Lelise v. Cumulus Media, Inc. et al
ORDER denying Leslie's 39 Motion for Partial Summary Judgment regarding her negligent hiring, training and/or supervision claim against the Cumulus' defendants. Leslie's claims for invasion of privacy and intentional infliction of e motional distress against Coleman are DISMISSED without prejudice such that Leslie's motion for summary judgment on said claims is MOOT; granting Cumulus defendants' 43 Motion for Summary Judgment as to Leslie's Title VII sexual hara ssment/hostile work environment claim, FMLA retaliation claim and ADA wrongful termination claim, as well as to Leslie's negligent hiring, training and/or supervision claim; finding as moot 54 Motion to Strike ; sustained in part and overruled in part 60 Objections all as set out in order. Signed by Judge Kristi K. DuBose on 8/30/2011. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CUMULUS MEDIA, INC., et al,
CIVIL ACTION 10-00309-KD-N
This matter is before the Court on Plaintiff’s motion for partial summary judgment (Docs. 39, 40,
41, 48), Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC’s Response (Doc. 49), and
Plaintiff’s Reply (Doc. 58); Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC’s’ motion
for summary judgment (Docs. 43, 44, 45), Plaintiff’s Response (Docs. 50, 51, 52, 53, 55, 62) and
Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC’s Reply (Doc. 59, 62); Plaintiff’s
motion to strike (Doc. 54) and Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC’s
Response (Doc. 64); and Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC’s Motion to
Strike (Doc. 60) and Plaintiff’s Response (Doc. 65).
On June 17, 2010, Plaintiff Daphne Leslie (“Leslie”) initiated this action against Defendants for
legal and equitable relief to redress unlawful discrimination and harassment on the basis of sex, disability
and retaliation. (Doc. 1). Specifically, Leslie asserts claims against the Cumulus Defendants for sexual
harassment/hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
In resolving this motion, the Court construes the evidence and the factual allegations in a light most
favorable to the plaintiff. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999) (providing that when
ruling on a motion for summary judgment, the court “should view the evidence and all factual inferences therefrom
in the light most favorable to the party opposing the motion”).
2000e et seq. (Count I),2 retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et
seq. (Count II), and wrongful termination in violation of the Americans With Disabilities Act, 42 U.S.C. §
12101 et seq. (Count III); and state law claims against individual defendant Johnnie Coleman for invasion
of privacy (Count IV) and intentional infliction of emotional distress (Count V), and against the Cumulus
defendants for negligent hiring, training and supervision (Count VI). (Id.)
Cumulus & Coleman
Cumulus Broadcasting, LLC (“Cumulus”) is a radio broadcasting company which owns and
operates radio stations in midsized markets throughout the United States, including in Mobile, Alabama
(“the Mobile market”). (Doc. 43-1 (Dep. Pizzati (Senior VP) at 7, 32)).3 During Leslie’s employment,
Gary Pizzati was the Senior Vice President of Cumulus, Monte Saunders was the Office/Business
Manger, and Mark McMillen was the Market Manager.4 (Id. (Dep. Pizzati at 7, 29, 32-33); Doc. 43-2
(Dep. Leslie at 29-30, 103-104); Doc. 43-12 (Aff. McMillen at ¶1); Doc. 53-4 (Dep. Saunders at 20-21)).
Defendant Johnnie Coleman (“Coleman”), hired in 1999 and rehired in 2007 after a few years’
absence, was employed by Cumulus in the Sales Department as a Cumulus Account Executive. (Doc. 4310 (Dep. Coleman at 22-23); Doc. 43-1 (Dep. Pizzati at 68-69)). Coleman voluntarily resigned on March
2, 2009, after Cumulus’ Senior Vice President and General Counsel Richard Denning (“Denning”)
investigated a January 12, 2009 e-mail text message (with attached photograph of his penis) that he sent
While the parties brief Title VII retaliation on summary judgment, Leslie did not specifically allege a
separate retaliation count and moreover, did not allege retaliation within the Title VII count of her Complaint. (Doc.
1 at 6-7). In Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998), the Court held that the
“parties frame the scope of the litigation at the time the complaint is filed.” In an effort to do so the court must rely
on the claims asserted in Leslie’s original Complaint. See e.g., Smith v. Books-A-Million, 398 Fed. Appx. 437 (11th
Cir. 2010) (Claims not included in the complaint were not required to be considered by the District Court).
Cumulus Broadcasting, LLC is a wholly owned subsidiary of Cumulus Media, Inc., and is the operating
company. (Doc. 43-3 (Dep. Denning at 12-13)). Leslie was an employee of Cumulus Broadcasting. (Id.)
McMillen was terminated 6/29/09. (Doc. 43-1 (Dep. Pizzati at 102-104); Doc. 43-12 (Aff. McMillen at
to co-worker Daphne Leslie’s cellular phone. (Doc. 43-3 (Dep. Denning at 104-105, 129-131, 164-167);
Doc. 43-10 (Dep. Coleman at 58, 70); Doc. 43-11 (Notice of Employee Separation-“resigned after being
questioned regarding his inappropriate behavior”); Doc. 49-9 (Aff. Denning at ¶¶1, 4)).
On September 23, 2002, Daphne Leslie (“Leslie”) began at-will employment with Cumulus as an
Account Executive in the Sales Department. (Doc. 43-2 (Dep. Leslie at 21, 26-27); Doc. 43-2 at 51-53).
Leslie’s immediate supervisor was Mark McMillen (“McMillen”), and Leslie also worked under the
direction and supervision of Cumulus Senior Vice President Gary Pizzati (“Pizzati”). (Doc. 43-2 (Dep.
Leslie at 26, 96-97, 101-102); Doc. 43-1 (Dep. Pizzati at 7, 28)). Leslie’s job responsibilities included
developing new business, handling outside sales calls, attracting/closing advertisers to sell products and
services, presenting marketing/advertising ideas to area businesses, selling commercial advertising time,
attaining budgeted revenue goals, and subscribing to daily, weekly and monthly accountability
requirements of the sales system. (Doc. 43-2 (Dep. Leslie at 47-48)). Regular work attendance was
expected and was important for Leslie’s job. (Id. (Dep. Leslie at 97)). Cumulus was flexible with its
absentee policy, and employees such as Leslie could call in to the Sales Manager or Monte Saunders and
self-designate available leave as sick or vacation days. (Id. (Dep. Leslie at 97-99)).
Leslie was a good employee and “a good seller” and prior to 2009 was rarely absent. (Doc. 43-1
(Dep. Pizzati at 7, 28; Doc. 43-2 (Dep. Leslie at 101-102)). However, in 2008 Leslie experienced a 25%
decline in sales for the year. (Doc. 43-1 (Dep. Pizzati at 54)). According to Pizzati, this would require
some management action as it is a performance based business: “there’d be a conversation first. And if
the pattern or performance continued, then we could go and sit down and formulate a document and put
that employee on notice.” (Id. (Dep. Pizzati at 54-57)). In December 2008, McMillen counseled the
entire sales staff on all of their collective performance. (Id. (Dep. Pizzati at 58)). While there was no
blanket policy for performance standards that would require discipline if an employee dropped below a
certain level, the company had fired sales or market managers if they did not perform up to standards,
after first counseling them and giving them written discipline. (Id. (Dep. Pizzati at 66-67)).
Subsequently on March 23, 2009, Cumulus issued Leslie a work performance memorandum
noting “several serious deficiencies that need to be addressed in order for you to be a successful account
executive”. Cumulus refers to the memo as “an action step probably because her performance wasn’t
where it needed to be.” (Doc. 43-1 (Dep. Pizzati at 93, 96); Doc. 43-2 at 159-164; Doc. 43-12 (Aff.
McMillen at 2-3); Doc. 43-17 (e-mails); Doc. 51-8 (3/23/09 Memo)).5 According to Cumulus, Leslie’s
“performance was off by 23,000 or 24,000 dollars.” (Doc. 43-1 (Dep. Pizzati at 93, 96)). Other
employees received similar work performance memos at that time. (Id. (Dep. Pizzati at 94-96); Doc. 5110; Doc. 51-11).
