Whitt v. Baldwin County Mental Health Center
ORDER granting in part and denying in part 28 Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 12/12/2013. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JOAN C. WHITT,
BALDWIN COUNTY MENTAL
) CIVIL ACTION 12-0698-WS-M
This matter is before the Court on the defendant’s motion for summary
judgment. (Doc. 28). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 28, 30, 32, 36, 45, 48, 49), and the
motion is ripe for resolution. After careful consideration, the Court concludes that
the motion is due to be granted in part and denied in part.
According to the second amended complaint, (Doc. 10), the plaintiff is a
licensed professional counselor (“LPC”) who was employed by the defendant as
an in-home therapist, paired with Danny Langham on a two-person “team.” The
plaintiff became concerned about Langham’s boundaries with underage male
clients and his flirtation with adult female relatives of underage clients. In January
2011, she reported her concerns to her supervisor, Jason Tanner, who reacted
angrily. With the approval of executive director Robin Riggins, Tanner eliminated
the in-home program, which displaced the plaintiff and Langham. Langham was
given another position, one for which the plaintiff was more qualified.1 The
The defendant has identified this position as that of assistant program
coordinator. (Doc. 30 at 5).
plaintiff sought an advertised position for an outpatient therapist but was told the
position was unavailable.
In 1994, the plaintiff suffered a brain aneurysm, but she at no time had
difficulties performing the essential functions of her job. However, in February
2011 Riggins told the plaintiff she suspected dementia and requested the plaintiff
to undergo a neurological examination. The plaintiff agreed, and the neurologist
reported that she was medically fit to counsel clients.
Nevertheless, the plaintiff was not placed in a position involving client
contact but was assigned to write treatment plans that the responsible male
employee had failed to write. Once she completed this assignment, she was left
with no work to perform. Tanner hired a male to take the plaintiff’s position, and
Riggins informed the plaintiff there were no positions available for her. The
plaintiff complained to Riggins that she was discriminating against her based on
sex and perceived disability. On or about February 26, 2011, the defendant fired
The second amended complaint includes the following seven “claims for
• Count One
Sex discrimination (terms and conditions)
• Count Two
Sex discrimination (termination/failure to hire) Title VII
• Count Three Retaliation
• Count Four Disability discrimination
• Count Five
• Count Six
• Count Seven Negligent/wanton training/supervision/failure to investigate
(Doc. 10 at 7-11).
Count Four also includes an allegation of retaliation under the ADA, which is
redundant with Count Five.
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
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.3 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.
“[A] plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Gregory v. Department of Human Resources, 355 F.3d 1277,
1280 (11th Cir. 2004) (internal quotes omitted). The defendant, citing Gregory,
argues that this rule precludes the plaintiff’s retaliation claims. (Doc. 30 at 16-18).
It is true, as the defendant notes, that the plaintiff’s EEOC charge does not
check the box indicating retaliation and that the word “retaliate” does not appear at
all. But this was also true in Gregory, a case in which the Eleventh Circuit held
that the retaliation claim was not barred for lack of exhaustion. 355 F.3d at 127879. It is also true, as the defendant notes, that the body of the charge does not
indicate that the plaintiff complained to her employer of discrimination, or
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
anything else, before her termination. Again, however, this was also the case in
Gregory. Id. at 1279, 1280.
In Gregory, the pro se employee (a psychiatrist) filed a charge alleging race
and sex discrimination in her termination, and the facts and beliefs she asserted in
the charge were directed only towards these two unlawful bases of decision. The
Eleventh Circuit stressed the solicitude due a pro se complainant, the judicial
“reluctan[ce] to allow procedural technicalities to bar claims,” and the admonition
that “the scope of an EEOC complaint should not be strictly interpreted.” 355
F.3d at 1280 (internal quotes omitted). The Court held that the EEOC
investigation reasonably to be expected to grow out of the plaintiff’s charge would
include retaliatory termination because the charge identified allegedly
discriminatory acts occurring shortly before the termination, even though the
charge did not allege that the plaintiff complained about this discrimination. Id.
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 [which were not mentioned
in the charge] 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.
The plaintiff’s EEOC charge (apparently filed pro se) alleges as follows:
(1) on January 18, 2011, Riggins eliminated the in-home therapy program; (2)
Langham thereafter received another position but the plaintiff was offered none;
(3) on January 28, 2011, Riggins requested that the plaintiff be seen by a
neurologist even though the plaintiff was performing all the duties of three
positions; and (4) on February 25, 2011, Riggins terminated her. (Defendant’s
Exhibit 4). As in Gregory, the charge alleges specific discriminatory conduct
occurring shortly before the plaintiff’s termination.
The defendant has invoked Gregory but has failed to address the facts of
that case as compared to this one, and the Court will not search for possible
distinguishing details on the defendant’s behalf. The defendant cites three trial
court decisions for the proposition that “the factual basis for the retaliation claim
must be included in the charge,” (Doc. 30 at 18), but, to the uncertain extent these
cases purport to require more information that was found adequate in Gregory,
they cannot be followed.
In summary, on the argument and authority presented, the defendant is not
entitled to summary judgment on the basis of failure to exhaust.4
II. Count One – Sex Discrimination (Terms and Conditions).
According to the defendant, plaintiff’s counsel orally confined this claim to
Langham’s laziness, burn-out and flirtation with others, as well as the plaintiff’s
assignment (after the in-home therapy team was eliminated) to conduct treatment
plan reviews. (Doc. 30 at 20).5 The plaintiff identifies no additional terms and
Because this case appears to be on all fours with Gregory, it is unnecessary to
consider the plaintiff’s argument that factual allegations made in her EEOC intake
questionnaire, (Plaintiff’s Exhibit 2), which she apparently completed and delivered to
the EEOC at the same time as her charge, satisfy the exhaustion requirement. (Doc. 45 at
20). See, e.g., Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 n.36 (11th Cir. 2000)
(considering the plaintiff’s intake questionnaire in assessing the scope of the EEOC
investigation to be reasonably expected); B.K.B. v. Maui Police Department, 276 F.3d
1091, 1102 (9th Cir. 2002) (“If the charge itself is deficient in recording her theory of the
case due to the negligence of an agency representative who completes the charge form,
then the plaintiff may present her pre-complaint questionnaire as evidence that her claim
for relief was properly exhausted.”).
The parties apparently did not establish the parameters of Count One via formal
conditions encompassed within Count One other than her termination, (Doc. 45 at
20), which must be addressed under Count Two, not Count One.6
A Title VII plaintiff must “establish, as part of h[er] prima facie case, that
[s]he suffered so-called ‘adverse employment action.’” Davis v. Town of Lake
Park, 245 F.3d 1232, 1238 (11th Cir. 2001). This requires that the challenged
action by the employer “must impact the ‘terms, conditions, or privileges’ of the
plaintiff’s job in a real and demonstrable way.” Id. at 1239. Thus, “to prove
adverse employment action in a case under Title VII’s anti-discrimination clause,
an employer must show a serious and material change in the terms, conditions, or
privileges of employment.” Id. (emphasis in original). “[T]he employment action
must be materially adverse as viewed by a reasonable person in the
circumstances.” Id. The defendant challenges the plaintiff’s ability to satisfy this
element of her prima facie case. (Doc. 30 at 20-21).
“Work assignment claims strike at the very heart of an employer’s business
judgment and expertise because they challenge an employer’s ability to allocate its
assets in response to shifting and competing market priorities.” Davis, 245 F.3d at
The defendant believes that the plaintiff in her brief limited Count One to a
claim involving termination, on the grounds that this is the only conduct she discussed in
that portion of her brief addressing Count One. (Doc. 48 at 3). But “summary judgment
cannot be granted by default.” Fed. R. Civ. P. 56 advisory committee notes to 2010
amendments to Rule 56(e); see also United States v. One Piece of Real Property, 363
F.3d 1099, 1101 (11th Cir. 2004) (“[T]he 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.”). The plaintiff’s mere failure to discus in her brief the nontermination aspects of Count One, unaccompanied by an express abandonment of those
aspects, does not remove them from the case.
