Howell v. Correctional Medical Services
ORDER granting in part denying in part the 47 Motion for Summary Judgment; denying as moot 49 Motion to Strike; denying as moot 57 Motion to Strike;. Signed by Chief Judge William H. Steele on 8/30/2013. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SERVICES, etc., et al.,
) CIVIL ACTION 12-0272-WS-N
This matter is before the Court on the defendants’ motion for summary
judgment. (Doc. 47). The parties have submitted briefs and evidentiary materials
in support of their respective positions, (Docs. 45, 55, 63, 64, 68-70, 73), and the
motion is ripe for resolution. After careful consideration, the Court concludes that
the motion for summary judgment is due to be granted in part and denied in part.
The plaintiff, a white female, was employed by the entity defendant
(“Corizon”) as a registered nurse from November 2007 to April 8, 2011, when she
was terminated. The plaintiff worked for Corizon at Fountain Correctional
Facility (“Fountain”), a prison run by the Alabama Department of Corrections
“(ADOC”), where Corizon provided health care services under contract with
ADOC. Defendant Sharon Gaillard is a black female licensed practical nurse who
worked the night shift with the plaintiff.
Certain non-parties play key roles in the story. Suzette Dailey, a black
female, was Director of Nursing and the plaintiff’s immediate supervisor.
Deborah Thornton, a white female, was Health Services Administrator and
Dailey’s immediate supervisor. Mark Jansen, a white male, was Corizon’s
The second amended complaint includes 14 counts, as follows:
• Count One
Racial Harassment (Title VII)
• Count Two
Racial Harassment (§ 1981)
• Count Three
Retaliation (Title VII)
• Count Four
Retaliation (§ 1981)
• Count Five
Discrimination (Title VII)
• Count Six
Discrimination (§ 1981)
• Count Seven
Discrimination (Title VII)
• Count Eight
Discrimination (§ 1981)
• Count Nine
Breach of contract
• Count Ten
Breach of contract
• Count Eleven
• Count Twelve
• Count Thirteen
Invasion of privacy
• Count Fourteen
(Doc. 37 at 29-48). The plaintiff has formally abandoned Counts Five through
Nine. (Doc. 55 at 37 n.12).1
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial
According to Corizon, the plaintiff by e-mail has “conceded that Count Ten is
due to be dismissed.” (Doc. 63 at 1). Because Corizon has produced no evidence of such
a concession, Count Ten cannot be dismissed on that basis.
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a 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.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.2 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
I. Federal Claims.
As the parties agree, Title VII and Section 1981 “have the same
requirements of proof and use the same analytical framework.” Standard v.
A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Thus, the Title VII
analysis applies as well to Section 1981. Id.; accord Springer v. Convergys
Customer Management Group, Inc., 509 F.3d 1344, 1347 n.1 (11th Cir. 2007).
A. Racial Harassment.
Counts One and Two are entitled, “Racial Harassment.” They incorporate
prior allegations concerning racial harassment the plaintiff experienced, and they
allege the conduct was unwelcome and ongoing, that it was directed towards her,
and that it caused her “to perceive her work environment as intimidating, hostile,
abusive or offensive.” These counts allege that the plaintiff complained but that
the harassment continued, and they allege that Corizon’s failure adequately to
address her complaints exposes it to liability. (Doc. 37 at 29-33).
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
Despite these allegations, the defendants argue that the second amended
complaint “does not contain a ‘hostile work environment’ claim.” (Doc. 45 at 45).
This assertion is demonstrably incorrect, as the allegations of the preceding
paragraph make clear. See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283
(11th Cir. 2012) (a claim for hostile work environment is one that alleges
harassment based on race).3
The defendants recognize that such a claim “is a distinct cause of action
with a unique analysis and different burden of proof.” (Doc. 45 at 45). Yet their
treatment consists of the conclusory statement, devoid of analysis or authority –
save for an unexplained citation (without pinpoint cite) to an unpublished case –
that “the undisputed evidence does not show any racial discrimination or
retaliation, much less possess or demonstrate the requisite pervasiveness and
severity to alter Howell’s conditions of employment.” (Id. at 45-46). This bare
ipse dixit is inadequate to carry the defendants’ initial burden on motion for
summary judgment. Cf. Transamerica Leasing, Inc. v. Institute of London
Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005) (“[A] passing reference to
an issue in a brief [is] insufficient to properly raise that issue ….”).4
In their reply brief, the defendants devote over five pages to addressing the
plaintiff’s evidence of harassment and explaining why this evidence, accepted as
true, is insufficiently severe and pervasive, from an objective standpoint, to satisfy
the fourth element of a harassment claim. (Doc. 63 at 10-15). This would have
been appropriate argument had it been included in the defendants’ principal brief,
In their reply brief, the defendants acknowledge that Counts One and Two are
“claims for harassment/hostile work environment.” (Doc. 63 at 2).