The memo included the words “disciplinary action including possible termination”
which according to Leslie, threatened disciplinary action. (Doc. 43-2 (Dep. Leslie at 193-195, 218-219)).
However, Leslie was never demoted or docked in pay and other than the memo, was never reprimanded
or disciplined. (Id. (Dep. Leslie at 28-29, 90-92).
Additionally in 2009, for reasons unknown to Cumulus, Leslie was absent from work on various
days in February, March and early April, and was consecutively absent from April 21-May 19, 2009 and
June 1-August 20, 2009; she first used FMLA leave on May 4, 2009. (Doc. 43-7 at 7-12;6 Doc. 43-2
(Dep. Leslie at 13-14, 122-123, 125-126, 129, 144, 147-148, 153-154, 156); Doc. 43-7 (Dep. Saunders at
90-93, 101, 112)).7 According to Leslie, she was under a doctor’s care in April and May 2009. (Doc. 521 (Decltn. Leslie at ¶10)).
Leslie refused to sign the Memo. (Doc. 51-8 at 2).
Doc. 43-7 at 7-12 consists of the Employee Attendance Report for the year 2009. (Doc. 43-7 (Dep.
Saunders at 90-93, 101, 112)). The last notation of FMLA leave is June 3, 2009; however, as noted by Cumulus’
Business Manager Saunders, he stopped recording the medical leave on the record based on the indication from
Leslie’s doctor that she could not return to work in June. (Id. (Dep. Saunders at 107)).
In 2005, Leslie took eight weeks of FMLA leave; she had no problems at Cumulus after returning to
work. (Doc. 43-2 (Dep. Leslie at 94, 96)).
Specifically, on April 3, 2009, McMillen e-mailed Pizzati and Denning about Leslie’s sick days
and her use of same since January 1, 2009, noting that her taking of time off was recurring and when she
was going to be absent “we usually find out at the moment.” (Doc. 43-2 at 169). On April 22, 2009,
Leslie’s treating physician Dr. Blanchard submitted a note to Cumulus stating that she would be out of
work for two (2) weeks due to medical problems. According to Leslie, when she returned to work
McMillen requested that she have her physician fill out FMLA paperwork for that time off even though
she thought it had been designated as vacation time.8 (Doc. 43-2 (Dep. Leslie at 125-127); Doc. 43-2 at
96). Leslie returned to work May 20-29, 2009. (Doc. 43-2 (Dep. Leslie at 126)).
According to Saunders (and Cumulus) Leslie was out on FMLA leave as of May 4, 2009. (Doc.
53-4 (Dep. Saunders at 93)). Specifically, on May 13 and 14, 2009, McMillen e-mailed Leslie (noting
that he had previously e-mailed her and called her on her cell phone) requesting that she update him on
when she expected to return to work (stating that he had heard from Hazel Dyess at Cumulus that she
would be sending in a doctor’s note covering her absences for the week). (Doc. 43-2 (Dep. Leslie at 200201); Doc. 43-2 at 168). On May 14, 2009, Leslie requested, via e-mail, FMLA documents from Hazel
Dyess at Cumulus (per Saunders’ discussion with her), and on May 15, 2009, Dyess faxed the FMLA
paperwork to Leslie. (Doc. 59-7 at 1-5). Also on May 15, 2009, McMillen sent a letter memo with
FMLA paperwork to Leslie, notifying her of her FMLA rights so that she could use FMLA leave if she
qualified and noting that her FMLA leave would start on May 4, 2009.9 (Doc. 43-2 (Dep. Leslie at 128129); Doc. 43-2 at 98 (5/5/19 FMLA Memo); Doc. 43-3 (Dep. Denning at 168-169)). Leslie submitted
Leslie alleges that Saunders told her that she had sick leave and vacation leave available for the April and
May 2009 absences. (Doc. 52-1 (Decltn. Leslie at ¶10 at 3).
By May 4, 2009, Leslie had already used her entire annual allotment of sick leave and vacation leave,
even though she had not yet earned all of it (Cumulus allowed her to use all of the leave she would have earned if
she actually worked for a full year). (Doc. 53-4 (Dep. Saunders at 93)); Doc. 43-2 (Dep. Leslie at 138-139)). At
that point Leslie had no leave available. Cumulus notified Leslie of her FMLA leave rights so that she could take
advantage of that leave. (Doc. 43-3 (Dep. Denning at 168-169); Doc. 43-2 at 70- 76 (FMLA Leave Policy)).
this information to her physician. Leslie provided Cumulus with a doctor’s excuse which indicated she
would return to work on May 20, 2009. (Doc. 43-2 (Dep. Leslie at 201)). Leslie’s physician Dr.
Blanchard completed the relevant paperwork on May 20, 2009 and returned same noting that Leslie’s
condition commenced April 8, 2009, she had “stress related issues” and was unable to perform any of her
job functions – “unable to drive, may be difficult to interact with people” and that the dates of Leslie’s
incapacity “will vary[.]” (Doc. 43-2 (Dep. Leslie at 129-131); Doc. 43-2 at 101-104). On May 20, 2009,
Cumulus Business Manager Saunders e-mailed Leslie notifying her that her FMLA leave commenced on
May 4, 2009 (in response to McMillen’s 5/15/09 memorandum about her FMLA leave). (Doc. 43-2 at
97). Leslie does not recall receiving that e-mail. (Doc. 43-2 (Dep. Leslie at 127)).
Leslie’s request for FMLA leave was “approved” by Cumulus on May 15, 2009 (Doc. 51-12 at 23), and it was noted that she would be required to present a fitness for duty certificate to be restored to
employment. (Doc. 43-2 at 99). Before May 15, 2009, Leslie had not told anyone at Cumulus the
medical condition for which she needed FMLA leave; Cumulus only learned of her condition when she
submitted her FMLA leave paperwork. (Doc. 43-2 (Dep. Leslie at 122-123, 129)). According to her May
2009 paperwork, Cumulus was notified of an “estimated” September 2009 return to work date. (Id. (Dep.
Leslie at 124)). Leslie did not return to work after May 29, 2009.10 (Id. (Dep. Leslie at 156, 213)).
On June 1, 2009, Leslie notified Cumulus that she would be absent that day; Saunders asked
McMillen to follow-up with Leslie to ascertain the reason why and Leslie told them through a memo to
Laura Bouhan cc’d to Denning, that she was still having some problems in the Mobile market. (Doc. 43-
Leslie asserts that Cumulus does not dispute that she had a disability (Doc. 50 at 25). However, as noted
in the Defendants’ motion for summary judgment: “[i]f anything, Cumulus merely ‘regarded’ Plaintiff as out of
leave on May 4, 2009; Plaintiff was not communicating about the reasons(s) for her absences.” (Doc. 44 at 26 at
note 44). Moreover, the record reveals that while Leslie claims she was disabled, she did not communicate a
“disability” to Cumulus. Rather, Leslie described her illness as “confidential medical information” and when asked
by the Market Manager McMillen about her illness, she preferred “not to say.” (Doc. 51-3 at 3 (2/16/09 Letter)).
2 (Dep. Leslie at 132-133); Doc. 43-2 at 170; Doc. 43-20 at 2). Cumulus contacted Leslie in response and
discussed her concerns via telephone. (Doc. 43-20 at 2; Doc. 43-2 at 166-167).
On June 2, 2009, Denning notified Leslie of the need for her to provide a doctor’s note. (Doc. 432 at 171-172). “[Y]ou have not accrued any more vacation nor do you have any sick time to apply, so it is
critical that this leave be supported under FMLA....If you don’t have accrued time to take, and FMLA is
not available, you must come to work.”
(Id.) Leslie responded the following day only to say that she
would “submit the needed documents.” (Doc. 43-2 at 173).
