United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion for
Summary Judgment (Doc. #94) filed on December 17, 2016 and
Plaintiff's Motion for Partial Summary Judgment (Doc.
#112) filed on February 21, 2017. The Motions are fully
briefed and supported by the parties' evidentiary
submissions. (Docs. #95-98, 113-25).
Jenny Connell Smith, filed a complaint in this court on July
11, 2014 alleging that Defendants misclassified her as an
independent contractor while she worked for them as a
paralegal/legal assistant and failed to pay her an
appropriate overtime rate in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
201 et seq. (Doc. #1, Count I). On August 27, 2014,
Plaintiff filed an amended complaint adding three more
claims: Count II for retaliation in violation of the FLSA;
Count III for breach of contract; and Count IV for slander.
(See generally Doc. #14).
in this case, Defendants filed a Motion for Judgment on the
Pleadings (Docs. #12, 20). The court determined that judicial
estoppel barred Plaintiff's FLSA and breach of contract
claims and that Plaintiff's slander claim was barred by
the absolute litigation privilege. (Doc. #39 at 5-12). The
claim for retaliation under the FLSA (Count II) survived that
early dispositive motion. (Id. at 12-14).
Defendants' current motion seeks dismissal of
Plaintiff's retaliation claim. (Doc. #94).
Plaintiff's motion seeks partial summary judgment on the
question of liability. (Doc. #112).
Relevant Undisputed Facts
facts set out in this opinion are gleaned from the
parties' submissions of facts claimed to be undisputed,
their respective responses to those submissions, and the
court's own examination of the evidentiary record. All
reasonable doubts about the facts have been resolved in favor
of the nonmoving party. See Info. Sys. & Networks
Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002). These are the “facts” for summary judgment
purposes only. They may not be the actual facts that could be
established through live testimony at trial. See Cox v.
Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d
1386, 1400 (11th Cir. 1994). Asserted “facts”
that are not facts at all will be disregarded. Carter v.
Three Springs Residential Treatment, 132 F.3d 635, 642
(11th Cir. 1998) (conclusory allegations without specific
supporting facts have no probative value).
Plaintiff's Employment and the Filing of the
Jenny Connell Smith (“Plaintiff” or
”Smith”), a legal assistant/paralegal, worked for
Defendants from approximately December 2000 through April
2009 and again from July 2011 through December 2012. (Doc.
#39, Amend. Compl., ¶¶ 22, 27, 28). On April 14,
2011, prior to her second round of employment, Plaintiff
filed a Voluntary Chapter 13 Bankruptcy Petition with the
United States Bankruptcy Court, Northern District of Alabama,
Southern Division. (Doc. #13-3, Documents from Bankruptcy
Petition; Doc. #39 at 2). Plaintiff did not include any
contingent or unliquidated claims in Item 21 on Schedule B to
her Bankruptcy Petition or on the schedules supporting that
petition. (Doc. #13-3, ¶ 5).
11, 2014, Plaintiff filed the action now pending before the
court. (Doc. #1). In that original Complaint, Plaintiff
alleged that she notified Defendants that she was
misclassified as a contract employee and was not being paid
overtime to which she was entitled. (Doc. #1, ¶ 21).
After learning of the lawsuit, Defendants retained John Saxon
to represent them. (Doc. #98-5, A. Haynes Dep. at 54-56; Doc.
#98-6, K. Haynes Dep. at 38-39). Based on Plaintiff's
allegations, Defendants took steps to preserve all evidence
which might be relevant to Smith's claims and/or any
possible responses or defenses to those allegations. (Doc.
#98-5, A. Haynes Dep. at 26-27; Doc. #98-9, A. Haynes Decl.,
¶ 4; Doc. #98-10, K. Haynes Decl., ¶ 5).
retrieving and reviewing all information that might possibly
be relevant to the lawsuit, Defendants reviewed emails
wherein Plaintiff discussed her requests to be rehired; her
desire to be classified as an independent contractor; her
wages; her performance as a paralegal/legal assistant; her
disclosure of controlled substance abuses during her
employment; her various medical conditions; her reasons for
wanting to be classified as an independent contractor; and
numerous personal projects and matters unrelated to the law
firm's work. (Doc. #98-9, A. Haynes Decl., ¶ 6; Doc.
