Deneau v. Rollins, Inc. et al
Filing
141
ORDER denying 87 Plaintiff's Motion for Partial Summary Judgment; granting 91 Defendants'Motion for Partial Summary Judgment as follows: Plaintiffs Title VII claims against individual Defendants Goodwin and Mayfield-Duke are dismisse d; Plaintiffs Title VII promotion claims (First Cause of Action) are dismissed; Plaintiffs Title VII retaliation claim (Second Cause of Action) is dismissed; and Plaintiffs state law defamation claim (Fourth Cause of Action) is dismissed. The only issue remaining for trial is Plaintiffs claim alleging violations of the Fair Labor Standards Act (Third Cause of Action).. Signed by Magistrate Judge Sonja F. Bivins on 5/20/2013. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMMEY DENEAU,
Plaintiff,
vs.
ORKIN, LLC, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO. 11-00455-B
ORDER
This case is before the Court on Plaintiff Tammey Deneau’s
motion for partial summary judgment (Doc. 87) and Defendants’
motion for partial summary judgment (Doc. 91).
Both motions
have been exhaustively briefed and are now ripe for disposition.
After carefully considering the foregoing, and other relevant
materials in the file, the Court concludes, for the reasons set
forth
herein,
that
Plaintiff’s
motion
for
partial
summary
judgment is DENIED, and Defendants’ motion for partial summary
judgment is GRANTED.
I. Background1
Orkin is a pest control company that provides termite and
1
In resolving these motions, the Court construes the evidence
and the factual allegations in the light most favorable to the
non-moving party.
See Skop v. City of Atlanta, 485 F.3d 1130,
1136 (11th Cir. 2007); 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.”).
pest control services to commercial and residential customers
throughout the United States. (Doc. 92 at 30; Doc. 104-1 at 1).
During the periods relevant to this case, Orkin was organized
into five divisions, namely Atlantic division, Midwest division,
Pacific
division,
South
Central
division. (Doc. 104-1 at 1).
division,
and
Southeast
Each division is subdivided into
During
regions which in turn include several branches. (Id.).
2010, the Mobile branch was part of the Louisiana-Mississippi
region, and the region manager was James Earl Thomas.2
(Doc. 92-
34 at 1).
Plaintiff, who is a female, began working for Defendant
Orkin as a Pest Control Inspector at Orkin’s Mobile, Alabama
branch in 1992.
various
office
specialist
Plaintiff
and
(Doc. 87-4 at 2).
positions
for
scheduler.3
became
the
office
Plaintiff later worked in
Orkin
(Doc.
including
92-15
manager
of
at
the
as
a
16).
customer
In
Mobile
1998,
branch.
(Id.).
During
Compliance
December
Employee
2009,
Orkin
Hotline”
improprieties at the Mobile branch.
received
call
an
“Ethics
regarding
and
alleged
(Doc. 98-3 at 1; Doc. 92-33
2
The Louisiana-Mississippi region fell within the South Central
division.
3
Except during a brief period early on in which Plaintiff was
assigned to Panama City, Florida, she worked out of the Mobile
branch. (Doc. 92-15 at 16).
2
at
26).
The
South
Central
division
auditing
team
manager
assigned a division auditor, namely Donna Orr, to audit petty
cash
and
payroll
at
the
Mobile
branch.
In
her
audit,
Orr
determined that while the petty cash was in balance, there were
violations of the petty cash policy including that receipts were
not maintained in the branch.
37).
(Doc. 98-3 at 1; Doc. 92-11 at
Orr also determined that payroll errors had resulted in
underpayment to employees and that Plaintiff had improperly used
vacation or sick time to earn more than eight hours in a day.4
(Id.).
Orr reported her findings to Elaine Cole, the auditing team
manager, and to Thomas, the region manager.
26; Doc. 92-34 at 1).
(Id.; Doc. 92-33 at
Thomas consulted with Larry Black, the
division human resources manager, and made the decision to issue
Plaintiff a written Coaching and Counseling Discipline.
92-33 at 27).
(Doc.
In the Coaching and Counseling discipline dated
January 21, 2010, Plaintiff was advised as follows:
Tammey will abide by all company policies
including the following: As custodian of the petty
cash Tammey is responsible for maintaining the petty
cash fund according to the procedures listed in GOP
Vol II.
Tammey will not take employees to lunch.
4
The Hotline complaint also involved allegations regarding the
improper handling of chemicals at the branch.
(Doc. 92-11 at
37).
Larry Black, the human resources manager for the South
Central division, and Thomas, the region manager, investigated
but were unable to confirm the allegations regarding the
chemicals. (Id.).
3
Tammey will not reimburse any receipt out of petty
cash until the Branch Manager signs his approval.
Tammey will work the preapproved schedule which has
been set by the Branch Manager. The schedule is from
8 am to 5 pm each day except Tuesday. On Tuesday the
schedule is from 7 am until 4 pm. Tammey will take a
1 hour lunch break each day.
Tammey will not work
overtime unless it is approved in writing from the
Region Admin and the Branch Manager. Tammey will not
report more than eight hours in a work day. . . .
Tammey will adhere to the expected level of
performance/conduct as outlined above or further
disciplinary action will be taken up to and including
job termination.
(Doc. 91-25 at 1).
Thomas, in his role as the region manager,
along with Jason Breakfield, the Mobile branch manager, met with
Plaintiff to review the write-up with her.5
In
September
interest
in
program6
and
2010,
entering
of
Plaintiff
Orkin’s
being
notified
branch
promoted.
(Doc. 92-15 at 45).
Breakfield
manager
(Doc.
trainee
92-15
at
of
her
(“BMT”)
33-36).
Breakfield relayed Plaintiff’s interest to Thomas, who in turn
5
In her deposition, Plaintiff indicated that Jennifer Naquin, a
regional administrative person, also sat in on the meeting.
(Doc. 92-15 at 45).
6
Each region is allowed to have one or two BMTs, who are
enrolled in Orkin’s formal management development program.
(Doc. 104-1 at 1). The BMT program normally takes about a year
to complete, and a trainee goes through training in the field
and training classes before graduating from the program. (Doc.
87-6 at 6).
It can take longer than a year to progress to a
branch manager position if there are no branch manager openings
available at the time that a trainee graduates from the program.
(Id.). Orkin has a total of seventy-four branches and seventyfour branch managers. (Id.). Out of those seventy-four branch
managers, two are female. (Id.).
4
requested
that
Black,
the
division
human
resources
manager,
arrange for Plaintiff to take Orkin’s Helms online profile.
The
Helms profile is an evaluation tool used by Orkin to determine
whether an individual is suited for a particular job.
Doc. 87-5 at 9-11; Doc. 92-12 at 5).
(Id.;
Plaintiff took the Helms
tests and made the highest possible score on the branch manager
trainee test and on the test for the service manager trainee
positions, receiving a ten out of ten on both tests.
(Doc. 87-5
at 9; Doc. 92-15 at 34-35).
After learning of Plaintiff’s Helms scores, Thomas offered
to place Plaintiff in the management development program as a
service manager trainee and to have her serve as acting service
manager in the Mobile branch.
36-37).
(Doc. 92-34 at 5; Doc. 92-15 at
Plaintiff declined Thomas’ offer and chose instead to
focus on locations outside of Mobile.7
(Doc. 92-15 at 37; Doc.
92-34 at 5).
Plaintiff applied for, or expressed an interest in, Orkin
branch
manager/trainee
positions
7
in
Missouri,
Kentucky,
Plaintiff testified that she declined the offer for several
reasons including that she did not feel comfortable working with
Frank Goodwin, and she did not feel that she could be successful
in a management position in Mobile where she would always be
thought of as an administrative person. (Doc. 87-4 at 6-7; Doc.
92-33 at 18). In addition, she felt that she would be working
much longer hours without a significant difference in pay.
(Doc. 87-4 at 6).
5
Virginia, and Tennessee.8
87-5 at 3-4).
(Doc. 92-34 at 5; Doc. 87-4 at 5; Doc.
The position in Independence, Missouri (located
in the Kansas-Missouri region) was not filled until 2012 due to
personnel
region.
issues
involving
(Doc. 92-12 at 6).
several
branch
managers
in
the
Two male applicants, Chris Enright
and Christopher Mount, were selected for the two Kentucky region
branch manager trainee positions.
Brady,
a
male,
was
selected
for
(Doc. 92-30 at 1-3).
the
branch
manager
position in Virginia (Atlantic Commercial region).
Tim
trainee
(Doc. 98-1
at 2).
In December 2010, the regional audit manager, Elaine Cole,
assigned Donna Orr to perform another audit of the Mobile branch
because that branch was to be reassigned from the LouisianaMississippi region to the Mid-South region.
(Doc. 98-3 at 2-3).
Orr arrived at the Mobile branch on December 13, 2010 and began
the audit.
(Id.).
In the course of the audit, Orr discovered
that the branch had missed five deposits in November.
Upon
reporting this to Cole, Orr was directed to audit the deposits
for the entire year.
(Id.).
Orr found that the branch had not
made daily deposits on sixty-nine separate days in 2010.
8
Orr
Plaintiff maintains that she applied for, or expressed an
interest in, any open branch manager/trainee positions in
Tennessee. (Doc. 105 at 7-8, 19). However, as discussed infra,
the evidence shows that there were no openings at the time that
Plaintiff expressed an interest.
(Doc. 91-20 at 1; Doc. 92-12
at 8).
6
also found that Plaintiff had accrued overtime and had used sick
or vacation time to accumulate more than eight hours per day.