On June 3, 2009, Leslie’s attorney submitted a request to Cumulus, on behalf of Leslie, for
“immediate” FMLA leave due to “severe mental anguish” due to “outrageous sexual harassment,
discrimination and retaliation”. (Doc. 43-2 at 107). Leslie’s attorney stated that “Leslie will provide
medical documentation supporting her request for leave as soon as possible.” (Id.) See also Doc. 43-2
(Dep. Leslie at 140)). Leslie had not previously notified Cumulus that she was suffering from severe
mental anguish. (Doc. 43-2 (Dep. Leslie at 141)).
On July 20, 2009, a Certificate of Health Care Provider for Employee’s Serious Health Condition
under the FMLA was executed by psychiatrist Dr. Wilkerson concerning Leslie’s medical status for
“major depression, recurrent[,]” which Cumulus received on July 27, 2009. (Doc. 43-2 at 108-111). Dr.
Wilkerson’s certification noted as follows: the probable duration of Leslie’s condition as “undetermined;”
she was unable to sleep, has difficulty interacting with people and no energy; she was unable to perform
any of her job functions due to the condition; the job functions she is unable to perform include
interacting with people; she will be incapacitated for a single continuous period of time due to her
medical condition estimating until September 2009”; she will need to attend follow-up treatment
appointments or work part-time or on a reduced schedule because of her medical condition; the treatments
or the reduced number of hours of work are medically necessary; the condition will possibly cause
episodic flare-ups periodically preventing her from performing her job functions and it is medically
necessary for her to be absent from work during the flare-ups (“severe depression incapacitates this
patient”). (Id.) See also Doc. 43-2 (Dep. Leslie at 141-145)).
On July 23, 2009, psychiatrist Dr. Wilkerson stated in an Attending Physician’s Statement
provided to Leslie’s short-term disability provider (not Cumulus), that her diagnosis was major
depression, she had poor sleep, depressed energy, lack of interest in activities, anxiety, weeping and poor
concentration; it was “undetermined” as to when she could return to work; and marked “no” in response
to whether her job could be modified to handle same with her impairment. (Doc. 43-2 at 177-178). See
also (Doc. 43-2 (Dep. Leslie at 155-156)).
On July 30, 2009, defense counsel wrote Leslie’s attorney (and Leslie) concerning the expiration
of her FMLA benefits on July 24, 200911 and asking when she will be capable of returning to work, as
“[t]he most recent medical report provided…suggest that she currently is unable to return to work – and
will be so restricted for an indeterminant [sic] and unknown amount of time.” (Doc. 43-2 at 112-121). At
that time, Cumulus was “more than happy to reinstate” Leslie but noted that the medical report “expressly
states…Leslie has difficulty interacting with people, has no energy, suffers from recurrent bouts of major
depression, experiences daily spells of weeping, her depression ‘incapacitates her’” and that she is
“unable to perform any of her job functions” due to her condition. (Id. at 112). Cumulus requested that
Leslie provide written confirmation from her doctor that she was fit to return to work and to perform her
essential job duties, and included a detailed list of her essential job duties for reference. (Id. at 112, 116).
Cumulus also requested, that if required, for her medical provider to suggest any accommodations thought
necessary to enable Leslie to perform the essential functions of her job. (Id. at 112-113). See also Doc.
43-2 at 77 (Sales Responsibilities)). Leslie received and read the July 30th letter, but did not respond and
According to Cumulus, Cumulus initially incorrectly calculated when Leslie’s FMLA leave expired; the
correct FMLA leave expiration date should be August 7, 2009. (Doc. 43-3 (Dep. Denning at 169-175, 178-184).
However, “it’s not an error with regard to as of August 20 all her FMLA was used. It ended August 7. So as of the
20th, whether it was July 24 or August 7, all of her FMLA leave had been used.” (Doc. 43-3 (Dep. Denning at 173)).
did not provide Cumulus with a fitness for duty certificate stating she was ready to return to work. (Doc.
43-2 (Dep. Leslie at 147-148, 150)).
Leslie applied for short-term disability benefits (as also referenced in the July 30th letter) which
she received. (Id. (Dep. Leslie at 148-153); Doc. 43-2 at 122-127)). In the disability paperwork, Leslie
stated she had been disabled since June 1, 2009 (“my FMLA time”) and that she had suffered symptoms
before June 1st. (Doc. 43-2 (Dep. Leslie at 152-253)).
On August 4, 2009, Dr. Wilkerson completed a Work Requirements form for the State of
Alabama Department of Human Resources Food Stamp Program. (Doc. 43-2 at 178). Dr. Wilkerson
stated that Leslie was not mentally and physically able to work based on her medical condition of “major
depression, poor concentration, depressed mood, poor sleep, no energy” which commenced in February
2009, adding that the duration of her condition was “undetermined” and her ability to return to work was
On August 20, 2009, Cumulus’ counsel wrote a letter to Leslie’s attorney (which she received
and read), stating that no information had been received regarding her ability or intentions to return to
work, the proposed timeline for a return to work, or the feasibility of a medical release for her return to
work, such that “her leave continues to be of an indeterminant [sic] and unknown nature.” (Doc. 43-2 at
128-129). Cumulus noted that it had continued Leslie’s employment and the provision of health benefits
beyond the expiration of her FMLA leave but that “[a] this point, we have no choice but to consider Ms.
Leslie’s job abandoned. Her last day with the company, therefore, will be deemed August 20, 2009.” (Id.
at 128). See also Doc. 43-2 (Dep. Leslie at 153-155); Doc. 43-3 (Dep. Denning at 167). As of August
20, 2009, Leslie had not provided Cumulus with a specific date to return to work or a medical release
stating that she could return to work. (Doc. 43-2 (Dep. Leslie at 154)). Leslie did not respond to the
letter. (Doc. 43-3 (Dep. Denning at 167, 169-170, 173)).
According to Leslie, she did not use all of her FMLA leave before she was terminated. (Doc. 432 (Dep. Leslie at 117); (Doc. 52-1 (Decltn. Leslie at ¶11)). Nevertheless, Leslie admits that as of the
August 20, 2009 date that Cumulus deemed that she had abandoned her job, she had not been released to
return to work from her treating physician(s), and the only specific date when she was going to be
released was the estimated date of September 2009. (Doc. 43-2 (Dep. Leslie at 144-145)).
On September 21, 2009, Leslie’s treating psychiatrist Dr. Wilkerson sent a letter to Leslie’s shortterm disability provider stating “[i]n my professional opinion she is not able to return to work at this point
and requires further psychiatric care.” (Doc. 43-2 at 130; Doc. 43-2 (Dep. Leslie at 157)). Dr. Wilkerson
had previously estimated her return to work date as “September 2009.” (Doc. 43-2 (Dep. Leslie at 157)).
Dr. Wilkerson did not release Leslie to return to work within September 2009. (Id.) Leslie never
provided a fitness for duty certificate to Cumulus. (Id. (Dep. Leslie at 147-148, 213)).
On November 20, 2009, the State of Alabama Department of Industrial Relations Unemployment
Compensation Agency mailed to Leslie a Notice of Determination disqualifying her or determining her
ineligible for benefits because she obtained a leave of absence from Cumulus but failed to return to work.
(Doc. 52-2). Leslie appealed that determination and on July 2, 2010, the decision was reversed and she
was deemed eligible for benefits. (Doc. 52-3).
Cumulus’ Sexual Harassment, Discrimination & Retaliation Policies
According to the Cumulus defendants, they are an Equal Opportunity employer committed to
prohibiting unlawful harassment, discrimination and/or retaliation. (Doc. 43-2 at 59-61, 64; Doc. 43-3
(Dep. Denning at 103); Doc. 51-6 (Policy)). The Cumulus Policy Prohibiting Unlawful Discrimination,
Harassment and Retaliation, provides as follows:
Cumulus is committed to maintaining a workplace free of unlawful discrimination and
harassment based on gender…and any other factors prohibited by law…The purpose of
this policy is not to regulate employees’ personal morality. Rather, it is to assure a
professional workplace, free of unlawful discrimination and harassment….