Embedded within the defendants’ statement of facts is the assertion that the
internal complaints registered by the plaintiff for the most part did not allege overtly
racist language or conduct. (Doc. 45 at 23-24). Since this is not included in the
defendants’ argument section, it is not clear why the Court should address it. However,
the Court notes that the assertion is equally conclusory and that it focuses on the wording
of the plaintiff’s internal complaints rather than on her testimony concerning the language
and conduct animating those complaints.
but it was not. “District courts, including this one, ordinarily do not consider
arguments raised for the first time on reply.” Gross-Jones v. Mercy Medical, 874
F. Supp. 2d 1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and explaining the
underlying rationale). The defendants identify no reason to depart from this wellestablished rule, and the Court declines to do so.
Counts Three and Four allege that, when the plaintiff registered internal
complaints of racial harassment, she was assigned additional job duties and
ultimately fired. (Doc. 37 at 33-35). Corizon focuses on the termination aspect of
these claims and does not address the additional-job-duties aspect. (Doc. 45 at 4345). In light of its silence, Corizon cannot obtain summary judgment as to that
portion of the retaliation claims.
Similar to discrimination cases, a retaliation case not based on direct
evidence follows a burden-shifting format. First, the plaintiff must make out a
prima facie case. Second, the defendant must produce evidence of one or more
legitimate, non-retaliatory reasons for the plaintiff’s adverse treatment. Third, the
plaintiff must show that the defendant’s proffered reasons are a pretext for
prohibited retaliatory conduct. Sullivan v. National Railroad Passenger Corp.,
170 F.3d 1056, 1059 (11th Cir. 1999).
1. Prima facie case.
“A prima facie case of retaliation under Title VII requires the plaintiff to
show that: (1) she engaged in an activity protected under Title VII; (2) she
suffered an adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse employment action.” Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Corizon challenges the first and third
of these elements.
In order to establish the first element of her prima facie case under the
opposition clause, the plaintiff need not show that the conduct she opposed
actually was in violation of Title VII. However, and as Corizon notes, (Doc. 45 at
43-44), she must demonstrate both that she in good faith believed the conduct
violated that statute and that her belief was “objectively reasonable in light of the
facts and record presented.” Butler v. Alabama Department of Transportation,
536 F.3d 1209, 1213 (11th Cir. 2008) (internal quotes omitted).
Corizon attempts to apply this analysis, but it fails to focus on the
reasonableness of the plaintiff’s belief that the conduct of which she complained
rose to the level of actionable racial harassment. Instead, Corizon argues that the
plaintiff “lacks the requisite good faith, subjective and objective beliefs that her
refusal to abide by the ADOC and Corizon policies [the conduct for which the
defendants say she was terminated] was reasonable.” (Doc. 45 at 44). “Simply
stated, a plaintiff’s refusal to abide by the ADOC policies was not a statutorily
protected activity, and therefore Howell’s retaliation claims fail.” (Id.). Since this
is not the conduct on which the plaintiff’s retaliation claims are based, Corizon’s
argument necessarily fails.
As to causation, Corizon offers only its ipse dixit that the plaintiff “cannot
demonstrate the requisite causal link between her complaints of racial
discrimination and her termination for her refusal to abide by the subject policies.”
(Doc. 45 at 45). Accompanied by no analysis and no authority, this conclusory
sentence cannot carry Corizon’s threshold burden on motion for summary
At any rate, Corizon insists that the plaintiff’s first complaint of racial
harassment occurred on March 8, 2011, (Doc. 45 at 13), and the plaintiff was fired
on April 8, 2011. A one-month gap between protected activity and adverse action
In its reply, Corizon complains that the plaintiff did not address the causation
element of her prima facie case. (Doc. 63 at 4-5). In fact, she did so. (Doc. 55 at 40).
