Franklin v. Austal USA, LLC

Filing 79

ORDER granting 66 Motion for Summary Judgment filed by Austal USA, LLC, as set out. Signed by District Judge Kristi K. DuBose on 1/3/2025. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GUY E. FRANKLIN,
Plaintiff,
v.
AUSTAL USA, LLC,
Defendant.

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Civil Action No. 1:23-cv-00040-KD-C

ORDER
This action is before the Court on the Motion for Summary Judgment as to the claims of
Plaintiff Guy E. Franklin (“Franklin”), (Doc. 66), and the Brief in Support, (Doc. 67), filed by
Defendant Austal USA, LLC (“Austal”); the Response, (Doc. 74), filed by Franklin; and Austal’s
Reply, (Doc. 77). This action involves the claims of numerous Plaintiffs under a variety of theories
regarding Austal’s vaccine mandate during the COVID-19 pandemic. This order addresses the
claims of Plaintiff Guy E. Franklin. Upon consideration, and for the reasons below, the motion
is GRANTED.
I.

Findings of Fact1

A. Austal USA, LLC
Austal is a federal contractor as it contracts with the United States Navy to build ships. At all
relevant times, Austal has had in place an Equal Employment Opportunity policy, which prohibits
discrimination based on protected characteristics including religion. The policy directed
employees who believed that they had been subjected to discrimination or harassment to report it
to Human Resources. During the relevant time period, Rusty Murdaugh (“Murdaugh”) was
Austal’s president; Mike Bell (“Bell”) worked as Vice President of Operations; Sandra Koblas
1 The “facts,” as accepted at the summary judgment stage, “may not be the actual facts of the case.”

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
1

(“Koblas”) was Vice President of Human Resources; Samuel Cordts (“Cordts”) was Director of
Health and Safety; Rodney Patrick was the Employee Relations Manager; Ryan Lee (“Lee”) was
Senior Manager of Training and Organizational Development; Bridget Jewett was a Human
Resources Business Partner; and Jeanette Whatley was an Occupational Nurse Coordinator.
B. Franklin’s Position at Austal
While at Austal, Franklin worked as an A-class electrician and a fiber optics technician. This
position required Franklin to work regularly with others on his team or crew. Franklin also
regularly attended start of shift meetings where he was around others.
C. COVID-19 Pandemic and Austal’s Response
The World Health Organization (“WHO”) declared COVID-19 as a pandemic on March 11,
2020. National Library of Medicine, https://pmc.ncbi.nlm.nih.gov/articles/PMC7569573/ (last
visited Dec. 2, 2024). Austal was still considered an essential employer, given that it was charged
with building ships for the United States Navy. As such, Austal provided to employees who had
immune issues or otherwise had concerns regarding the pandemic with leave in the Spring of 2020.
Austal, where possible, put into place social distancing requirements. Austal required employees
to wear masks and provided masks to employees. Austal provided hand sanitizer to employees.
Austal employed cleaning crews to perform extra cleaning, particularly in areas where an
employee had tested positive for COVID-19. Austal tracked COVID-19 cases by work area in an
effort to engage in contact tracing. Employees who tested positive for COVID-19, or who were
exposed to COVID-19, were required to quarantine consistent with Centers for Disease Control
(“CDC”) requirements.