(Id. at 3).
The branch received an rating score of 2.29 which
equates to “needs improvement.”9
(Id.).
Orr relayed her findings to James Earl Thomas, the region
manager.
the
(Id. at 2).
division
human
Thomas, in consultation with Larry Black,
resources
manager,
made
the
decision
to
terminate Plaintiff due to repeated violations of the overtime
policy despite a previous warning and serious breaches of the
deposit policy.
(Doc. 92-34 at 7; Doc. 92-33 at 22-23, 34, 44;
Doc. 92-11 at 15, 23).
Thomas advised Plaintiff of the decision
to terminate her by telephone on December 23, 2010.10
at
31).
At
that
time,
Thomas
was
aware
that
(Doc. 92-33
Plaintiff
had
recently posted a message on her Facebook page11 inquiring about
9
In addition to the administrative operations, the audit also
covered other operations in the Mobile branch. (Doc. 92-33 at
30). Deficiencies documented in the audit were not confined to
the administrative area; however, Plaintiff was the only
employee disciplined as a result of the audit.
(Id.).
According to Thomas, he did not discipline Jason Brakefield, who
had served as branch manager during a portion of 2010 and was
then serving in a regional sales position. Thomas discussed the
audit findings with Brakefield for training purposes. (Id.).
10
Thomas traveled to Mobile to terminate Plaintiff on December
22, 2010; however, she called in sick on December 21 and
December 22, 2010. (Doc. 92-12 at 11).
11
It appears that on December 16, 2010, Plaintiff posted the
following message on her Facebook page: “anyone know a good EEOC
lawyer? need one now.” (Doc. 105-1 at 3, 5-6).
7
“a good EEOC lawyer.”12
(Doc. 92-34 at 9).
II. DISCUSSION
A.
Standard of Review
It is well-established that summary judgment is proper “‘if
the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
The
party
asking
for
summary
judgment
“always bears the initial responsibility of
informing the district court of the basis
for
its
motion,
and
identifying
those
portions of the ‘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.”
Id. at 323.
The movant can meet
this burden by presenting evidence showing
there is no dispute of material fact, or by
showing, or pointing out to, the district
court that the nonmoving party has failed to
present evidence in support of some element
of its case on which it bears the ultimate
burden of proof. Id. at 322–24.
12
According to Plaintiff, she had also complained to Frank
Goodwin, the Mobile branch manager, in October and November
2010, that she believed that she was being denied promotions
because she is a female. (Doc. 105-1 at 3). However, there is
nothing in the record suggesting that Goodwin relayed her
comments to either Black or Thomas.
8
Once the moving party has met its burden,
Rule 56(e) “requires the nonmoving party to
go beyond the pleadings and by [its] own
affidavits, or by the ‘depositions, answers
to interrogatories, and admissions on file,’
designate ‘specific facts showing that there
is a genuine issue for trial.’” Id. at 324.
To avoid summary judgment, the nonmoving
party “must do more than show that there is
some metaphysical doubt as to the material
facts.”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
On
the
other
hand,
the
evidence
of
the
nonmovant
must
be
believed
and
all
justifiable inferences must be drawn in its
favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 2013 U.S.
Dist. LEXIS 28034, *5-7, 2013 WL 765314, *1-2 (S.D. Ala. Jan.
29, 2013) (citations omitted).
The factual disputes raised by the nonmoving party must be
both material and genuine.
“As to materiality, the substantive
law will identify which facts are material.
facts
that
governing
judgment.
might
law
affect
will
the
properly
outcome
preclude
of
Only disputes over
the
the
suit
entry
under
of
the
summary
Factual disputes that are irrelevant or unnecessary
will not be counted.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
“‘Genuine disputes are those in which
the evidence is such that a reasonable jury could return a
verdict for the nonmovant.
For factual issues to be considered
genuine, they must have a real basis in the record.’”
Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)
9
(citations omitted)).
to
the
motion
for
After the nonmoving party has responded
summary
judgment,
the
court
must
grant
summary judgment if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law.
ThyssenKrupp, 2013 U.S. Dist. LEXIS 28034 at *5-7, 2013
WL 765314 at *1-2.
B.
Plaintiff’s Motion for Partial Summary Judgment on
Title VII Violation – Failure to Promote to Branch
Manager Trainee Position in Independence, Missouri
Plaintiff has filed a motion for partial summary judgment
on her Title VII promotion claim based on Defendant Orkin’s
failure to promote her to the branch manager trainee position in
Independence, Missouri.
(Docs. 87, 88, 118).
For the reasons
set forth below, Plaintiff’s motion for partial summary judgment
is DENIED.
The complainant in a Title VII case must carry the initial
burden of establishing a prima facie case of discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (U.S.
1973).
This may be done by showing that the plaintiff belongs
to a protected class under Title VII; (ii) that she applied and
was
qualified
applicants;
rejected;
for
(iii)
and
a
job
that,
(iv)
for
which
despite
that,
after
the
employer
was
seeking
her
qualifications,
she
her
rejection,
position
the
was
remained open, and the employer continued to seek applicants
from
persons
of
complainant’s
10
qualifications
or
that
the
position was filled by a person outside the protected class.
See id.; see also Walker v. Mortham, 158 F.3d 1177, 1180 n.2
(11th Cir. 1998).
Once Plaintiff has made this showing, the
burden then shifts to the Defendant employer “to articulate some
legitimate,
nondiscriminatory
rejection.”
McDonnell
reason
Douglas,
411
for
U.S.
at
the
802.
employee’s
“If
the
employer meets this burden, the plaintiff must show that the
proffered
reasons
were
pretextual.”
Springer
v.
Convergys
Customer Management Group Inc., 509 F.3d 1344, 1347 (11th Cir.
2007) (citations omitted).
“The ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff.”
Id.
Having reviewed the evidence submitted by the parties in
this case, the Court finds that Plaintiff has satisfied her
burden with respect to the first three elements of her prima
facie case.
However, the Court finds that Plaintiff has failed
to submit evidence that, after her rejection for the branch
manager trainee position in Independence, Missouri, the position
remained open, and Defendant continued to seek applications from
persons
with
complainant’s
qualifications
or,
alternatively,
that the position was filled by a person outside the protected
class to which the plaintiff belongs.
11
Indeed, the only material evidence submitted by the parties
on this issue is the deposition and affidavit testimony of Larry
Black, the senior human resources manager for the South Central
division of Orkin.13
In his deposition taken on September 20,
2012, Black testified that he was aware that in September 2010,
a
branch
manager
trainee
position
came
open
in
one
of
the
regions in his division, specifically in Independence, Missouri.
(Doc. 87-5 at 4-5).
Black was asked, “do you know who filled
(Id. at 4).
the position,” and he responded, “No, sir.”
When
asked if he knew the region manager who might have been the
hiring
decision-maker
Dougherty.”
for
that
(Id. at 5).
job,
he
answered,
“Darren
Black was then asked if he “ever
talked to [Darren Dougherty] with regard to his decision to fill
that position in Independence, Missouri,” and he responded, “I
do not remember a specific conversation with Darren about the
position.”
Black
shortly
(Id.).
later
after
acknowledged
Plaintiff
that
submitted
he
her
talked
to
application
Dougherty
for
the
position and that he had communicated to Dougherty the fact that
Plaintiff
service
had
scored
manager
positions.
a
ten
trainee
(Id. at 8-9).
on
and
the
the
Helms
test
branch
for
manager
both
the
trainee
However, when asked, “you don’t know
13
As noted supra, the Independence, Missouri region was located
within the South Central division.
12
then what, if anything, Mr. Dougherty did in response to her or
in relation to her application,” he responded, “I do not.”
(Id.
at 8).
In her brief in support of her motion for partial summary
judgment,
Plaintiff
offers
Black’s
deposition
testimony
to
establish the fourth element of her prima facie case, that is,
that
the
trainee
open
after
she
applications
position
was
from
in
Independence,
rejected,
other
and
persons
Orkin
with
Missouri
continued
her
remained
to
seek
qualifications.
Specifically, Plaintiff argues:
There is no evidence that the position was
filled in 2010. (Black Depo., pp. 72).
Black, testifying on behalf of Orkin, could
not identify anyone who filled the position
in 2010.
(Black Depo., pp. 72).
However,
the
Branch
Manager
Trainee
program
is
continuous.
(Ehlers Depo., pp. 29-30).
Hence, it is undisputed that, although
Deneau was rejected, the position remained
open and Orkin continued to seek applicants,
in conformity with its usual practice.
(Doc. 88 at 9).
Contrary
to
Plaintiff’s
argument,
Black’s
deposition
testimony does not establish that Daugherty rejected Plaintiff’s
application and continued to look for other applicants.
Indeed,
in a subsequent affidavit dated October 29, 2012, Black further
testified that Dougherty had “received several resumes [for the
2010 Independence, Missouri branch manager trainee program], but
he did not interview anyone” because he “had personnel issues
13
involving several Branch Managers in the Region, and ultimately
did not hire a BMT until 2012.”
Plaintiff
is
correct
that
(Doc. 92-12 at 6).
the
2010
Thus, while
Independence,
Missouri
trainee position was not filled in 2010, there is no evidence
that Dougherty rejected anyone for that position or that he
continued to accept applications for that position.
Rather, the
evidence
search
suggests
that
Dougherty
abandoned
his
for
applicants in 2010 because he had to deal with more pressing
personnel issues involving his branch managers.