But even had she not addressed causation, Corizon’s failure to carry its threshold burden
excused her from doing so.
constitutes “close temporal proximity” sufficient to satisfy the third element of a
plaintiff’s prima facie case. See Farley v. Nationwide Mutual Insurance Co., 197
F.3d 1322, 1337 (11th Cir. 1999) (seven weeks constitutes close temporal
proximity); Donnellon v. Freuhauf Corp., 794 F.2d 598, 600, 601 (11th Cir. 1986)
(one month gap satisfied the prima facie case).
2. Legitimate, non-retaliatory reasons.
To meet its intermediate burden, the defendant must articulate a reason
“legally sufficient” to justify judgment in its favor and must support the articulated
reason “through the introduction of admissible evidence.” Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 255 (1981); accord Walker v.
Mortham, 158 F.3d 1177, 1181 n.8 (11th Cir. 1998) (the defendant “must present
specific evidence regarding the decision-maker’s actual motivations with regard to
each challenged employment decision”).
Corizon says that it fired the plaintiff due to an incident on the night of
March 30, 2011. According to an incident report written by Lt. Williams, he and
three other corrections officers came to the health care unit escorting an inmate
“for a medical assessment.” The plaintiff performed the assessment. Lt. Williams
then “asked [the plaintiff] about contacting the mental health Doctor” about the
inmate. The plaintiff said she was not going to do so and suggested the inmate be
placed in the segregation unit. Lt. Williams then approached Gaillard, who called
Dailey, who directed the plaintiff to call the mental health doctor, who advised the
plaintiff to place the inmate in the observation unit, which was done. (Linton
Affidavit, Exhibit 14).
Corizon acknowledges that both Thornton and Jansen participated in the
decision to fire the plaintiff. When they reached their joint decision, Jansen
instructed Thornton to prepare and submit to Human Resources a recommendation
for the plaintiff’s termination. (Doc. 45 at 18, 37). There is evidence that this
decision by Thornton and Jansen was made on April 4, 2011, although Thornton
did not advise the plaintiff of her termination until April 8, after receiving
approval from Human Resources. (Jansen Affidavit, ¶ 12; Thornton Affidavit at
Corizon in its brief asserts generally that Jansen and Thornton based their
decision to terminate the plaintiff on her “failure to abide by ADOC and Corizon
policies and procedures and for failing to adhere to a request from an ADOC
lieutenant to abide by ADOC policies.” (Doc. 45 at 37). Jansen and Thornton
employ essentially the same language in their affidavits. (Jansen Affidavit, ¶¶ 5,
8; Thornton Affidavit at 3). The identification of the policies they relied on to
justify their termination decision is sprinkled throughout their affidavits.
First, Jansen and Thornton determined that the plaintiff had violated a
policy “which required Corizon to contact mental health when corrections brings
another mental health patient to the health care unit.” (Jansen Affidavit, ¶ 12).
Second, the plaintiff violated a policy that “requires Corizon to contact mental
health before placing a mental health patient in segregation.” (Id., ¶ 12; see also
Thornton Affidavit at 2). Although these technically were ADOC policies,
“Corizon discharged Howell for violating a Corizon policy which required
compliance with ADOC policies.” (Jansen Affidavit, ¶ 9; accord id., ¶ 13). No
other policy breaches have been identified as motivating the termination decision.
Violating the policy of an employer to comply with the policies of the
employer’s client, and refusing a proper request from the client, presumably are
legally sufficient reasons for termination, and Corizon has offered evidence that
these are the reasons that motivated Jansen and Thornton. The burden thus shifts
to the plaintiff to show that a genuine issue of material fact remains as to whether
Corizon’s proffered reasons are a pretext for unlawful retaliation.