That said, the plaintiff’s threadbare brief suggests a lack of interest in many
aspects of her varied claims. The Court is left with the impression that it has devoted
well over a week of judicial resources to carefully resolving a complicated motion as to
claims and portions of claims about which the plaintiff is not truly serious. If the Court’s
impression is correct, the plaintiff’s failure to expressly withdraw or abandon such claims
and portions thereof has done a disservice to the Court, the defendant and the litigants in
other cases whose motions have lain unresolved as the Court wrestled with the
defendant’s motion for summary judgment.
1244. Thus, “applying the adverse action requirement carefully is especially
important when the plaintiff’s claim is predicated on h[er] disagreement with h[er]
employer’s reassignment of job tasks.” Id. “In the vast majority of instances, …
we think an employee alleging a loss of prestige on account of a change in work
assignments, without any tangible harm, will be outside the protection afforded by
Congress ….” Id. at 1245.
The plaintiff’s challenge to her short-term assignment to write or review
treatment plans constitutes a work assignment claim. She does not assert that the
assignment amounted to a demotion, that it decreased her compensation, that it
adversely affected her chances for promotion, or that it in any other way tangibly
affected her employment. Indeed, she does not even claim that the assignment
carried a loss of prestige. Under this state of affairs, the plaintiff cannot establish
a prima facie case as to her work assignment claim.
The balance of Count One complains that Langham was a slacker. The
plaintiff does not assert that this had any effect, much less a serious and material
effect, on the terms and conditions of her employment. On the contrary, she
identifies the only effect on her of Langham’s work ethic as being indignation that
he was being paid roughly the same as she and was wasting taxpayer dollars.
(Doc. 45 at 2).
In summary, the plaintiff cannot establish that she suffered an adverse
employment action with respect to the matters on which Count One is based. To
the uncertain extent that Count One also addresses the plaintiff’s termination,
(Doc. 45 at 20), it is redundant with Count Two and is due to be dismissed on that
basis. The defendant is thus entitled to summary judgment with respect to Count
III. Count Two – Sex Discrimination (Termination, Failure to Hire).
Count Two alleges that the defendant “terminated Plaintiff’s employment
because of her sex and failed to hire [her] to other positions available with
Defendant because of her sex.” (Doc. 10 at 8).
The defendant recognizes that the “failure-to-hire” aspect of this claim
addresses the defendant’s failure to award the plaintiff a position as outpatient
therapist and its failure to return the plaintiff to her prior position as in-home
therapist. (Doc. 30 at 23). The failure-to-hire aspect also extends to the
allegation, made in the second amended complaint and repeated in the plaintiff’s
briefing, (Doc. 10, ¶ 30; Doc. 45 at 16, ¶ 63), that the plaintiff should have
received the assistant program coordinator position given Langham after the inhome therapy program was eliminated.7
To prove disparate treatment, “a plaintiff may offer either direct evidence
or circumstantial evidence.” Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir.
2012). The plaintiff does not purport to have direct evidence of discrimination.
The claim is thus governed by the McDonnell Douglas–Burdine model developed
for cases based on circumstantial evidence. The burden is first on the plaintiff to
establish a prima facie case. If she succeeds, the defendant must meet its burden
of producing evidence of one or more legitimate, nondiscriminatory reasons for
the adverse employment action. If the defendant does so, the burden shifts back to
the plaintiff to show that the defendant’s proffered reasons are a mere pretext for
illegal discrimination. Id. at 1055-56.
“A plaintiff may establish a prima facie case of discrimination [in
termination] through circumstantial evidence by proving that (1) she belongs to a
protected class; (2) she was subjected to adverse employment action; (3) her
employer treated similarly situated employees outside her classification more
As discussed in note 6, supra, and contrary to the defendant’s suggestion, (Doc.
48 at 3), the plaintiff did not abandon the failure-to-hire aspect of her claim simply by not
addressing it in her brief.
favorably; and (4) she was qualified to do the job.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1091 (11th Cir. 2004). The parties agree to employ this
formulation of the prima face case and to use it for both the termination claim and
the re-assignment claims. (Doc. 30 at 22-23; Doc. 45 at 20-21). They further
agree that the plaintiff may satisfy the third element by the alternative means of
showing that she was replaced by, or passed over in favor of, a member of the
opposite sex. (Id.).
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). The defendant “must
present specific evidence regarding the decision-maker’s actual motivations with
regard to each challenged employment decision.” Walker v. Mortham, 158 F.3d
1177, 1181 n.8 (11th Cir. 1998). Thus, “[t]he defendant cannot testify in abstract
terms as to what might have motivated the decision-maker ….” Id. Again, “[t]he
defendant may not satisfy its burden by presenting a hypothetical reason for the
employment decision in question ….” Id. at 1184.
“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 [sex discrimination].” Crawford v. Carroll,
529 F.3d 961, 976 (11th Cir.2008) (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,
A. Assistant Program Coordinator.
Because the defendant has not addressed the plaintiff’s claim that she was
denied this position due to sex discrimination, it cannot obtain summary judgment.
The Court nevertheless offers the following observations.
As an initial matter, it appears the plaintiff can establish a prima facie case
of sex discrimination. First, the plaintiff is of course a member of a protected
class (female). Second, her failure to receive the position appears clearly to be an
adverse employment action, especially given that her former position had been at
least temporarily dissolved. Third, the position was awarded to a male
(Langham). Finally, the plaintiff appears to be minimally qualified for the
The Court notes the defendant’s argument that, for purposes of her prima
facie case, the plaintiff was not qualified to serve as an in-home therapist or as an
outpatient therapist because she had displayed poor professional judgment. (Doc.
30 at 23). The plaintiff’s judgment, however, is irrelevant to her prima facie case
as to any position. “[T]o demonstrate that [s]he was qualified for the position, a
The defendant has not identified the minimum qualifications for this position,
but it can be assumed that Langham met them, else he would not have received the job.
The plaintiff is an LPC, with a Master’s degree in counseling and a state license to
conduct a clinical practice. (Doc. 30 at 2). Langham has no advanced degree, and his
bachelor’s degree apparently is in a different, “human services field.” (Id.). The
defendant concedes that, on the in-home therapy team, the plaintiff “had more and
different responsibilities than Langham,” (id. at 21), which further suggests she at least
matched him in qualifications and thus possessed the minimum qualifications for the
assistant program coordinator position.
Title VII plaintiff need only show that he or she satisfied an employer’s objective
qualifications. … [S]ubjective evaluations play no part in the plaintiff’s prima
facie case [but] are properly articulated as part of the employer’s burden to
produce a legitimate [sex]-neutral basis for its decision ….” Vessels v. Atlanta
Independent School System, 408 F.3d 763, 769 (11th Cir. 2005).
The defendant has not articulated a sex-neutral reason for awarding the
position to Langham rather than to the plaintiff. The reason it provides for not
awarding her a therapist position – that her failure to report suspected patient
abuse reflected poor professional judgment rendering her unfit to be placed in
direct patient contact – cannot easily be applied to the position awarded Langham,
since the defendant concedes that, “[i]n this position, Langham did not work
directly with patients.” (Doc. 30 at 5 n.27). Moreover, it apparently was not until
after awarding the position to Langham that the defendant concluded the plaintiff
had exercised poor judgment.
