BOSCO v. Lincare Holdings Inc. et al

Filing 65

ORDER granting in part and denying in part 40 Motion for Summary Judgment. Accordingly, the Court will set this case for a jury trial as to Plaintiff's Title VII retaliation claim for the June 2014 Trial Term by separate Order.Ordered by U.S. District Judge W LOUIS SANDS on 3/27/14 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
HOPE BOSCO,

:
:
Plaintiff,
:
:
v.
:
:
LINCARE INC., et al.
:
:
Defendant.
:
____________________________________:

CASE NO.: 1:12-CV-059 (WLS)

ORDER
Presently pending before the Court is Defendants Lincare and Josh Sale’s Motion
for Summary Judgment (Doc. 40). For the following reasons, Defendants Lincare and
Josh Sale’s Motion for Summary Judgment (Doc. 40) is GRANTED IN PART AND
DENIED IN PART.
I.

RELEVANT PROCEDURAL AND FACTUAL BACKGROUND1
Plaintiff Hope Bosco filed a Complaint in the above-captioned matter on April

17, 2012. (Doc. 1.) Plaintiff’s Complaint alleges claims for unlawful sex discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended at 42
U.S.C. § 2000e, et seq., and negligent supervision against Lincare, and intentional
The following facts are derived from the Complaint (Doc. 1); Defendants’ Answer (Doc. 9); Defendants’
Statement of Undisputed Facts (Doc. 40-1) and Plaintiff’s Responsive Statement of Facts (Doc. 48);
Plaintiff’s Statement of Genuine Issues of Material Fact That Remain in Dispute (Doc. 49) and Defendants’
Response to Plaintiff’s Statement of Genuine Issues of Material Fact that Remain in Dispute (Doc. 55), all
of which were submitted pursuant to Local Rule 56; and the record in this case. Where relevant, the
factual summary also contains undisputed and disputed facts derived from the pleadings, the discovery
and disclosure materials on file, and any affidavits, all of which are construed in a light most favorable to
Plaintiff as the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56.

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infliction of emotional distress and anguish against Lincare, Inc. and Lincare employee,
Josh Sale.2 Per Plaintiff, on the night of November 11, 2009, Sale, her supervisor,
grabbed her rear and attempted to kiss her, only to be rebuffed by Plaintiff. (Id. ¶ 14.)
Sale also allegedly sent a text message to Plaintiff later that same night, at
approximately 2:24A.M., asking if Plaintiff would come to his hotel room. (Id.) Plaintiff
alleges that her rejection of Sale caused Sale to “beg[i]n a series of acts in an attempt to
punish Plaintiff and in an attempt to undermine Plaintiff’s authority over her
subordinates.” (Id. ¶ 15.) Plaintiff alleges that she reported Sale’s actions to Paula
Adams in Lincare’s Human Resources Department on or about January 15, 2010, and
was told the incident would be investigated. (Id. ¶ 16.) Plaintiff states that she provided
Ms. Adams with copies of her phone records documenting the text from Sale. (Id. ¶ 17.)
Per Plaintiff, despite her complaint, no action was taken by Lincare towards Sale, and
the retaliatory conduct towards Plaintiff subsequently increased. (Id.) On May 5, 2010,
after returning from work from medical leave, Plaintiff was placed on an action plan
that required her to meet certain goals within 60 days. (Id. ¶ 21.) Plaintiff says her
placement on this action plan was done out of retaliation. (Id. ¶¶ 23-24.) When Plaintiff
failed to meet the 60-day goals, she was terminated on July 1, 2010. (Id. ¶ 25.) Plaintiff
filed a Charge of Discrimination with the Equal Employment Opportunity Commission
(“EEOC”), and received her Right to Sue letter on January 18, 2012. (Doc. 1-1.)

Lincare is the only proper defendant to Plaintiff’s Title VII claims as “a Title VII claim may be brought
against only the employer and not against an individual employee.” Dearth v. Collins, 441 F.3d 931, 933
(11th Cir. 2006).