“The inquiry into pretext requires the court to determine, in view of all the
evidence, whether the plaintiff has cast sufficient doubt on the defendant’s
proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude
that the employer’s proffered legitimate reasons were not what actually motivated
its conduct” but “were a pretext for discrimination.” Crawford, 529 F.3d at 976
(internal quotes omitted). The plaintiff’s burden is to “demonstrate weaknesses or
implausibilities in the proffered legitimate reason so as to permit a rational jury to
conclude that the explanation given was not the real reason, or that the reason
stated was insufficient to warrant the adverse action.” Rioux v. City of Atlanta,
520 F.3d 1269, 1279 (11th Cir. 2008). Of course, “a reason is not pretext for
discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” Springer v. Convergys Customer
Management Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (emphasis in
original) (internal quotes omitted). To make this showing, the plaintiff may resort
to “all the evidence,” Crawford, 529 F.3d at 976, including “the evidence
establishing the plaintiff’s prima facie case and inferences properly drawn
therefrom.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
An employer’s articulated reason “that [an] employee was fired for
violation of work rules is arguably pretextual when a plaintiff submits evidence …
that she did not violate the cited work rule.” Rojas v. Florida, 285 F.3d 1339,
1343 (11th Cir. 2002) (internal quotes omitted). The plaintiff argues she did not
violate the ADOC policy and thus did not violate the Corizon policy, either. (Doc.
55 at 43).
Corizon has submitted the ADOC mental health referral policy. (Linton
Affidavit, Exhibit 6). It requires the nursing staff, in “emergency situations” when
mental health staff are not on site, to contact the on-call psychiatrist for
consultation. (Doc. 45 at 5; Linton Affidavit, ¶ 16; id., Exhibit 6, ¶¶ IV.B, V.B.3).
Corizon confirms that this is the only ADOC policy made the basis of the
termination decision. (Doc. 63 at 6-7). Notably, the policy does not purport to
require the nursing staff to contact mental health: (a) any time an inmate receiving
mental health care is presented to the health care unit; (b) before placing a mental
health patient in segregation; or (c) any time a corrections officer requests it.
Corizon does not come to grips with the stark difference between the policy
as it reads and the policy as Jansen and Thornton portray it. Instead, it ignores the
“emergency situations” qualifier and insists the policy applies whenever a patient
receiving mental health care is presented to the health care unit. (Doc. 63 at 6-7).
In light of the explicit language of the policy, Corizon’s interpretation cannot be
Neither Jansen nor Thornton represents that they believed the policy was as
broad as Corizon now claims. Given Corizon’s insistence that the plaintiff has no
excuse for not knowing the content of the policy, (Doc. 63 at 7), any claim by
Jansen or Thornton that they were ignorant of the policy’s actual, limited reach
would be deeply suspect.
Throughout its presentation, Corizon relies on the plaintiff’s April 5
statement concerning the incident, including information concerning the inmate’s
conduct, as justifying termination. The threshold problem with Corizon’s position
is that Jansen and Thornton made the decision to fire the plaintiff on April 4, so
they could not have considered the plaintiff’s statement (or that of Dailey, also
dated April 5) in reaching their decision. Lt. Williams’ statement, which Corizon
admits furnished the “primary basis” for the termination decision, (Doc. 45 at 19;
Jansen Affidavit, ¶ 14), is silent about the inmate’s behavior and thus provides no
alternative source of this information.6
A secondary problem is that Corizon has not submitted the memo as
evidence, so it is not before the Court.7 Nor has Corizon explained how the
Nor does Lt. Williams’ statement support the proposition, claimed by Corizon,
that he brought the inmate for a “mental evaluation.” (Doc. 63 at 3).
Corizon apparently intended to append this memo to the affidavit of Linton,
(Linton Affidavit, ¶ 28), or of Jansen, (Jansen Affidavit, ¶ 11), but it did not in fact do so.
plaintiff’s alleged statement on April 5 that she had been told the inmate had been
cursing other inmates and balling his fist – fairly common behavior in a prison
setting – could constitute an “emergency situation.” Indeed, there is no evidence
that Jansen or Thornton ever considered the March 30 incident to involve an
emergency situation as required by the ADOC policy.
In its reply brief, Corizon emphasizes that it terminated the plaintiff “for
her refusal to follow the correctional Lieutenant’s directive.” (Doc. 63 at 8). In
the final sentence of her memo recommending termination, however, Thornton
based the recommendation to terminate exclusively on the plaintiff’s asserted
violation of policy, not on a refusal to honor an institutional request independent
of policy. (Doc. 55, Exhibit 19). As late as its interrogatory responses, Corizon
insisted that the only reason the plaintiff was terminated was for violating ADOC
policies. (Id., Exhibit 3 at 6). That Corizon apparently added failure to comply
with Lt. Williams’ request as a justification for the termination only after the fact
supports an inference that the reason is pretextual. E.g., Hurlbert v. St. Mary’s
Health Care System, Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (“We have
recognized that an employer’s failure to articulate clearly and consistently the
reason for an employee’s discharge may serve as evidence of pretext.”).
