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