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On June 20, 2013, Defendants moved for summary judgment as to Plaintiff’s
Complaint. (Doc. 26.) According to Lincare, Plaintiff’s tangible employment action
sexual harassment claim fails because there was no temporal proximity between the
alleged harassment and termination; Plaintiff’s termination was based on grounds
independent of the alleged harassment; the alleged harasser was not the ultimate
decision maker; and Plaintiff has alleged that nepotism was the motivating reason for
her termination. As to Plaintiff’s retaliation claim, Lincare states it is entitled to
judgment as a matter of law because she cannot establish a causal connection between
her complaint about Josh Sale’s advances and her eventual termination. Additionally,
Lincare states that it had legitimate, non-retaliatory reasons for termination and Plaintiff
cannot show that said reasons were pretextual. As to Plaintiff’s negligent supervision
claim, Lincare asserts that Plaintiff has failed to demonstrate that Lincare knew or
should have known that Sale had a propensity to engage in sexual harassment. Finally,
as to Plaintiff’s mental anguish claim, inter alia, Lincare and Sale contend that the
termination of an employee does not constitute extreme and outrageous conduct under
Georgia law.
Plaintiff responded in opposition to Defendants’ Motion for Summary Judgment
on July 19, 2013. (Doc. 47.) In her opposition, Plaintiff abandoned her tangible
employment action sexual harassment claim, arguing only that summary judgment
should be denied as to her retaliation, negligent supervision, and intentional infliction
of emotional distress claims. (Id. at 4 n.1.) Plaintiff states that both her action plan and
termination constitute adverse employment action. Per Plaintiff, there is a causal

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connection between the report of harassment and the adverse employment. Plaintiff
notes that all of the relevant actors had knowledge of Plaintiff’s complaint against Sale
and her allegation of retaliation. She also notes that there is direct evidence, or at the
very least, strong circumstantial evidence of Sale’s intent to retaliate against her after
learning of her complaint. In February 2010, Sale allegedly told Keith Adams, the
former Center Manager for Lincare Moultrie Center, that Plaintiff had filed a sexual
harassment charge against him. (Doc. 47-1 ¶ 8.) Sale then proceeded to tell Adams “that
he hated that f*cking bitch [Plaintiff] and that he was going to place her on an action
plan when she returned to work from her leave.” (Id. ¶ 9.)
As for Sale’s participation in the decision to terminate her, Plaintiff contends that
when the harasser takes part in the decision-making process, there is a presumption
that but for the harasser’s recrimination, the termination would not have taken place to
begin with. Plaintiff further argues that Lincare’s legitimate, nonretaliatory reasons for
her termination and placement on the action plan are in fact pretextual. As to her
negligent supervision claim, Plaintiff states that Lincare was placed on notice that Sale
was retaliating against her but failed to take appropriate action to prevent future
retaliatory acts. Finally, regarding her intentional infliction of emotional distress claim,
Plaintiff states that a reasonable person (i.e., a jury) could find Sale’s retaliatory
behavior towards her to be extreme and outrageous, thereby resulting in severe
emotional distress. Plaintiff also states that Sale’s extreme and outrageous conduct
resulted in a spike in her blood pressure that caused her to take three months of medical

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leave. Therefore, Plaintiff states that Defendants’ Motion for Summary Judgment
should be denied.
On August 2, 2013, Defendants submitted their Reply in Support of Motion for
Summary Judgment. (Doc. 54.) Lincare first contends that Sale’s alleged remark is not
direct evidence of “retaliation” because it is subject to multiple interpretations and was
unrelated to any adverse action. Lincare also asserts that Plaintiff’s claim fails because
the final decision makers did not have any retaliatory animus. Defendants also
reiterated their arguments in defeat of Plaintiff’s negligent supervision and intentional
infliction of emotional distress claims.
The briefing for Defendants’ Motion for Summary Judgment has now concluded,
and the Court finds that Defendants’ Motion for Summary Judgment is ripe for review.
II.

Summary Judgment Standard
Pursuant to Fed. R. Civ. P. 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). An issue is “genuine” if the quantum and quality of proof
necessary to support liability under the claim is raised. Allen v. Tyson Foods, 121 F.3d
642, 646 (11th Cir. 1997). A fact is “material” if it hinges on the substantive law at issue
and it might affect the outcome of the nonmoving party’s claim. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986); see also Allen, 121 F.3d at 646. A judgment is appropriate
“as a matter of law” when the nonmoving party has failed to meet its burden of