When he finally
turned his attention back to the program in 2012, Plaintiff was
no longer employed with Orkin.14
Therefore, because Plaintiff
has failed to present evidence that Dougherty rejected her for
the 2010 Independence, Missouri trainee position and that he
continued to seek other applicants for that position, she has
failed to establish her prima facie case.
Assuming arguendo that Plaintiff met her prima facie burden
with
respect
to
this
claim,
Defendant
has
articulated
a
legitimate, nondiscriminatory reason for not giving Plaintiff
14
The Court rejects Plaintiff’s argument that because Orkin’s
trainee program was “continuous” and other region managers (in
other parts of the country) were placing candidates into open
trainee positions in their regions in 2010, the Court should
construe the Independence, Missouri position as remaining open
and continuing to accept applications in 2010. (Doc. 88 at 9).
Even assuming Plaintiff’s allegations as true, those facts do
not
suggest
that
Darren
Dougherty
rejected
Plaintiff’s
application for the 2010 for the Independence, Missouri position
and continued to seek other applicants.
14
the Independence, Missouri branch manager trainee position, and
Plaintiff has failed to present evidence suggesting that the
proffered
reason
is
a
pretext
for
discrimination.
Without
question, Larry Black’s affidavit testimony that Dougherty did
not fill the Independence, Missouri trainee position in 2010
because
he
was
dealing
with
personnel
issues
involving
his
branch managers is a legitimate, nondiscriminatory reason for
not
giving
the
position
to
Plaintiff
(or
anyone)
when
she
applied in September of 2010.
In
her
reply
brief,
Plaintiff
does
not
dispute
this
evidence, but she argues that the Court should not consider
Black’s affidavit testimony on this issue because the affidavit
directly contradicts his previous 30(b)(6) deposition testimony
that
he
did
considered”
not
for
Independence,
subsequent
know
the
the
branch
Missouri
affidavit
disregarded.
in
is
reason
manager
2010.
a
that
and
Deneau
as
was
not
position
trainee
Plaintiff
sham
(Doc. 118 at 9-10).
“Ms.
in
argues
such
that
the
should
be
The Court disagrees.
While this Court has the authority to strike an affidavit
that contradicts previously given deposition testimony without
providing
an
explanation
for
the
apparently
contradictory
assertions, Lane v. Celotex Corp., 782 F. 2d 1526, 1529-30 (llth
Cir.
1986),
doing
so
would
be
inappropriate
in
this
case.
“[E]very discrepancy contained in an affidavit does not justify
15
a district court’s refusal to give credence to such evidence.”
Id.
at
1530
affidavit
(internal
that
is
quotation
“inherently
irreconcilable”
2d 949, 954 n.6 (llth Cir. 1986).
F.
3d.
distinction
1240,
must
1253
be
n.18
made
omitted).
Only
with
an
earlier
Tippens v. Celotex Corp., 805 F.
testimony should be stricken.
645
marks
See also Croom v. Balkwill,
(llth
between
Cir.
2011)
discrepancies
(“A
definite
which
create
transparent shams and discrepancies which create an issue of
credibility or go to the weight of the evidence.”) (citation
omitted); Latimer v. Roaring Toyz, Inc., 601 F. 3d 1224, 1237
(llth
Cir.
2010)
(sham
affidavit
rule
“is
applied
sparingly
because of the harsh effect it may have on a party’s case,” and
applies only where there is an “inherent inconsistency between
an affidavit and a deposition”); Akins v. Fulton County, 278
Fed.
Appx.
affidavit
964,
968
discrepancy
concept
to
contained
(llth
Cir.
2008)
(“We
limited
circumstances
in
affidavit
an
apply
and
does
not
the
thus,
sham
every
justify
a
district court’s refusal to give credence to such evidence”)
(citation and internal quotation marks omitted).
In
Black’s
deposition,
he
was
asked,
“does
Orkin,
the
defendant in this case, have a reason why Ms. Deneau was not
considered
know.”
for
that
position,”
and
he
responded,
(Doc. 87-5 at 6) (emphasis added).
“I
do
not
He was then asked
again, “do you know what the reason is, if any, that the company
16
had for not considering Ms. Deneau [for] that position,” and he
responded, “I do not know.”
(Id.) (emphasis added).
In Black’s
later affidavit, he advised that Darren Dougherty, the hiring
region
manager,
because
he
involving
had
other
did
not
to
turn
branch
interview
his
anyone
attention
managers
in
to
his
for
the
position
personnel
region.
issues
Unlike
the
deposition questions which specifically asked for a reason that
Orkin
did
not
consider
Plaintiff
for
the
position,
Black’s
affidavit testimony supplements his earlier deposition testimony
and explains why the position was not offered to anyone in 2010
or the following year.
Stated differently, Black’s subsequent
affidavit offers a much broader explanation, not personal to
Plaintiff, as to why the position was not filled until 2012.
For that reason, Black’s affidavit testimony does not “flatly
contradict” his previous deposition testimony that he did not
know
why
Plaintiff
may
not
have
been
considered
position.
See Akins, 278 Fed. Appx. at 968.
affidavit
in
this
contradict
his
constitute
a
instance
earlier
sham.
does
deposition
Id.
Thus,
not
for
the
Because Black’s
directly
or
flatly
testimony,
it
does
not
Plaintiff’s
argument
for
disregarding the affidavit testimony is without merit.15
15
In addition to Larry Black’s affidavit, the parties have filed
a number of motions to strike other affidavits in this case as
well. The Court is addressing those motions by separate order.
17
Having found that Plaintiff has failed to establish a prima
facie
case
Missouri
of
discrimination
branch
manager
related
trainee
to
position
the
Independence,
and,
further,
that
assuming a prima facie case, Plaintiff has failed to present
evidence
demonstrating
that
Defendant’s
legitimate,
nondiscriminatory reason for not awarding Plaintiff the branch
manager
trainee
position
is
a
pretext
for
discrimination,
Plaintiff’s motion for partial summary judgment is DENIED.
C.
Defendants’ Motion for Partial Summary Judgment
Defendants Orkin, Goodwin, and Mayfield-Duke have filed a
motion for partial summary judgment on Plaintiff’s Title VII
promotion claim (First Cause of Action), Title VII retaliation
claim (Second Cause of Action) and state law defamation claim
(Fourth
Cause
of
Action).
(Docs.
91,
100,
121).
For
the
reasons set forth below, the Court finds as follows:
Defendants’
Plaintiff’s
Defendants
motion
Title
VII
Goodwin
and
for
partial
claims
summary
asserted
Mayfield-Duke
is
judgment
as
to
against
individual
GRANTED;
Defendants’
motion for partial summary judgment as to Plaintiff’s promotion
claims (First Cause of Action) is GRANTED; Defendants’ motion
for
partial
retaliation
Defendants’
summary
claim
motion
judgment
(Second
for
as
Cause
partial
18
to
of
Plaintiff’s
Action)
summary
is
Title
VII-
GRANTED;
and
judgment
as
to
Plaintiff’s state law defamation claim (Fourth Cause of Action)
is GRANTED.
1. No Title VII Liability Against Individual
Defendants Goodwin and Mayfield-Duke
In her Amended Complaint, Plaintiff asserts her Title VII
promotion and retaliation claims (First and Second Causes of
Action) against individual Defendants Goodwin and Mayfield-Duke,
as well as against her former employer, Orkin.
The law is clear
that individuals cannot be held liable under Title VII.
Fodor
v.
461226,
D’Isernia,
*1
(11th
2013
Cir.
U.S.
2013)
App.
LEXIS
2650,
(“individual
*3,
employees
2013
are
See
WL
not
subject to liability under either Title VII or the ADA”); Busby
v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)(“The
relief granted under Title VII is against the
employer, not
individual employees whose actions would constitute a violation
of the Act) (emphasis in original).
Thus, Defendants’ motion
for partial summary judgment on Plaintiff’s Title VII claims
against
individual
Defendants
Goodwin
and
Mayfield-Duke
is
GRANTED.
2. Failure to Exhaust Administrative Remedies
As
alleges
discussed
two
above,
Title
in
VII
her
Amended
claims
Complaint,
against
Orkin:
Plaintiff
(1)
sex
discrimination in failing to promote Plaintiff into a management
position
(First
Cause
of
Action);
19
and
(2)
termination
of
employment in retaliation for complaints to management about sex
discrimination (Second Cause of Action).
(Doc. 34 at 5-6).
In
its brief in support of motion for partial summary judgment,
Orkin argues that it is entitled to summary judgment on both of
these
claims
because
Plaintiff
did
administrative remedies with the EEOC.
not
exhaust
her
(Doc. 100 at 20-23).
The Court disagrees.
“In order to file a judicial complaint under Title VII, a
plaintiff
must
first
administratively
filing a charge with the EEOC.”
Port
of
Miami,
432
Fed.
exhaust
any
claims
by
Francois v. Miami Dade County,
Appx.
819,
(unpublished) (citations omitted).
821
(11th
Cir.
2011).
“[T]he scope of [a] judicial
complaint is limited to the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of
discrimination.”
Id.
“[J]udicial claims are allowed if they
amplify, clarify, or more clearly focus the allegations in the
EEOC complaint,” but “allegations of new acts of discrimination
are inappropriate.”
Gregory v. Georgia Dep’t of Human Res., 355
F.3d 1277, 1279-80 (11th Cir. 2004) (internal quotation marks
omitted).
Courts are “extremely reluctant to allow procedural
technicalities to bar claims brought under [Title VII].”
355 F.3d at 1280 (citations omitted).
noted
that
“‘the
scope
strictly interpreted.’”
of
an
EEOC
The Eleventh Circuit has
complaint
Id. (citations omitted).