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D. Federal COVID-19 Vaccine Mandate and Austal’s COVID-19 Vaccine Mandate
On September 9, 2021, President Joe Biden signed Executive Order 14042 (“EO 14042”). See
Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 FR 50985 (Sep. 9, 2021).
EO 14042 established a requirement that all federal contractor employees be vaccinated. Id. EO
14042 directed the Federal Workforce Task Force to develop workplace COVID-19 safety
standards with which federal contractors governed by the EO would have to comply. Id. In turn,
the Task Force issued guidance on September 24, 2021, requiring the contractors to mandate that
their employees be fully vaccinated (meaning, two weeks after receiving the Johnson &
Johnson/Janssen vaccine or the second dose of the Pfizer or Moderna vaccine) by December 8,
2021, unless granted an exemption. New Guidance on COVID-19 Workplace Safety for Federal
Contractors, WHITE HOUSE https://www.whitehouse.gov/omb/briefing-room/2021/09/24/newguidance-on-covid-19-workplace-safety-for-federal-contractors/ (last visited Dec. 3, 2024).
On or about November 5, 2021, the Occupational Safety and Health Administration (“OSHA”)
issued an Emergency Temporary Standard (“ETS”) that would require employers of 100 or more
employees to perform periodic testing of unvaccinated employees. See COVID-19 Vaccination
and Testing; Emergency Temporary Standard, 86 FR 61402 (Nov. 5, 2021). That ETS was
ultimately withdrawn by OSHA in January 2022. See COVID-19 Vaccination and Testing;
Emergency Temporary Standard, 87 FR 3928-01 (Jan. 26, 2022).
Shortly before entry of EO 14042, Austal implemented a mandatory vaccination policy for
Austal’s leadership, which required those employees to be vaccinated by October 8, 2021. The
October 8, 2021, deadline was later extended to align with the federal mandate of EO 14042.
On October 1, 2021, Austal issued a communication to its workforce regarding the federal
mandate. In that communication, employees were informed that Austal was subject to the federal

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mandate and that all employees were required to receive and report receipt of the Johnson &
Johnson/Janssen vaccine or their first shot of the Pfizer or Moderna vaccine by October 27 and the
second doses of the Pfizer or Moderna vaccine by November 24. In that same communication,
Austal informed its employees that any employee who had a disability, who was pregnant, who
was a nursing mother, who had a qualifying medical condition contraindicating vaccination, or
who objected to being vaccinated on the basis of a sincerely-held religious belief/practice could
request an exemption from the vaccination.
Austal hosted onsite vaccination clinics on October 7, 8, 14, 15, 21, 22, 26, and 27 in an effort
to assist employees in obtaining the vaccination. On October 5, 2021, Austal provided employees
with specific instructions on how to request an exemption. The internal deadline set for the
submission of religious exemption requests was October 15, 2021.
Austal also required unvaccinated workers—but not vaccinated employees—to wear masks.
And Austal allowed only vaccinated employees to wear stickers indicating that they were
vaccinated.
E. Accommodation/Exemption Process for Religious Exemptions
Human Resources provided each employee requesting an exemption with a request form. The
form asked the employee to provide information about the religious belief precluding vaccination,
including whether a pastor or minister could be contacted. Austal did not question or analyze
whether an employee had a sincerely held religious belief. In other words, Austal assumed that the
stated belief was sincerely held and proceeded to the undue hardship analysis.
As part of the evaluation process, Human Resources met with each employee’s
management/supervisory team to discuss the employee’s job interactions with others (such as co-

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workers, managers, and customers). The information gathered was used to determine what, if any,
safety protocols the employee would have to follow if his/her request for exemption was granted.
F. Franklin’s Requests for Accommodation/Exemption
Franklin completed a religious exemption form. Franklin was not given any specific guidance
from a pastor or spiritual leaders suggesting that he should not take the COVID-19 vaccine.
Ultimately, Franklin was informed that his request for religious exemption was not granted.
Franklin does not recall discussing the vaccination mandate with anyone besides his wife, brother,
dad, and possibly his pastor. (Doc. 64-1 at 24, 26).
G. Austal’s Attempts to Accommodate
In total, Austal received almost 160 religious exemption requests. Human Resources
interviewed the management/supervisory teams of all employees but determined that no employee
worked in isolation and that each employee had regular interactions with other employees.
Lee sought health and regulatory guidance on how to preserve employee safety and health if
they were not vaccinated. Lee consulted with medical and health personnel both at the University
of South Alabama and the Mobile County Health Department. Through those discussions, and in
consideration of the anticipated OSHA ETS, Austal determined that unvaccinated employees
would be required to submit to bi-weekly onsite testing provided by Austal, as well as continued
masking and social distancing where possible.
In an effort to evaluate the feasibility of a bi-weekly onsite testing program, Austal assessed
the cost, mechanics, and logistics of how the program would work for the nearly 160 employees
requesting religious exemptions—while bearing in mind that Austal could not require employees
to pay for their own tests. Lee assembled a spreadsheet that took into account the cost of the test
itself, the fact that the employees would be on-the-clock for the approximate thirty minutes of

