23, 38, 43).
On October 5, 2015, GCH received an anonymous email3 complaining about the
management of GCH and questioning Patterson’s uses of funding, hiring choices, and overall
management style. (Doc. # 32-2 at p. 168-70). The email also contained private information
regarding the salaries of certain GCH employees. (Id.). When Patterson vented about this email
to Peebles, Peebles in some way indicated that Vickie Cockrell (“Cockrell”), the Human
Resources Coordinator for GCH, had disclosed the salary information that was included in the
email. (Doc. # 32-2 at p. 48-49). However, when Patterson asked Peebles to sign a statement
that Cockrell was involved in disclosing this information, Peebles refused to do so because,
according to Peebles, the statement was untrue. (Id.).
On October 8, 2015, Plaintiff’s counsel sent a letter to Patterson and Sue Vance
(“Vance”), the Chairperson of GCH, stating that Peebles had (1) previously reported to them “the
deteriorating working conditions to which she is subjected” and (2) “experienced discrimination
and retaliation at the hands of [GCH’s] CEO, Elmore Patterson, and others within management.”
(Doc. # 32-1 at p. 6-7). The letter also stated that counsel had begun the process of involving the
Equal Employment Opportunity Commission (“EEOC”) regarding Peebles’s complaints. (Id.).
Plaintiff filed a Charge of Discrimination with the EEOC on November 4, 2015. (Doc. # 32-2 at
p. 165-67). The Charge alleges sex discrimination, retaliation, and a hostile work environment.
(Id. at p. 165).

3

This email was written by a GCH employee who was later terminated. (Doc. # 32-2 at p. 48). The parties
have not suggested that Peebles had any involvement with this email.

3

In 2015, Plaintiff complained to Vance about Patterson’s behavior. 4 (Doc. # 35 at p. 10).
Vance told Peebles to “keep [her] own records.” (Id. at p. 10-11). At various points, Peebles
also complained to board members Fred Hughes (“Hughes”), Ralph Banks, Robertson, Loretta
Webb, and Johna Madison about Patterson’s behavior generally and about Patterson telling
Peebles to sign a statement against Cockrell, in particular. (Doc. # 32-2 at p. 56-64). Other
female employees had also complained to board members about Patterson’s behavior. (Doc.
# 35 at p. 63-69, 185-88). Cameron occasionally heard Plaintiff “bl[o]w[ing] off steam about
whatever was bothering her,” including her work for and interactions with Patterson. (Doc. # 36
at p. 152, 163).

For instance, Cameron overhead Peebles stating that Patterson said that

Peebles’s “brain was so small it could fit up a gnat’s behind” and that Peebles’s “hair looked
butch.” (Id. at 163). However, although at some point Plaintiff complained to Cameron about
another employee, Plaintiff never directly made any complaints to Cameron about Patterson. (Id.
at p. 152, 163).
On November 16, 2015, Vance sent Plaintiff a letter stating that GCH had designated
board member Hughes to receive complaints related to Peebles’s work environment. (Doc. # 321 at p. 9). The letter directed Plaintiff to send any complaints to Hughes in writing and informed
Peebles that she could contact Vance if she felt that her complaints were not adequately
addressed or if she felt uncomfortable sending her complaints to Hughes. (Id.). In the letter,
Vance also offered Peebles the option of transferring back to her previous position as a Certified
Nursing Assistant at her then current hourly wage. (Id.).
On January 19, 2016, Patterson received an email from the Murkin Group, a debt
collector for one of GCH’s creditors, regarding a debt collection matter. (Doc. # 32-1 at p. 11-

4

It is unclear when in 2015 Plaintiff made this complaint to Vance.