20
Id.,
should
not
be
In
the
present
case,
it
is
undisputed
that
Plaintiff
completed and signed an unverified EEOC Intake Questionnaire on
March 28, 2011, stating that she believed that she had been
discriminated against by her employer, Orkin, on the basis of
“sex” and “retaliation.”
(Doc. 105-13 at 2).
Then, on May 1,
2011, Plaintiff timely filed a verified Charge of Discrimination
with the EEOC alleging that Orkin had discriminated against her
on the basis of her sex.16
the
box
labeled
narrative
discrimination
portion
“terminated
(Doc. 92-5 at 1).
of
because
the
of
based
form,
[her]
she
sex.”
on
Plaintiff checked
“sex,”
and
stated
that
(Id.).
In
in
the
she
was
addition,
Plaintiff stated that Orkin discriminated against her on the
basis
of
her
sex
by
failing
to
promote
her
to
open
branch
manager positions in the company and by making her train her
replacement as a pre-condition to promotion.
While Plaintiff
did not check the box labeled “retaliation”, she did assert that
her complaints of retaliation and harassment were ignored.
(Id.
at 2).
16
The EEOC issued a Dismissal and Notice of Rights letter on May
10, 2011, informing Plaintiff that based upon its investigation,
it was unable to conclude whether a violation had occurred and
that she had the right to sue within ninety days of receipt of
the notice. (Doc. 92-6). Plaintiff filed the present action on
August 8, 2011.
Defendant does not dispute the timeliness of
any of Plaintiff’s filings.
21
Having carefully reviewed Plaintiff’s EEOC charge and her
intake
questionnaire,
the
Court
is
satisfied
that
EEOC’s
investigation of the facts alleged in Plaintiff’s EEOC charge
and questionnaire would have reasonably encompassed the failure
to
promote
and
retaliation
claims
contained
in
her
Amended
Complaint. Cf. Gregory, 355 F.3d at 1279-80 (despite the fact
that the plaintiff failed to mark the box on her EEOC charge
labeled
“retaliation,”
her
because
the
facts
alleged
intertwined”
with
the
retaliation
in
claim
the
charge
were
retaliation
claim
and,
was
exhausted
“inextricably
thus,
could
reasonably be extended to encompass the retaliation claim.).
Gregory, the Eleventh Circuit stated:
[U]nder the liberal EEOC charge strictures
of Sanchez, we hold that the district court
did not err in finding that [Plaintiff’s]
retaliation claim was not administratively
barred
by
her
failure
to
mark
the
retaliation space on the EEOC template form.
The facts alleged in her EEOC charge could
have reasonably been extended to encompass a
claim for retaliation because they were
inextricably intertwined with her complaints
of race and sex discrimination.
That is,
she stated facts from which a reasonable
EEOC investigator could have concluded that
what she had complained about is retaliation
because of her complaints of Dr. Fuller’s
disparate
treatment
to
the
hospital’s
administration. Specifically, shortly after
being
subjected
to
certain
allegedly
discriminatory acts, she was terminated. An
EEOC investigation of her race and sex
discrimination complaints leading to her
termination would have reasonably uncovered
any evidence of retaliation.
22
In
Gregory, 355 F.3d at 1280.
Similarly, in the present case, Plaintiff alleged in her
EEOC charge that she was denied promotions based on her sex,
that she was terminated because of her sex, and that she had
complained
to
management
(Doc. 92-5 at 1-2).
about
harassment
and
retaliation.
A reasonable EEOC investigation would have
encompassed her claims that she was denied promotions due to her
sex, and was terminated in retaliation for complaining about sex
discrimination.
Based on the foregoing, the Court finds that
Plaintiff’s Title VII claims do not exceed the scope of her EEOC
charge.
Accordingly,
Defendant’s
motion
for
partial
summary
judgment on this ground is without merit.17
3. Plaintiff’s Title VII–Failure to Promote Claims
(First Cause of Action): No Prima Facie Case and
Legitimate, Non-Discriminatory Reasons for Failure
to Promote
17
Defendant also argues that Plaintiff’s Title VII-promotion
claim (First Cause of Action) related to the branch manager
trainee program in Independence, Missouri should be dismissed
because denial of promotion into that specific program was not
alleged in Plaintiff’s Amended Complaint.
(Doc. 100 at 23).
See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th
Cir. 2008) (affirming dismissal of some of plaintiffs’ promotion
claims where the complaint alleged discrimination based on race
but did not allege each denied promotion of which plaintiffs
were aware at the time that they filed their complaint).
However, having found herein that Defendant is entitled to
summary judgment on this claim on the basis of Plaintiff’s
failure to establish a prima facie case of discrimination and
failure to rebut Defendant’s evidence of a legitimate, nondiscriminatory reason for rejecting her application to this
position, the Court need not decide this issue.
23
As part of her Title VII–promotion claim (First Cause of
Action),
Plaintiff
claims
that
Defendant
Orkin
denied
her
promotions in four different regions of the Orkin company for
which she either specifically applied or made known her interest
to the relevant decision-maker: (1) the Kansas-Missouri region
(Independence, Missouri); (2) the Kentucky region (Pikeville and
Lexington,
Kentucky);
(3)
the
Atlantic
Commercial
(Virginia); and (4) the Mid-South region (Tennessee).
at 15-19).
promote
Plaintiff
a
on
the
prima
basis
that
facie
case
failed
has
nondiscriminatory
positions.
(Doc. 105
Orkin seeks summary judgment on each failure to
claim
establish
region
to
reason
for
of
Plaintiff
discrimination
rebut
not
has
Orkin’s
selecting
failed
and/or
to
that
legitimate,
Plaintiff
for
the
The Court addresses each of these claims in turn.
(a). Kansas-Missouri Region (Independence, Missouri)
Having addressed the Independence, Missouri claim above in
relation to Plaintiff’s motion for partial summary judgment and
having found that Plaintiff failed to establish a prima facie
case
of
discrimination
with
respect
to
the
Independence,
Missouri branch manager trainee program and has presented no
evidence
to
rebut
Orkin’s
evidence
of
a
legitimate,
nondiscriminatory reason for not filing the position in 2010 and
24
2011,18 the Court GRANTS Defendant Orkin’s motion for partial
summary
judgment
on
the
Independence,
Missouri
Title
VII-
promotion claim.
(b). Kentucky Region (Pikeville and Lexington)
Next,
acting
Plaintiff
branch
Lexington,
alleges
that
manager/trainee
Kentucky.
(Doc.
she
was
positions
105
at
rejected
in
16-17).
for
Pikeville
the
and
According
to
Plaintiff, she was rejected for a posted branch manager/trainee
program position in Pikeville, Kentucky, which was given to a
male
applicant,
position
in
Chris
Enright,
Lexington,
and
Kentucky,
for
which
a
was
similar,
given
unposted
to
a
male
applicant, Christopher Mount. (Id.; Doc. 92-19 at 19-20, 28).
Orkin agrees, for purposes of its motion, that Plaintiff has
presented
a
prima
facie
case
with
respect
to
each
of
these
claims because Plaintiff can show that she is a female, that she
applied
minimally
for
these
qualified,
positions
that
for
she
was
which
rejected,
positions were filled by male applicants.
18
she
presumably
and
that
was
the
(Doc. 100 at 24).
As discussed above, Plaintiff does not dispute Larry Black’s
affidavit testimony that Darren Daugherty, the Kansas-Missouri
region
manager,
did
not
fill
the
trainee
position
in
Independence, Missouri in 2010 or 2011 because Daugherty was
dealing with personnel issues involving several of his branch
managers.
(Doc. 92-12 at 6).
This is a legitimate, nondiscriminatory reason that has not been controverted.
25
However, Orkin maintains that it can articulate a legitimate,
nondiscriminatory reason for both decisions.
(i). Pikeville, Kentucky Claim
With
respect
to
the
Pikeville,
Kentucky
position,
Orkin
maintains that Chris Enright was selected for the branch manager
trainee position because the trainee would immediately become an
acting
branch manager, and as such, the person filling that
position
needed
Defendant,
prior
Chris
management
Enright
experience.
possessed
experience, but Plaintiff did not.
such
According
prior
to
management
(Doc. 92-30 at 1-3).
The
evidence supports Defendant’s assertion.
In his affidavit, Ron Stotts, who was the Kentucky region
manager and decision-maker for this position, stated that in the
fall of 2010, he learned that the Pikeville branch manager would
be leaving at the end of the year, and he immediately started to
search for a replacement.
(Id. at 1).
Stotts stated that he
wanted to hire from within the company, and he asked Meribeth
Ehlers, the human resources manager for the Midwest division, to
advertise
“Career
in
the
company’s
Connections.”
internal
(Id.).
job
application
According
to
process,
Stotts,
he
preferred branch manager trainee candidates with two years or
more
prior
sales
or
service
management
experience,
and
candidates who had demonstrated their ability to problem solve
(both
customer
problems
and
26
insect
problems),
who
had
demonstrated that they could meet budgets, and who had been
successful in their current position.
(Id. at 1-2).
Stotts
believed Orkin service managers and Orkin sales managers were
good
candidates
for
branch
manager
trainee
positions
because
they had experience working with people, inventorying, ordering
materials
and
supplies,
treatment issues.
and
handling
(Id. at 2).
customer
issues
and
In addition, service managers
had already completed several of the classes which were required
for branch managers.
(Id.).
According to Stotts, “[b]asically,
Service Managers have already done most of the Branch Manager
job, but with a little less intensity.”
