United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler, United States Distant Judge.
the Court is Defendants' Greene County Hospital Board
(“GCHB”) and Elmore Patterson's (“Mr.
Patterson”) (collectively, “Defendants”),
Rule 56 motion for summary judgment as to all claims asserted
in Plaintiff's Complaint. (Doc. 51.) The motion has been
fully briefed and is now ripe for decision. Upon
consideration of the motions, briefs, and evidentiary
submissions, Defendants' motion is due to be GRANTED.
County Hospital Board operates a hospital, physician clinic,
and residential care facility in Eutaw, AL. Elmore Patterson
is the Chief Executive Officer of GCHB. Marilyn Atkins
(“Plaintiff” or “Atkins”) began
working as a GCHB registration clerk in early July 2011. When
she began her employment, Atkins was provided with an
Employee Handbook which notified employees that unauthorized
absence from work is grounds for disciplinary action, up to
and including termination. (Doc. 53-1 at 134.) In December
2013, GCHB implemented an attendance and disciplinary action
policy providing that a “No-call, No-show equals
termination.” (Doc. 53-2 at 5-6.) Atkins asserts that
the revised policy was not distributed to any GCHB employee
who received the older version of the Employee Handbook,
including herself. The version of the Handbook she received
provided that the “no call/no show” penalty was a
three day suspension, and a “2nd no show no call
[would] result in termination.” (Doc. 53-1 at 134;
Atkins Dep. at 113; 226.)
early September 2, 2011, Atkins enrolled in the
Employees' Retirement System of Alabama
(“ERS”), which is a defined benefit pension
retirement plan through the Retirement Systems of Alabama
(“RSA”). (See Doc. 53-1 at 150.)
Participation in the ERS defined benefit plan is mandatory for
all non-temporary, full-time GCHB employees. Once enrolled,
employees are required to continue participation in the ERS
plan until their employment is terminated. (Patterson Dec.
¶ 5.) Vested members of the RSA pension plan are
eligible to receive a monthly retirement benefit from RSA
upon reaching retirement age. Individuals must participate in
the plan for at least ten years to be vested. Atkins was not
vested at the time of her termination as she participated in
the plan for less than ten years.
being paid to the RSA, retirement contributions deducted from
employees' paychecks each month were put into a general
fund from which general expenses were paid, instead of going
into a separate payroll account. These contributions
generally totaled $23, 000 to $30, 000 per month. JoAnne
Cameron, Greene County Hospital Board office manager,
testified that ERS deductions paid to the RSA are due
“somewhere around” the tenth of the following
month, and that they were almost never made within that time
period by GCHB. (Cameron Dep. at 31.) Some
payments were delayed as many as three
months. (Atkins Dep. at 93-96.) Despite the tardy
payments, the overall actuarial record valuation of the RSA
shows that the pension plan for GCHB employees has been
consistently 100% overfunded since at least 2010. (Doc. 53-1
at 169-171.) However, while in the general pool, funds were
used by GCHB to pay various expenses. Employees complained
about the late RSA payments and Mrs. Atkins brought the late
payments to the attention of the Tiffany Grisby, who is the
CFO, in addition to Mr. Inyang. On October 20, 2015, Atkins
attended a board meeting to discuss her concerns surrounding
the late RSA payments. At the meeting the board instructed
Atkins to gather documentation and return with it for the
next Board meeting. After Atkins addressed the Board, it was
rumored that Patterson was looking for a reason to terminate
her. Atkins again expressed concern to the Board at the
November 2015 meeting and then again in early 2016.
August of 2014, Atkins was assigned as a logistics clerk
under the supervision of Etebom Inyang
(“Inyang”). On a 2015 performance evaluation, she
received an overall rating of “average” with a
“below average” rating for dependability. (Doc.
53-1 at 40-41.) Over the course of her employment, Atkins was
given a number of disciplinary warnings on account of her
tardiness. In August of 2015, she was suspended for one day
for being late on four occasions during one pay period, and
suspended for two days for being argumentative with a
supervisor. (Doc. 53-1 at 141-45.) Atkins would document her
absences before each pay period ended. If she wanted to take
off of work, Atkins was required to obtain approval from
Inyang by sending time off requests to him via Microsoft
Outlook calendar invitations. Inyang would deny or approve
the requests by either accepting or declining the invitation.