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testing, the costs of administrative labor in supervising and tracking testing, and the projected costs
of false positives that would mandate added testing utilizing a medical services vendor and
employee time off work. Lee and Austal took into account that administration of the testing
program

would

require,

among

other

things,

additional

reporting

to

check

the

shift/status/attendance of the unvaccinated employee, communications with the employee’s
supervisor, managing potential non-compliance with testing requirements, preparing tests and
testing sites, witnessing tests, and logging and tracking test results.
Based on the calculations, Austal was facing an approximate cost in excess of $1,000,000.00
per year to perform bi-weekly testing, aside from the administrative costs. In consideration of this
estimate, the potential administrative issues, and the obligation to protect the health of its
employees, Austal determined that a bi-weekly testing program would pose a significant undue
hardship on the company and that there was no other feasible method to accommodate those
seeking religious exemptions from the vaccine requirement. Austal looked at what it could
accommodate and granted some medical exemptions but denied all religious exemptions. Austal
did not meet with any of the employees requesting a religious exemption before denying their
requests.
H. Franklin’s Termination and Lawsuit
On or about October 22, 2021, a Human Resources representative spoke with employees who
requested religious exemptions and let them know that their request could not be approved. Each
employee was reminded that they had until October 27, 2021, to provide proof of vaccination.
On October 26, 2021, Austal communicated with all employees from whom it did not have
proof of vaccination. Austal asked those who had chosen to not get vaccinated to inform their
Human Resources representatives promptly so that plans could be made for separation of

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employment at the end of their shift on October 27, 2021. Austal offered administrative leave for
October 28–29, 2021, for employees who remained undecided about vaccination. These
employees were required to provide proof of vaccination by October 31, 2021. Austal would then
process terminations of any employees who did not verify proof of vaccination by November 1,
2021. No one told Franklin that he was being terminated because of religion.
Franklin’s operative complaint alleges (1) that Austal was negligent in the way it handled the
COVID-19 pandemic; and (2) that Austal invaded his privacy by inquiring about his vaccination
status. (Doc. 24). 2 Franklin’s operative complaint does not allege a Title VII reasonable
accommodation claim against Austal.
II.

Standard of Review

Summary judgment shall be granted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it “might affect the outcome” of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” a genuine dispute of material fact exists. Id.
The party moving for summary judgment “bears the initial burden of demonstrating the
absence of a genuine dispute of material fact.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d
1282, 1307 (11th Cir. 2011). The movant meets this burden by identifying affirmative evidence
(pleadings, depositions, answers to interrogatories, admissions on file, etc.) to support its claim
that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Fed. R. Civ. P. 56(c)(1)(A). If the nonmovant bears the burden of persuasion at trial, the movant
may also make a prima facie showing of summary judgment by demonstrating that the

2 The Court previously adopted the Report and Recommendation of the Magistrate Judge, (Doc.

51), which dismissed the remaining counts of the amended complaint. (Doc. 53).
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nonmovant’s evidence is insufficient to establish an essential element of its claim. Grange Mut.
Cas. Co. v. Slaughter, 958 F.3d 1050, 1057 (11th Cir. 2020); Fed. R. Civ. P. 56(c)(1)(B).
If the movant meets its burden under Rule 56(c), summary judgment will be granted unless the
nonmovant offers some competent evidence that could be presented at trial showing that there is a
genuine dispute of material fact. Celotex, 477 U.S. at 324. If the movant met its burden by pointing
“to specific portions of the record . . . to demonstrate that the nonmoving party cannot meet its
burden of proof at trial,” the nonmovant must “go beyond the pleadings” to designate specific facts
showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(e).
When assessing a summary judgment motion, the court’s function is not to make “credibility
determinations” and “weigh the evidence.” Anderson, 477 U.S. at 248. Instead, the court must
“view all of the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” FindWhat, 658 F.3d at 1307. Thus, summary judgment
is only proper when a movant shows that no reasonable jury could find for the nonmovant—even
when the evidence and inferences are drawn in the nonmovant’s favor.
III.

Analysis

Franklin alleges two causes of action against Austal: (1) negligent handling of the COVID-19
pandemic and (2) invasion of privacy. (Doc. 24). Austal moves for summary judgment as to all of
Franklin’s claims.
Franklin concedes that his negligence claim is “due to be dismissed.” (Doc. 74 at 9). Therefore,
summary judgment is granted in favor of Austal as to Franklin’s claims for negligence. The
remaining question is whether summary judgment is proper on the invasion of privacy claim.