4

12). Two of the personal email addresses of GCH board members (Vance and Hughes) were
copied on the email.5 (Docs. # 31 at ¶ 14; 32-1 at p. 11-12). Because Peebles was responsible
for routing incoming debt collection calls, Patterson suspected that she had provided these
personal email addresses to the debt collector, but when Patterson asked Peebles if she had given
the debt collector these address, she denied doing so. (Docs. # 31 at ¶ 14-15; 32-1 at p. 11-12).
Peebles also told Patterson that she referred the only debt collection call from the Murkin Group
to Tiffany Grisby (“Grisby”), the Chief Financial Officer of GCH, as she had been directed to
do. (Docs. # 32-1 at p. 11; 32-2 at p. 192; 32-3 at p. 7). However, before Peebles’s termination,
a representative from the Murkin Group informed Patterson, through GHC’s counsel, that
Peebles did in fact provide these personal email addresses during a telephone conversation on
December 18, 2015. (Doc. # 32-1 at ¶ 11).
On January 27, 2016, GCH terminated Plaintiff’s employment. (Docs. # 32-1 at ¶ 12; 321 at p. 14; 32-2 at p. 64). Defendants contend that Plaintiff’s termination was based on her
disclosure of confidential information, including the personal email addresses of GCH board
members to the Murkin Group, and on her dishonesty in denying that she disclosed these
addresses. (Docs. # 32-1 at ¶ 12; 32-1 at p. 14; 32-2 at p. 64). Plaintiff alleges that if she
provided these email addresses6 it was because neither Patterson nor Grisby would return the
creditor’s calls and that her conduct in disclosing these addresses was clearly within her
responsibility as Accounts Payable Clerk. (Doc. # 32-2 at p. 65). Plaintiff asserts that the actual
reason for her termination was her complaints of discrimination. (Doc. # 36 at p. 28). Following

5

Peebles was not authorized to disclose the personal email addresses of board members of GCH. (Docs.
# 32-1 at ¶ 10; 32-2 at p. 192-93).
6

Peebles claims to have no recollection of disclosing these personal email addresses. (Doc. # 32-2 at p.
65). However, she claims that, if she did, she was merely providing the creditor with the necessary chain of
command since Patterson and Grisby were not returning the creditor’s calls. (Id.).

5

Plaintiff’s termination, her position was filled by another female employee. (Doc. # 32-4 at p.
28).
II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, 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 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party asking for summary judgment always bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the
moving party has met its burden, Rule 56 requires the non-moving party to go beyond the
pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or
admissions on file -- designate specific facts showing that there is a genuine issue for trial. Id. at
324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted. See id. at
249.

6

When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on his allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, he must come forward with
at least some evidence to support each element essential to his case at trial. See Anderson, 477
U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477
U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).

7

IV.

Analysis
In her Amended Complaint, Plaintiff alleges the following claims against Defendants: (1)

sexually hostile work environment in violation of Title VII, (2) sexual harassment and gender
discrimination in violation of Title VII, (3) outrage, and (4) negligent training, supervision, and
retention. (Doc. # 6). Plaintiff has conceded that the Title VII claims against Patterson are due
to be dismissed. (Doc. # 34 at p. 12). The court addresses the merits of Plaintiff’s Title VII
claims against GCH and state law claims against GCH and Patterson, in turn.
A.

Title VII Sexually Hostile Work Environment Claim

In order to establish a claim of sexually hostile work environment under Title VII, a
plaintiff must show that because of her sex “‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
. . . employment and create an abusive working environment.’” Trask v. Sec’y, Dep’t of Veterans
Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016) (quoting Gowski v. Peake, 682 F.3d 1299, 1311
(11th Cir. 2012)). More specifically, a plaintiff must establish the following elements: “(1) that
[s]he belongs to a protected group; (2) that [s]he has been subject to unwelcome harassment; (3)
that the harassment [was] based on a protected characteristic of the employee . . . ; (4) that the
harassment was sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment; and (5) that the employer is
responsible for such environment under either a theory of vicarious or direct liability.” Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Here, GCH focuses on the
fourth element. It argues that Plaintiff cannot establish her hostile work environment claim
because the sexual harassment she allegedly experienced was not sufficiently severe or pervasive
to alter the terms and conditions of her employment. (Doc. # 31 at p. 6-13).