On October 21, 2015, Atkins sent an Outlook invitation to
Inyang making a request to be off of work on October 26,
2015. Atkins did not report to work October 26, 2015, and
returned to work the following day on the 27th. On October 29,
2015, two days after returning, Atkins was terminated.
December 16, 2015 Atkins submitted a request for a
“lump sum payment” the “full distribution
of [her] account.” (Doc. 63-1 at 152.) The RSA mailed
Atkins' refund check accounting for the entire amount of
her retirement contributions plus accrued interest. Upon
receipt, Atkins cashed the check. (Atkins Dep. 78-80.)
judgment is appropriate “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 dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party.” Id. A genuine dispute as to
a material fact exists “if the nonmoving party has
produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Greenberg v.
BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (quoting Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The
trial judge should not weigh the evidence, but determine
whether there are any genuine issues of fact that should be
resolved at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
considering a motion for summary judgment, trial courts must
give deference to the non-moving party by “view[ing]
the materials presented and all factual inferences in the
light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep't of Agric.,
789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529
(11th Cir. 1987). Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a
motion for summary judgment, “the moving party has the
burden of either negating an essential element of the
nonmoving party's case or showing that there is no
evidence to prove a fact necessary to the nonmoving
party's case.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013).
Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
Plaintiff's Breach of Fiduciary Duty Claim
requests reconsideration of the Court's previous ruling
on the motion to remand, (doc. 8), “because the
employee retirement benefits received through Retirement
Systems of Alabama (“RSA”) are exempt from the
Employee Retirement Income Security Act of 1974
(“ERISA”).” (Doc. 54-1 at 7.) The Court
upholds its previous ruling. This case was properly removed
for the reasons set forth in its July 27, 2016 Memorandum of
Opinion. (Doc. 12.)
was given leave to file an amended complaint restating her
claims under ERISA and to state her non-ERISA claims
separately. On August 17, 2016, she did so, asserting an
ERISA breach of fiduciary duty claim, and adding a new ERISA
“whistle-blower” retaliation claim based on her
termination. (Doc. 23 at 10-11.) Atkins insists her case is
due to be remanded because she abandoned any reliance on the
group insurance plans in her second amended complaint which
was filed post-removal, and is now solely basing her breach
of fiduciary duty claim only on the RSA plan, a non-ERISA
plan. However, at the time of removal, Atkin's complaint
asserted claims covered by ERISA which were subject to
complete preemption. In cases removed from state to federal
court, “the district court must look at the case at the
time of removal to determine whether it has subject-matter
jurisdiction.” Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1243 n. 2 (11th Cir. 2007) (per
curiam) (citing Poore v. American-Amicable Life Ins. Co.
of Texas, 218 F.3d 1287 (11th Cir. 2000)); see also
Behlen v. Merrill Lynch, Phoenix Inv. Partners,
Ltd., 311 F.3d 1087 (11th Cir. 2002) (holding that
the district court must determine whether a federal question
exists at time of removal using original complaint). As such,
this Court properly maintained jurisdiction over the case and
presently continues to have jurisdiction.
Plaintiff's subsequent abandonment of reliance on the
prior insurance contract for her breach of fiduciary duty
claim could oust the Court of jurisdiction, her addition of
the whistleblower retaliation claim is covered by ERISA.
Consequently, the Court has jurisdiction over the action.
See Doc. 23 at 10 (“[Atkins] was terminated as
a result of those complaints and in direct retaliation for
attempting to exhaust her administrative remedies as provided
by ERISA.”); see also Cotton v. Mass. Life Ins.
Co., 402 F.3d 1267, 1280 (11th Cir. 2005)
(“[B]ecause the post-removal amended complaint asserted
claims under ERISA, we have jurisdiction even if removal was
initially improper.”) (citing Pegram v.
Herdrich, 530 U.S. 211, 215 n. 2 (2000)).