Stotts
recalled
receiving
(Id. at 2).
many
applications
for
the
Pikeville position, but most of the applicants did not have a
management background.
he
received
working
Stotts
to
(Id.).
Plaintiff’s
increase
remembered
He remembers calling Ehlers when
application
the
number
of
asking
Ehlers
if
because
female
the
company
managers.
Plaintiff
had
was
(Id.).
management
experience, and Ehlers told him that “it looked like she did
not.”
(Id.).
He then asked Ehlers to call Plaintiff and verify
whether she had management experience.
In a few days, Ehlers
reported back that Plaintiff did not have management experience.
(Id.).
Stotts never spoke to Plaintiff personally.
(Id.).
Because the branch manager trainee at the Pikeville branch would
immediately become responsible for managing the branch as acting
27
branch manager, Stotts felt that the person “definitely needed
management experience.”
(Id.).
Therefore, he selected Chris
Enright, who at that time was employed as the service manager in
Orkin’s Alsup, Illinois branch.
(Id.).
in
program
the
branch
2011.
branch
manager
manager
trainee
of
Pikeville
(Id. at 3).
the
Stotts enrolled Enright
and
branch
named
effective
him
acting
January
1,
Based on this evidence, Orkin maintains that
it is entitled to summary judgment on this claim.
Plaintiff acknowledges Defendant’s evidence but argues that
it is a mere pretext for discrimination.
pretext
argument,
Plaintiff
states
that
In support of her
she
was
an
office
manager for eighteen years in the Mobile branch and that her
office manager position was also a management position.
105 at 17).
(Doc.
Plaintiff points to the deposition testimony of
Donald Richards, the region manager for the Atlantic Commercial
region, who stated that an office manager is “in a management
position.”
(Doc. 92-28 at 21).
Plaintiff also claims that, as
office manager of the Mobile branch, her responsibilities at
times included all of the branch manager and service manager
duties.
In her affidavit, Plaintiff states:
As the only Office Manager at the Mobile
Branch, I was responsible for all of the
day-to-day operations. During a majority of
the time, the Mobile Branch did not have a
Service Manager and I was required to
perform those managerial duties as well. . .
. Furthermore, my Branch Manager, Jason
28
Breakfield, was usually absent from the
office, leaving me to perform his duties and
run the branch.
(Doc.
105-1
employment
at
as
1).
Plaintiff
office
manager,
also
she
states
that
completed
during
several
courses that were management level training courses.
her
training
(Id. at 2;
Doc. 105 at 5).
“When deciding a motion by the defendant for judgment as a
matter of law in a discrimination case in which the defendant
has
proffered
district
nondiscriminatory
court’s
task
is
a
reasons
highly
for
its
focused
actions,
one.”
the
Combs
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
v.
“The
district court must, in view of all the evidence, determine
whether
the
defendant’s
plaintiff
proffered
has
cast
sufficient
nondiscriminatory
doubt
reasons
on
to
the
permit
a
reasonable factfinder to conclude that the employer’s proffered
legitimate
were
not
what
actually
motivated
its
Id. (citations and internal quotation marks omitted).
conduct.”
“The
reasons
district
court
must
evaluate
whether
the
plaintiff
has
demonstrated such weaknesses, implausibilities, inconsistencies,
incoherencies,
or
contradictions
in
the
employer’s
proffered
legitimate reasons for its action that a reasonable factfinder
could
find
internal
them
unworthy
quotation
nondiscriminatory
marks
reason
of
credence.”
omitted).
proffered
29
Id.
However,
by
the
(citations
“[a]
employer
and
legitimate
is
not
a
pretext
for
prohibited
conduct
unless
it
is
shown
that
the
reason was false and that the real reason was impermissible
retaliation or discrimination.”
Worley v. City of Lilburn, 408
Fed. Appx. 248, 251 (11th Cir. 2011) (unpublished).
Having carefully considered the evidence presented by the
parties in this case, the Court finds that Plaintiff’s evidence
of pretext has not cast sufficient doubt on Orkin’s proffered
nondiscriminatory reason for rejecting her for the Pikeville,
Kentucky position to create a dispute of material fact on this
issue.
Assuming, as Plaintiff claims, that as office manager of
the Mobile branch, she was called upon to perform many of the
duties of the service and branch managers when those individuals
were not available, that experience is still not the type of
formal managerial experience that Ron Stotts undisputedly was
seeking when hiring for the Pikeville branch manager position.
Moreover, Plaintiff has not shown that Stotts was aware that she
sometimes
performed
the
duties
managers in the Mobile branch.
affidavit
that
he
asked
of
who
undisputedly
Ehlers
had
service
and
branch
Rather, Stotts testified in his
if
experience, and Ehlers told him no.
Enright
the
formal
Plaintiff
had
managerial
Stotts then hired Chris
experience
as
a
service
manager in another branch prior to being promoted to acting
branch
manager
and
branch
manager
branch.
30
trainee
in
the
Pikeville
“Eleventh
Circuit
precedent
makes
clear
that
where
an
employee seeks to prove pretext through qualifications alone,
the difference in qualifications must be so glaring that no
reasonable
selected
impartial
for
the
person
promotion
could
in
have
chosen
question
over
the
the
candidate
plaintiff.”
Seldon v. Total Sys. Servs., Inc., 653 F. Supp. 2d 1349, 1373
n.27 (M.D. Ga. 2009) (citations and internal quotation marks
omitted).
or
to
Because Plaintiff has failed to present such evidence
otherwise
cast
sufficient
doubt
on
the
defendant’s
proffered nondiscriminatory reasons for rejecting Plaintiff for
this position, Defendants’ motion for partial summary judgment
on the Pikeville, Kentucky Title VII–promotion claim is GRANTED.
(ii). Lexington, Kentucky Claim
Next, Plaintiff claims that Orkin discriminated against her
on the basis of her sex by denying her an unposted acting branch
manager/trainee
position
in
the
Lexington
awarded to Chris Mount, a male.
maintains,
to
the
contrary,
that
branch,
which
(Doc. 105 at 17).
a
short
time
after
was
Orkin
the
Pikeville branch manager announced that he would be leaving, the
branch manager in the Lexington branch unexpectedly announced
his retirement.
(Doc. 92-30 at 3).
At that time, Chris Mount
was the service manager in the Lexington branch.
(Id.).
Ron
Stotts, the region manager and decision-maker for this position
as well, stated in his affidavit that Mount had been with Orkin
31
since 1992 and had been the service manager at the Lexington
branch since 1998.
(Id.).
For those reasons, Stotts decided to
place Mount in the branch manager trainee program and selected
him for the acting branch manager position.
Stotts
(Id.).
explained that he did not post or advertise the position because
he felt that Mount was “a very good fit for the job.”
(Id.).
Stotts further stated that he “would not have passed over Chris
Mount
to
hire
supervisor.
someone
with
less
experience”
to
be
Mount’s
(Id.).
Plaintiff does not contradict this evidence but argues that
it should not be considered because Stotts was not designated as
a 30(b)(6) designee for promotions in this region and, further,
that
since
Plaintiff
was
never
considered
for
the
Lexington
position, Defendant cannot use her qualifications as a reason
for not hiring her.
(Doc. 105 at 18-19).
The Court disagrees.
Plaintiff argues that Maribeth Ehlers, the human resources
manager for the Midwest division/Kentucky region, was the only
person
designated
as
a
30(b)(6)
corporate
representative
for
promotions for this region; thus, the Court should not consider
Stott’s testimony on this issue.
However, Elhers’ deposition
made clear that both she and Stotts were involved in the hiring
process in this region, with Ehlers serving in an informationgathering
and
decision-maker.
advisory
capacity
and
Stotts
serving
as
the
(Doc. 92-19 at 8-10, 17, 28; Doc. 92-30 at 132
3).
Ehlers testified at length regarding the hiring process in
both the Pikeville and Lexington branches and Stotts’ goal of
hiring individuals with formal management backgrounds for both
of those positions.
(Doc. 92-19 at 8-10, 17, 28).
While Orkin
failed to designate Stotts as an additional 30(b)(6) deponent
for hiring decisions in this region, its failure to do so does
not
render
his
affidavit
inadmissible
given
that
Ehlers’
testimony covered this topic and is consistent with, and to a
large extent cumulative of, Stotts’ affidavit.19
Furthermore, Plaintiff’s reliance on Joshi v. Florida State
Univ. Health Ctr., 763 F.2d 1227, 1235 (11th Cir. 1985), is
misplaced.
The
Eleventh
Circuit
has
noted
that
“where
a
defendant did not consider the qualifications of the candidate
from the protected class at the time of making the employment
decision, it cannot later assert as a nondiscriminatory reason
the superior qualifications of the candidate actually promoted.”
Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344,
1348
(11th
Cir.
2007)
(citing
Joshi,
763
F.2d
1227).
The
Springer court distinguished Joshi, however, finding that “[i]n
Joshi,
the
defendant
qualifications
defendant.
because
had
Joshi
no
prior
was
not
knowledge
an
employee
Joshi was an outside applicant.”
19
of
Id.
Joshi’s
of
the
Although
It is also noteworthy that nothing in the record reflects that
Plaintiff was somehow prevented from deposing Stotts.
33
there
was
evidence
that
the
plaintiff
in
was
Springer
not
considered for the promotion at issue, the plaintiff had worked
for the defendant corporation for a number of years, and the
decision-maker at issue had direct knowledge of the plaintiff’s
qualifications, performance, and deficiencies which led her to
believe that the plaintiff should not be considered for the
position.