As noted, to show pretext a plaintiff may rely on evidence adduced in
support of her prima facie case. Thus, the closeness of the timing between the
protected activity and the adverse action can support an inference that retaliation
was the employer’s true motive.8 As noted, Corizon insists the plaintiff’s first
protected activity occurred on March 8, and Jansen and Thornton decided to fire
her on April 4, less than four weeks later. Cf. Jones v. Horizon Shipbuilding, Inc.,
Martin v. Brevard County Public Schools, 543 F.3d 1261, 1268 (11th Cir. 2008)
(“And the record contains evidence on which reasonable minds could find pretext,
including … the close temporal proximity between Martin’s FMLA leave and
termination.”); Hurlbert, 439 F.3d at 1298 (“The close temporal proximity between
Hurlbert’s [protected activity] and his termination – no more than two weeks, under the
broadest reading of the facts – is evidence of pretext, though probably insufficient to
establish pretext by itself.”).
2012 WL 5187800 at *9 n.18 (S.D. Ala. 2012) (a gap of 38 days “reduc[ed] but
[did] not eliminate[e] the probative force of the timing”).
The close timing is more awkward in this case, because Jansen had not
concluded his investigation into the plaintiff’s complaint of racial harassment.
(Doc. 55, Exhibit 14). Indeed, he had done very little to investigate. His
involvement began on or about March 1, when Corizon received an anonymous
hotline complaint that “Suzette Daly [sic] is racist and causing a hostile work
environment for the staff.” (Doc. 55, Exhibit 10). Jansen traveled to Fountain and
interviewed “the majority” of employees on March 7 and 8, where he asked each
employee, privately, a single question: “Do you feel it’s a hostile work
environment?” (Jansen Deposition at 29; Doc. 55, Exhibit 14). Even though the
hotline complaint explicitly asserted a racial basis, Jansen’s question did not
incorporate a racial element. (Id. at 38). Since, as discussed in Part I.A, Corizon
does not consider “hostile work environment” to mean “racial harassment,” Jansen
could not have expected his question to elicit any mention of racial friction, and he
acknowledges only the plaintiff as having referenced race.
Fifteen of 16 other employees responded in the affirmative to Jansen’s
question, with at least eight identifying “favoritism,” disrespect and conflict as
issues; several even mentioned Dailey as the culprit. (Jansen Deposition at 33; id.,
Exhibit 3). Nevertheless, despite the obvious potential that these responses
implicated racial issues, Jansen did not ask a single employee a single follow-up
question. (Jansen Deposition at 39). Instead, he reported to Human Resources
that no one other than the plaintiff claimed racism. (Doc. 55, Exhibit 14). Even if
technically correct, this statement overlooks how Jansen’s approach was almost
guaranteed to achieve such a result. Moreover, there is evidence that the report to
Human Resources was not even technically correct but that another employee
responded to Jansen’s question by expressly claiming racial discrimination. (Doc.
55, Exhibit 13). Jansen’s handling of the hotline complaint would support an
inference that his mission was to squelch any suggestion of racial harassment at
Fountain, which would include the plaintiff’s complaint.
This context permits additional inferences. When he learned of the March
30 incident, Jansen was still unsure how to proceed with the plaintiff’s complaint.
(Doc. 55, Exhibit 14). The March 30 incident gave him an out, and he leapt at it.
Lt. Williams’ report hit Jansen’s desk on April 4, 2011, (Jansen Deposition at 13940), and he instructed Thornton the same day to prepare a recommendation that
the plaintiff be terminated. As noted, he did so without hearing from the plaintiff,
or from Dailey. The next day, the decision already made, the plaintiff was
directed to prepare a statement as to the March 30 incident, (Howell Declaration, ¶
40), which would support an inference that Jansen and Thornton were papering
their files in an effort to support, after the fact, a decision they had already made.
The plaintiff has noted all these problems with Corizon’s case. There may
well be additional indicia of pretext, but the foregoing list suffices for present
purposes. Corizon does not address any of the matters discussed above except by
reference to its version of the evidence, which the Court cannot accept on motion
for summary judgment over the contrary version presented by the plaintiff.