8

The fourth element of a hostile work environment claim “contains both an objective and a
subjective component.” Miller, 277 F.3d at 1276. “Thus, to be actionable, this behavior must
result in both an environment ‘that a reasonable person would find hostile or abusive’ and an
environment that the victim ‘subjectively perceive[s] . . . to be abusive.’” Id. (quoting Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)). Courts consider four factors in determining
whether the conduct at issue is severe or pervasive enough to permeate a workplace: “(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.”

Id.

The conduct must be

examined in context, not as isolated acts, and the court must determine under the totality of the
circumstances whether the harassing conduct is severe or pervasive enough to alter the terms or
conditions of a claimant’s employment and create a hostile or abusive working environment.
Mendoza v. Borden Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc), cert. denied, 529 U.S.
1068 (2000).
In assessing the severity of an employer’s conduct, the Supreme Court has “made it clear
that conduct must be extreme to amount to a change in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see Indest v. Freeman Decorating,
Inc., 164 F.3d 258, 264 (5th Cir. 1999) (“All of the sexual hostile environment cases decided by
the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed,
and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”).
Title VII “does not operate as a general ban on . . . rude or offensive behavior.” Leslie v.
Cumulus Media, Inc., 814 F. Supp. 2d 1326, 1343 (S.D. Ala. 2011) (citation omitted); see
Mendoza, 195 F.3d at 1245 (“Title VII is not a federal ‘civility code.’”). “[S]imple teasing,

9

offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788
(internal citation and quotations omitted).
Here, Plaintiff offers the following evidence to support her sexually hostile work
environment claim:7


On one occasion, Patterson allegedly made a comment asking whether a female
employee’s pubic hair was the same color as the hair on her head. (Doc. # 32-2 at
p. 25, 31).



On one occasion, Patterson allegedly said that Plaintiff’s brain was not big
enough to fit up a gnat’s behind. (Id. at p. 26, 31).



On one occasion, Plaintiff asked Patterson where he had been and told him that
someone had called him and he responded that he was in the bathroom and
allegedly asked, “Did you want to hold it?” (Id. at p. 26, 31-32).



On one or two occasions, Patterson allegedly showed Plaintiff a picture on his cell
phone of a partially-clothed woman. (Id. at p. 32-33).



On one occasion, Patterson allegedly commented on a female employee’s
physical appearance and said something to the effect of “she didn’t have the rear,
but she did have the bosoms.” (Id. at p. 33-34).



On fewer than five occasions, Patterson allegedly commented on a “darkskinned” woman’s shape or legs. (Id. at p. 34-36).



On one occasion, Patterson allegedly talked with female employees about the
clothes that they change into after work. (Id. at p. 36-37).



On one occasion, Patterson allegedly asked Plaintiff, “Why don’t you go get your
hair did, you look butch?” (Id. at p. 37).



On one occasion, Patterson and Plaintiff were talking about how another female
employee’s husband was treating that employee and Patterson allegedly said that
he could take that female employee from her husband. (Id. at p. 38).

7

The court does not consider some of the incidents that form the basis of Plaintiff’s hostile work
environment claim, such as asking a nurse if she got her nursing license from a Cracker Jack box and commenting
on the intelligence of women in Greene County (Doc. # 34 at p. 18-19), because, while Plaintiff contends those
things occurred, she has not demonstrated that she was aware of these communications. See Adams v. Austal,
U.S.A., L.L.C., 754 F.3d 1240, 1250 (11th Cir. 2014) (holding that a district court correctly declined to consider
“evidence that the plaintiff did not know about” when evaluating whether the plaintiff had been exposed to an
objectively hostile work environment).

10



On one occasion, Patterson allegedly said something (likely in a joking manner)
about paddling a female housekeeping employee while holding a hockey stick or
oar. (Id. at p. 38-39).