B. Outpatient Therapist.
The defendant concedes the first two elements of the plaintiff’s prima facie
case. (Doc. 30 at 23). The defendant denies the fourth element, but only on the
grounds that the plaintiff had demonstrated poor judgment. (Id.). As discussed in
Part III.A, however, only objective qualifications can be considered in connection
with the prima facie case.
As to the third element of the plaintiff’s prima facie case, it is
uncontroverted that a female filled the outpatient therapist position. (Riggins
Declaration, ¶ 24; Doc. 32 at 15, ¶ 32; Doc. 45 at 13, ¶ 32). The defendant argues
the plaintiff cannot show the existence of a similarly situated male treated more
favorably, (Doc. 30 at 23), but in fact the plaintiff has identified no comparator at
all. (Doc. 45 at 19-21).9 Her claim thus fails.10
The only two comparators identified by the plaintiff relate exclusively to her
termination claim. (Doc. 45 at 20).
C. In-Home Therapist.
The plaintiff satisfies the first, second and fourth elements of her prima
facie case for reasons stated in Parts III.A and B. As to the third element, the
defendant argues the plaintiff was not replaced, in that the in-home therapy team
of which she was a part was not re-constituted for over a year after it was
dissolved. (Doc. 30 at 23). The plaintiff responds that Don Earnshaw replaced
her. (Doc. 45 at 21). The defendant replies that Earnshaw merely took over the
plaintiff’s “secondary duties” of in-school counseling. (Doc. 30 at 2, 23). The
defendant assumes that the label “secondary duty” negates the plaintiff’s ability to
show she was replaced, but it offers neither argument nor authority in support of
such a proposition. Since the term is undefined, for all that appears the plaintiff’s
in-school counseling duties may have been as time-consuming and significant as
her in-home therapy duties. Certainly on this record the defendant has not shown
the plaintiff cannot establish that she was replaced for purposes of her prima facie
The defendant articulates the following sequence as its legitimate, nondiscriminatory reason. First, the defendant dissolved the plaintiff’s in-home
therapy team due to her allegations of impropriety by Langham. Second, the team
assembled to investigate the plaintiff’s allegations concluded that she had
insinuated sexual abuse and believed each underlying event had occurred and yet
had failed in her ethical obligation as an LPC to report Langham’s conduct. Third,
Riggins concluded that the failure to report suspected abuse violated ethical
standards and positive law and reflected unacceptably poor judgment for one in
direct patient contact. Fourth, in consequence of her poor judgment, Riggins ruled
Even could the plaintiff establish a prima facie case, her claim would fail for
reasons stated in Part III.C.
out placing the plaintiff in any position involving direct patient contact (including
outpatient therapist, in-home therapist and in-school counseling).
The defendant’s proffered reason plainly is legally sufficient, and it is
supported by record evidence. The plaintiff does not argue otherwise.
Accordingly, the burden shifts to her to show that a properly functioning jury
could conclude that the defendant’s articulated reason is but a pretext for unlawful
The plaintiff devotes two sentences of argument to this difficult task. First,
she notes that Langham was not fired and that Earnshaw replaced her. (Doc. 45 at
21). Since neither of them displayed the plaintiff’s poor judgment,11 the
defendant’s retention of them does not suggest pretext. Second, she argues that, if
her judgment truly were faulty, the defendant would not have offered her a
position performing treatment plan reviews. (Id. at 22). But since the plaintiff’s
poor judgment was in the realm of patient safety, and since the offered position
did not involve patient contact, the offer is perfectly consistent with the
defendant’s articulated reason.
With that, the plaintiff’s efforts to establish pretext are exhausted. And that
would be the end of the matter, except that the defendant in its reply credits the
plaintiff with the assertion (which could be teased out of her factual rendition but
which is nowhere articulated as an argument) that she did not fail to timely report
suspected client abuse (and therefore did not exhibit poor judgment) because she
did not in fact suspect such abuse. (Doc. 48 at 4). The Court therefore explores
The investigative team concluded that Langham behaved appropriately and in
accordance with the intended model of the in-home therapy team in each instance
identified by the plaintiff. (Defendant’s Exhibit 15 at 14). (The report does not specify
whether this conclusion is based on a finding the alleged conduct did not occur, that it
occurred but complied with expectations, or some combination of both.) While the
plaintiff may have thought Langham displayed poor judgment, she does not argue that the
team’s contrary conclusion is insupportable or otherwise reflects a discriminatory bias.
The plaintiff first addressed her concerns verbally with Jason Tanner. It is
uncontroverted that she told Tanner she “was having a problem with [Langham]
… taking boys off alone or attempting to take boys off alone” and that she
“believe[s] [Langham] to have a problem with … boys.” (Doc. 32 at 3, ¶ 7; Doc.
45 at 3, ¶ 7).
At Tanner’s direction, the plaintiff prepared a written timeline of the events
involving Langham which she wished to report. Among other incidents, the
timeline includes the following: (1) Langham transported a boy to an appointment
alone; (2) Langham took a boy in the woods to shoot paint balls; and (3) Langham
met alone for 30 minutes with an underage male client in a bedroom with the door
closed. The plaintiff wrote that, in light of these incidents (all occurring in July
2006), she concluded that “the current boundaries that the South in-home Team is
displaying are unclear and unhealthy.” The plaintiff then told Langham he was
not allowed to escort a child alone, engage in individual therapy with a child
alone, or administer awards without a family member present. In early 2008,
Langham requested to meet alone with a male client, but the plaintiff resisted and
Langham, though angry, relented. In late 2008, a male client experienced an
attempted abduction, after which Langham insisted on changing his therapist.
Also in late 2008, Langham instituted a reward system with an underage male
client that involved the two of them being alone in a secluded room. (Defendant’s
Exhibit 14 at 1-2).
Riggins appointed a three-person committee to review the plaintiff’s
allegations and, after reviewing her timeline, they interviewed her. They asked the
plaintiff if she believed sexual abuse may be a problem in this situation, to which
she responded that it was not her call to make. She stated she was seeing
inappropriate boundaries, not sexual abuse, but she continued that she would not
trust Langham with her grandchildren. (Defendant’s Exhibit 15 at 2).
Earlier this year, the plaintiff sat for her deposition. When asked about the
attempted abduction of a client, the plaintiff testified that she thought Langham
might have been involved, because Langham displayed a “fixat[ion]” on the child
by insisting on changing his therapist. (Plaintiff’s Deposition at 111-15). Asked
to identify the circumstances under which reporting of abuse is mandatory, the
plaintiff testified that reporting is mandatory only when abuse is witnessed, not
when it is merely suspected, and she explained that she did not report Langham
earlier “[b]ecause it’s suspicious behavior. I have not witnessed anything.” (Id. at
This material suggests that the plaintiff suspected Langham of abuse. She
believed that Langham had a “problem with … boys”; she believed it
inappropriate and “unhealthy” for Langham to be alone in a closed bedroom with
a teenaged patient; she believed he was “fixated” on another client and suspected
he had tried to abduct the client; and she would not trust him with her
grandchildren. Finally, she defended her failure to report Langham on the grounds
that, while he engaged in “suspicious behavior,” she had not actually witnessed
abuse. The plaintiff’s effort in her recent declaration to deny that she said what
her own written timeline explicitly states, and to contradict her clear answers to
unambiguous deposition questions, cannot create a fact issue in this regard.12 But
even if there is some question of fact as to whether the plaintiff in her own mind
actually suspected abuse, that of itself could not create a fact issue as to pretext.
The question is not whether the plaintiff actually suspected abuse but whether
Riggins believed she had suspected abuse and whether Riggins acted based on that
“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). “A district court may disregard an affidavit as
a sham when a party to the suit files an affidavit that contradicts, without explanation,
prior deposition testimony on a material fact,” at least “when the earlier deposition
testimony … consists of clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact ….” Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 n.6 (11th Cir. 2012).
belief.13 Riggins has so testified, and nothing in the plaintiff’s evidence draws her
testimony even remotely into question.