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persuading the Court on an essential element of the claim. See Cleveland v. Policy
Management Sys. Corp., 526 U.S. 795, 804 (1999); Celotex, 477 U.S. at 323.
The movant bears the initial burden of showing that there is no genuine issue of
material fact. See Celotex, 477 U.S. at 323. The movant can meet this burden by
presenting evidence showing there is no dispute of material fact or by showing or
pointing out to the district court that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate burden of
proof. See id. at 322-24. Once the movant has met its burden, the nonmoving party is
required “to go beyond the pleadings” and identify “specific facts showing that there is
a genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party
must do more than summarily deny the allegations or ‘show that there is some
metaphysical doubt as to the material facts.” Matsuhita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
On a motion for summary judgment, the Court must view all the evidence and
all factual inferences drawn therefrom in the light most favorable to the nonmoving
party and determine whether that evidence could reasonably sustain a jury verdict. See
Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. The Court must, however, grant
summary judgment if there is no genuine issue of material fact and the movant is
entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c).
Having established the applicable summary judgment standards, the Court will
proceed with its analysis.

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III.

DISCUSSION
A.

Title VII Retaliation Claim

Under Title VII, it is unlawful for an employer to retaliate against an employee
“because he has opposed any practice made an unlawful employment practice . . . or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [42 U.S.C. § 2000e-3(a)].” Little v. United
Technologies, Carrier Transicold Div., 103 F.3d 956, 956 (11th Cir. 1997) (citing 42 U.S.C. §
2000e-3(a)). To establish a prima facie case of retaliation under Title VII, a plaintiff must
show that: 1) she engaged in statutorily protected activity; 2) suffered an adverse
employment action; and 3) the adverse action was causally related to plaintiff’s
protected activities. Id. at 959. Once “a plaintiff establishes a prima facie case, the
employer then has an opportunity to articulate a legitimate, non-retaliatory reason for
the challenged employment action. If the employer accomplishes this, the plaintiff bears
the ultimate burden of proving by a preponderance of the evidence that the reason
provided by the employer is a pretext for prohibited, retaliatory conduct.” See Jiles v.
United Parcel Serv., Inc., 360 F. App’x. 62, 66 (11th Cir. 2010) (internal citations omitted).
Plaintiff first contends that the action plan Lincare placed her on constitutes
adverse employment action. (Doc. 47 at 10.) Citing Burlington Northern & Sante Fe
Railway Co. v. White, 548 U.S. 53, 67 (2006), Plaintiff asserts that the question of whether
her placement on the action plan constitutes adverse employment action is one for a
jury to decide, with the jury assessing whether a reasonable person in plaintiff’s
position would have felt dissuaded from making or supporting a charge of

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discrimination. (Doc. 47 at 11.) Under these standards, Plaintiff contends that a jury
could find that the action plan was adverse employment action. Plaintiff points out that
focus center goals are typically annual goals. (Id. at 11) (citing Paula Adams’ deposition,
Doc. 40-13 at 19, 27:14-16.) Plaintiff states that, in her case, however, she was placed on
an abbreviated action plan that required her to meet the action goals in sixty days,
rather than in twelve months. (Id.) Plaintiff also notes that Adams testified that a
manager is not always fired for not meeting the established goals. (Doc. 47 at 11) (citing
Adams’ deposition, Doc. 40-13 at 19, 27:10-13.)
In opposition, Lincare asserts that Plaintiff’s placement on the action plan on
May 5, 2010, did not constitute adverse employment action. In support of this position
Lincare cites Hall v. Siemens VDO Automotive, 481 F. App’x 499 (11th Cir. 2012). (Doc. 402 at 10 n.2.) In Hall, the Eleventh Circuit stated that the placement of plaintiff on a
Performance Improvement Plan (“PIP”), inter alia, was not sufficient “adverse
employment action.” Hall, 481 F. App’x at 505. Plaintiff acknowledges Hall, but asserts
that Hall is not dispositive to the issue of whether her placement on the action plan
constitutes sufficient adverse employment action because Hall gives no indication as to
the type of performance plan used, the basis for its imposition, or whether or not the
performance goals actually changed the terms of employment for the plaintiff in Hall.
The Court agrees with Plaintiff in that Hall does not stand for the proposition
that an action plan or some other form of performance plan can never constitute
adverse employment action. The relevant inquiry under Burlington is whether “a
reasonable employee would have found the challenged action materially adverse,