On an unknown number of occasions, Patterson told Plaintiff, “Don’t speak,
you’re just a part of the room” during morning meetings with department heads.
(Id. at p. 39-41).



An unknown number of occasions when Patterson allegedly referred to a certain
female employee as being “green,” which Plaintiff interpreted to mean as
“clueless, dumb, [or] stupid.” (Id. at p. 41-42).



On one occasion, Patterson allegedly stated that he needed a man over the
purchasing department instead of the female purchasing supervisor with whom he
was dissatisfied. (Id. at p. 42-43).



On one occasion, Patterson allegedly said, “You think I’ll sleep with these
opossums around here?” (Id. at p. 43-44).



On one occasion, Plaintiff heard Patterson call a female employee “dumb” to her
face. (Id. at p. 44).



On one occasion, Patterson and another female employee were not talking to each
other. (Id. at p. 44).

These incidents allegedly occurred over approximately a two year period. (Id. at p. 25-44).
Patterson denies Plaintiff’s allegations of sexual harassment. (Doc. # 40 at p. 2-3). He admits to
using profanity in the presence of employees. (Id. at p. 2). Marilyn Atkins, Vera Rice, and
Cockrell also testified that Patterson made demeaning and intimidating comments to female
employees. (Docs. # 35 at p. 46, 188; 36 at p. 18). Some of the comments that Plaintiff alleges
Patterson made (such as the gnat statement, telling Plaintiff not to speak during morning
meetings, calling an employee “green” and “dumb,” and not being on speaking terms with an
employee) do not have a sexual (or even a gender-related) connotation and, therefore, do not
support Plaintiff’s sexual harassment claim. See Trask, 822 F.3d at 1195 (“[O]nly conduct that is
based on a protected category . . . may be considered in a hostile work environment analysis.”)
(internal quotations omitted).

11

“Many decisions throughout the circuits have rejected sexual-harassment claims based on
conduct that is as serious or more serious than the conduct at issue in this [case].” Mendoza, 195
F.3d at 1246-47 (collecting cases); see, e.g., Guthrie v. Waffle House, Inc., 460 F. App’x 803,
804 (11th Cir. 2012) (finding that an employee’s conduct of grabbing the plaintiff employee’s
“butt ‘two to five times,’” “talk[ing] dirty” to the plaintiff, stating that he wanted to perform
sexual acts with her, and asking the plaintiff on multiple dates despite her continued refusal was
not objectively severe or pervasive to support a Title VII claim); Leeth v. Tyson Foods, Inc., 449
F. App’x 849, 853 (11th Cir. 2011) (holding that conduct was not sufficiently severe or pervasive
where a manager allegedly attempted to pull the plaintiff into his lap, made comments to the
plaintiff about wanting to “ram his tongue down her throat,” came to the plaintiff’s house
uninvited, and called her on multiple occasions to ask her to go out with him). Although
Patterson’s comments may have been degrading to Plaintiff, she simply has not presented
sufficient evidence to survive summary judgment on the issue of severity or pervasiveness.
Compare Howard v. City of Robertsdale, 168 Fed. App’x 883, 885, 889-90 (11th Cir. 2006)
(holding that a supervisor’s offensive comments about employees’ bodies and sex lives and
sexual jokes made in front of other employees on a regular basis did not rise to the level of
objectively severe or pervasive harassment) with Reeves v. C.H. Robinson Worldwide, Inc., 594
F.3d 798, 812 (11th Cir. 2010) (finding that evidence that an employer’s offensive conduct
occurred “every single day” and consisted of multiple derogatory terms aimed at women,
evidence of vulgar sexual discussions, and evidence of the presence of pornographic images in
the workplace, when viewed together, could allow a jury to draw a reasonable inference of
pervasive harassment). Based upon the evidence in the summary judgment record, even taking
each of Plaintiff’s assertions as true, the court determines that a reasonable jury could not infer

12

from Patterson’s comments that his conduct was sufficiently severe to change the terms or
conditions of Plaintiff’s workplace.
B.