Finally, it is worth noting that Riggins and all three members of the team
that investigated the plaintiff’s complaint are female. “While we acknowledge
that a Title VII violation may occur even where a supervisor or decision-maker is
of the same race as the alleged victim, [citation omitted], we note that the district
court found that there was no evidence that [the decision-maker] held members of
his own race to a higher standard of conduct than members of another race.”
United States v. Crosby, 59 F.3d 1133, 1135 (11th Cir. 1995). The plaintiff has
identified no such evidence in this case, no reason to suspect that any of these
females were prejudiced against members of their own gender.
Because the plaintiff cannot create a genuine issue of material fact as to
whether the defendant’s articulated reason is a pretext for sex discrimination, the
defendant is entitled to summary judgment as to this claim.
The plaintiff meets the first, second and fourth elements of her prima facie
case for reasons set forth in Parts III.A and B. She claims to meet the third
element both because she was replaced by a male and because a similarly situated
male was treated more favorably.
“We can assume for purposes of this opinion that the complaining employees
interviewed by Rives were lying through their teeth. The inquiry of the ADEA is limited
to whether Rives, Malone and Merrill believed that Elrod was guilty of harassment, and if
so, whether this belief was the reason behind Elrod’s discharge.” Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); accord Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“The question is not whether it
really was Alvarez’s fault that assignments were not completed on time, or whether she
did delegate excessively, or whether she was aggressive and rude to her colleagues and
superiors, or whether she actually lost an important document or truly did fall asleep at
her desk. The question is whether her employers were dissatisfied with her for these or
other non-discriminatory reasons, even if mistakenly or unfairly so, or instead merely
used those complaints about Alvarez as cover for discriminating against her because of
her Cuban origin.”).
The Court has addressed the plaintiff’s replacement argument in Part III.C.
The plaintiff identifies Langham and Rusty Higgins as similarly situated male
comparators who were not fired. (Doc. 45 at 20, 21).14 The defendant argues they
cannot be similarly situated because they, unlike the plaintiff, did not violate the
defendant’s mandatory policy on reporting suspected client abuse. (Doc. 30 at
23). But the two cases on which the defendant relies addressed differences in
rules violations at the pretext stage, not as part of the plaintiff’s prima facie case.15
The defendant has failed to show that the plaintiff cannot establish the existence of
a similarly situated comparator who was not terminated.
The defendant’s articulated reason for the plaintiff’s termination is an
expansion on its reason for not offering her any position requiring direct patient
contact. Once Riggins determined she could not allow the plaintiff such a
position, she offered the plaintiff a continued position performing treatment plan
reviews, but the plaintiff refused the position. There were no other available
positions. With all options for continued employment exhausted, the defendant
fired the plaintiff. (Doc. 30 at 23-24, 28). This is a legally sufficient reason for
the plaintiff’s termination, and it is supported by record evidence. The burden
thus shifts to the plaintiff to demonstrate the existence of a genuine issue of fact as
As before, to show pretext the plaintiff argues only Langham’s retention,
her replacement by Earnshaw, and the offer to her of another position. (Doc. 45 at
21, 22). As discussed in Part III.C, these matters raise no genuine issue of pretext.
Higgins is the therapist whose treatment plan reviews the plaintiff conducted
and brought up to date after the in-home therapy team was dissolved. (Doc. 30 at 20).
When the claim is one of disparate discipline, the plaintiff must show as part of
his prima facie case that his comparator engaged in “nearly identical” misconduct.
Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006). The defendant
does not invoke this standard, so the Court does not apply it. At any rate, it appears
unlikely the defendant could properly invoke the rule, since it does not claim to have
fired the plaintiff as a sanction for violating a company rule.
And, as also discussed in Part III.C, the plaintiff’s effort to deny that she harbored
any subjective suspicion of abuse by Langham, even if successful, would not
create such an issue.
The defendant is entitled to summary judgment with respect to all aspects
of Count Two except the plaintiff’s claim that she was denied the position of
assistant program coordinator based on her sex.
IV. Count Three – Retaliation (Title VII).
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).
“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,
529 F.3d at 970.
The plaintiff identifies her protected activity as: (1) her January 18, 2011
report to Tanner about Langham; and (2) her February 22, 2011 statement to
Riggins that Riggins “was discriminating against [the plaintiff] and allowing males
to have positions for which [the plaintiff] was more qualified.” (Doc. 45 at 21-22;
Plaintiff’s Exhibit 1, ¶ 44).16 The defendant identifies the alleged retaliatory
The defendant reads the plaintiff’s brief as limiting the alleged protected
activity to her January complaint (reduced to written form) concerning Langham. (Doc.
actions as: (1) dissolving the in-home therapy team; (2) not reassigning the
plaintiff to another therapist position; and (3) terminating her employment. (Doc.
30 at 25). In her brief, the plaintiff identifies another: being required to undergo a
medical examination. (Doc. 45 at 22).17
While Title VII’s retaliation provision contains both an “opposition” prong
and a “participation” prong, the plaintiff relies exclusively on the former. “It shall
be an unlawful employment practice for an employer to discriminate against any
of [its] employees ... because he has opposed any practice made an unlawful
employment practice by this subchapter ….” 42 U.S.C. § 2000e-3(a). Although
the plaintiff need not prove an actual violation of Title VII to support a retaliation
claim for opposing the practice, she must have possessed “a good faith, reasonable
belief that the employer was engaged in unlawful employment practices.” Butler
v. Alabama Department of Transportation, 536 F.3d 1209, 1213 (11th Cir. 2008)
(internal quotes omitted). “A plaintiff must not only show that [s]he subjectively
(that is, in good faith) believed that [her] employer was engaged in unlawful
employment practices, but also that [her] belief was objectively reasonable in light
of the facts and record presented.” Id. (emphasis in original; internal quotes
omitted). “[T]he reasonableness of [a plaintiff’s] belief that [the defendant]
engaged in an unlawful employment practice must be measured against existing
substantive law.” Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010)
(internal quotes omitted). That is, an otherwise unreasonable belief that the
defendant’s conduct was unlawful under Title VII is not rendered reasonable by
the plaintiff’s “ignorance of the substantive law.” Weeks v. Harden
Manufacturing Corp., 291 F.3d 1307, 1317 (11th Cir. 2002).
48 at 8). Since the plaintiff’s brief addressing her retaliation claim states that she
complained to Riggins of sex discrimination on February 22 and was “immediately
fired,” (Doc. 45 at 21-22), the Court cannot agree.
Again, it appears the parties failed to define the parameters of this claim
through formal discovery.
A. Complaint of Langham’s Conduct.
“Title VII prohibits discrimination against ‘any individual’ with regard to
that individual’s terms and conditions of employment or application for
employment. See 42 U.S.C. § 2000e-2(a) (1994). The statute does not define
‘any individual,’ and although we could read the term literally, we have held that
only those plaintiffs who are ‘employees’ may bring a Title VII suit.” Llampallas
v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998). As the
defendant points out, (Doc. 30 at 26), the male patients and the female relatives of
those patients were not its employees, past, present or future. Therefore,
Langham’s conduct towards them could not possibly violate Title VII. No
plaintiff acquainted with Title VII could reasonably believe otherwise.
The plaintiff does not suggest that Langham’s conduct towards his patients
and their relatives constituted sexual harassment as to her, and any such
suggestion would be patently meritless. “To be actionable under Title VII, a
hostile work environment must be both objectively and subjectively offensive, one
that a reasonable person would find hostile and abusive, and one that the victim in
fact did perceive to be so.” Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238,
1247 (11th Cir. 2004) (internal quotes omitted). There is no evidence that the
plaintiff subjectively found Langham’s conduct to create a hostile work
environment, and no plaintiff acquainted with Title VII could reasonably believe
her work environment was unlawfully hostile in the absence of such a subjective
Nor could a plaintiff acquainted with Title VII reasonably believe that
Langham’s conduct created an objectively hostile work environment. As to the
adult females, the plaintiff complained only of “flirting” on a few occasions over a
span exceeding four years, and “flirtation is not sexual harassment.” Gupta v.