Cumulus does not tolerate violation of this policy. Cumulus will investigate all
allegations of discrimination and harassment in as prompt and confidential a manner as
possible and will take appropriate corrective action when warranted. Any person who is
determined by Cumulus to have engaged in discrimination or harassment in violation of
this policy may be subject to appropriate disciplinary action, up to and including
termination of employment. Further, retaliation in any form against an employee or
applicant who complains of discrimination or harassment is strictly prohibited, and may
itself be cause for appropriate disciplinary action.
This policy specifically covers sexual harassment as prohibited behavior. Sexual
harassment is generally defined as unwelcome sexual advances, requests for sexual
favors, and/or other verbal, visual or physical conduct of a sexual nature. Sexual
harassment takes place when any of these occur:
Submission to such conduct is made either explicitly or implicitly a term
or condition of an individual’s employment.
Submission to or rejection of such conduct by an individual is used as a
basis for employment decisions affecting such an individual.
Such conduct has the purpose or effect or unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or
offensive work environment.
Accordingly…[a]n intimidating, hostile, or offensive working environment may be
created by such circumstances as pressure for sexual activities, unwanted and
unnecessary physical contact with another employee, verbal abuse of a sexual nature, the
inappropriate use of sexually explicit or offensive language, or the display in the
workplace of sexually suggestive objects or pictures.
It is impossible to define every action or all words that could be reasonably interpreted as
harassment…Determination of whether a situation qualifies as harassment depends on the
circumstances, but generally speaking sexual harassment involves behavior that is
uninvited, unwelcome and repeated.
A hostile or offensive working environment may also be created by the use of epithets,
slurs or derogatory terms based upon an employee’s …gender…
(Doc. 51-6 at 1-2). Cumulus’ complaint procedure provides alternative avenues of complaint, allowing
Leslie to go over the heads of local management to take a complaint all the way to the top, directly to the
corporate headquarters in Atlanta, Georgia:
Complaints regarding violation of this policy should be made to the employee’s
immediate supervisor. If the employee is uncomfortable for any reason with discussing
the incident with his or her supervisor, the employee should report the incident to any of
the following individuals: business manager, market manager, regional vice president,
Cumulus’ Director of Human Resources, or Cumulus’ General Counsel. If the employee
does not believe that adequate steps are being taken to address his or her complaint at the
market level, the employee should immediately call the Director of Human Resources or
the General Counsel directly.
(Doc. 43-2 (Dep. Leslie at 38); Doc. 43-2 at 60; Doc. 51-6 at 1-2).
The policy provides that Cumulus
“will investigate harassment complaints as discreetly and confidentially as possible. No one will be
retaliated against for making a complaint of harassment…” (Doc. 43-2 at 60).
Although she does not recall whether she received copies, on November 16, 2007, Leslie
acknowledged receipt and understanding of Cumulus’ Policy Prohibiting Unlawful Discrimination,
Harassment and Retaliation, the Code of Business Conduct and Ethics, and the Whistleblower Hotline,
among other policies, and she received a handbook that discusses sexual harassment and discrimination
before starting employment. (Doc. 43-2 (Dep. Leslie at 30-34, 35-37, 41); Doc. 43-2 at 58). Leslie
understood that if she felt she was a victim of sexual harassment at the workplace, she had the right to
complain. (Id. (Dep. Leslie at 33)).
Leslie’s Allegations of Sexual Harassment/Hostile Environment12
Leslie allegations of sexual harassment consist of a few isolated comments, and the receipt of one
(1) text message of a sexually explicit photograph from co-worker Johnnie Coleman (the “breaking
point”). (Doc. 43-2 (Dep. Leslie at 52, 179-185)). Apart from “some of the language that was used in the
office[,]” the photograph was the first time that Leslie experienced anything that she considered rising to
the level of sexual harassment directed to her at Cumulus. (Id. (Dep. Leslie at 179-180)).
Regarding the comments, in 2007 or 2008, Leslie complained to Sales Manager Janet Armstead
(“Armstead”) about one comment made by co-worker Ben Gordon (“Gordon”): ”[i]t’s the weekend. I
want you to come back with smiles on your faces” or “I want the females in the office to make sure you
get some dick over the weekend” within earshot of management including McMillen and then-Market
Manager Candice Houston. (Id. (Dep. Leslie at 79-81, 86-87)). Leslie complained about Gordon’s
Leslie alleged additional allegations as part of her sexual harassment claim; however, these allegations
lack any sexual content or aspect and instead are simply allegations of unprofessionalism, disrespect and/or rude
behavior, which are not supportive of her claim and thus have not been considered on summary judgment (e.g.,
Leslie’s complaint about account billing issues (Doc. 43-2 (Dep. Leslie at 69-70), lack of confidentiality (Id. (Dep.
Leslie at 70-71), rude behavior by Bill Fuerst (Id. (Dep. Leslie at 62-63, 188), unprofessional language (Id. (Dep.
Leslie at 57-61), overall disrespect at the office (Id. (Dep. Leslie at 65-69, 81, 86), an “overall attitude” towards her
by McMillen (Id. (Dep. Leslie at 108-113), being called a “kiss ass” friend of a client by McMillen (Id. (Dep. Leslie
at 112, 116-117, 162-164, 180-181), and being called “Wiggie Mae” (Id. (Dep. Leslie at 178-179)).
comment to Houston, who responded “you know how they are” and nothing was done. (Id. (Dep. Leslie
at 87)). In December 2008, while Leslie was sharing a sales call ride with Gordon and McMillen, Gordon
and/or McMillen used the phrase “busting balls” which made her “very uncomfortable” as she felt it was
a sexual comment. (Id. (Dep. Leslie at 53, 60, 79, 186-187)). Leslie had shared car rides with Gordon
for “about four years” without reporting any complaints about Gordon. (Doc. 43-2 (Dep. Leslie at 5455)). However, Leslie alleges other “vulgar sexual comments” (dates unknown) by Gordon including “if
you saw a penis you wouldn’t know what to do with it” and that he repeatedly called Leslie “gay”
because she refused a co-workers’ request for a date. (Id. (Dep. Leslie at 222-224)).13
Concerning the sexually explicit photograph, on January 12, 2009 at 11:02 a.m., Leslie received a
text message on her cellular phone from co-worker Johnnie Coleman, which she opened 2-3 weeks after
receipt of same; the message attachment was a photograph of Coleman’s erect penis. (Id. (Dep. Leslie at
169-173); Doc. 48 (Sealed)). Coleman had never said, joked, e-mailed or texted anything personal or
offensive to Leslie before January 12, 2009. (Id. (Dep. Leslie at 174-177). Coleman’s e-mailing of the
photograph is the only inappropriate thing that Coleman ever did to her. (Id. (Dep. Leslie at 177)).
About three (3) days after opening the attachment, Leslie sent her complaint to the corporate office. (Id.
(Dep. Leslie at 171)). Leslie testified that neither Denning nor anyone at the corporate level knew about
her complaints of what was occurring to her in terms of sexual harassment at Cumulus, until she formally
complained to the corporate office. (Id. (Dep. Leslie at 222)).
Specifically, on February 13, 2009, when Leslie was absent from work, Leslie e-mailed her first
Formal Complaint of sexual harassment to Cumulus’ corporate office in Atlanta, Georgia, c/o the
Director of Human Resources Laurie Bouhan (“Bouhan”), requesting an investigation of “[v]arious forms
of verbal harassment” and “sexual harassment (explicit documentation).” (Doc. 43-2 (Dep. Leslie at 6913
The only “sexual advance” Leslie encountered was being asked out once by co-worker “KJ” and there
was nothing else she considered a sexual advance by a male co-worker. (Doc. 43-2 (Dep. Leslie at 65, 223)).
