Ammons v. Brantley County Board of Commissioners et al
Filing
21
ORDER denying 15 Defendants' Motion to Dismiss 15 Plaintiff's Amended Complaint. Signed by Chief Judge Lisa G. Wood on 2/6/2017. (csr)
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BRITTANY AMMONS,
Plaintiff,
V.
BRANTLEY
COUNTY
COMMISSIONERS
MURRELL,
5:16-CV-78
BOARD OF
and LINDA
in her individual and
official capacities as Director
of the Brantley County 911
Center;
Defendants.
ORDER
Giving
reason
a
other
action.
than
Thus,
Commissioners
Brittany
{''FMLA")
negative
reference,
retaliation,
Defendants
can
('"Ammons")
be
no
an
motion
Family
details
and
no
adverse
employment
County
Brantley
and Linda Murrell's
Ammons
with
Board
to
and
dismiss
Medical
of
Plaintiff
Leave
Act
claim will be DENIED.
BACKGROUND
For
the
purpose
of
considering
this
motion,
the
Court
assumes the truth of the facts alleged in Plaintiff Brittany
Ammons'
also
considers
earlier
A0 72A
(Rev. 8/82)
{''Ammons")
case,
complaint.
facts
because
alleged
she
Fed.
in
attached
R.
Civ.
Ammons'
it,
P.
12(b)(6).
complaint
refers
to
it,
in
it
It
an
is
central to her claim,
See
Graveling
(11th Cir.
v.
Castle
2015)
F.3d 1125, 1134
and its authenticity is not in dispute.
Mortq.
(per curiam)
(11th Cir.
Co.,
631
F.
App'x
693
Feldt,
(citing Horsley v.
690,
304
2002)).
Defendants Fired Aznmons after She Made FMLA Requests
Ammons
worked
Commissioners
as
for
a
until December 19,
supervised her.
Id.
SISI 41-45.
Defendant
911
Daniel,
nearly
14 SI 7.
surgeon
rescheduled
to
to
a
bad
to
Meanwhile,
Ammons
was denied,
That
chest
day,
Daniel.
Dkt.
No.
auto
June
Savannah on
accident.
8,
2012
June
4,
Id.
SISI
while
loose,
plate
causing
later needed two more
which
27,
29.
him
surgeries.
and Ammons
Id.
35.
June 12,
SI
been
SISI
Id.
Id.
SI
but this
SISI 41-43.
inserted
pain,"
44-45.
Three
Id.
2012,
excruciating
Id.
His
Daniel
2012.
had
33-
needed major
Murrell had suspended her without pay.
metal
2012,
14-1 SISI 16-17,
leaving Daniel with no caregiver.
sprung
years,
Ammons was an excellent employee.
requested FMLA leave for
^^the
of
Defendant Murrell
days after the surgery, Ammons went back to work.
39.
Board
seven
a Brantley County sheriff's deputy,
due
headed
No.
for
County
She was granted FMLA leave for June 6-8,
surgery
were
Dkt.
SI 6.
to care for her husband,
37.
dispatcher
2012.
Id.
Brantley
in
and
his
he
Ammons did
not seek FMLA leave to care for Daniel following these because
she had been suspended for doing so before.
Id. SISI 46-47.
Ammons
appealed the
suspension.
was settled around September 2012.
Id.
Id.
5
49.
The appeal
SISI 50-51.
Two months
later, on December 5,
2012, Murrell moved Ammons to day shift,
even
had
though
Ammons
childcare duties.
Ammons
Id.
investigated
said
SISI
for
this
59-60.
a
would
The
security
next
interfere
day,
Murrell
violation.
Id.
Ammons was cleared of wrongdoing on July 5,
2013.
But
19,
2012.
FMLA in September 2013.
Dkt.
she
had already been
fired
on
December
with
Id.
5
had
53.
5 55.
Id.
SI
62.
Murrell Gives Negative Job References
Ammons
SI 16.
the
sued under
The case settled on October 9,
settlement
favorable
contract.
Defendants
2014.
Id.
agreed
job reference by October 16,
to
2014,
SI 18.
No.
14
Under
give Ammons
a
and to ^'take no
action which was intended, or would reasonably be expected, to
harm or damage the reputation of
the mediation's end,
Ammons'
hand,
Ammons
[Ammons]."
Id.
Id.