Florida Board of Regents, 212 F.3d 571, 584 (11th Cir. 2000). If flirtation cannot
be sexual harassment, witnessing flirtation cannot be sexual harassment, either.
As to the teenage boys, the plaintiff complained of no sexual contact,
language or other sexually freighted activity; instead, she complained only of a
few episodes, spread over more than four years, of Langham being alone with an
underage male client. “The fourth element of a claim for sexual harassment is that
the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive working
environment.” Hulsey, 367 F.3d at 1244. “Determining whether the harassment
was sufficiently severe or pervasive involves both an objective and a subjective
component. [citation omitted] In determining the objective element, a court looks
to all the circumstances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (internal
The Eleventh Circuit considers an incident every two months to be
insufficiently frequent to support a sexual harassment claim. Mendoza v. Borden,
Inc., 195 F.3d 1238, 1249 (11th Cir. 1999) (en banc) (five inappropriate instances
in eleven months were “far too infrequent” to support a sexual harassment claim).
The frequency of Langham’s allegedly inappropriate dealings with male clients
was less than once a year and thus far too infrequent to support a claim.
Being alone with a male client, with no evidence that anything untoward
occurred, is not severe conduct. Nor could such conduct be threatening or
humiliating to the plaintiff. Finally, the plaintiff has no evidence that these rare
occurrences interfered with her work performance or that they would have
interfered with the performance of a reasonable employee. In sum, Langham’s
conduct with male clients could not possibly have created an objectively hostile
work environment as to the plaintiff, and no plaintiff acquainted with Title VII
could reasonably believe otherwise.
B. Complaint of Sex Discrimination.
The plaintiff’s February 22 complaint to Riggins clearly encompassed an
objection to naming Langham, rather than the plaintiff, to the position of assistant
program coordinator. The defendant argues that this was not protected activity
because the plaintiff could not reasonably believe this decision was
discriminatory. (Doc. 30 at 27). For this proposition, the defendant cites
generally to prior pages of its brief, but those pages do not address the selection of
Langham rather than the plaintiff for that position. (Id. at 23-25). As discussed in
Part III, the defendant’s only beef with the plaintiff was her poor professional
judgment in not reporting Langham sooner. The defendant concedes that this
quality rendered her unfit only for positions involving direct patient contact, and it
further admits that the assistant program coordinator position did not involve such
contact. Moreover, the evidence indicates that the plaintiff was at least minimally
qualified for the position and perhaps better qualified than Langham. In light of
these circumstances, the defendant has not shown the plaintiff’s belief that she had
been discriminated against to be objectively unreasonable.18
The third element of the plaintiff’s prima facie case is a showing that “there
was a causal connection between the protected activity and the adverse action.”
Kidd v. Mando American Corp., 731 F.3d 1196, 1211 (11th Cir. 2013). As to the
dissolution of the in-home therapy team, the demand for a medical examination,
and the failure to assign the plaintiff to another therapist position, it is not possible
for the plaintiff to make this showing, because it is uncontroverted that these
Since the defendant has not shown the absence of protected activity, the Court
need not determine whether the plaintiff had an objectively reasonable belief that she was
the victim of sex discrimination concerning her failure to receive the outpatient therapist
position and/or not being returned to an in-home therapist/school counseling position.
decisions were made before the plaintiff’s February 22 complaint.19 She does not
That leaves for consideration the plaintiff’s termination. For purposes of
satisfying the prima facie case, “[t]he burden of causation can be met by showing
close temporal proximity between the statutorily protected activity and the adverse
employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007). A gap of even a month or more is sufficiently small to satisfy the
prima facie case. E.g., Farley v. Nationwide Mutual Insurance Co., 197 F.3d
1322, 1337 (11th Cir. 1999) (seven weeks); Donnellon v. Freuhauf Corp., 794 F.2d
598, 600, 601 (11th Cir. 1986) (one month). The four-day gap between the
plaintiff’s February 22 complaint and her February 26 termination thus establishes
the causation element of the plaintiff’s prima facie case.
The defendant’s articulated reasons for terminating the plaintiff remain the
same as they were for purposes of Count Two. (Doc. 30 at 28). As noted in Parts
III.C and D, the defendant’s reasons – the plaintiff’s disqualification from
positions with patient contact, her rejection of a position not involving patient
contact, and the absence of other available positions – are legally sufficient and
supported by record evidence. This shifts the burden to the plaintiff to
demonstrate the existence of a genuine issue of material fact concerning pretext.
To meet this burden, the plaintiff repeats her reliance on Langham’s retention,
Earnshaw’s replacement, and the offer to her of a position performing treatment
plan reviews. (Doc. 45 at 21, 22). But these matters are no more reflective of
retaliation than they are of sex discrimination.
The in-home therapy team was dissolved on or about January 19, and the
demand for a medical examination was made sometime before February 7. At the
February 22 meeting, Riggins told the plaintiff she could not be placed in a position with
direct patient contact before the plaintiff expressed her complaint. (Riggins Declaration,
¶ 23; Plaintiff’s Declaration, ¶¶ 43-44).
The plaintiff’s only additional effort to show pretext in the retaliation
context is to note the four-day gap between protected conduct and her termination.
(Doc. 45 at 22).20 Close temporal proximity satisfies the causation element for
purposes of the prima facie case, but it does not, of itself, create a fact issue on
pretext. Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1298
(11th Cir. 2006) (two-week gap “is evidence of pretext, though probably
insufficient to establish pretext by itself”). The defendant’s evidence reflects that
the temporal proximity in this case was coincidental to a decision already
inevitable, and the plaintiff has done nothing to poke holes in the defendant’s case.
On the contrary, the plaintiff has testified that, at their February 22 meeting,
Riggins told her the defendant had no available positions for her before she
complained of sex discrimination. (Plaintiff’s Exhibit 1, ¶¶ 43, 44).
Because it was not protected activity, the plaintiff cannot pursue a
retaliation claim based on her complaint concerning Langham. Because she
cannot raise a genuine issue as to pretext, the plaintiff cannot pursue a retaliation
claim based on her termination following her complaint to Riggins of sex
discrimination. And because all other asserted adverse actions occurred before she
complained, the plaintiff cannot pursue any other retaliation claim based on her
complaint to Riggins. Accordingly, the defendant is entitled to summary
judgment with respect to Count Three.
V. Count Four – Disability Discrimination.
The second amended complaint alleges that the defendant “denied Plaintiff
her rights under the Americans with Disabilities Act, terminated her employment
and failed to hire her for other available jobs with the Defendant and retaliated
As promised, the Court will not advance additional theories of pretext that the
plaintiff declined to raise herself.
against her under this Act.” (Doc. 10 at 9, ¶ 66). As the defendant recognizes,
(Doc. 30 at 17, 29), Count Four asserts four distinct forms of ADA violation: (1)
requiring the plaintiff to undergo a medical examination; (2) firing her; (3) failing
to provide her other employment; and (4) retaliating against her for complaining of
A. Medical Examination.
The second amended complaint alleges that Riggins required the plaintiff to
undergo a medical examination. (Doc. 10 at 5). “A covered entity shall not
require a medical examination … unless such examination … is shown to be jobrelated and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The
defendant argues that the medical examination was lawful because it was jobrelated and consistent with business necessity. (Doc. 30 at 29-30).22
The defendant justifies Riggins’ demand for a medical examination as
As detailed above, the investigation disclosed substantial issues
with Whitt’s professional judgment regarding her legal and ethical
obligations to the child patients in the In-Home Program under her care,
and also an objective basis for questioning whether there was a medical
explanation for those issues. BCMHC (1) had information that Whitt
had a prior brain aneurysm; (2) knew that the Whitt [sic] was experiencing
workplace problems; and (3) had medical evidence that the confusion
resulting from a brain aneurysm could prevent Whitt from recognizing
For reasons expressed in footnote 6, supra, the Court rejects the defendant’s
suggestion that, because the plaintiff in her brief did not address the denial of therapist
positions, that portion of Count Four is no longer in the case. (Doc. 48 at 8).