77, 113, 159-161, 164); Doc. 43-2 at 131; Doc. 51-1; Doc. 51-2). Leslie described an “anything goes”
environment that was a hostile and unprofessional setting. (Doc. 43-2 (Dep. Leslie at 69-77, 113, 159161, 164)). Leslie stated that she would provide specific documentation once contacted. (Id.) Leslie also
expressed concern about the lack of confidentiality when she submitted the complaint, specifically that it
would be discussed within the Cumulus office. (Doc. 43-2 (Dep. Leslie at 165-167)).
In response, Bouhan e-mailed and spoke with Leslie requesting specific information so that
Cumulus could investigate. (Doc. 43-2 at 135-140, 145-146; Doc. 43-2 (Dep. Leslie at 162, 181-182;
Doc. 43-9 (e-mails))). Subsequently, Leslie e-mailed Bouhan a photograph of an erect penis and a four
(4) page memo detailing 11 specific concerns, the first nine (9) of which focused on account
handling/confidentiality concerns at Cumulus, not sexual harassment. (Doc. 43-2 (Dep. Leslie at 182-183,
187); Doc. 43-2 at 134, 141, 147-150; Doc. 51-3). Leslie’s “Concern #10” was for “inappropriate
language” on a daily basis (which she discussed with management), citing the December 2008 incident of
Gordon and McMillen having a “discussion [which] consisted of sexual comments” (the “busting balls”
comment). (Doc. 43-2 (Dep. Leslie at 34, 183, 186)). Leslie also cited Market Manager Gary Pizzati’s
apology to her for a sexual comment made by a sales representative. (Id.) Leslie’s “Concern #11” was
regarding the photograph from Coleman. (Id. (Dep. Leslie at 179-180)).
On February 17, 2009 Bouhan responded via e-mail stating “Daphne, This type of photo is
TOTALLY unacceptable! This violates Cumulus policy and we need to know who sent this to you.”
(Doc. 43-2 (Dep. Leslie at 175); Doc. 43-2 at 142). At that time, Leslie had not identified who sent the
photograph or when it was received, but upon request, submitted her cell phone statement showing the
picture was received by text message on January 12, 2009 from a local number. (Doc. 43-2 (Dep. Leslie
at 169-171)). On February 18, 2009, Leslie identified the sender as co-worker Johnnie Coleman. (Doc.
43-2 (Dep. Leslie at 162-164); Doc. 43-2 at 144). That same day, Bouhan reported Leslie’s complaint to
Cumulus’ General Counsel, Richard Denning (“Denning”), and Denning commenced an investigation
including calling and e-mailing Leslie. (Doc. 43-3 (Dep. Denning at 126-133, 162-167); Doc. 43-2 (Dep.
Leslie at 187-190); Doc. 43-2 at 132-133, 151; Doc . 43-3 at 19). Denning and Bouhan agreed that the
photo was offensive and against Cumulus’ policy. (Doc. 43-2 Dep. Leslie at 187)).
On March 2, 2009, Denning telephoned Coleman to ask him about the photograph. (Doc. 43-3
(Dep. Denning at 104-105, 164); Doc. 43-3 at 19). After Coleman admitted sending the photograph,
Denning told him it “was very inappropriate” and he was going to be terminated.
(Doc. 43-3 (Dep.
Denning at 164-167); Doc. 43-3 at 19). Coleman elected instead to resign. (Id.) That same day Denning
wrote Leslie detailing Cumulus’ investigation of her complaints. (Doc. 43-2 (Dep. Leslie at 192); Doc.
43-2 at 151-156; Doc. 60-1 at 19-22). Denning confirmed that Coleman sent Leslie the inappropriate
photo14 and notified her that Coleman was no longer employed. (Doc. 43-2 at 154; Doc. 43-3 (Dep.
Denning at 128-131, 162-167)). Leslie did not respond. (Doc. 43-2 (Dep. Leslie at 188)).
Also on March 2, 2009, Leslie completed an Intake Questionnaire with the EEOC. (Doc. 62-1).
In this questionnaire, Leslie noted that she did not have a disability (Id. at 1), and that the basis for her
claim of employment discrimination was sexual harassment and verbal harassment (Id. at 2). She
specified receipt of a sexually explicit photograph by a co-worker in January 2009, and “various verbal
abuse and overall harassment via management” in December 2009. (Id. at 2). On March 4, 2009,
Leslie filed an EEOC Charge against Cumulus alleging sex discrimination by Coleman and “other
instances of sexual harassment and offensive language” occurring from February 1, 2009-March 2, 2009.
(Doc. 43-2 (Dep. Leslie at 206-208); Doc. 43-2 at 175).
On March 24, 2009, Leslie faxed a memorandum to Bouhan “to request additional assistance
concerning possible retaliation incidents.” (Doc. 43-2 (Dep. Leslie at 192-193, 195); Doc. 43-2 at 157158, 165). At that time, her primary concern was the March 23rd work performance memo. (Doc. 43-2
(Dep. Leslie at 192-193, 198); Doc. 51-9 (3/24/09 Memo)). Leslie stated that after filing her EEOC
According to Coleman, he did not intentionally e-mail the photograph to Leslie; it was intended for his
wife whose name was a line up from Leslie’s in his cellular phone directory as “Wifey” and “Wiggy” (Leslie’s
nickname at work). (Doc. 43-10 (Dep. Coleman at 57-61, 70, 91-92)).
Charge, Cumulus retaliated against her by subjecting her work performance to high scrutiny and issuing
her a performance memo. (Doc. 43-2 (Dep. Leslie at 193)). Specifically, according to Leslie, after she
made her complaint in February 2009, McMillen let Leslie know that he knew who filed the complaint
and that “a lot of the areas were being investigated” and made “smart remarks” such as touching one of
the male sales representatives on the should and making the comment “I better not touch anyone; I may
get a complaint filed on me.” (Id. (Dep. Leslie at 190-191)).15 In response, Bouhan e-mailed Leslie (cc’d
Denning) notifying her that Cumulus does not condone retaliation, all complaints are taken seriously and
addressed, and job performance and essential elements of the job are the same for all Cumulus account
executives. (Doc. 43-2 at 165).
On June 1, 2009, while absent from the office, Leslie requested a telephone conference and spoke
with Bouhan detailing “unnecessary/unprofessional and disrespectful incidents” since she filed her EEOC
Charge, which was communicated to Denning. (Doc. 43-2 (Dep. Leslie at 196); Doc. 43-2 at 166-167,
171-174). Leslie reported that she was bothered that: 1) several of her accounts were not serviced while
she was on FMLA leave in May; 2) her Manager arrived 20 minutes late for a client appointment; and 3)
McMillen told her to get her personal laptop computer fixed rather than use the “community computer.”
(Doc. 43-2 (Dep. Leslie at 196-197)). At this time, Leslie had not actually been present at work but she
felt that McMillen retaliated against her due to the issue with the computer and turning his back to her
when talking with the sales team. (Id. (Dep. Leslie at 198-199)). Denning investigated Leslie’s
complaints, responding to each concern in detail on June 2, 2009 and suggesting a call that afternoon.
(Doc. 43-2 (Dep. Leslie at 219); Doc. 43-2 at 171-172).
On September 4, 2009, Leslie filed an Amended EEOC Charge for sex discrimination, retaliation
and disability discrimination alleging that since filing her charge, she had been subjected to “almost daily
McMillen disputes that this occurred . (Doc. 43-12 (Aff. McMillen at ¶4)).
retaliation” and that she was terminated by Cumulus while “absent on temporary disability.” (Doc. 43-2
(Dep. Leslie at 213); (Doc. 43-2 at 176). Cumulus does not have “disability leave” separate from
permissible FMLA leave and Leslie’s participation in the short-term disability program was a matter
between Leslie and the carrier. (Doc. 43-3 (Dep. Denning at 189-197)).
MOTIONS TO STRIKE
Plaintiff moves to strike the entirety of the Affidavit of Monte Saunders (Doc. 43-4), and the
Cumulus defendants move to strike portions of Leslie’s Declaration (Doc. 52-1). At the outset, the
motions to strike are construed as Rule 56(c)(2) Objections.16
Plaintiff’s objections to the Monte Saunders’ Affidavit are MOOT as the Court has not relied on
this affidavit for this summary judgment.