Id.
The Court finds this case more analogous to Springer than
As set forth above, the evidence in this case is
to Joshi.
undisputed that both Plaintiff and Chris Mount worked for Orkin.
Plaintiff worked in the Mobile branch as the office manager, and
Chris
Mount
manager.
worked
At
the
in
time
the
Lexington
of
the
branch
branch
as
the
manager
service
opening
in
Lexington, Chris Mount was already in place in that branch, and
he
possessed
manager)
that
the
Ron
formal
management
Stotts,
the
experience
region
manager,
(as
was
a
service
seeking.
While Plaintiff claims that as an office manager she too had
management experience, it is undisputed that she never formally
served in the capacity of either a service manager20 or a branch
manager (which was what Stotts was seeking) and that Stotts was
20
As discussed above, at the same time that Plaintiff was
seeking branch manager and trainee positions in Missouri,
Kentucky, Virginia, and Tennessee, she was offered the service
manager position in the Mobile branch but turned it down because
she did not want to work in the Mobile office. (Doc. 87-4 at 67; Doc. 92-33 at 18-19).
34
unaware
that
Plaintiff
sometimes
assumed
the
duties
of
the
service and branch managers when they were unavailable.
“[W]here
an
employee
seeks
to
prove
pretext
through
qualifications alone, the difference in qualifications must be
so glaring that no reasonable impartial person could have chosen
the candidate selected for the promotion in question over the
Seldon, 653 F. Supp. 2d at 1373 (citations and
plaintiff.”
internal quotation marks omitted).
Because Plaintiff has failed
to present such evidence or to otherwise cast sufficient doubt
on
Orkin’s
Plaintiff
proffered
for
this
nondiscriminatory
position,
reasons
Defendants’
for
motion
rejecting
for
partial
summary judgment on the Lexington, Kentucky Title VII-promotion
claim is GRANTED.
(c). Atlantic Commercial Region (Virginia)
Next, Plaintiff claims that she was discriminated against
on the basis of her sex with respect to an unposted branch
manager trainee position in the Atlantic Commercial (Virginia)
region that was given to a male applicant, Tim Brady.
at 19).
(Doc. 105
Plaintiff asserts that Brady had no prior experience in
the pest control business; yet, he was chosen over her for the
trainee position.
(Id.).
Orkin counters that Plaintiff’s claim
must fail because the region manager for the Atlantic Commercial
region, Don Richards, had already made the decision to fill the
trainee
position
with
Tim
Brady
35
before
he
ever
received
Plaintiff’s application.
Plaintiff
asserts
that
(Doc. 121 at 9-10).
Richards’
claim
that
In response,
he
had
already
decided to hire Brady for the position by the time he received
Plaintiff’s application is false because “[Richards] received
Deneau’s application in mid-September and . . . hired Brady in
late
September
or
early
October.”
(Doc.
105
at
19).
Notwithstanding Plaintiff’s assertions to the contrary, there
is
nothing
before
the
Court
that
suggests
that
Richards’
legitimate reason is pretextual.
The evidence reflects that in September 2010, Tom Cafiero,
another branch manager, advised Richards that Plaintiff might be
interested in speaking with Richards about a position in his
region.
follow
Richards told Cafiero “that [Plaintiff] would need to
the
proper
procedures
and
talk
with
her
immediate
supervisor and then apply through the career connections. . .
and
go
through
speak with her.”
the
proper
protocols
before
(Doc. 92-28 at 11-12).
[Richards]
could
Subsequent thereto,
Plaintiff completed an application, dated October 4, 2010, for a
branch
region.
manager
trainee
position
in
the
Atlanta
Commercial
(Doc. 92-28 at 18; Doc. 91-4).
Richards testified that he does not recall the exact date
that he received Plaintiff’s application package, and that his
best judgment is that it was “within about a week or two after”
October 4, 2010 (the date on the application).
36
(Doc. 98-1 at 2-
3).
According to Richards, by the time he received Plaintiff’s
package,
he
did
not
have
an
opening
in
the
management
development program because he had just hired Tim Brady, and his
region
was
only
allocated
Richards
had
previously
position
advertised
one
BMT
considered
during
the
trainee.
Brady
summer
for
of
(Id.
a
at
region
2010.
3).
sales
Although
Richards did not choose Brady for the sales position, he met
with Brady regarding the BMT position on October 6, 2010; he had
Brady complete his pre-employment drug screening on October 7,
2010; and he sent Richards a formal offer letter on October 11,
2010.21
(Id. at 2 n.1).
Although
Richards
did
not
have
a
BMT
opening
when
he
received Plaintiff’s application package, he was interested in
Plaintiff
because
her
qualifications
“looked
good;”
she
was
highly recommended by one of his branch managers, Tom Cafiero;
and the company was working to increase the number of females in
the company.
(Id. at 3).
According to Richards, because of
Orkin’s emphasis on hiring women, he thought he might be able to
get approval for two BMTs, and even if he was not successful in
getting approval, he could keep Plaintiff in mind for future
openings because she seemed “well qualified.”
21
(Id.)
Richards testified that the drug screening (along with a
physical) constitutes a “conditional offer of employment” and is
“the final step” in the hiring process. (Doc. 92-28 at 6-7).
37
During November 2010, Richards made arrangements to fly to
Mobile to interview Plaintiff; however, his November 29th flight
into Mobile was cancelled. (Id. at 4).
During a discussion with
his division president that same day, it was recommended that
Richards delay seeking a second BMT until “the first of the
year,
maybe
into
the
second
quarter,
after
Tim
Brady
finished or was close to finishing his BMT training.”
5).
had
(Id. at
Richards conveyed this information to Plaintiff in an email
exchange
during
the
first
week
in
December
2010.22
(Id.)
Viewing this undisputed evidence in the light most favorable to
Plaintiff,
the
Court
finds
that
Plaintiff
has
not
cast
sufficient doubt on Orkin’s proffered nondiscriminatory reasons
for rejecting her for the Atlantic Commercial trainee position
so
as
to
create
a
dispute
of
material
fact
on
this
22
issue.
In an email sent to Plaintiff on December 4, 2010 (Doc. 9115), Richards stated:
I was disappointing [sic] that we did
not get a chance to meet.
I did speak with
Freeman late yesterday about you and moving
forward his suggestion was to wait until
after the end of the year.
I have one BMT
now in the program and because of budgets
and realignment in the region I will not be
able to support 2 until next year after the
first quarter or maybe towards the end of
the second. If your plans change please let
me know but as of now I must wait until I
can afford the extra position. Let[’]s stay
in touch and revisit this in March[.]
[T]hank
you
for
your
patience
and
understanding.
38
Accordingly, Defendants’ motion for partial summary judgment on
the Atlantic Commercial Title VII–promotion claim is GRANTED.
(d). Mid-South Region (Tennessee)
Plaintiff also claims that in the fall of 2010, she made
Orkin aware that she was interested in any open branch manager
trainee positions in Tennessee and that they rejected her for
one such unposted position.
(Doc. 105 at 19).
Orkin counters
that there was no such position in Tennessee in the fall of
2010; thus, Plaintiff has failed to establish a prima facie case
of discrimination.
(Doc. 121 at 11-12).
In support of its argument, Orkin points to evidence that
in
December
of
2010,
Plaintiff
told
Larry
Black,
the
human
resources manager for the South Central division, that she was
“open to South Carolina, North Carolina, Tennessee, Missouri,
just about anywhere middle US.”23
at 8).
(Doc. 91-19 at 3; Doc. 92-12
In response, Black sent an email on December 6, 2010, to
Mid-South
region
manager
Memphis,
Tennessee)
Mike
Jones
(who
notifying
Jones
of
anywhere in their division.
had
a
Deneau’s
branch
in
interest
Jones replied that he was “full
23
Black testified that he initially believed that Plaintiff was
only interested in positions in the Carolinas or Virginia, and
it was not until Plaintiff sent him the email in December 2010
that he knew of Plaintiff’s interest in Tennessee. (Doc. 92-12
at 6, 8).
39
with BMT’s and [had] another in the wings already.”
(Doc. 91-20
at 1-2; Doc. 92-11 at 11, 31; Doc. 100 at 12).
In support of her allegation that she was rejected for an
unposted
position
in
Tennessee,
Plaintiff
points
to
Black’s
deposition testimony in which he was asked, “[a]re you aware of
a potential vacancy that occurred during that period of time for
BMT in Tennessee that Ms. Deneau might have been applying for,”
and he responded “[y]es.”
(Doc. 92-11 at 18)(emphasis added).
Black was then asked, “[w]hich one was that,” and he responded,
“I don’t know the specific location” or who filled it.
(Id.).
However, later in his deposition, and in his affidavit, Black
clarifies that in December 2010, when he realized that Plaintiff
was interested in Tennessee, he reached out to Mike Jones, whose
region included Memphis, the only Tennessee branch within their
division,
about
potential
vacancies.
In
response,
Jones
reported that he was “full with BMT’s and [had] another in the
wings already.”
refutes
question,
Plaintiff’s
there
constitutes
Plaintiff
Plaintiff
(Doc. 91-20 at 1-2).
a
was
was
assertion
a
vacant
legitimate,
not
has
nondiscriminatory
given
failed
reason
that
This undisputed evidence
during
position
in
the
Tennessee,
nondiscriminatory
a
position
to
for
in
rebut
not
giving
period
Orkin’s
her
and
reason
Tennessee.
a
in
it
that
Because
legitimate,
position
in
Tennessee, Defendants’ motion for partial summary judgment on
40
Plaintiff’s
Mid-South
region
(Tennessee)
Title
VII-promotion
claim is GRANTED.