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A. Invasion of Privacy
“Alabama has long recognized that a wrongful intrusion into one’s private activities constitutes
the tort of invasion of privacy.” Butler v. Town of Argo, 871 So. 2d 1, 12 (Ala. 2003). Invasion of
privacy consists of four distinct wrongs: (1) intrusion on seclusion; (2) public disclosure of private
information; (3) false light; and (4) appropriation for commercial use. Id. Franklin argues that he
has a claim for the second form: public disclosure of private information which violates ordinary
decency. (Doc. 74 at 5).3
Franklin contends that Austal publicly disclosed his private information regarding his
vaccination status in two ways. First, by requiring unvaccinated employees—but not vaccinated
employees—to wear masks. Second, by allowing only vaccinated employees to wear stickers.
Public disclosure of private information is an actionable tort when the matter publicized is of
a kind that: “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate
concern to the public.” Ex parte Birmingham News, Inc., 778 So. 2d 814, 818 (Ala. 2000) (quoting
Restatement (Second) of Torts § 652D (1977)). Austal argues that Franklin’s public disclosure
theory regarding his vaccination status fails on both elements.
First, Austal argues that the disclosure of Franklin’s vaccination status was not highly
offensive to a reasonable person because Franklin openly discussed his vaccination status to others,
including those at work. In support, Austal cites Hill v. Branch Banking & Tr. Co., 264 F. Supp.
3d 1247, 1267 (N.D. Ala. 2017) (granting summary judgment for employer on invasion of privacy
claim because plaintiff publicly discussed the information in question with her coworkers).
Second, Austal argues that the COVID-19 pandemic and the vaccine were matters of public
concern.

Franklin concedes that he does not have a viable claim under the first, third, and fourth forms.
(Doc. 74 at 5).
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In response, Franklin provides four reasons why he believes Austal invaded on his privacy.
First, his invasion of privacy is specific to him. Second, Austal did not provide specifics as to the
timing of Franklin’s alleged disclosures. Third, it is not clear whether Franklin discussed his
vaccination status with only those already aware of it or with those who had prior knowledge.
Fourth, there was not a legitimate health interest in disclosing Franklin’s vaccination status.
Franklin also cites Horne v. Patton: “When a patient seeks out a doctor and retains him, he
must admit him to the most private part of the material domain of man. Nothing material is more
important or more intimate to man than the health of his mind and body.” 287 So. 2d 824, 830
(Ala. 1973) (quoting Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793, 801 (N.D.
Ohio 1965)). Franklin’s reliance on this quote, however, is misguided. Horne, and the case Horne
quoted, involved a doctor revealing information that the plaintiff provided to the doctor during
treatment. See Horne, 287 So. 2d at 825; Hammonds, 243 F. Supp. at 795. Here, Austal does not
have the same doctor–patient relationship with Franklin. Moreover, the Horne court explained that
“[i]f the defendant doctor in the instant case had a legitimate reason for making this disclosure
under the particular facts of this case, then this is a matter of defense.” Horne, 287 So. 2d at 831.
Franklin is correct that there are material issues of fact concerning whether he openly discussed
his vaccination status with coworkers. The evidence does not definitively show that Franklin
“publicly discussed” his vaccination status with his coworkers. (Doc. 64-1 at 24, 26).; cf. Hill v.
Branch Banking & Tr. Co., 264 F. Supp. 3d 1247, 1267 (N.D. Ala. 2017) (plaintiff publicly
discussed the topics of the invasion of privacy claim). Therefore, the issue is whether Austal had
a legitimate reason for disclosing Franklin’s vaccination status under the facts of the case.
The Second Restatement of Torts provides: “When the subject-matter of the publicity is of
legitimate public concern, there is no invasion of privacy.” Restatement (Second) of Torts § 652D