As to the Cumulus’ objections to portions of Leslie’s Declaration, the objections are
OVERRULED except as follows:
Cumulus’ objections to paragraph 4 are sustained.
Regarding Paragraph 6 of Leslie’s
Declaration, Leslie now contends that Coleman forwarded to her and to other employees, a cartoon
picture of a penis via text to their cellular phones and that afterwards, Coleman told Leslie “[a]fter you
have seen what I sent you, then maybe you will want a man.” This allegation has not been considered on
summary judgment because it contradicts Leslie’s deposition testimony in which she stated that the only
sexual harassment she encountered with Coleman was the receipt of one (1) text message photograph to
With the December 1, 2010 rules change, it no longer appears that motions to strike exhibits submitted
on summary judgment are appropriate. Revised Rule 56(c)(2) provides instead, that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
FED.R.CIV.P. 56(c)(2). The Advisory Committee Notes specify further as follows: “Subdivision (c)(2) provides
that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The
burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that
is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge
admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.”
FED.R.CIV.P. Adv.Comm.Notes (2010 Amendments (emphasis added)).
her cellular telephone
(Doc. 43-2 (Dep. Leslie at 177).
Accordingly, the Cumulus defendants’
Objections to same are SUSTAINED. However, as to Leslie being called “gay,” this does not contradict
previous testimony thus the Cumulus defendants’ objection to such is OVERRULED.
MOTIONS FOR SUMMARY JUDGMENT
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.@ FED. R. CIV. P. 56(a)
(Dec. 2010). The recently amended Rule 56(c) governs Procedures, and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
FED.R.CIV.P. Rule 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears the
Ainitial responsibility of informing the district court of the basis for its motion, and identifying those
portions of >the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any,= which it believes demonstrate the absence of a genuine issue of material fact.@
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). If the nonmoving party fails to make Aa sufficient showing on an essential element
of her case with respect to which she has the burden of proof,@ the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. AIn reviewing whether the nonmoving party has met its burden, the
court must stop short of weighing the evidence and making credibility determinations of the truth of the
matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.@ Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert.
den., 507 U.S. 911 (1993) (internal citations and quotations omitted).
Title VII-Hostile Work Environment (Sexual Harassment): Count I
Title VII of the Civil Rights Act prohibits employers from discriminating in the workplace on the
basis of an individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e et seq. In this
case, Leslie alleges sexual harassment/hostile work environment.
To establish a prima facie case of Title VII hostile work environment and/or sexual harassment
Leslie must show: 1) she belongs to a protected group; 2) she has been subjected to unwelcome sexual
harassment such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; 3)
the harassment was based on a protected characteristic (i.e., sex) of the employee; 4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and 5) the employer is responsible for such environment
under a theory of vicarious or direct liability. See, e.g., Mendoza v. Borden, Inc., 195 F.3d 1238, 1245
(11th Cir. 1999) (en banc) (citation omitted). See also e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed.
Appx. 544, 545-546 (11th Cir. 2010); McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008); Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). “Workplace conduct is not measured in
isolation.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam). Evidence of
harassment is considered cumulatively --in the totality of the circumstances. Mendoza, 195 F.3d at 1242.
Assuming the existence of the first three elements -- as the Court views the facts in the light most
favorable to plaintiff on summary judgment -- the Court turns to element four. As to whether the conduct
was severe and pervasive, Leslie relies upon her complaints concerning a few sporadic and isolated
remarks,17 apart from the one (1) e-mail photograph she received from Coleman. Leslie does not allege
that she was ever touched, kissed or propositioned for sex by any employee at Cumulus. Apart from the
single e-mail photograph from Coleman, Leslie’s sexual harassment allegations are, at best,
unprofessional and/or “sex talk.” See, e.g., Beasley v. Wal-Mart Stores East, L.P., 2006 WL 3449144, at
*8-9 (S.D. Ala. Nov. 29, 2006) (granting summary judgment where comments were “at best mere sex
talk, which without more, does not rise to the level of objectively severe and pervasive harassment”).
To be actionable as severe or pervasive, the harassment “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.” Miller, 277 F.3d at 1276 (internal citation and quotation marks omitted). In
other words, the severe or pervasive element has an objective and subjective component. McCann, 526
F.3d at 1378. The court will assume that there is sufficient evidence, if believed by a jury, that Leslie
subjectively perceived her work environment to be sexually hostile.
The Court turns to whether Leslie’s perception was objectively reasonable. In so determining,
Eleventh Circuit precedent mandates that courts consider “the totality of the circumstances.” See, e.g.,
Miller, 277 F.3d at 1277. To determine the objective severity, courts consider: 1) the frequency of the
discriminatory 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 an
employee's job performance. Reeves, 395 Fed. Appx. at 546. See also Faragher v. City of Boca Raton,
524 U.S. 775, 787-788 (1998); Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “The conduct is considered cumulatively instead of in
isolation.” Reeves, 395 Fed. Appx. at 546.
As noted supra Section I, the majority of Leslie’s complaints concern unprofessionalism and disrespect
and are not sexual in nature and thus, merit no further discussion.
In this case, Leslie has not submitted sufficient evidence from which a reasonable jury could find
that the alleged sexual harassment was frequent, severe, physically threatening, humiliating, demeaning
and/or unreasonably interfered with her job. A few isolated offhand or offensive comments do not
constitute actionable sexual harassment. Additionally, one (1) instance of a co-worker sending a sexually
explicit e-mail photograph does not arise to “severe or pervasive.” See, e.g., McCann v. Tillman, 526 F.3d
1370, 1379 (11th Cir. 2008) (noting that “sporadic and isolated” conduct even if offensive, is not enough).
It is repeated incidents of...harassment that continue despite the employee's objections [that] are indicative
of a hostile work environment.” Miller, 277 F.3d at 1276 (citation and quotation omitted). “’[S]imple
teasing,’…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
(citations omitted). “These standards for judging hostility are sufficiently demanding to ensure that Title
VII does not become a ‘general civility code.’ Properly applied, they will filter out complaints attacking
‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing.’ We have made it clear that conduct must be extreme[.]” Id. See also e.g.,
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (providing that “[a]ll 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”). In sum, “‘Title VII…does not operate as a general ban on…rude or
offensive behavior.’” Weaver v. Potter, Slip Copy, 2010 WL 2465423, at *4 (S.D. Ga. Apr. 21, 2010)
Under the totality of the circumstances and considering the allegations in the light most favorable
to Leslie, she has not produced sufficient evidence – if believed by a jury – to create an issue of fact as to
whether she was subjected to sexual harassment that was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive working environment. As a result,
because Leslie has failed to satisfy this fourth element of her prima facie case for hostile work
environment, the Court need not reach the fifth element (employer liability) and summary judgment is
GRANTED in favor of the Cumulus defendants on this claim.
FMLA Retaliation: Count II
Leslie asserts a claim against the Cumulus defendants for retaliation brought pursuant to the
Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”). (Doc. 1 at 7-8). The FMLA
grants an eligible employee the right to take up to 12 workweeks of unpaid leave during any 12 month
period “[b]ecause of a serious health condition that makes the employee unable to perform the functions
of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). To be “eligible” for FMLA leave, the
employee must be employed: “(i) for at least 12 months by the employer with respect to whom leave is
requested under section 2612 of this title; and (2) for at least 1,250 hours of service with such employer
during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). “The Act creates a private right of action
to seek equitable relief and money damages against employers who ‘interfere with, restrain, or deny the
exercise of or the attempt to exercise’ FMLA rights.” Hurlbert v. St. Mary's Health Care Sys., Inc., 439
F.3d 1286, 1293 (11th Cir. 2006). Additionally, the FMLA creates two types of claims: interference claims
(in which an employee asserts that his employer denied or otherwise interfered with his substantive rights
under the Act, see 29 U.S.C. § 2615(a)(1)), and retaliation claims (in which an employee asserts that his
employer discriminated because he engaged in activity protected by the Act, 29 U.S.C. § 2615(a)(1)-(2)
and 29 C.F.R. § 825.220(c)). Leslie alleges FMLA retaliation. As noted in Strickland v. Water Works
and Sewer Bd. of City of B’ham, 239 F.3d 1199, 1206-1207 (11th Cir. 2001): “[t]o succeed on a
retaliation claim, an employee must demonstrate that his employer intentionally discriminated against him
in the form of an adverse employment action for having exercised an FMLA right…a plaintiff…faces the
increased burden of showing that his employer's actions ‘were motivated by an impermissible retaliatory
or discriminatory animus.’”