SI 32.
then declined to do so.
started
looking
SISI 30-31.
for
She has
In early 2015,
they called Murrell,
not hire
[Ammons],
SISI 27-28.
At
Murrell asked whether she ^^had to" shake
a
Id.
job
applying for two or three positions weekly
2016).
Id.
SISI 22-23.
in
October
2014,
(except in January
only received one callback.
two people told Ammons
that when
she '^stated emphatically that she would
nor
.
.
.
recommend her for employment."
Id.
1
35.
Ammons
inquiry.
Id.
had
SI 36.
Murrell
reference-check
company
Murrell told i t she would
not!" recommend Ammons.
alleges
a
''has
Id.
SI 37;
supplied
Dkt.
No.
similar,
make
bsolutely
14-2 at 2.
or
employment references to other employers."
an
worse,
Ammons
negative
Dkt. No. 14 SI 39.
Ammons Brings the Present Suit and Defendants Move to Dismiss
Ammons filed the present suit on September 8,
No.
1.
She
contract.
alleges
Dkt.
No.
retaliation
14 SISI 55-75.
under
FMLA
2016.
and
Dkt.
breach
of
Defendants moved to dismiss,
claiming Ammons failed to plead an adverse employment action.
Dkt. No.
15 at 2.
did not reply.
Ammons responded.
Dkt. No. 20.
Defendants
Their motion is ripe for disposition.
LEGAL STANDARD
A complaint must be "a short and plain statement of the
claim showing that the pleader is entitled to relief."
R.
Civ.
from
P.
8(a) (2).
which
elements
[the
legal theory."
F.3d
678,
raise a
Bell Atl.
684
right
Corp.
Ashcroft V.
It must "contain inferential allegations
court]
necessary
Fed.
to
can
identify
sustain
a
each
recovery
Roe v. Aware Woman Ctr.
(11th
Cir.
2001).
of
under
the
some
for Choice,
These
"must
material
be
Inc.,
Twombly,
550 U.S.
544,
Iqbal,
556 U.S.
662,
(2009).
678
555
(2007);
253
enough
to relief above the speculative level .
v.
viable
.
.
to
."
see also
DISCUSSION
Defendants'
Murrell's
motion
negative
(1)
suffered
she
an
action was
is
dismiss
will
recommendations
employment action.
""that:
to
be
denied,
can
be
because
an
adverse
An FMLA-retaliation plaintiff has to show
entitled
adverse
to
the
employment
^intentional'
and
claimed
action,
benefit,
and
^motivated'
(3)
(2)
the
she
adverse
by her participation
in the protected activity,
establishing a causal connection."
Bentley v.
445
2011).
Orange County,
Defendants'
second element.
be false,
simply
argument
App'x
is
306,
narrow,
309
going
(11th Cir.
only
to
the
They claim that "an employment reference must
not merely negative,
gave
F.
her
honest
recommend Ammons.
Dkt.
to be actionable," and Murrell
opinion
No.
that
15 at
she
would
not
hire
or
6.
This is an incorrect reading of the law.
To be sure, the
Eleventh Circuit has not specifically analyzed this question.
See Mitchell v.
535,
539-40
ruled that
only
true
Mercedes-Benz U.S.
(11th Cir. 2015)
agree
Inc.,
(per curiam)
information,
can
qualify
as
637
F.
App'x
("The district court
^a negative employment reference,
action.
claims
Int'l,
an
even if providing
adverse
employment
Based on our review of [the plaintiff's]
concerning
with
the
each
district
of
these
court.").
prospective
But
this
employers,
Court
has
we
held
that "^false or negative employment references' may constitute
adverse
LLC,
employment
No.
2012),
CV 112-144,
adopted,
by
2d 1274,
three
of
1310721,
Ga.,
Ga.
at
Inc.,
Oct.
*7;
No.
31,
WL
209210
(S.D. Ala.
sister
Tobar
v.
Fed.
CV 512-416,
2014);
Chapman,
671
(9th Cir.
(10th Cir.
of
WL 11290900,
2004);
17,
20,
2013)
Inc.,
815
Mitchell,
Supp.
F.
2015
Dist.
Middle
at
*1
WL
of
n.l
2d at 1283.
the rule of the Ninth and Tenth Circuits.
381 F.3d 1028
Dec.
This holding is echoed
courts.
815 F.
Ga.
Jan.
Express,
Defenders
2014
(S.D.
Ga.
W.
2011)).
district
McGillicuddy Works,
at *3
(S.D.