4. Plaintiff’s Title VII-Termination/Retaliation Claim
(Second Cause of Action): No Prima Facie Case and
Legitimate, Non-Discriminatory Reasons for
Termination
Next, Orkin asserts that it is entitled to summary judgment
on
Plaintiff’s
Title
VII-retaliation
claim
(Second
Cause
of
Action) because Plaintiff has failed to establish a prima facie
case of discrimination with respect to this claim and has failed
to
rebut
Orkin’s
legitimate,
terminating Plaintiff.24
nondiscriminatory
(Doc. 100 at 30-32).
reasons
for
In her amended
complaint, Plaintiff alleges that Orkin retaliated against her
in violation of Title VII by terminating her employment “[a]fter
[she]
complain[ed]
(Doc.
34
at
6).
about
sex
discrimination
Specifically,
Plaintiff
to
management.”
argues
in
her
opposition to Orkin’s motion for partial summary judgment that
on December 16, 2010, she posted the following comment on her
Facebook page: “anyone know a good EEOC lawyer?
(Doc. 105 at 21; Doc. 105-1 at 3, 5-6).
need one now.”
Plaintiff points to
evidence that Frank Goodwin, the Mobile branch manager at the
time of her termination, testified that he saw the comment on
24
Orkin also argues that if Plaintiff attempts to add another
Title VII claim for termination based on her sex, it is entitled
to summary judgment on that claim as well.
(Doc. 100 at 33).
Because there is no such claim before the Court, the Court need
not address that argument.
41
Plaintiff’s
Facebook
page
and
faxed
division human resources manager.
it
to
Larry
Black,
(Doc. 92-21 at 40).
the
In his
deposition, Goodwin testified that he spoke with either Black or
Thomas, the region manager, about the Facebook page, and while
he could not recall the date of the conversation, he thought it
occurred before Plaintiff was terminated.
(Id.).
According to Plaintiff, Thomas and Black made the decision
to terminate her on December 21, 2010, less than a week after
she
posted
the
comment
on
Facebook.
(Doc.
105
at
21).
Plaintiff also points to an email dated December 21, 2010 from
Thomas to Black.
In the email, Thomas advises that Plaintiff is
out sick, that she is expected to be back in the office the next
day, and that they would “terminate her tomorrow.”25
12 at 1).
(Doc. 105-
Plaintiff was absent from work the following day as
well, and Thomas effected her termination over the telephone on
December 23, 2010.
(Doc. 92-33 at 31).
According to Plaintiff,
this evidence establishes that she was terminated based on the
comment that she “needed a good EEOC lawyer” which was posted to
her Facebook page.
25
As noted above, Plaintiff also claims that she made informal
complaints to her branch manager, Frank Goodwin, on numerous
occasions in October and November of 2010, telling Goodwin that
she believed that she was being denied promotion opportunities
because she was a female. (Doc. 105-1 at 3). However, there is
no evidence, and Plaintiff does not allege, that Thomas or Black
were aware of those complaints prior to terminating her.
42
In
claim,
support
Orkin
of
its
admits
motion
that
for
it
summary
took
judgment
adverse
on
action
this
against
Plaintiff, and it assumes, for purposes of the motion, that
Plaintiff engaged in statutorily protected conduct by stating on
her Facebook page that she needed “a good EEOC lawyer.”
100
at
30).
However,
Orkin
argues
that
(Doc.
Plaintiff
cannot
establish a prima facie case because there is no evidence of a
causal
link
between
the
supposedly
Facebook comment) and her termination.
To
establish
plaintiff
must
protected
conduct;
action;
and
a
prima
establish
that
finally,
facie
that
she
that
protected
case
Inc.,
280
Fed.
of
suffered
an
adverse
Appx.
905,
(unpublished) (citations omitted).
retaliation,
engaged
related to the protected expression.”
U.S.A.,
(her
(Id.).
she
the
activity
in
statutorily
adverse
action
the
employment
was
causally
Scalone v. Home Depot
908
(11th
Cir.
2008)
Courts “construe the causal
link element broadly so that a plaintiff merely has to prove
that
the
protected
activity
completely unrelated.”
provides
protected
expression
the
adverse
action
are
not
Id. (citing Higdon v. Jackson, 393 F.3d
1211, 1220 (11th Cir. 2004)).
plaintiff
and
“This element is satisfied if the
‘sufficient
and
that
evidence
there
of
was
knowledge
a
close
of
temporal
proximity between this awareness and the adverse action.’”
(citations omitted).
43
the
Id.
As set forth above, Plaintiff has presented evidence that
she was terminated less than a week after she posted the comment
on Facebook.
Furthermore, Orkin acknowledges that Thomas and
Black, the decision makers, were aware of Plaintiff’s Facebook
posting before she was terminated.
34 at 9).
(Doc. 92-21 at 40; Doc. 92-
Based on the close temporal proximity between Orkin
learning of the Facebook comment and Plaintiff’s termination,
the Court finds that Plaintiff has established a prima facie
case of retaliation.
Defendant argues that assuming arguendo that Plaintiff has
established
entitled
Plaintiff
a
to
prima
partial
has
not
facie
case
summary
of
retaliation,
judgment
established
that
on
this
it
claim
Orkin’s
is
still
because
legitimate,
nondiscriminatory reasons for terminating her are pretexts for
retaliation.
It is undisputed that following an audit of the
Mobile branch in January 2010,26 Plaintiff received a written
disciplinary
reprimand
(referred
to
as
a
“Coaching
and
Counseling” letter), after it was discovered that Plaintiff had
been working unauthorized overtime, had improperly used her sick
26
Thomas testified that the January 2010 audit was conducted
after headquarters received an anonymous complaint on its
hotline concerning improper dealings in the Mobile branch by
Plaintiff, the branch manager at that time, Jason Breakfield,
and the service manager Boby Nagy. (Doc. 92-34 at 2).
44
and
vacation
days
to
increase
pay,27
her
had
made
mistakes, and had violated the petty cash policies.
34 at 2-3; Doc. 91-25).
expressly
prohibited
payroll
(Doc. 92-
The “Coaching and Counseling” letter
Plaintiff
from
any
further
violation
of
these policies and warned Plaintiff that she must “adhere to the
expected
level
of
performance/conduct
as
outlined
above
or
further disciplinary action will be taken up to and including
job
termination.”
(Doc.
91-25
at
1;
Doc.
92-34
at
3-4).
Plaintiff was expressly advised that her overtime had to be
approved by region management and the branch manager. (Id.)
As
noted
supra,
in
December
2010,
the
Mobile
branch
underwent a second audit because the branch was slated to be
reassigned
to
another
region.28
(Doc.
92-33
at
29).
The
division auditor, Donna Orr, began her audit on December 13,
2010 and she communicated with region manager James Earl Thomas
while the audit was ongoing.
phase,
Orr
discovered
that
(Doc. 98-3 at 3).
Plaintiff
was
In the initial
repeating
the
same
27
In his declaration, Thomas explained: “[f]or example, she
worked 6.25 hours on September 18, 2009, and also took 4 hours
of sick time, so that she was paid for 10.25 hours that day,
when she should only have taken 1.75 hours of sick time to make
an 8 hour day, and been paid for 8 hours.” (Doc. 92-34 at 2-3).
“On November 4 she worked 6 hours with 4 hours vacation and
received a total of 10 hours pay.” (Id.).
28
The auditor, Donna Orr, testified that the second audit was
occasioned by the impending transfer of the Mobile branch to
another region. (Doc. 92-26 at 8).
45
violations regarding sick and vacation time and overtime for
which she had been counseled in January 2010.
(Id.; Doc. 92-34
at 6).
In addition, Orr found that on several occasions in one
month, Plaintiff had failed to make daily deposits as required
by company policy.
(Doc. 92-34 at 6-7).
When Orr reported this
information to her manager, Elaine Cole, she was directed to
expand her deposit audit to include the entire year.
at 3).
(Doc. 98-3
As a result, Orr discovered that Plaintiff had failed to
make daily deposits on sixty-nine occasions in one year.
(Id.).
Upon receiving Orr’s report, Thomas consulted with Larry Black,
the division human resources manager, and made the decision to
terminate
Plaintiff’s
employment.
(Doc.
92-33
at
22-24).
Thomas traveled to Mobile on December 22, 2010 to effectuate
Plaintiff’s termination.
However, Plaintiff had called in sick
on December 21st and failed to appear for work on December 22nd
as well.
(Doc. 92-12 at 11).
Thus, Thomas effected Plaintiff’s
(Id.; Doc.
termination over the telephone on December 23, 2010.
92-33 at 31).
Thomas
testified
that
he
decided
to
terminate
Plaintiff
because she missed sixty-nine deposits in 2010 and because she
continued
to
violate
the
policy
against
working
unauthorized
overtime after being warned to cease that practice eleven months
earlier in January 2010.
(Doc. 91-35; Doc. 92-33 at 34; Doc.
46
92-34 at 7).
and
According to Thomas, “[e]ach one was a separate
independent
reason
for
her
terminated her for either one.”
termination.
I
would
have
(Doc. 92-34 at 7).
The reasons proffered by Orkin are clearly ones that might
motivate a reasonable employer to terminate an employee.
as
here,
the
employer
has
proffered
Where
legitimate,
nondiscriminatory reasons for its actions, then the presumption
of retaliation raised by the plaintiff’s prima facie case is
rebutted, and thus disappears.