The defendant suggests that the plaintiff in her brief conceded “she does not
consider being required to undergo a medical exam as independently actionable.” (Doc.
48 at 8). But her brief expressly argues that “[t]here was no medical reason to require
that [she] be medically examined,” (Doc. 45 at 22), which directly addresses an element
of her claim and which cannot easily be construed as a concession that no such claim
(Doc. 30 at 30). The defendant identifies the purpose of the medical examination
as being “to determine whether Whitt had an impairment.” (Id.).
From this explanation, it is clear that the defendant was not seeking to
discover if the plaintiff had judgment issues – it had already determined that she
did. And it was not seeking to find a solution to those judgment issues, nor to
decide if those issues affected her ability to perform her job or posed a risk to
herself or others. Instead, it appears the defendant was pursuing an idle curiosity
as to the etiology of the plaintiff’s judgment deficit.
The Eleventh Circuit decisions cited by the defendant do not suggest that
this is an adequate justification for requiring a medical examination. In OwusuAnsah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir.), cert. denied, 82 U.S.L.W.
3240 (Nov. 18, 2013) , the employer possessed evidence that the employee “had a
potentially dangerous mental condition.” Id. at 1312. In Williams v. Motorola,
Inc., 303 F.3d 1284 (11th Cir. 2002), the employer had evidence that the employee
had made “threats of violence.” Id. at 1291. In Watson v. City of Miami Beach,
177 F.3d 932 (11th Cir. 1999), the Court stated that, “where a police department
reasonably perceives an officer to be even mildly paranoid, hostile, or
oppositional, a fitness for duty examination is job related and consistent with
business necessity.” Id. at 935. In each of these situations, the medical
examination was sought to determine whether the employee could safely perform
the duties of his job, not simply to find out what made him act as he did.
The business necessity inquiry under Section 12112 “analyzes whether
there is a business reason that makes necessary the use by an employer of a test or
criteria for [making] such a[n] [employment] decision.” Owusu-Ansah, 715 F.3d
at 1311 (internal quotes omitted). In context, this suggests that the employer must
show a business need for obtaining the information about the existence vel non of
a medical condition. Satisfying managerial curiosity, with no further goal, seems
unlikely to meet that standard.
The defendant in its terse treatment of this claim does not address the facts
and limited scope of these cases. Instead, it places chief reliance on an
enforcement guidance document from the EEOC. (Doc. 30 at 30). As quoted by
the Owusu-Ansah Court, that document provides that a “medical examination of
an employee may be ‘job-related and consistent with business necessity’ when an
employer has a reasonable belief, based on objective evidence, that (1) an
employee’s ability to perform essential job functions will be impaired by a
medical condition ….” 715 F.3d at 1312-13 (internal quotes omitted). The
defendant apparently reads this provision as permitting a medical examination
merely to confirm that an employee experiencing performance issues has a related
medical condition, with no further purpose. The Court is skeptical that the
document is intended to be read so broadly but, in any event, the EEOC document
“is entitled to respect only to the extent that it has the power to persuade.” Id. at
1312 (internal quotes omitted). The defendant has not shown, or even attempted
to show, that the agency document is persuasive in this respect, and for the reasons
stated the Court is unable without the defendant’s assistance to find it so.
The defendant’s only other argument is that the plaintiff must show a
“tangible injury” resulting from an unlawful medical examination. (Doc. 30 at 29,
30). “[O]ur sister circuits require that a non-disabled plaintiff at least show some
damages (emotional, pecuniary, or otherwise) caused by a § 12112(d) violation.
[citations omitted] We agree.” Harrison v. Benchmark Electronics Huntsville,
Inc., 593 F.3d 1206, 1216-17 (11th Cir. 2010) (footnote omitted). The plaintiff
expressly claims to have experienced emotional distress as a result of the
defendant’s demand for a medical examination. (Doc. 10 at 9, ¶ 67). To the
uncertain extent the defendant suggests that emotional injury from an unlawful
medical exam will not support a cause of action because it is not “tangible,” it has
not explained how such a position is consistent with Harrison.23
Nor has the defendant borne its burden of showing the plaintiff’s inability
to prove emotional damages from any unlawful medical examination. The
defendant has simply announced that the plaintiff “has failed to show any tangible
injury that occurred as a result of the medical evaluation.” (Doc. 30 at 29; accord
id. at 30). To carry its burden, the defendant must either negate the existence of
emotional damages or point to materials on file demonstrating that the plaintiff
cannot show the existence of such damages. Clark, 929 F.2d at 608. The
defendant has done neither but has simply posited a conclusion. “Even after
Celotex it is never enough simply to state that the non-moving party cannot meet
its burden at trial.” Id.
B. Failure to Hire.
This portion of Count Four challenges the same three decisions as does
1. Assistant program coordinator.
Because the defendant does not address the assistant program coordinator
position awarded Langham, it cannot obtain summary judgment as to this portion
of the plaintiff’s claim.
2. Outpatient therapist.
Absent direct evidence, a plaintiff claiming disability discrimination must
utilize the McDonnell Douglas model devised in the Title VII context. Cleveland
v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). “To make
Such a position would also be inconsistent with Tice v. Centre Area
Transportation Authority, 247 F.3d 506 (3rd Cir. 2001), on which the defendant relies,
since Tice deemed emotional damages sufficient to support a claim. Id. at 519.
a prima facie case of discrimination under the ADA, [the plaintiff] had to show a
disability (whether real or perceived), that she was otherwise qualified to perform
the essential functions of the job, and [that] she was discriminated against based
upon the (real or perceived) disability.” Williams v. Motorola, Inc., 303 F.3d
1284, 1290 (11th Cir. 2002). The defendant concedes for purposes of this motion
that the plaintiff can show it regarded her as having a disability. (Doc. 48 at 8).
The defendant denies the plaintiff’s ability to establish the other two elements of
her prima facie case. (Doc. 30 at 31).
There is evidence the defendant considers the “exercise of sound
professional judgment” to be an essential function of a therapist. (Riggins
Declaration, ¶ 21). The defendant argues that the plaintiff’s delay in reporting
suspected abuse reflected poor judgment and that “[t]his faulty judgment renders
her unqualified for her job” for purposes of her prima facie case. (Doc. 30 at 31).
The defendant cites no authority for this proposition, instead noting that an
“employee’s ability to handle reasonably necessary stress and work reasonably
well with others are essential functions of any position.” Williams, 303 F.3d at
1290. But there is no evidence the plaintiff was lacking in these abilities. As to
judgment, “[e]xercising some degree of good judgment is arguably a function of
every occupation … [b]ut the required degree of acuity and consistency of
judgment varies between different jobs. The question at issue here is the degree of
acuity and consistency of judgment necessary to perform Plaintiff’s job.” Bishop
v. Georgia Department of Family and Children Services, 2006 WL 572031 at *3
(11th Cir. 2006) (emphasis added). The defendant has not provided evidence or
argument at this level of specificity and so has not shown that the plaintiff lacked a
threshold level of judgment. Moreover, and as discussed in Part III.C, the
evidence would support an inference that the plaintiff did not in fact exercise poor
judgment in failing to report suspected abuse because she did not in fact suspect
such abuse but merely observed Langham several times fail to avoid situations in
which abuse could occur.24
While the third element of the plaintiff’s prima facie case is phrased as
whether she “was discriminated against based upon [her] (real or perceived)
disability,” that is actually the ultimate question in a discrimination case, and a
plaintiff need not prove her entire case at this early stage. As the Eleventh Circuit
has noted, “[w]e cannot reconcile a rule that would essentially require a plaintiff to
prove pretext as part of his prima facie case at the summary judgment stage with
the Supreme Court’s instruction that the plaintiff’s burden is not onerous.”