Leslie does not contend that there is direct evidence of retaliation but instead addresses her
FMLA retaliation claim in the context of the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Leslie bears the initial burden of
establishing a prima facie case of discrimination, i.e., retaliation, by a preponderance of the evidence and
if she does so, a presumption of discrimination arises. See, e.g., Christian v. Cartersville City Schools Bd.
of Educ., 167 Fed Appx. 89, 91 (11th Cir. 2006); Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981). “Demonstrating a prima facie case is not onerous; it requires only that the plaintiff
establish facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). In order to establish a prima facie case of retaliation, Leslie must show the following: 1)
she engaged in statutorily protected activity; 2) she experienced an adverse employment action; and 3) a
causal connection between the protected activity and the adverse action. Hurlbert, 439 F.3d at 1297.
Once the employee establishes a prima facie case, the burden shifts to the employer “to articulate a
legitimate reason for the adverse action.” Id. If the employer does so, the employee must then show that
the employer's proffered reason was pretextual by presenting evidence “sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse
employment decision.” Id. at 1298 (internal quotation marks omitted). In so doing, the employee may
rely on evidence that she already produced. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir. 1997); Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 921 (11th Cir. 1993). See also e.g.,
Martin v. Brevard County Public Schools, 543 F.3d 1261, 1268 (11th Cir. 2008).
Leslie contends that Cumulus retaliated against her for taking FMLA leave by terminating her on
August 20, 2009. (Doc. 1 at ¶¶31-35). The Cumulus defendants contend that Leslie never returned or
attempted to return to work upon the expiration of her FMLA leave, or for several weeks thereafter.
The Court finds that Leslie has failed to provide sufficient evidence to establish a prima facie case
of FMLA retaliation.
As a threshold matter, Leslie must establish that she engaged in statutorily
protected activity. Leslie’s statutorily protected conduct was her use of 12 weeks of FMLA leave during
2009 for her serious medical condition of severe depression. As her FMLA leave expired on August 7,
2009, Leslie’s absence beyond that date was not statutorily protected conduct. Specifically, Leslie’s
FMLA leave absences (12 weeks or 84 days) consist of the following: May 4-May 19, 2009 (16 days);
June 1-June 30, 2009 (30 days); July 1-July 31, 2009 (31 days); and August 1-7, 2009 (7 days).
supra Section I. Cumulus gave Leslie her a full 12 weeks of FMLA leave, plus 13 extra days, but Leslie
failed to return to work. While Leslie contends, in conclusory fashion, that she had FMLA leave
remaining such that her leave did not expire on August 7, 2009, she has failed to present sufficient
evidence in support of her contention, choosing instead to essentially ignore the record evidence which
confirms that she had already taken a number of days of FMLA leave prior to her June 3, 2009 request.
A plaintiff is entitled to FMLA leave for 12 workweeks during any 12-month period because of a
serious health condition that makes that employee unable to perform the functions of her position. 29
U.S.C. § 2612. However, “taking more leave than is allowed by the FMLA is not protected conduct.”
See, e.g., Johnson v. Morehouse College, Inc.., 199 F. Supp. 2d 1345, 1362 (N.D. Ga. 2002). “[A]s long
as the employee has been given the requisite leave period under the FMLA, the FMLA does not forbid an
employer from firing an employee who simply refuses to come back to work[,]” and thus, an employer is
not liable under the FMLA for firing an employee who does not return to work after her FMLA leave has
expired. Id. at 1360-1361. See also e.g., McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir.
1999); Bender v. City of Clearwater, 2006 WL 1046944, *12 (M.D. Fla. Apr. 19, 2006). As noted in
Carter v. Dialysis Clinic, Inc., 2008 WL 4722070,*6 (M.D. Ala. Oct. 22, 2008): “an employer does not
violate the FMLA when it fires an employee who is indisputably unable to return to work at the
conclusion of the 12-week period of statutory leave.” (citations omitted). Moreover, “[a]n employee's
insistence on taking more leave than is allowed by the FMLA is not protected conduct.” Bender, 2006
WL 1046944, *12. In other words, Leslie has not established that her termination was motivated by
anything other than by her continued unauthorized absence from work after her FMLA leave expired.
In sum, Leslie’s FMLA retaliatory termination claim fails because she has not established that she
was engaged in a FMLA protected activity at the time of her August 20, 2009 termination by Cumulus.
Given Leslie’s failure to establish the first requisite element of her prima facie case, the Court need not
address the remaining elements.18 Thus, it is ORDERED that the Cumulus Defendants’ motion for
summary judgment as to Leslie’s FMLA retaliation claim (Count II) is GRANTED.
ADA- Wrongful Termination: Count III
In Count III of the Amended Complaint, Leslie alleges a claim for wrongful termination in
violation of the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,
Leslie contends that she is a qualified individual with a disability; Cumulus perceived her as disabled and
had a record of her disability; Cumulus terminated her while she was out on medical leave due to her
disability in violation of the ADA; and upon receiving notice from her physician that she was suffering
from severe depression, terminated her employment. (Doc. 24 at 9).
The ADA mandates that no covered employer shall discriminate against “a qualified individual
with a disability because of the disability of such individual” in any of the “terms, conditions [or]
privileges of employment.” 42 U.S.C. § 12112(a). Employers have the duty to provide reasonable
accommodations for known disabilities unless doing so would result in undue hardship to the employer.
Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996). To establish a prima facie case of
discrimination in violation of the ADA, Leslie must prove that: 1) she has a disability; 2) she is a
qualified individual; and 3) she was subjected to unlawful discrimination because of her disability. Id.
See also Durley v. APAC, Inc., 236 F.3d 651, 657 (11th Cir. 2000); Witter v. Delta Air Lines, Inc., 138
F.3d 1366, 1369 (11th Cir. 1998).
First, “[i]n order to state a claim for wrongful termination under the ADA, a plaintiff must first
prove that he has a disability, as defined by the Act.” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318,
Nevertheless, the Court also notes that an employer may require that an employee present a fitness for
duty certificate before returning to work, 29 U.S.C. § 2614, and unless the employee does so, she “may be
terminated.” 29 C.F.R. § 825.313. See, e.g., Burkett v. Beaulieu of America, Inc., 168 Fed. Appx. 895, 896 (11th
Cir. 2006); Barnes v. Ethan Allen, Inc., 356 F. Supp. 2d 1306, 1311 (S.D. Fla. 2005). The record reveals that
despite requests by Cumulus for information concerning Leslie’s medical status, her ability to return to work (and if
needed, what accommodations would be required), a fitness for duty report, her ability to perform her essential job
functions, and a date that she would actually return to work, Leslie did not provide the requested information.
1327 (11th Cir. 1998). Disability is defined in three ways as “(1) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (2) a record of such
impairment; or (3) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). “Merely
proving the existence of a physical or mental impairment, without addressing any limitation on major life
activities, is not sufficient to prove disability under the Act.” Standard, 161 F.3d at 1327. Here, Leslie’s
alleged disability is severe depression. Depression is a mental impairment. Pritchard v. Southern Co.
Servs., 92 F.3d 1130, 1132 (11th Cir. 1996).19 Cumulus contends, in part, that even if Leslie can prove she
was disabled, she is not a qualified individual. (Doc. 44 at 26).