(citing Chapman v.
1283
our
Salazar v.
2012 WL 6892720,
2013
(emphasis added)
Supp.
actions."
Hilliq v.
Hashimoto v.
(M.D.
It is
Rumsfeld,
Dalton,
118 F.3d
1997).
Most importantly,
it makes sense.
Retaliation liability
is based on the employer's making the employee's life harder
because
law.
the
employee
Allegedly,
Murrell's
defense
blatant lie.
sought
protection
just that
Murrell did
is
that
If proven,
afforded
to Ammons.
negative
confess
turn
on
federal
For now,
she used loaded silence instead of a
such a clever tactical choice cannot
be turned into valid legal armor.
employers
by
Besides,
had prospective
insisted upon Murrell explaining the basis for her
recommendations,
to
unlawful
how
interrogating
she
allegedly
retaliation.
interested
employees'
FMLA's
prospective
former
bosses.
would
have
had
protection
employers
Thus,
a
to
cannot
are
in
negative
recommendation
can
be
actionable,
and
Ammons
has
pled
an
adverse employment action.^
Defendants'
argument
to
rule
^^adverse" means
Seventh Circuit's
that
the
of false reference information."
468
F.3d
1027,
1029
(7th Cir.
contrary
relies
the
^^the dissemination
Szymanski v.
2006).
on
But
County of Cook,
neither Szymanski
nor appellate cases citing to it explain why this must be so,
and
the
Court
Mascone
v.
Am.
(4th Cir. 2010)
Dist.,
15,
cannot
Physical
Wood,
Inc.,
& Tinder,
reference
conduct . . . . " ) .
Hamilton
can
As
Sundstrand
See
404
F.
generally
App'x
for
Corp.,
JJ.)
case,
false
of
(7th Cir.
constitute
420
F.3d
negatively
securing
employment."
166,
.
affected
Here,
765
on
178-79
(^'[A]
Jute
(2d
v.
Cir.
'Mi]n the context
. could find that
[the
a
Feb.
retaliatory
reliance
. . . a reasonable jury .
statement
762,
(table opinion)
Defendants'
id.;
Indian Prairie Sch.
the Second Circuit merely held that
of th[at]
chances
Soc'y,
reason.
(per curiam); cf. Gatto v.
(Posner,
negative
[a]
the
508 F. App'x 554, 2013 WL 563287, at *1
2013)
2005),
divine
plaintiff's]
factfinder
could
find that Murrell's negative statement did the same to Ammons.
^ Not every negative recommendation will necessarily be actionable.
There
may be cases requiring a factfinder to weigh the need for employers to get
truthful information about job applicants against employees' need for
protection from unlawful retaliation.
See Knapp v. Gulf Cty. Sch. Bd.,
No. 5:16CV20, 2017 WL 74988 (N.D. Fla. Jan. 6, 2017).
But this is not one
of them.
Murrell allegedly only said she would " [a]bsolutely not!"
recommend Ammons, without communicating any potentially pertinent factual
information.
Dkt.
No.
14 5
37;
Dkt.
No.
14-2 at 2.
Lastly,
Defendants claim Murrell merely truthfully gave
her own opinion, without intending to injure Ammons.
15 at
7.
But
actionable,
""very unfavorable"
and
evidence
circumstantial.
859,
1035
863
Castillo v.
(llth Cir.
(finding
employee") .
evidence
opinion
of
termination
2012)
actionable
Here,
unfavorable"
of
and
end of mediation.
Roche
Labs.,
reference
to
allegedly
reference,
intent
in Murrell's
references
retaliatory
(per curiam) ;
Murrell
retaliatory
opinion
and
refusal
intent
Inc.,
what
F.
be
App'x
as
'^shitty
a
^^very
circumstantial
preceded
shake
can
F.3d at
Ammons
is
can be
381
plaintiff
gave
to
467
Hilliq,
there
in
Dkt. No.
her
Ammons'
hand at
the
Thus, Defendants' arguments fail.
CONCLUSION
For
the
reasons
above.
Defendants'
Plaintiff's Amended Complaint, dkt. no.
15,
Motion
to
Dismiss
is DENIED.
SO ORDERED, this 6th day of February, 2017.
LISA GODBEY WCX)D, CHIEF JUDGE
UNITED STATES
SOUTHERN
DISTRICT
COURT
DISTRICT OF GEORGIA
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