#98-10, K. Haynes Decl., ¶ 7). Defendants also recalled
loans and payroll advances made to Plaintiff, Plaintiff's
bankruptcies, and Plaintiff's communications with other
attorneys in the Birmingham area. (Doc. #98-5, A. Haynes Dep.
at 182-85, 186-87, 189, 192, 194; Doc. #98-6, K. Haynes Dep.
at 24-25; Doc. #98-9, A. Haynes Decl., ¶ 7; Doc. #98-10,
K. Haynes Decl., ¶ 8).
Defendants Report the Fact of the Lawsuit to NELA-AL
National Employment Lawyers Association (“NELA”)
is a national organization of lawyers who represent
individual employees. The Alabama Affiliate of NELA is
NELA-Alabama (“NELA-AL”). In 2014, NELA-AL had 33
dues paying members. (Doc. #98-12, Guerrier Decl., ¶ 6).
One of those members was Russ Parker, an Alabama attorney who
previously represented Plaintiff and filed the Original
Complaint on her behalf. (Id.). Another was Alicia
Haynes. (Doc. #98-5, A. Haynes Dep. at 130). Hank Sherrod,
III, another Alabama attorney, was then the President of
NELA-AL. (Doc. #98-8, Guerrier Dep. at 25; Doc. #98-7,
Sherrod Dep. at 15, 29-30).
maintains a confidential Listserv where members of NELA-AL
can post questions and share ideas pertaining to employment
law and litigation. (Doc. #98-8, Guerrier Dep. at 17-24). A
confidentiality provision is contained in the bylaws,
requiring a firm to self-report if it is engaged in
litigation with another member firm. (Doc. #98-12, Guerrier
Decl., ¶ 7) (“The Board shall further require
applicants to agree not to participate in NELA-Alabama's
confidential listserv during the pendency of any employment
matter in which he or she opposes a NELA-Alabama member who
is representing the employee and to notify NELA-Alabama's
President of the conflict.”).
Haynes was aware of the bylaws and concluded that she needed
to bring the Smith matter to Sherrod's attention. (Doc.
#98-5, A. Haynes Dep. at 132-33). Ms. Haynes called Sherrod
and expressed concern about “her firm's work
product being available to Russ [Parker] during the
litigation.” (Doc. #98-7, Sherrod Dep. at 21). Sherrod
told Ms. Haynes that he “would consult the other Board
members and … make a decision without [Alicia Haynes]
about the appropriate steps to take.” (Id.).
Sherrod concluded that the appropriate response to Ms.
Haynes's concern was to suspend Parker's NELA-AL
membership (including access to the Listserv) during the
pendency of this litigation, despite the fact that the bylaws
did not call for suspension from the organization.
(Id. at 13-14, 21-22; Doc. #98-8, Guerrier Decl.,
¶ 7). Specifically, Sherrod testified that “Russ
was a marginal member of our group. He wasn't to my
recollection even active on the Listserv. He was the one that
chose to initiate an action against some of our members,
members who were prominent contributors to the Listserv. The
Listserv would have suffered terribly in my view if the
Haynes & Haynes firm had been excluded from it rather
than him. And I guess that you could have left everybody on,
but that didn't seem right either.” (Doc. #98-7,
Sherrod Dep. at 16).
18, 2014, Sherrod wrote Parker a letter notifying him that,
“[b]ecause you are in litigation with two of our
members and their firm, the board has decided to suspend your
membership until completion of the lawsuit.” (Doc.
#97-2, Exh. 2 to Parker Dep., Suspension Letter). Sherrod had
discussed the matter with other members of the NELA-AL Board,
either directly or through email, in making the decision.