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which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (additional
quotations and citations omitted). By making the standard one of “reasonableness,” the
Supreme Court set out to ensure that challenged action is one that is considered against
all circumstances without regard for formulaic classifications of employment actions. Id.
at 69 (“We phrase the standard in general terms because the significance of any given
act of retaliation will often depend upon the particular circumstances.”) As noted by the
Supreme Court, when assessing what qualifies as adverse employment action,
“[c]ontext matters. The real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and relationships which are
not fully captured by a simple recitation of the words used or the physical acts
performed.” Id. Thus, the Court must assess whether the instant action plan could
constitute adverse employment action, considering all the relevant circumstances. Here,
after reviewing the evidence, the Court finds that it cannot conclude that, as a matter of
law, the action plan applied to Plaintiff could not have been an adverse employment
action.
When Plaintiff returned from medical leave on May 5, 2010, she was placed on a
60-day action plan, though focus center goals are typically annual goals. Defendant
does not deny that focus center goals are typically annual, but contends that Plaintiff
was not prejudiced by the 60-day schedule because her goals were reduced
proportionately to 60 days. (Doc. 54 at 13 n.4.) Defendant did not state, however, how it
was determined that Plaintiff would only have 60 days, following a three-month

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absence, to meet performance goals that if not met, could result in termination. Though
Defendant states that other employees have been placed on 60- and 30-day action plans,
Defendant did not articulate on what basis action-plan timetable decisions are made. In
fact, the affidavit submitted by Adams reflects that she stated: “[d]ue to [Plaintiff’s]
workers’ compensation claim and complaint of harassment, I stated my opinion that we
should give Bosco the full term of the probationary plan to demonstrate improvement
and meet the requirements of the job.” (Doc. 40-16 ¶ 47.) In the Court’s view, this
statement shows that even Lincare’s Human Resource Manager was concerned about
the implications of an abbreviated action-plan period.3 Furthermore, the record does not
indicate why Sale and Drake went against Adams’ recommendation that Plaintiff be
given the full probationary term. A jury could very well find that while 60-day goals
might be otherwise reasonable under other circumstances, the instant 60-day goals were
implemented to be unattainable as applied to an employee who was absent for three
months preceding the establishment of said goals. Therefore, for the purpose of
summary judgment, the Court finds that Plaintiff has presented enough facts to create a
genuine issue of material fact as to whether her action plan was an adverse employment
action.4

Even if the Court’s interpretation of Ms. Adams’ statement is incorrect—that Ms. Adams did not intend
to imply that she thought Plaintiff should be given a 12-month probationary period when she stated that
Plaintiff should be given the “full term of the probationary plan”—this does not change the Court’s view
that there are genuine issues of material fact as to whether the 60-day action plan, as applied to Plaintiff,
was an adverse employment action. As the Court notes later in the paragraph, putting a newly returned
employee on a 60-day action plan, under the circumstances, is sufficient to raise some concerns.
4 As the Eleventh Circuit notes, “Burlington also strongly suggests that it is for a jury to decide whether
anything more than the most petty and trivial actions against an employee should be considered
“materially adverse” to him and thus constitute adverse employment actions.” Crawford v. Carroll, 529
F.3d 961, 974 (11th Cir. 2008) (citing Burlington, 548 U.S. at 71).
3

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The Court also finds that Plaintiff has shown evidence of a causal connection
between her report of sexual harassment and her placement on an action plan that
precipitated her termination. In order to satisfy the causal-link element, “a plaintiff
merely has to prove that the protected activity and the . . . [adverse] action are not
completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (citations
omitted). “A plaintiff satisfies this element if [s]he provides sufficient evidence of
knowledge of the protected expression and that there was a close temporal proximity
between this awareness and the adverse . . . action.” Id. (internal quotations and
citations omitted). “A ‘close temporal proximity’ between the protected expression and
an adverse action is sufficient circumstantial evidence of a causal connection for
purposes of a prima facie case.” Id. (citation omitted). The Supreme Court has made
clear that for “mere temporal proximity” to be sufficient it “must be ‘very close.’” Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation omitted).
Plaintiff reported Sale’s alleged harassing conduct to Adams during a phone call
on January 18, 2010. (Doc. 40-1 ¶ 59.) Plaintiff went out on medical leave on February 1,
2010. (Id. ¶ 89.) On the first day of her return from medical leave, May 5, 2010, Plaintiff
was placed on the 60-day action plan that the Court has concluded that a reasonable
person could find is materially adverse. Lincare attempts to argue that the three-month
lapse between the January 18, 2010 complaint and the May 5, 2010 implementation of
the action plan is not sufficiently close to create a jury issue on causation. (Doc. 40-2 at
17.) This argument is slightly disingenuous in that it is obvious that Plaintiff could not
have been placed on an action plan while she was out on FMLA leave. Plaintiff was