Remaining Title VII Claims

Plaintiff bundles three separate claims into Count Two of her Amended Complaint: (1)
sexual harassment and gender discrimination based on the same facts in her sexually hostile
work environment claim, (2) unlawful termination based on gender in violation of § 703(a) of
Title VII, and (3) retaliation in violation of § 704 of Title VII. (Doc. # 6 at p. 7-9). As an initial
matter, to the extent that Plaintiff’s gender discrimination and sexual harassment claim is based
on the same allegations as her sexually hostile work environment claim, this claim is merely
duplicative and fails for the same reasons detailed above. Moreover, Plaintiff’s discriminatory
termination claim based on gender fails because it is undisputed that Plaintiff was replaced by
another female and Plaintiff has not offered any evidence (much less substantial evidence) that
she was treated less favorably than a similarly-situated individual outside her protected class or
discriminated against because of her gender.8 See Maynard v. Bd. of Regents of Div. of Univ.s of
Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003) (noting that to
prevail on a Title VII discrimination claim based on circumstantial evidence a plaintiff must
show that she was replaced by a person outside of her protected class or was treated less
favorably than a similarly-situated individual outside her protected class). The court explores
Plaintiff’s other retaliation claim, in turn.
In the context of a Title VII retaliation claim, where proof of retaliatory intent is offered
by way of circumstantial evidence, courts apply a burden-shifting scheme akin to the McDonnell
Douglas framework. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir.
8

Additionally, Plaintiff appears to have conceded this claim as she does not address it in her Opposition to
Defendants’ Motion for Summary Judgment. (Doc. # 33). Instead, Plaintiff focuses on her § 704 claim. (Id. at p.
22-24).

13

1998). Under this framework, the plaintiff must first establish a prima facie case of retaliation.
Id. To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a
statutorily protected expression, (2) she suffered an adverse employment action, and (3) there is
some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th
Cir. 1997) (per curiam); see Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir.
1993). If the plaintiff makes a prima facie case of retaliation, the burden shifts to the employer
to articulate a legitimate reason for the adverse employment action. Sullivan v. Nat’l R.R.
Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If the employer proffers a legitimate
reason, the burden shifts back to the employee to show that the legitimate reason was pretext for
prohibited retaliatory conduct.

Id.

The plaintiff can demonstrate pretext by exposing

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the
defendant’s reasoning. Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348
(11th Cir. 2007).
1.

Prima Facie Case

Although the parties dispute whether Plaintiff’s termination claim is barred,9 they do not
dispute that filing an EEOC charge is a protected activity or that termination is an adverse
employment action. (Docs. # 31 at p. 24; 34 at p. 23). Accordingly, Plaintiff must establish that
there was a causal connection between her filing of an EEOC charge and her termination.
Holifield, 115 F.3d at 1566. As explained below, Plaintiff has failed to establish a prima facie
case of retaliation.
9

Defendants argue that any claim based on Plaintiff’s termination is barred because Plaintiff failed to
exhaust her administrative remedies for claims related to her discharge. (Docs. # 31 at p. 16-18; 40 at p.8-9).
Defendants base this argument on the unpublished opinion Duble v. Fedex Ground Package Sys., Inc., 572 F. App’x
889 (11th Cir. 2014). In Duble, the court found that the plaintiff failed to exhaust his administrative remedies for a
retaliation claim premised on a post-charge retaliation. 572 F. App’x 889. The court finds it unnecessary to explore
the merits of this argument and Duble’s application to this case because, as discussed below, Plaintiff’s retaliation
claim fails on substantive grounds.