(Doc. #98-7, Sherrod Dep. at 13-15, 62-63).
receiving the letter from Sherrod, Parker sent Sherrod an
email asking him to explain the basis for the decision to
suspend his membership. (Doc. #97-2, Parker Dep. at 73).
According to Sherrod, “My thinking in general is that
regardless of the merits of your lawsuit, it undermines group
collegiality for a member to have a lawsuit against other
members.” (Id.). Parker never sought to be
reinstated as a member of NELA-AL. (Id. at 70, 76).
John Saxon's Involvement in the Early Stages of this
discussed with their colleague John Saxon how to best raise
the judicial estoppel issue, which they believed would
dispose of the Smith case. (Doc. #98-5, A. Haynes Dep. at 34;
Doc. #98-9, A. Haynes Decl., ¶¶ 11-12; Doc. #98-10,
K. Haynes Decl., ¶¶ 12-13).
options Defendants presented to Saxon were: (1) file an
answer, followed by a motion to dismiss on the ground of
issue preclusion or (2) send a Rule 11 letter to Parker,
setting forth the facts and law establishing judicial
estoppel, and asking Smith (through Parker) to dismiss her
case voluntarily or face possible sanctions under Rule 11.
(Doc. #98-9, A. Haynes Decl., ¶ 13; Doc. #98-10, K.
Haynes Decl., ¶ 14; Doc. #98-11, Saxon Decl., ¶ 7).
Saxon suggested a third option: that he personally reach out
to Parker, explain the facts and law related to judicial
estoppel, and see if Smith might be willing to dismiss her
claim voluntarily. (Doc. #98-5, A. Haynes Dep. at 82; Doc.
#98-6, K. Haynes Dep. at 49-52; Doc. #98-9, A. Haynes Decl.,
¶ 14; Doc. #98-10, K. Haynes Decl., ¶ 15; Doc.
#98-11, Saxon Decl., ¶ 8). Since Parker had been his
associate,  Saxon thought that a face to face meeting
would be more efficient and productive than the work required
for the other options. (Doc. #98-9, A. Haynes Decl., ¶
14; Doc. #98-11, Saxon Decl., ¶ 8). Defendants agreed to
have Saxon reach out to Parker in an attempt to quickly
resolve the lawsuit. (Doc. #98-9, A. Haynes Decl., ¶ 14;
Doc. #98-10, K. Haynes Decl., ¶ 15).
August 4, 2014, the two lawyers met at Saxon's office.
(Doc. #98-11, Saxon Decl., ¶ 10; Doc. #113-1, Parker
Decl., ¶ 4). Saxon is an experienced attorney who has
practiced law for 40 years, mostly in this judicial district.
(Doc. #98-11, Saxon Decl., ¶ 2). At the time of the
meeting, Parker had practiced for around 8 years and formerly
worked at Saxon's firm as an associate. (Doc. #97-2,
Parker Dep. at 14-15). Unbeknownst to Saxon, Parker
surreptitiously recorded their meeting by placing a recording
device in his jacket pocket. (Doc. #97-2, Parker Dep. at 9,
while he was being secretly taped, Saxon began the meeting
with a discussion about professionalism. (Doc. #98-4, Saxon
Dep. at 26-28; Doc. #116-2, Transcription of Meeting between
Saxon and Parker at 2). That is, he offered Parker feedback
“in the advice category.” (Id.). He also
expressed his opinion that an attorney who takes an adverse
position against another lawyer may lose settlement leverage
once a judicial complaint is filed. Saxon opined that, as a
professional courtesy, when suing other attorneys, it is
better to attempt to resolve the matter without the necessity
of filing suit. (Doc. #116-2, Transcription at 2-4). Saxon
also raised his “main point” for the meeting:
that Parker and Plaintiff “have a serious and fatal
judicial estoppel problem” which he believed would bar
Plaintiff's claim given the fact that her bankruptcy
petition failed to mention an overtime claim. (Id.