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placed on the action plan at the first available opportunity—her first day back to work.
Further, it is unreasonable and illogical to conclude that any absence from the
workplace by Plaintiff of any nature or duration would serve to sever the connection
between the complained of harassment, no matter how severe or explicit, from a later
adverse action taken at the earliest opportunity. Therefore, the three-month lapse here
is not of the type that would necessarily destroy the causal link.
Lincare also contends that Plaintiff’s performance problems predating the
alleged sexual harassment severed the causal connection, if any. (Doc. 40-2 at 17-18.) In
support of this argument, Defendant relies on Gaston v. Home Depot USA, Inc., 129 F.
Supp. 2d 1355, 1376-77 (S.D. Fla. 2001), for the proposition that performance problems
occurring before the protected activity can sever the connection. The Court finds
Lincare’s reliance on Gaston to be unpersuasive to destroy Plaintiff’s prima facie case.
First, as noted above, in the Eleventh Circuit, a close temporal proximity alone is
sufficient circumstantial evidence to establish a causal connection for purposes of a
prima facie case. Higdon, 393 F.3d at 1220. As the Court noted above, if Plaintiff’s threemonth medical leave (February 1, 2010-May 5, 2010) is excluded from consideration,
there is only a short lapse of time between Plaintiff’s January 18, 2010 complaint of
harassment and the May 5, 2010 action plan implementation. Therefore, Plaintiff can
rely on this close temporal proximity alone. Additionally, while Lincare contends there
were pre-existing performance issues, Lincare has failed to present evidence that an
action plan to remedy these performance problems was contemplated prior to Plaintiff’s
allegation of sexual harassment or before Sale told Keith Adams that “he hated

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[Plaintiff] and that he was going to place her on an action plan when she returned to
work from her leave.”5 (Doc. 47-1 ¶ 9.) As such, any performance problems predating
Plaintiff’s report of sexual harassment do not sufficiently destroy the inference of
causation, that which is also supported by evidence in addition to the close temporal
proximity.6 Accordingly, Plaintiff has shown adequate evidence of causation.
As to the last phases of the Court’s analysis—whether Defendant has established
a legitimate, nonretaliatory reason for the adverse employment action and whether
Plaintiff has shown that the reasons are a pretext for retaliation—the Court finds that
Plaintiff has also met her burden of showing that there are genuine issues of disputed
material fact. As its legitimate, nonretaliatory reason, Defendant states that Plaintiff was
placed on the action plan, and subsequently terminated, for performance reasons. While
Plaintiff points to a number of facts to “cast sufficient doubt” on the “performance
concerns” Defendant references, the Court finds one statement referenced by Plaintiff to
be, by itself, sufficient to allow Plaintiff’s retaliation claim to get to a jury—Sale’s
statement to Keith Adams that “he hated [Plaintiff] and that he was going to place her
Had Lincare presented evidence that it contemplated the action plan prior to Plaintiff’s complaint of
sexual harassment, the adverse act would have been contemplated prior to the protected activity, even if
not implemented. Keen v. Regional Emergency Med. Servs. of GA, Inc., 913 F. Supp. 2d 1374, 1380 n.6 (M.D.
Ga. 2012) (“The one exception to the rule that temporal proximity alone can raise an inference of
causation is when there is unrebutted evidence that the decision maker did not know that the employee
engaged in protected conduct.”) (citing Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1355-56 (11th Cir.
1999))); see also Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999) (“At a minimum, Griffin must
show that the adverse act followed the protected conduct.”)
6 It is also important to note that Gaston cites to Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.
1999), for the proposition that complaints about the plaintiff received before and after the protected
conduct can sever the causal connection. As the district court in Gross-Jones v. Mercy Med., 874 F. Supp. 2d
1319, 1345-46 (S.D. Ala. 2012) (citing Kiel, 169 F.3d at 1136), pointed out, “in the Eighth Circuit, however,
unlike the Eleventh Circuit, ’[g]enerally, more than a temporal connection between the protected conduct
and the adverse employment action is required to present a genuine factual issue on retaliation.’” Thus,
because in the Eleventh Circuit close temporal proximity alone can be sufficient, reliance on a case citing
to Kiel does not trump the temporal-proximity factor.
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on an action plan when she returned to work from her leave.” (Doc. 47-1 ¶ 9.) Plaintiff
contends that this statement provides at the very least, strong circumstantial evidence,
of Sale’s intent to retaliate against her after learning of her complaint. Defendant
contends that this “alleged remark only suggests retaliation” since Sale did not
specifically say that he was going to “put [Plaintiff] on an action plan because she
complained about him.” (Doc. 54 at 6) (emphasis in the original). Per Defendant, this
statement can support retaliation or it can support a conclusion that Sale wanted to put
Plaintiff on an action plan because the Albany center was not doing well. Although the
dueling interpretations surrounding this statement may not be direct evidence of
discrimination, as Defendant notes, they are sufficient to cast doubt on the legitimacy of
Lincare’s reasons for placing Plaintiff on the action plan. As conceded by Lincare, Sale’s
statement could support an inference that Plaintiff’s placement on the action plan was
done out of retaliation. Therefore, Plaintiff has met her burden of showing that there is
sufficient evidence to create a jury question as to whether Lincare’s reasons for placing
her on the action plan—the action plan that led to her eventual termination—are
pretextual. Accordingly, the Court cannot find that Plaintiff’s Title VII retaliation claim
fails as a matter of law.
B.