14

In order to establish a causal link, a plaintiff “need only establish that the protected
activity and the adverse action were not wholly unrelated.” Taylor v. Runyon, 175 F.3d 861, 868
(11th Cir. 1999) (internal quotations omitted). “[A] plaintiff satisfies this element if he provides
sufficient evidence that the decision-maker became aware of the protected conduct, and that
there was close temporal proximity between this awareness and the adverse employment action.”
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). A three-month gap
between the statutorily protected activity and the adverse employment action has been found to
be insufficient to establish temporal proximity. See Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007); Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).
In this case, Plaintiff’s filing of an EEOC charge and termination were eighty-four days
apart. (Docs. # 32-1 at ¶ 12; 32-1 at p. 14; 32-2 at p. 64, 165-67). The court finds that this
nearly three-month time frame is insufficient to establish close temporal proximity in the absence
of other evidence establishing causation. See Williams v. Waste Mgmt., Inc., 411 F. App’x 226,
230 (11th Cir. 2011) (noting that a “two-month gap may be ‘closer’ in time, but it is not ‘very
close’”); see also Drago v. Jenne, 453 F.3d at 1308 (holding that a three-month time gap was
insufficient to establish a close temporal proximity). Plaintiff concedes that “a three-month time
lapse does not constitute close temporal proximity” but asserts that there is other evidence to
show causation. (Doc. # 34 at p. 23-25). However, the evidence that Plaintiff offers does not
establish the requisite causal link. Rather, this evidence consists of Plaintiff’s testimony that she
complained to other co-workers and board members and “Patterson’s habit of threatening to
terminate female employees.” (Doc. # 34 at p. 24). Plaintiff’s complaints about Patterson to
non-decisionmakers do not illustrate that Patterson (the person who terminated Plaintiff) was
aware of these complaints or that these complaints had any bearing on Patterson’s decision to

15

terminate Plaintiff. See Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)
(“[T]he plaintiff must show that the corporate agent who took the adverse action was aware of
the plaintiff’s protected expression . . . .”). Plaintiff’s loose allegation that Patterson threatened
employees who “question[ed] his judgment” with termination also does not link Plaintiff’s
termination to her filing of an EEOC complaint or, more generally, link Patterson’s comments to
retaliation for protected conduct. Because Plaintiff has failed to establish a causal connection,
she has not made a prima facie case of retaliation. See Holifield, 115 F.3d at 1566.
2.

Pretext

Even if Plaintiff could establish a prima facie case of retaliation (and, to be clear, she has
not), her claim fails for an alternative reason: she cannot show that Defendant’s articulated
reason for terminating her employment is pretextual. The court analyzes this issue below.
When a plaintiff establishes a prima facie case, an employer has the burden to articulate a
legitimate, nondiscriminatory reason for the employment decision. Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1087 (11th Cir. 2012). Analysis of whether the employer has met this
burden involves no credibility determination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
509 (1993). An employer’s burden in providing a legitimate reason is “exceedingly light.”
Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). After an employer
articulates one or more legitimate, nondiscriminatory reason for the employment action, a
plaintiff must show that the proffered reason was a pretext for illegal discrimination. Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). If the proffered reason is one that
might motivate a reasonable employer, a plaintiff cannot simply recast the reason, but must
“meet that reason head on and rebut it.” Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir.
2000) (en banc). “If the plaintiff does not proffer sufficient evidence to create a genuine issue of