Smith v. Lockheed-Martin Corp.,
644 F. 3d 1321, 1325-26 (llth Cir. 2011).
At this juncture,
“[a] plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment
for that of the employer.
Provided that the proffered reason is
one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.”
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
[F]ederal courts do not sit as a superpersonnel department that reexamines an
entity’s business decisions.
No matter how
medieval a firm’s practices, no matter how
high-handed
its
decisional
process,
no
matter how mistaken the firm’s managers,
[federal law] does not interfere.
Rather
our inquiry is limited to whether the
employer gave an honest explanation of its
behavior.
Id. (citations and internal quotation marks omitted).
47
In an effort to establish pretext, Plaintiff argues that
there are numerous reasons for not making daily deposits, such
as when the branch manager is not at work, or money is received
after the bank is closed.
her
for
an
explanation
deposits at issue.
Plaintiff asserts that no one asked
as
to
whey
(Doc. 105 at 24).
she
failed
to
make
the
Plaintiff also intimates
that the branch manager is ultimately responsible for the branch
and bore some responsibility for the missed deposits; yet, he
was not disciplined.
With respect to the overtime violation,
Plaintiff argues that Jennifer Naquin, a 30(b)(6) designee for
Orkin, acknowledged that she did not know of anyone else in her
region who had been fired for working overtime.
7).
(Doc. 92-24 at
Plaintiff also once again contends that it was the branch
manager’s responsibility, as opposed to her responsibility, to
secure approval for her overtime.
Based on the record before the Court, the undersigned finds
that
Plaintiff’s
contentions
fail
to
establish
that
Orkin’s
proffered reasons are false and that the real reason for her
termination
Plaintiff
was
has
impermissible
presented
no
retaliation.
evidence
which
First
suggests
of
all,
that
the
audits were conducted in order to single out her work for close
scrutiny, or that Orr’s audit findings were incorrect.
Plaintiff
acknowledges
that
she
violated
respect to both overtime and deposits.
48
company
Second,
policy
with
Third, while Plaintiff
argues that the branch manager bore some of the blame for the
missed deposits, but was not disciplined, she has offered no
explanation
for
her
regarding overtime.
failure
to
follow
Defendant’s
directives
The initial audit revealed that Plaintiff
was working unauthorized overtime and that she was improperly
utilizing sick leave and vacation to claim overtime.
Because of
the seriousness of the violation, Plaintiff was issued a written
discipline, and the region manager and branch manager met with
her regarding the improper behavior.
Plaintiff was expressly
advised that going forward, she was to secure approval from
region
management
overtime.
and
her
branch
manager
before
working
any
She was also cautioned that failure to comply with
management’s
directive
including termination.
could
lead
to
further
discipline
Notwithstanding, less than a year later,
the December 2010 audit revealed that she was still using sick
and vacation time to improperly claim overtime, and that she was
working overtime without approval.
While Plaintiff claims that
she had a good reason for working overtime, she has failed to
offer any reason for failing to secure approval as directed.
Moreover,
the
fact
that
Plaintiff
claims
that
other
employees were permitted to work overtime, but she was not,
misses the point.
As noted, there is no evidence that the
January 2010 audit identified other branch employees who were
engaged in the same improper conduct as Plaintiff.
49
Further,
Plaintiff
admits
that
she
approval for any overtime.
never
sought
regional
management
Having never sought approval for
overtime, Plaintiff cannot demonstrate that she was improperly
denied overtime while other similarly situated branch employees
were permitted to work overtime.
In sum, Plaintiff has failed
to establish that Defendant’s proffered reasons for Plaintiff’s
termination is pretext for retaliation.
Because
reasonable
Plaintiff’s
factfinder
evidence
to
is
conclude
not
that
sufficient
Orkin’s
for
a
proffered
nondiscriminatory reasons for terminating her employment were
mere
pretext
judgment
on
for
retaliation,
Plaintiff’s
Defendants’
Title
motion
VII-retaliation
for
summary
claim
(Second
Cause of Action) is GRANTED.29
5. Plaintiff’s State Law Defamation Claim (Fourth
Cause of Action
In her Amended Complaint, Plaintiff alleges that Defendants
Orkin, Goodwin, and Mayfield-Duke published false and defamatory
statements about her to potential employers, thereby causing her
to suffer damages including loss of employment and wages (Fourth
Cause of Action).
(Doc. 34 at 8-9).
Plaintiff argues in her
opposition to Defendants’ motion for partial summary judgment
29
Having so found, the Court need not address the parties’
arguments related to Thomas’ after-acquired knowledge of
Plaintiff’s alleged violation of company policy regarding
possession of a gun on work premises. (Doc. 100 at 31; Doc. 105
at 27).
50
that after she was terminated, Defendant Goodwin, her former
branch manager, and Defendant Mayfield-Duke, her replacement as
office manager, told potential employers when they called for
references that Plaintiff was “lazy, incompetent, and a rulebreaker.”
Duke’s
(Doc. 105 at 28).
husband
Mayfield-Duke
and
and
Plaintiff testified that Mayfield-
Mayfield-Duke’s
Goodwin
had
son-in-law
“thought
it
told
was
her
that
hilarious
for
people to call and ask for a reference for [Plaintiff],” and
they would tell prospective employers that Deneau was “lazy,
incompetent
Plaintiff
employer
and
a
admits
who
that
may
she
Orkin,
does
not
called
have
information by Defendants.
Defendants
breaker.”30
rule
and
(Doc.
know
been
of
92-15
any
given
at
53).
prospective
this
false
(Id.).
Goodwin,
and
Mayfield-Duke
argue
that
they are entitled to partial summary judgment on Plaintiff’s
defamation claim because Plaintiff cannot prove that any false
and defamatory statement about her was ever published to an
individual causing her to suffer special damages as a result of
the alleged defamation.
(Doc. 100 at 33-34).
The Court agrees.
As Plaintiff states, in order to establish a prima facie
case of defamation, she must show:
30
In his deposition, Mayfield-Duke’s husband denied ever telling
Plaintiff that his wife or Goodwin were giving her bad
references. (Doc. 92-17 at 5-6, 9-10).
51
[1]
that
the
defendant
was
at
least
negligent [2] in publishing [3] a false and
defamatory
statement
to
another
[4]
concerning the plaintiff, [5] which is
either actionable without having to prove
special
harm
(actionable
per
se)
or
actionable upon allegations and proof of
special harm (actionable per quod).
Ex parte Crawford Broadcasting Co., 904 So. 2d 221, 225 (Ala.
2004) (citations omitted).
The specific type of defamation alleged in this case is
slander.
“Generally,
communication
of
a
in
slander
defamatory
there
matter
to
must
a
be
third
an
oral
person.”
Anderton v. Gentry, 577 So. 2d 1261, 1263 (Ala. 1991) (citations
omitted).
There are two types of slander, that is,
slander per se and slander per quod.
Slander per se is actionable if it imputes
to the plaintiff an indictable offense
involving infamy or moral turpitude. Lewis
v. Ritch, 417 So. 2d 210 (Ala. Civ. App.
1982). Damage is implied by law when spoken
words are found to be slander per se.
Slander per quod is a communication to a
third person of a defamatory statement
subjecting
the
plaintiff
to
disgrace,
ridicule, odium, or contempt although not
imputing the commission of a crime involving
infamy or moral turpitude.
Id.
The parties agree that this case involves defamation by
slander per quod (requiring proof of special damages).
105 at 29; Doc. 100 at 34).
(Doc.
“Special damages are the material
harms that are the intended result or natural consequence of the
slanderous statement, and the general rule is that they are
52
limited to ‘material loss capable of being measured in money.’”
Casey v. McConnell, 975 So. 2d 384, 390 (Ala. Civ. App. 2007)
(citations omitted).
Assuming that the other elements of Plaintiff’s prima facie
case are met, Plaintiff admits that she does not know of any
prospective
employer
who
might
have
called
Defendants
for
a
reference or who might otherwise have been told by Defendants
the false and defamatory statements alleged.
53).
(Doc. 92-15 at
Moreover, because this case requires proof of special
damages,
even
if
Defendants
had
made
the
alleged
defamatory
remarks to Mayfield-Duke’s husband or son-in-law, Plaintiff does
not allege that publication to those individuals caused her to
suffer any special damages.
Consequently, she cannot prove that
Defendants published a false and defamatory statement about her
to another person that resulted in her suffering special damages
(such as lost wages), which is essential to proving her prima
facie
case.
Because
Plaintiff
has
not
presented
sufficient
evidence to justify submitting her defamation claim to a jury,
Defendants’ motion for partial summary judgment on Plaintiff’s
state law defamation claim is GRANTED.
III. Conclusion
For
the
reasons
set
forth
herein,
it
is
ORDERED
that
Plaintiff’s motion for partial summary judgment is DENIED, and
Defendants’ motion for partial summary judgment is GRANTED as
53
follows:
Plaintiff’s
Title
VII
claims
against
individual
Defendants Goodwin and Mayfield-Duke are dismissed; Plaintiff’s
Title
VII
promotion
claims
(First
Cause
of
Action)
are
dismissed; Plaintiff’s Title VII retaliation claim (Second Cause
of Action) is dismissed; and Plaintiff’s state law defamation
claim (Fourth Cause of Action) is dismissed.
The only issue
remaining for trial is Plaintiff’s claim alleging violations of
the Fair Labor Standards Act (Third Cause of Action).
DONE and ORDERED this the 20th day of May, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
54
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