Intentional Infliction of Emotional Distress

Under Georgia law, to prevail on a claim for intentional infliction of emotional
distress, a plaintiff must demonstrate the conduct in question: (1) was intentional or
reckless, (2) was extreme and outrageous, (3) caused the emotional distress, and (4) the
emotional distress was severe. Ashman v. Marshall’s of MA, Inc., 535 S.E.2d 265, 267 (Ga.

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App. 2000). Where the claim involves “[t]he existence of a special relationship between
the actor and victim, such as that of employer to employee, may make otherwise nonegregious conduct outrageous.” Trimble v. Circuit City Stores, Inc., 469 S.E.2d 776, 778
(Ga. App. 1996).
Defendant argues that Plaintiff’s emotional distress claim fails because she
cannot satisfy the second and fourth elements of her claim. Per Defendant, under
Georgia law, termination of an employee is generally not considered extreme and
outrageous conduct. (Doc. 40-2 at 24) (“The termination of an employee generally is not
extreme and outrageous conduct, no matter how stressful the termination is for the
employee.”) (citing Scott v. Rite Aid of Ga., Inc., 918 F. Supp. 2d 1292, 1305 (M.D. Ga.
2013))). As to the fourth element, Defendant contends that Plaintiff has failed to present
any evidence of a “severe” injury resulting from the alleged emotional distress.
In support of her claims, Plaintiff contends that the retaliatory “campaign” Sale
initiated against her constitutes extreme and outrageous conduct and that, in addition
to being outrageous, Sale’s and Lincare’s actions caused physical and pecuniary injures.
(Doc. 47 at 19.) The problem with this contention is two-fold. First, “[a] claim for
emotional distress damages caused by negligence must be supported by evidence that
the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting
from an injury to the person.” Phillips v. Mt. Zion-Morrow, LLC, 699 S.E.2d 58, 60 (Ga.
App. 2010). The physical injury of which Plaintiff complains is a spike in her blood
pressure. (Doc. 47 at 19.) There are, however, no medical records to corroborate
Plaintiff’s statement that her blood pressure was 170/100, other than Plaintiff’s own