A “qualified individual with a disability” is an “individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). Thus to be a “qualified individual” Leslie must, at the
relevant time, be able to “perform the essential functions of the job in question with or without reasonable
See, e.g., Boone v. Rumsfeld, 172 Fed. Appx. 268, 271 (11th Cir. 2006)
(unpublished); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). “The ADA provides
that consideration shall be given to the employer's judgment as to what functions of a job are essential and
the employer's written description for that job.” See, e.g., Davis v. Florida Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000). The Eleventh Circuit has held that in addition to possessing the required
skills necessary to perform the essential job functions, an employee must be able to demonstrate those
skills by reporting to work on a regular basis, thereby making attendance an essential function of most
jobs. Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994).
Cumulus asserts that Leslie is not a “qualified individual” because she cannot perform an
essential function of her job – regular attendance – much less other functions “such as interacting with
As noted in Pritchard, 92 F.3d at 1132: “Depression has been held to constitute a mental impairment.
See, e. g., Doe v. Region 13 Mental Health-Mental Retardation Commission, 704 F.2d 1402, 1408 (5th Cir.1983).”
people as a salesperson must.” (Doc. 44 at 27).
Leslie sought an indefinite leave of absence to
accommodate her alleged disability of severe depression.
If a disabled employee requires an
accommodation to perform the essential functions of her job, she must make “a specific demand for an
accommodation” and must prove that the proposed accommodation is reasonable. See, e.g., Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363-1364 (11th Cir. 1999). Leslie has not established
that she was able to “perform the essential functions of the job in question with or without reasonable
accommodations” or that she even made any demand (much less a specific demand) for an
accommodation which was reasonable.
Specifically, as detailed supra, Leslie did not provide the
requested information to Cumulus concerning a return to work date and/or her ability to perform her
essential job functions. Moreover, while Leslie alleges in her Complaint that she requested “reasonable
accommodation in the form of short-term disability leave” (Doc. 1 at ¶39) and received short-term
disability, there is no evidence that she requested any reasonable accommodation from Cumulus. Leslie’s
request to Cumulus for a leave of absence so that she could return to work at some uncertain point in the
future was an unreasonable accommodation. See Wood v. Green, 323 F.3d 1309, 1313-1314 (11th Cir.
2003) (providing that “[t]he ADA covers people who can perform the essential functions of their jobs
presently or in the immediate future”). Accordingly, Leslie was not a “qualified individual” under the
ADA. As such, the Cumulus Defendants’ motion for summary judgment as to Leslie’s ADA claim for
wrongful termination (Count III) is GRANTED.
State Law Claim against Cumulus
Leslie contends that Cumulus negligently hired, trained and/or supervised its former Cumulus
employee Johnnie Coleman. In the context of a sexual harassment claim, “[t]o recover on negligent
supervision and training claims against an employer, ‘[a] plaintiff must establish ‘by affirmative
proof’ that the employer actually knew of the incompetence [of the employee], or that the
employer reasonably should have known of it. Southland Bank v. A & A Drywall Supply Co., 21
So.3d 1196, 1215-16 (Ala. 2008) (citation omitted) (explaining that claims for negligent
supervision and training are treated as one claim subject to the same standard)…The plaintiff
meets this burden by either showing ‘specific acts of incompetency and bringing them home to
the knowledge of the master, or by showing them to be of such nature, character, and frequency
that the master, in the exercise of due care, must have had them brought to his notice.’ Lane v.
Cent. Bank of Ala., N.A., 425 So.2d 1098, 1100 (Ala.1983) (citation omitted).” Speigner v.
Shoal Creek Drummond Mine, 402 Fed. Appx. 428, 433 (11th Cir. 2010) (unpublished).
Moreover, one instance of misconduct is insufficient to establish liability against the employer
under a negligent supervision/training claim. Southland Bank, 21 So.3d at 1216. Thus even
assuming that Leslie could establish her claim against Coleman, her claim against Cumulus fails. Leslie
has submitted no evidence of previous complaints of sexual harassment involving Coleman, whether with
her or any other employee at Cumulus. Nor is there any evidence of previous problems of this nature in
Coleman’s work history such that Leslie’s claim of negligent hiring is also unsupported by evidence.
Accordingly, the Cumulus Defendants’ motion for summary judgment as to Leslie’s state law
claim for negligent hiring, training and/or supervision (Count IV) is GRANTED and Leslie’s motion for
summary judgment on this same claim is DENIED.
State Law Claims against Coleman
Leslie contends that Defendant Coleman’s act of e-mailing one photograph of his penis to her
cellular telephone constitutes invasion of privacy and intentional infliction of emotional distress.
A court's exercise of supplemental jurisdiction over remaining state law claims is discretionary.
Under 28 U.S.C. § 1367(c)(3), the court may “decline to exercise supplemental jurisdiction over a [state
law] claim if the district court has dismissed all claims over which it has original jurisdiction....” This
Court's discretion is advised by United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966), in
which the Court held that “[n]eedless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them a surer-footed reading of applicable
law. [ ] Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well.” Id. at 726. Likewise, in Carnegie–
Mellon Univ. v. Cohill, 484 U.S. 343 (1988), the Supreme Court reiterated that “when the federal-law
claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal
court should decline the exercise of jurisdiction by dismissing the case without prejudice...” The Eleventh
Circuit has further explained that “if the federal claims are dismissed prior to trial, Gibbs strongly
encourages or even requires dismissal of state claims.” Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th
Cir. 1999), cert. den., 528 U.S. 820 (1999). See also e.g., Arnold v. Tuskegee University, 212 Fed. Appx.
803, 811 (11th Cir. 2006) (unpublished) (providing that “[w]hen the district court has dismissed all federal
claims from a case, there is a strong argument for declining to exercise supplemental jurisdiction over the
remaining state law claims”); Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002)
(finding that “[b]oth comity and economy are served when issues of state law are resolved by state
courts”). Moreover, a federal district court may exercise subject matter jurisdiction over a civil action in
which only state law claims are alleged if the civil action arises under the federal court's diversity
jurisdiction. 28 U.S.C. § 1332(a)(1). The diversity statute confers jurisdiction on the federal courts in civil
actions “between citizens of different states,” in which the jurisdictional amount is met. Id.
The Complaint (and Answers thereto) indicates that Plaintiff Leslie is a resident of Mobile
County, Alabama and a citizen of the State of Alabama, but provides no state citizenship information for
Defendant Coleman. (Doc. 1 at 2-3; Doc. 9; Doc. 23 at 2).20 Thus, the Court cannot determine whether
there exists a basis for diversity jurisdiction. 28 U.S.C. § 1332. Moreover, the Complaint does not allege
diversity of citizenship as a basis for jurisdiction in this Court. (Doc. 1 at 1 at ¶1). As such, there are no
According to Cumulus, Defendant Cumulus Media, Inc., did not employ Leslie and thus is not a proper
party to this action. (Doc. 9 at 2 at ¶5).
facts alleged by Leslie to support diversity jurisdiction in this case. Accordingly, the Court declines to
exercise supplemental jurisdiction over the remaining state law claims.
Accordingly, it is ORDERED that Leslie’s Objections (Doc. 54) are MOOT and the Cumulus
Defendants’ Objections (Doc. 60) are SUSTAINED in part and OVERRULED in part as detailed
supra. Additionally, it is ORDERED that Cumulus Defendants’ motion for summary judgment (Doc.
43) is GRANTED as to Leslie’s Title VII sexual harassment/hostile work environment claim, FMLA
retaliation claim and ADA wrongful termination claim, as well as to Leslie’s negligent hiring, training
and/or supervision claim. As such, Leslie’s motion for summary judgment (Doc. 39) regarding her
negligent hiring, training and/or supervision claim against the Cumulus’ defendants is DENIED.
Moreover, as detailed supra, Leslie’s claims for invasion of privacy and intentional infliction of
emotional distress against Coleman are DISMISSED without prejudice such that Leslie’s motion for
summary judgment (Doc. 39) on said claims is MOOT.
DONE and ORDERED this the 30th day of August 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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