16

material fact regarding whether each of the defendant employer’s articulated reasons is
pretextual, the employer is entitled to summary judgment on the plaintiff’s claim.” Id. at 102425.
Defendants assert that Plaintiff was terminated (1) because she disclosed personal email
addresses of board members to a debt collector and (2) because of her dishonesty related to these
events. (Docs. # 32-1 at ¶ 12; 32-1 at p. 14; 32-2 at p. 6). When Patterson asked Plaintiff
whether she had disclosed these personal email addresses she denied doing so. (Docs. # 31 at
¶ 14-15; 32-1 at p. 11-12). However, the debt collector later confirmed that Plaintiff had indeed
provided these email addresses (Doc. # 32-1 at ¶ 11), and Plaintiff later admitted that she may
have done so. (Doc. # 32-2 at p. 65). Plaintiff has also admitted that Patterson had previously
directed her to send all debt collection calls to Grisby, another GCH employee, and that she was
not authorized to disclose board members’ personal email addresses. (Doc. # 32-2 at p. 192-93).
The court finds that GCH has easily met its “exceedingly light” burden in articulating a
legitimate, nondiscriminatory reason for terminating Plaintiff. See Perryman, 698 F.2d at 1142.
In her attempt to show pretext, Plaintiff directly contradicts her admission that she was
not authorized to disclose board members’ personal email addresses to creditors. She states that
email was the routine method of contacting board members, that GCH’s policies allowed for
information about hospital volunteers (such as board members) to be relayed to others in
appropriate circumstances,10 and that she believed that she was merely following the chain of
command when she disclosed these personal email addresses to a creditor. (Doc. # 34 at p. 2526). But Plaintiff’s reasoning conflicts with her own admission. It does not “create a genuine
issue of material fact regarding whether each of the defendant employer’s articulated reasons is
10

This policy is applicable for appropriate circumstances “within the institution.” (Doc. # 40 at p. 10 n.7).
It does not apply to third-party debt collectors. (See id.).

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pretextual.” Chapman, 229 F.3d at 1024-25. Furthermore, Plaintiff has not rebutted Defendants’
other reason for terminating her: dishonesty in denying to Patterson that she disclosed these
email addresses. See id. at 1037 (“[A] plaintiff must produce sufficient evidence for a reasonable
factfinder to conclude that each of the employer’s proffered nondiscriminatory reasons is
pretextual.”) (emphasis added). Because Plaintiff has failed to establish a prima facie case or
pretext, her retaliation claim is due to be dismissed.
C.

State Law Outrage Claim

The elements of the tort of outrage, also known as the tort of intentional infliction of
emotion distress in Alabama, are that (1) “the defendant’s conduct was intentional or reckless,”
(2) the conduct “was extreme and outrageous,” and (3) the conduct “caused emotional distress so
severe that no reasonable person could be expected to endure it.” Ex parte Crawford & Co., 693
So. 2d 458, 460 (Ala. 1997). In Potts v. Hayes, 771 So. 2d 462 (Ala. 2000), the Alabama
Supreme Court stated that it has recognized the tort of outrage “in regard to only three kinds of
conduct: (1) wrongful conduct in the family-burial context; (2) barbaric methods employed to
coerce an insurance settlement; and (3) egregious sexual harassment.”

Id. at 465 (internal

citations omitted). These three kinds of categories are not necessarily the only sufficient types of
conduct that could plausibly plead intentional infliction of emotional distress.11

Little v.

Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011). Nevertheless, the guiding inquiry is ultimately
whether a plaintiff has alleged facts “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.” Am. Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). Whether
11

In O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011), abrogated in part on other grounds by Ex parte
Vanderwall, 201 So. 3d 525 (Ala. 2015), the Alabama Supreme Court “affirmed a judgment on a tort-of-outrage
claim asserted against a family physician who, when asked by a teenage boy’s mother to counsel the boy concerning
his stress over his parents’ divorce, instead began exchanging addictive prescription drugs for homosexual sex for a
number of years, resulting in the boy’s drug addiction.” Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011).