ended the meeting by addressing additional information
“that may be helpful in convincing [Plaintiff] …
[not] to go forward.” (Id. at 12). According
to Saxon, “if for some reason this doesn't get
dismissed … if … if it goes forward, there will
be counterclaims.” (Id. at 18, 30). Saxon
“made it clear” to Parker that there was evidence
to support certain counterclaims. (Doc. #98-4, Saxon Dep. at
19). “And a couple of them would be compulsory and
would be the kind of thing that I think Russ would know
whether we could bring or not.” (Id. at
18-19). Specifically, Saxon outlined three counterclaims -
one for unpaid loans, one for tortious interference, and one
for “stealing time.” (Doc. #116-2, Transcription
at 18, 21).
shared emails with Parker in which Plaintiff asked to be paid
hourly so that she would not lose her free medical care,
admitted that she used cocaine while working for Haynes &
Haynes and was a terrible employee, and asked to remain a
contract employee, forego health insurance, and be
responsible for her own taxes. (Id. at 16-31). This
documentation was shared with Parker after having
“discuss[ed] the facts and documents which would
provide a basis for defenses to Smith's claims and
consider[ing] how best to share [the] information with Mr.
Parker.” (Doc. #98-11, Saxon Decl., ¶ 9).
there had been no discussion of counterclaims in the meeting
between Saxon and Defendants, the record also indicates that
Saxon had not asked whether there were any extenuating
circumstances which might make the assertion of potential
counterclaims questionable. (Doc. #98-4, Saxon Dep. at 19-23)
(i.e. “My understanding was it was not paid,
maybe it was, I don't know …”). For example,
as to any claim for money owed on unpaid loans, Haynes &
Haynes had agreed to forgive the money owed in lieu of a
raise. (Doc. #118, Exh. A, Email dated 3/1/09; Doc. #98-4,
Saxon Dep. at 20; Doc. #98-10, K. Haynes Dep. at 61, 84-85;
Doc. #98-5, A. Haynes Dep. at 91; Doc. #113-2, Smith Decl.,
¶ 14). As to tortious interference, Alicia Haynes did
not consider the incident in question to be “a big
deal” and could not think of a time when Smith
interfered with her business. (Doc. #98-5, A. Haynes Dep. at
95-96, 115; Doc. #113-2, Smith Decl., ¶ 5). Finally, as
to the question of “stealing time, ” Alicia
Haynes agreed that handling personal matters and matters for
other attorneys during lunch time does not constitute
stealing time. (Doc. #98-5, A. Haynes Dep. at 191; Doc.
#96-1, Smith Dep. at 254, 275).
August 6, 2014, Barry and Brandi Frederick filed a Notice of
Appearance (Doc. #6) on behalf of Plaintiff. Later that same
day, Parker withdrew as counsel for Plaintiff. (Doc. #8).
Plaintiff did not oppose the change of counsel. (Doc. #97-2,
Parker Dep. at 93-95).
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c), 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). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(c) requires the non-moving party to
go beyond the pleadings and -- by pointing to affidavits, or
depositions, answers to interrogatories, and/or admissions on
file -- designate specific facts showing that there is a
genuine issue for trial. See Id. at 324.
substantive law will identify which facts are material and
which are irrelevant. See Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Allen v. Bd. of Pub. Educ. for Bibb
Cty., 495 F.3d 1306, 1314 (11th Cir. 2007);
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993). A dispute is genuine, “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.
See Id. at 249.
faced with a “properly supported motion for summary
judgment, [the non-moving party] must come forward with
specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a
plaintiff may not simply rest on her allegations made in the
complaint; instead, as the party bearing the burden of proof
at trial, she must come forward with at least some evidence
to support each element essential to her case at trial.
See Anderson, 477 U.S. at 252. “[A] party
opposing a properly supported motion for summary judgment
‘may not rest upon the mere allegations or denials of
[her] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.'”
Id. at 248 (citations omitted).
judgment is mandated “against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party's evidence is merely
colorable or is not significantly probative.”