Vessels, 408 F.3d at 769. On the contrary, the limited function of the prima facie
case is only that of “eliminating the most common nondiscriminatory reasons for”
the adverse employment action. Holland, 677 F.3d at 1055 (internal quotes
The only element of the plaintiff’s prima facie case under Title VII, as
agreed by the parties, not already addressed or conceded for purposes of her claim
of disability discrimination is a showing that “her employer treated similarly
situated employees outside her classification more favorably” or, in the alternative,
that she was replaced by, or passed over in favor of, a person without a real or
perceived disability. The Court therefore concludes that only these issues are
relevant to the third element of the plaintiff’s prima facie case. See Wolfe v.
Postmaster General, 488 Fed. Appx. 465, 468 (11th Cir. 2012) (addressing the
existence vel non of similarly situated comparators as part of the disability
plaintiff’s prima facie case). Because the defendant does not address them, (Doc.
The defendant asserts that “[k]nowledge of applicable state and federal laws is
an essential function of Whitt’s job” because this is listed under the “required knowledge,
skills, and abilities” section of her job description. (Doc. 30 at 31; Defendant’s Exhibit
6). But the defendant fails to argue that the plaintiff was unqualified to perform this
function, or even that its inclusion in a job description automatically renders it an
30 at 31), it cannot obtain summary judgment based on a failure to satisfy the
prima facie case.
The defendant identifies the same legitimate, non-discriminatory reason for
its decisions as it asserts with respect to the plaintiff’s claims of sex
discrimination. (Doc. 30 at 31-32). As noted in Part III.C, this is a legally
sufficient reason supported by record evidence, and the burden shifts to the
plaintiff to show a genuine issue as to pretext. The plaintiff’s sole effort to meet
this burden is to point out that she was terminated about 24 days after her
neurologist reported his findings, (Doc. 45 at 22), which means she was denied the
outpatient therapist position about 20 days after his report.25 But this timing is
insufficient to undermine the defendant’s evidence that it disqualified the plaintiff
from any therapist position involving direct patient contact due to the poor
judgment it believed she had displayed. This is especially so since the
neurologist’s findings were, as the plaintiff insists, inconsistent with the existence
of a disability. (Plaintiff’s Exhibit 5). Moreover, the plaintiff admits that the
defendant did not seek a neurological report because it suspected a disability;
instead, the “only reason” the defendant required a medical exam was to retaliate
against the plaintiff for her complaint about Langham. (Doc. 45 at 22).
3. In-home therapist.
This claim fails for reasons set forth in Parts III.C and V.B.2.
This claim fails for reasons set forth in Parts III.C, III.D and V.B.2.
Again, the Court will not construct pretext arguments on the plaintiff’s behalf.
To the extent that Count Four addresses retaliation for complaining of
disability discrimination, it is redundant with Count Five and is due to be
dismissed on that basis.
The defendant is entitled to summary judgment with respect to all aspects
of Count Four except: (1) the plaintiff’s claim of an unlawful medical
examination; and (2) the plaintiff’s claim that she was denied the position of
assistant program coordinator based on a perceived disability.
VI. Count Five – Retaliation (ADA).
The plaintiff’s only internal complaint concerning disability discrimination
occurred on February 22, 2011, four days before her termination. (Doc. 45 at 22).
The defendant concedes that, under the plaintiff’s version of the facts, she thereby
engaged in protected activity. (Doc. 30 at 33). Termination is of course an
adverse employment action and, as discussed in Part IV.B, the close temporal
proximity between protected conduct and adverse action satisfies the causation
element of the plaintiff’s prima facie case.
The parties’ evidence and arguments as to legitimate reasons and pretext
remain the same as under Count Three, and with the same result. For reasons
stated in Part IV.B, the defendant is entitled to summary judgment with respect to
The plaintiff in formal discovery confined her defamation claim to the
following: (1) on or about February 1, 2011, Riggins said to the plaintiff, in the
presence of Tanner and Vinson, that the plaintiff “was hallucinating and
delusional” and thus “no longer able to perform [her] job responsibilities”; and (2)
Anne Chipman and Dr. Cummings both stated to the EEOC investigator that the
plaintiff suffers from dementia. (Defendant’s Exhibit 20, ¶ 5).26
“To establish a prima facie case of defamation, a plaintiff must show: 
that the defendant was at least negligent  in publishing  a false and
defamatory statement to another  concerning the plaintiff,  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 Bole,
103 So. 3d 40, 51 (Ala. 2012) (emphasis and internal quotes omitted).
In order to establish the publication element, “there must be a
communication of a defamatory matter to a third person.” Nelson v. Lapeyrouse
Grain Corp., 534 So.2d 1085, 1093 (Ala. 1988). “[W]hen officers and employees
of a corporation act within the scope of their employment and within the line of
their duties, they are not third persons vis-à-vis the corporation.” Id. If the
speaker was engaged in corporate business and the communication to the hearer
“falls within the proper scope of that employee’s knowledge or duties,” there is no
publication for purposes of a defamation claim. Id. The same rule applies to noncorporations. Burks v. Pickwick Hotel, 607 So. 2d 187, 189-90 (Ala. 1992).
Riggins is the defendant’s executive director, Tanner the defendant’s
clinical director and the plaintiff’s immediate supervisor, and Vinson the
defendant’s human resources director. (Doc. 32 at 1, ¶ 1; Doc. 45 at 1, ¶ 1).
According to the plaintiff, Riggins’ comment occurred at a meeting called to
discuss what duties the plaintiff would have going forward (in the wake of her
discredited complaint concerning Langham), and in that context Riggins asked the
plaintiff to see a neurologist due to concerns she was hallucinating and delusional,
with an assurance she would receive a therapist position if the neurologist cleared
Chipman is employed by the defendant as its children’s outpatient service
coordinator, while Dr. Cummings is the defendant’s medical director. (Doc. 32 at 10, ¶
21; Doc. 45 at 8, ¶ 21).
her. (Plaintiff’s Deposition at 159-62). Because Riggins, Tanner and Vinson were
the three employees most centrally concerned with where to place the plaintiff in
light of the dissolution of the in-home therapy team and the defendant’s concerns
regarding the plaintiff’s judgment, Riggins was engaged in corporate business and
the others were acting within the scope of their employment at the time of the
allegedly defamatory statement.27 There was thus no publication, without which
the plaintiff’s claim must fail. The plaintiff offers no discernible response. (Doc.
45 at 22-23).
The plaintiff’s interrogatory response suggests that Chipman and Dr.
Cummings spoke directly with an EEOC investigator. The defendant’s brief
suggests they made the challenged statements internally, with those statements
included in the defendant’s written position statement to the EEOC. (Doc. 30 at
36-37). Either way, the defendant argues that their statements are protected under
the affirmative defense of “conditional privilege.” (Id.). The defendant’s obscure
briefing makes it difficult to determine if the conditional privilege applies, but in
any event the defendant concedes that the privilege is lost if the communication is
made with actual malice. (Id. at 37). Because the defendant has not argued or
attempted to show that the plaintiff cannot establish actual malice, it is not entitled
to summary judgment on this ground.28
Cf. Nelson, 534 So. 2d at 1089, 1093 (corporate officer did not publish when he
told the plaintiff’s co-employee that the plaintiff had been caught stealing grain;
investigation of grain shortage was corporate business, the officer was acting within the
scope of his employment both in general by investigating the shortage and in particular
by speaking with the co-employee (since he might reasonably have had important
information concerning the grain shortage), and the co-employee acted within the scope
of his employment by taking part in the investigation).