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a claim presents the requisite level of outrageousness to sustain a claim for intentional infliction
of emotional distress is a question of law. McGinnis v. Am. Home Mortg. Servicing, Inc., 817
F.3d 1241, 1258 (11th Cir. 2016).
Here, Plaintiff has failed to establish an outrage claim because the conduct she premises
this claim upon does not rise to the level of “extreme and outrageous” or conduct “so severe that
no reasonable person could be expected to endure it.” Ex parte Crawford & Co., 693 So. 2d at
460. Even when construing all facts in a light most favorable to Plaintiff, Patterson’s alleged
derogatory comments are not analogous to the three categories of conduct deemed outrageous in
Potts, 771 So. 2d at 465. Nor is this alleged conduct analogous to the sexual misconduct and
professional misconduct deemed outrageous in O’Rear, 69 So. 3d at 118-19. Furthermore,
Plaintiff has not offered any evidence, such as medical treatment or medication, to illustrate the
severity of her emotional distress. Rather, she relies on her own generalized testimony, which is
insufficient to show severe emotional distress. See, e.g., Ex parte Mut. Sav. Life Ins. Co., 698
So. 2d 772, 775 (Ala. 1997) (finding that a plaintiff did not establish the proof necessary to
substantiate the high standard associated with an outrage); Habich v. Crown Cent. Petroleum
Corp., 642 So. 2d 699, 701 (Ala. 1994) (holding that a plaintiff employee who was abducted and
raped while working on her employer’s premises failed to establish the tort of outrage against her
employer because she presented no evidence that her employer’s behavior approached the degree
of severity required to establish outrage); Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d
1041, 1045 (Ala. 1993) (finding that generalized fears do not rise to the level of extreme
emotional distress). Because the facts underlying Plaintiff’s outrage claim cannot support such a
claim under Alabama law, this claim is due to be dismissed. See Ex parte Bole, 103 So. 3d 40,
52 (Ala. 2012) (explaining that the “tort of outrage does not recognize recovery for mere insults,

19

indignities, threats, annoyances, petty oppressions, or other trivialities”) (internal quotations
omitted).
D.

State Law Negligent Training, Supervision, and Retention Claim

In order to prove a claim under Alabama law for negligent training, supervision, or
retention, “a plaintiff must demonstrate that the employer knew, or in the exercise of ordinary
care should have known, that its employee was incompetent.” Britt v. USA Truck, Inc., No.
2:06-cv-868-ID, 2007 WL 4554027, at *4 (M.D. Ala. 2007) (citing Armstrong Bus. Servs. v.
AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001) (negligent supervision); Brown v. Vanity Fair
Mills, Inc., 277 So. 2d 893, 895 (Ala. 1973) (negligent retention); Sanders v. Shoe Show, Inc.,
778 So. 2d 820, 824 (Ala. Civ. App. 2000) (negligent hiring)); see Sears v. PHP of Alabama,
Inc., No. 2:05-cv-304-ID, 2006 WL 932044, at *19 n.13 (M.D. Ala. Apr. 10, 2006) (“The court
observes that there is no discernible distinction between claims of negligent supervision and
claims of negligent training, and, thus the court treats these two claims as one.”) (citing Zielke v.
AmSouth Bank, N.A., 703 So. 2d 354, 358 n.1 (Ala. Civ. App. 1996). Furthermore, a plaintiff
must establish two additional elements: (1) that the underlying conduct of one or more
employees was wrongful or tortious and (2) that Defendant had actual or constructive knowledge
of that alleged incompetence. See Hester v. Brown, 512 F. Supp. 2d 1228, 1238 (M.D. Ala.
2007). That is, not just any “incompetency” suffices to give rise to a cause of action for socalled negligent training, supervision, and retention liability.

See Stevenson v. Precision

Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999). Instead, a plaintiff must prove that an allegedly
incompetent employee committed a tort which is recognized under Alabama common law. See
id.

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In this case, Plaintiff has failed to present substantial evidence to support her outrage
claim, which is the only underlying state tort she alleges in this action. Because Plaintiff has
failed to establish an underlying tort (which is the first element required for a negligent training,
supervision, or retention claim), her negligence claims fails as a matter of law, and this claim is
due to be dismissed. See Stevenson, 762 So. 2d at 824.
V.

Conclusion
For all of these reasons, the court concludes that Defendants’ Motion for Summary

Judgment is due to be granted. An Order consistent with this Memorandum Opinion will be
entered.
DONE and ORDERED this May 23, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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