Accordingly, the Court concludes that Corizon’s evidence is not so strong as to
preclude a reasonable jury from concluding that Corizon’s articulated reasons for
terminating the plaintiff are a pretext for unlawful retaliation.9
After briefing closed, Corizon filed a notice of supplemental authority. (Doc.
64). Corizon therein notes the Supreme Court’s recent adoption of a “but-for” standard
of causation for Title VII retaliation claims. See University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013). This standard is certainly higher than
the “motivating factor” standard previously employed, but Corizon has not explained
how the plaintiff’s evidence of pretext, as discussed in text, could not attain the current
standard if accepted by a jury. Corizon’s failure to show that the new standard makes a
difference in this case obviates consideration of its argument that the but-for standard
also applies to retaliation cases under Section 1981. (Doc. 73).
II. State Claims.
As noted, the plaintiff asserts state claims for breach of contract, battery,
assault, invasion of privacy and negligent hiring, training, supervision and/or
A. Breach of Contract.
There is evidence that Corizon is subject to an obligation to “notify and
consult with the ADOC prior to discharging … professional staff.” (Doc. 55,
Exhibit 9). “Professional staff” includes the plaintiff. (Jansen Deposition at 18).
Count Ten alleges that the plaintiff is a third party beneficiary of this provision
and that Corizon breached the provision when it terminated her. (Doc. 37 at 4243).
Corizon first argues “there is absolutely no evidence that the contract
between ADOC and Corizon was intended to bestow a direct benefit on [the
plaintiff].” (Doc. 46 at 54). As set forth previously, a defendant cannot simply
pronounce that the plaintiff cannot prove its case but must “poin[t] to materials on
file that demonstrate that the party bearing the burden of proof at trial will not be
able to meet that burden.” Clark, 929 F.2d at 608. Corizon’s one-sentence
declaration does not accomplish this.
Next, Corizon asserts it is uncontroverted that it did not breach the
provision. (Doc. 45 at 54). Corizon did not submit the pages from Jansen’s
deposition on which it relies for this contention, but the plaintiff did. Corizon does
not explain what portion of Jansen’s testimony negates a contractual breach, but it
is presumably his statement that “we do not have to have consultation with them”
but only “to notify them of terminations.” (Jansen Deposition at 13-14). Jansen’s
testimony, however, contradicts the explicit language of the contractual provision
and so cannot render the matter uncontroverted. As to whether consultation
occurred, Jansen testified he did not consult with ADOC and does not know if
anyone else did. (Id. at 16).
In its reply brief, Corizon suggests it is entitled to summary judgment
because the plaintiff did not address Count Ten in her brief. (Doc. 63 at 1). But
“the district court cannot base the entry of summary judgment on the mere fact
that the motion was unopposed, but, rather, must consider the merits of the
motion.” United States v. One Piece of Real Property, 363 F.3d 1099, 1101 (11th
B. Battery and Assault.
Counts Eleven and Twelve are based on a single incident in which Gaillard
allegedly shoved a medicine cart into the plaintiff. (Doc. 37 at 43-45).10 Gaillard
argues that these claims must fail because they are intentional torts and it was
determined by Dailey and Thornton that the incident was an accident. (Doc. 45 at
55). Without a showing that this determination is binding on the plaintiff or the
jury, this argument must fail.
Gaillard also notes that the incident occurred while the plaintiff was sitting
down. (Doc. 45 at 55). She does not explain the significance of this fact, and the
Court discerns none.
In her reply brief, Gaillard adds that the plaintiff never filed an injury
report, workers’ compensation claim, or other documentation of the incident.
(Doc. 63 at 16). As noted, the Court will not consider arguments withheld until
reply. At any rate, such matters do not negate the occurrence of an assault or
In her brief, the plaintiff asserts these claims are also based on a second, similar
incident occurring over a year later. (Doc. 55 at 50). As Gaillard correctly points out,
(Doc. 63 at 16), the second amended complaint explicitly limits the claims to the first
C. Invasion of Privacy.
Count Thirteen alleges that Gaillard invaded the plaintiff’s privacy by
“constant public cussing at” the plaintiff and “by asking a correction officer if he
wanted to bed her.” (Doc. 37 at 45-46).