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(1977). For example, in Middlebrooks v. State Board of Health, an Alabama law required the
disclosure of information regarding HIV and AIDS patients, including names and addresses of
persons infected. Middlebrooks v. State Bd. of Health, 710 So. 2d 891, 891 (Ala. 1998). The
Alabama Supreme Court explained that the disclosure of this information was not an invasion of
privacy because “the prevention of the spread of HIV and AIDS is a legitimate governmental
interest.” Id. at 892–93.4
Franklin argues that Austal did not have a legitimate interest in knowing his vaccination status
for two reasons. First, “the vaccine does not prevent an individual from getting COVID, nor does
it prevent an individual from spreading COVID.” (Doc. 74 at 8). Franklin quotes a CDC article
which states that “[v]accines are not always effective at preventing infection . . . .” and clarifies
that the “purpose of the vaccine” is to provided sustained protection against disease and death. 5
Things You Should Know about COVID-19 Vaccines, CDC (Oct. 13, 2023, 2:00 PM),
https://www.cdc.gov/ncird/whats-new/5-things-you-should-know.html (last visited Dec. 4, 2024).
Second, Austal’s mask policy of only requiring the unvaccinated to wear masks is contrary to
OSHA guidance. Franklin quotes a Frequently Asked Questions (“FAQs”) webpage from OSHA

The Alabama Supreme Court relied on the Westinghouse factors from a Third Circuit case to
determine that the disclosure was justified. Middlebrooks, 710 So. 2d at 891. In Westinghouse,
the court explained:
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The factors which should be considered in deciding whether an intrusion into an
individual’s privacy is justified are the type of record requested, the information it
does or might contain, the potential for harm in any subsequent nonconsensual
disclosure, the injury from disclosure to the relationship in which the record was
generated, the adequacy of safeguards to prevent unauthorized disclosure, the
degree of need for access, and whether there is an express statutory mandate,
articulated public policy, or other recognizable public interest militating toward
access.
United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir.1980).

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which states: “In areas with substantial or high transmission, employers should provide face
coverings for all workers, as appropriate, regardless of vaccination status.” Frequently Asked
Questions, OSHA https://www.osha.gov/coronavirus/faqs (last visited Dec. 5, 2024). For the same
reasons, Franklin argues that Austal had no legitimate interest in knowing who was required to
wear a mask through its sticker policy.
Franklin’s arguments concerning Austal’s interest in its mask and sticker policy are not
persuasive. To start, the CDC article upon which Franklin relies was published in October 2023,
and there is no date associated with the OSHA FAQ webpage. Therefore, these sources do not
prove that Austal lacked a legitimate interest in its mask and sticker policy at the time in question.
More importantly, the sources do not support Franklin’s argument. For example, the OSHA FAQs
guide employers to “provide” masks for all workers, “regardless of vaccination status.” Frequently
Asked Questions, supra. They also note that employers “can suggest or require” that (1)
unvaccinated individuals wear masks in public workplaces and that (2) all individuals wear masks
in public, indoor settings of high transmission. Id. But it does not support Franklin’s argument that
employers lack a legitimate interest in requiring unvaccinated workers to wear masks.
Furthermore, the latter half of the CDC article quoted by Franklin explains that “there is extensive
data showing that these vaccines prevent severe illness and protect the public’s health.” 5 Things
You Should Know about COVID-19 Vaccines, supra.
To determine whether Austal’s mask and sticker policy was of legitimate public concern, the
Court must balance the competing interests of Austal and Franklin. Austal had an interest in
maintaining the health and safety of its workforce. Austal’s actions were based on the obvious
risks of COVID-19, objective data, and federal mandates regarding vaccinations. On the other
hand, Franklin desired to remain unvaccinated and to keep his vaccination status private. At the

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time, the prevention and spread of COVID-19 was, as a matter of law, a matter of public concern.
Austal relied on objective data to determine that vaccinations and masking would protect its
interests, and the interests of its employees. The potential harm to Franklin—the fact that other
employees could infer that Franklin was unvaccinated—does not outweigh the public interest in
requiring unvaccinated workers to wear masks. Therefore, summary judgment is granted in favor
of Austal as to the invasion of privacy claim.
IV.

Conclusion

Franklin alleges two causes of action against Austal: (1) negligent handling of the COVID-19
pandemic and (2) invasion of privacy. Franklin concedes that his negligence claim is due to be
dismissed. Moreover, no reasonable jury could find in favor of Franklin on his invasion of privacy
claim. Therefore, summary judgment is granted in favor of Austal as to all of Franklin’s claims.
DONE and ORDERED this 3rd day of January 2025.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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