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statement in her deposition. The pecuniary loss Plaintiff cites is the fact that she was
“forced to take approximately three months of medical leave before being cleared to
return to work.” (Id. at 19-20.) Under Georgia law, for the pecuniary loss exception to
the impact rule to apply to a plaintiff bringing a claim for negligence, the pecuniary loss
must result “from an injury to the person which is not physical.” Phillips, 699 S.E.2d at
61. Plaintiff’s medical leave, even if a pecuniary loss, was incurred because of the
alleged emotional distress. In this circumstance, Plaintiff’s alleged pecuniary loss does
not form the basis for the negligence claim because “it is itself a form of emotional
distress damage as opposed to pecuniary loss occurring ‘as [the] result of a tort
involving an injury to the person even though this injury may not be physical [such as
an injury to reputation].’” Owens v. Gateway Mngmt. Co., 490 S.E.2d 501, 502 (Ga. App.
1997). Therefore, Plaintiff has failed to present sufficient evidence of a physical
injury/pecuniary loss.
Even if Plaintiff’s three-month medical leave to recover from an arterial injury
and spike in her blood pressure allegedly observed during a doctor’s visit for neck pain
on January 29, 2010, were sufficient for the severity prong, Plaintiff has failed to submit
any evidence to support her allegation that Sale engaged in a retaliatory campaign
comprised of extreme and outrageous conduct that predated her “injuries.” In her
opposition brief, Plaintiff does state that she sent an email to Adams on January 28,
2010, the day before she went out on medical leave, “expressing her concern that Sale
was making her job harder since she filed the harassment complaint against him.” (Doc.
47 at 6.) The email that Plaintiff references, however, makes no mention of Sale

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engaging in any conduct directed towards Plaintiff. The email opens with “I’m not sure
why Robin Dennis is giving me such a hard time” and discusses other employees’
conduct, not Josh Sale’s. (Doc. 40-20 at 2.) While Plaintiff did say “I feel like since I made
the complaint on Josh it has been so difficult to do my job,” she did not assert that Sale
was responsible for the alleged difficulties. (Id.) Therefore, Plaintiff has failed to submit
any evidence to show “extreme and outrageous” conduct predating her medical leave.
Accordingly, Defendants are entitled to summary judgment as to Plaintiff’s intentional
infliction of emotional distress claim.
C.

Negligent Supervision

Because Plaintiff’s intentional infliction of emotional distress claim fails, Lincare
is also entitled to summary judgment as to Plaintiff’s negligent supervision claim.
Under Georgia law, “an employer may be held liable [for negligent supervision] only
where there is sufficient evidence to establish that the employer reasonably knew or
should have known of an employee's tendencies to engage in certain behavior relevant
to the injuries allegedly incurred by the plaintiff.” Leo v. Waffle House, Inc., 681 S.E.2d
258, 262 (Ga. App. 2009) (citation omitted). Importantly, however, a claim for negligent
supervision is a derivative of an underlying tort claim. See Canty v. Fry’s Elecs., Inc., 736
F. Supp. 2d 1352, 1379 (N.D. Ga. 2010) (citing Ekokotu v. Boyle, 294 F. App’x 523, 527
(11th Cir.2008) and Phinazee v. Interstate Nationalease, Inc., 514 S.E.2d 843, 846 (Ga. App.
1999)). Georgia law provides no distinct tort for harassment, retaliation or
discrimination. Id. at 1379-80 (citations omitted). “Georgia Courts have merely
recognized discriminatory, retaliatory or harassing conduct may form the basis of an

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intentional infliction of emotional distress claim.” Id. at 1380 (citing Trimble v. Circuit
City Stores, Inc., 469 S.E.2d 776, 778 (Ga. App. 1996) and Yarbray v. Southern Bell Tel. &
Tel. Co., 409 S.E.2d 835, 838 (Ga. 1991)). Here, because Plaintiff’s underlying tort claim—
intentional infliction of emotional distress—fails, her negligent supervision claim fails
as well. See, e.g., Robinson v. Intercorp, 512 F. Supp. 2d 1307, 1316 (N.D. Ga. 2007);
Hajhossein v. Mayor & City Council of Statesboro, GA, No. 6:09-cv-48, 2010 WL 2179147, at
*3 (S.D. Ga. May 28, 2010). As such, Lincare is entitled to judgment as a matter of law as
to Plaintiff’s negligent supervision claim.
CONCLUSION
For the foregoing reasons, Defendants Lincare and Josh Sale’s Motion for
Summary Judgment (Doc. 40) is GRANTED IN PART AND DENIED IN PART.
Lincare’s Motion for Summary Judgment as to Plaintiff’s Title VII retaliation claim is
DENIED. Lincare and Josh Sale’s Motion for Summary Judgment is GRANTED as to
Plaintiff’s state-law claims for negligent supervision and intentional infliction of
emotional distress.
Accordingly, the Court will set this case for jury trial as to Plaintiff’s Title VII
retaliation claim for the June 2014 Trial Term by separate Order.
SO ORDERED, this 27th day of March 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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