Alabama recognizes four forms of invasion of privacy:
(1) intruding into the plaintiff’s physical solitude or seclusion;
(2) giving publicity to private information about the plaintiff
that violates ordinary decency; (3) putting the plaintiff in a false,
but not necessarily defamatory, position in the public eye; or (4)
appropriating some element of the plaintiff’s personality for a
Butler v. Town of Argo, 871 So. 2d 1, 12 (Ala. 2003) (internal quotes omitted).
Count Thirteen invokes the first and third of these. (Doc. 37 at 45).11
As for the first prong, “[t]he invasion may be physical intrusion into a
place in which the plaintiff has secluded himself,” or “use of the defendant’s
senses ... to oversee or overhear the plaintiff’s private affairs,” or “some other
form of investigation or examination into his private concerns.” Phillips v.
Smalley Maintenance Services, Inc., 435 So. 2d 705, 710-11 (Ala. 1983) (internal
quotes omitted); accord Gary v. Crouch, 867 So. 2d 310, 318 (Ala. 2003) (“Lt.
Gary has made no showing that Chief Crouch has intruded on her seclusion,
because she has made no showing that he sought or obtained any private
information about her, or that he intruded upon her ‘physical solitude or seclusion’
by seeking any information that he did not properly have access to through his role
as her supervisor in the police department.”). The plaintiff alleges no physical
intrusion, no spying, and no other form of investigation or examination into her
“[I]t is clear that there must be something in the nature of prying or
intrusion, and that mere noises which disturb a church congregation, or bad
In her brief, the plaintiff seeks to implicate the second prong as well. (Doc. 55
at 51). The plaintiff cannot amend her complaint in this manner.
manners, harsh names, and insulting gestures in public, are not enough [to state a
claim for wrongful intrusion].” Martin v. Patterson, 975 So. 2d 984, 994 (Ala.
Civ. App. 2007) (internal quotes omitted). Gaillard may have displayed bad
manners in asking a corrections officer if he wanted to sleep with the plaintiff,12
and she may have employed harsh and insulting names in cursing at the plaintiff,
but she did not thereby pry into the plaintiff’s private affairs. The plaintiff thus
cannot sustain her claim under the first prong of the tort.
As for the “false light” prong of the tort, Gaillard argues generally that her
alleged conduct “does not rise to a level sufficient to sustain an invasion of privacy
claim.” (Doc. 45 at 51). She relies for this proposition on a case involving the
wrongful intrusion prong, not the false light prong, and so has failed to meet her
D. Negligent Employment.
Count Fourteen alleges that Corizon had actual notice of the actions by
Gaillard and Dailey complained of by the plaintiff but failed to properly train or
supervise them, with the result that the plaintiff suffered several actionable torts.
(Doc. 37 at 46-47).
Corizon first argues that Count Fourteen fails to identify the offending
employees. (Doc. 45 at 46). As noted, however, Gaillard and Dailey are
specifically named. (Doc. 37, ¶ 176).
Corizon next argues that there must be an underlying, actionable tort under
Alabama law. (Doc. 46 at 46-49). As discussed in Parts II.B and II.C, the plaintiff
has alleged several torts by Gaillard, each of which survives Gaillard’s motion for
Gaillard argues that her query (“What, do you want to ride the white pony?”)
was not intended as the plaintiff interprets it. (Doc. 45 at 50). But she has not explained
why a jury could not find otherwise.
Finally, Corizon asserts there is no evidence that it knew or should have
known of any incompetency of Gaillard. (Doc. 45 at 49). But both the plaintiff
and Corizon have introduced substantial evidence of complaints the plaintiff
registered with her employer concerning her treatment by Gaillard. Corizon
cannot meet its threshold burden on motion for summary judgment without
addressing this mass of material and explaining how it fails to demonstrate
Gaillard’s incompetency or to place Corizon on notice of same.
For the reasons set forth above, the defendants’ motion for summary
judgment is granted with respect to Counts Five, Six, Seven, Eight and Nine, and
granted with respect to Count Thirteen to the extent based on a wrongful intrusion
into physical solitude or seclusion. In all other respects, the defendants’ motion
for summary judgment is denied.13
DONE and ORDERED this 30th day of August, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The plaintiff’s motion to strike the affidavit of Larry Linton, (Doc. 49), is
denied as moot, since the material contained therein cannot support summary judgment.
The defendants’ motion to strike the affidavit of Makeba Lippitt, (Doc. 57), is denied as
moot, since the Court has not relied on anything contained therein.
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