The defendant asserts at one point that a communication between one party
with an interest (Chipman and Dr. Cummings) and another with a corresponding interest
(the EEOC) “does not constitute a publication.” (Doc. 30 at 37). If correct, satisfaction
of the corresponding interest test would defeat a defamation claim regardless of actual
malice. But, according to the defendant’s authority, satisfying the “corresponding
interest” test triggers a conditional privilege; it does not negate a publication. Butler v.
Town of Argo, 871 So. 2d 1, 25 (Ala. 2003).
Finally, the defendant argues that being accused of suffering from dementia
is not actionable per se but requires proof of special damages. (Doc. 30 at 37-38).
“[T]o constitute slander actionable per se, there must be an imputation of an
indictable offense involving infamy or moral turpitude ….” Ceravolo v. Brown,
364 So. 2d 1155, 1157 (Ala. 1978) (internal quotes omitted); accord Butler, 871
So. 2d at 17; Nelson, 534 So. 2d at 1091. When the statement is written rather
than oral, a broader range of statements is actionable per se. “In cases of libel, if
the language used exposes the plaintiff to public ridicule or contempt, though it
does not embody an accusation of a crime, the law presumes damages to the
reputation, and pronounces it actionable per se.” Ceravolo, 364 So. 2d at 1157
(internal quotes omitted); accord Butler, 871 So. 2d at 16.
Dementia is not a crime, so an accusation of suffering from dementia will
not support a claim of slander per se. As noted above, however, the defendant has
muddied the water as to whether the statements by Chipman and Dr. Cummings
on which the plaintiff relies were made to the EEOC orally or in writing, so the
Court cannot conclude on this record that the plaintiff alleges only slander. The
defendant has also failed to address whether an accusation of dementia does or
may expose a plaintiff to public ridicule or contempt and so has not shown that
such an accusation will not support a claim of libel per se.
Even were it assumed that the plaintiff claims only slander by Chipman and
Dr. Cummings or that a written accusation of dementia does not support libel per
se, the defendant could not receive summary judgment as to their statements. The
defendant argues the plaintiff is precluded from claiming special damages because
she did not plead them in accordance with Rule 9(g). (Doc. 30 at 37-38).
Assuming without deciding that the defendant has not waived this argument by
withholding it until this late stage of the proceedings, the plaintiff did in fact
comply with Rule 9(g).
“If an item of special damage is claimed, it must be specifically stated.”
Fed. R. Civ. P. 9(g). “[T]he rule is designed to inform defending parties as to the
nature of the damages claimed in order to avoid surprise; and to inform the court
of the substance of the complaint.” Great American Indemnity Co. v. Brown, 307
F.2d 306, 308 (5th Cir. 1962). Thus a complaint that “set out various items of
damage and various elements of damage” complied with the rule. Id. at 308 &
“Special damages are the material harms that are the intended result or
natural consequence of the slanderous statement, [citation omitted], and the
general rule is that they are limited to material loss capable of being measured in
money [citation omitted].” Butler, 871 So. 2d at 18 (internal quotes omitted).
Special damages include lost income. Tanner v. Ebbole, 88 So. 3d 856, 863 (Ala.
Civ. App. 2011). Count Six explicitly alleges that the defendant’s defamatory
statements caused the plaintiff a “loss of income and loss of benefits.” (Doc. 10 at
10-11). The defendant – which addresses neither the law construing Rule 9(g), the
elements of special damage recognized by Alabama law, nor the amended
complaint’s language – has failed to explain how the plaintiff could be deemed to
have violated the rule, and the Court will not look for possibilities on its behalf.
In a related vein, the defendant posits that the plaintiff “has no evidence of
special damages.” (Doc. 30 at 38). As it did with respect to injury from its
required medical examination in Part V.A, the defendant has merely announced a
conclusion without pointing to anything in the record that negates special damages
or that shows the plaintiff is unable to prove them. Again, “[e]ven after Celotex it
is never enough simply to state that the non-moving party cannot meet its burden
at trial.” Clark, 929 F.2d at 608.
Count Seven alleges that the defendant negligently or wantonly failed to:
(1) train its employees; (2) supervise or monitor its employees; and (3) investigate
her claims of sex discrimination, sexual harassment/hostile work environment and
retaliation. (Doc. 10 at 11).
The defendant first argues that a claim of what it terms “negligent
management” requires proof of an underlying wrong by its employees and
concludes that Count Seven cannot survive if Counts One through Six do not
survive. (Doc. 30 at 39).29 As discussed above, portions of Counts Two, Four and
Six do survive the defendant’s motion for summary judgment. To that extent,
Count Seven survives as well.
The defendant next notes, correctly, that liability depends upon both the
employee’s incompetency and on the employer’s actual or constructive awareness
of the incompetency, based on past conduct reflecting the incompetency. (Doc. 30
at 39). See Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala.
1995). The defendant asserts the plaintiff cannot establish these elements of her
claim because she has no evidence the defendant was aware of any of the matters
of which she complained before she voiced her complaints in January and
February 2011. (Doc. 30 at 39-40). In the first place, the defendant again states a
conclusion without pointing to record evidence that negates such awareness or
shows the plaintiff cannot prove such awareness. More fundamentally, however,
the defendant assesses awareness from the wrong perspective. It does not matter
whether the defendant knew, for example, whether Riggins or Tanner was
discriminating against the plaintiff before she complained of sex discrimination;
what matters is whether the defendant knew or should have known that Riggins
and/or Tanner had a history of practicing sex discrimination, whether against the
plaintiff or anyone else.
In a related vein, the defendant denies that the plaintiff suffered injury due
to Langham’s flirtation, laziness and conduct towards patients. (Doc. 30 at 40).
Again, this is a bald conclusion unaccompanied by any citation to the record that
supports the proposition. But in any event, lack of damage from Langham’s
conduct is irrelevant, at least with respect to the portions of Count Seven that
The plaintiff concedes that the underlying wrongs on which she relies are
limited to those encompassed within Counts One through Six. (Doc. 45 at 23).
remain, because Langham is not the allegedly incompetent employee. With
respect to the placement of Langham rather than the plaintiff in the position of
assistant program coordinator, the allegedly incompetent employees would appear
to be Tanner and perhaps Riggins. With respect to the demand for a medical
examination, the allegedly incompetent employees would appear to be Riggins,
Vinson and perhaps Tanner. And with respect to the defamation claim, the
allegedly incompetent employees are Chipman and Dr. Cummings.
For the reasons set forth above, the defendant’s motion for summary
judgment is granted with respect to the entirety of Counts One, Three and Five.
The motion is granted with respect to all aspects of Count Two except the
defendant’s placement of Langham rather the plaintiff in the position of assistant
program coordinator, as to which the motion is denied. The motion is granted
with respect to all aspects of Count Four except the defendant’s requirement of a
medical examination and its placement of Langham rather the plaintiff in the
position of assistant program coordinator, as to which the motion is denied. The
motion is granted with respect to all aspects of Count Six except the statements
by Anne Chipman and Dr. Cummings to the EEOC investigator that the plaintiff
suffers from dementia, as to which the motion is denied. The motion is granted
with respect to all aspects of Count Seven as to which the underlying count or
portion of count has been dismissed and is otherwise denied.
DONE and ORDERED this 12th day of December, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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