United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
L. BRASHER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Koch Foods of
Alabama, LLC's ("Ala-Koch") motion (Doc. 226)
to amend the Court's summary judgment order. (Doc. 225).
Ala-Koch is correct that the Court overlooked Plaintiff's
state-law claims against it, and summary judgment is due to
be granted on those claims. Summary judgment is due to be
denied as to punitive damages and Plaintiff's retaliation
State Law Claims
argues that summary judgment is due in its favor as to all of
Plaintiff's state law claims: Count 1, Count II, Count
III, and Count IV.
the Court entered summary judgment in favor of McDickinson on
Plaintiff's claims for Invasion of Privacy and Outrage,
summary judgment is due in favor of Ala-Koch as well for the
the Court denied McDickinson's motion for summary
judgment on Plaintiff's assault and battery claim,
Ala-Koch argues that summary judgment is due in its favor.
“An employer is liable for the intentional torts of its
employee if: (1) the employee's acts are committed in
furtherance of the business of the employer; (2) the
employee's acts are within the line and scope of his
employment; or (3) the employer participated in, authorized,
or ratified the tortious acts. Potts v. BE&K Constr.
Co., 604 So.2d 398, 400 (Ala.1992).” Ex parte
Atmore Cmty. Hosp., 719 So.2d 1190, 1194 (Ala. 1998).
“[W]here a co-employee defendant's behavior is
aimed at ‘satisfying [the co-employee's] own
lustful desires,' [the Eleventh Circuit] has held that
‘no corporate purpose could conceivably be served.'
Busby, 551 So.2d at 327.” Id. The
allegations in this case are clearly on-point with
Busby. However, “[a]n employer is also liable
for the intentional torts of the employee if the employer
ratifies the employee's conduct. Potts, 604
So.2d at 400. An employer ratifies conduct if: (1) the
employer has actual knowledge of the tortious conduct; (2)
based on this knowledge, the employer knew the conduct
constituted a tort; and (3) the employer failed to take
adequate steps to remedy the situation. Id.”
Ex parte Atmore, 719 So.2d at 1195. In this case,
although there is evidence that HR employees reported to
members of management that McDickinson was engaging in
sexually inappropriate conduct, Plaintiff has not offered
evidence that he or any other employee complained that her
conduct was assault and battery against him. There is no
evidence before the Court that supports an inference that
Ala-Koch had actual knowledge of assault and battery.
Accordingly, Ala-Koch's motion for summary judgment on
assault and battery is due to be granted in its favor.
argues that summary judgment is due in its favor as to
Plaintiff's Negligent/Wanton Supervision, Training, and
Retention claim. In order to establish a claim against an
employer for negligent supervision, training, and/or
retention, Plaintiff must establish that McDickinson, as the
allegedly incompetent employee, committed a common-law
Alabama tort. Stevenson v. Precision Standard, Inc.,
762 So.2d 820, 824 (Ala. 1999) (citing Big B, Inc. v.
Cottingham, 634 So.2d 999 (Ala. 1993)). In this case,
the only state law tort remaining is assault and battery as
to McDickinson. Plaintiff has offered no evidence that
Ala-Koch knew or should have known that McDickinson was
likely to commit assault and battery or that Ala-Koch failed
to properly train her not to commit assault and battery.
Because there is no evidence that Plaintiff made a complaint
of assault and battery to anyone at Ala-Koch, Plaintiff has
failed to supply a factual basis that Ala-Koch negligently
retained McDickinson after the alleged battery. Accordingly,
Ala-Koch's motion for summary judgment is due to be
granted as to Plaintiff's Negligent/Wanton Supervision,
Training, and Retention claim.
employee who has been the victim of intentional employment
discrimination in violation of Title VII may recover punitive
damages from the employer “if [he] demonstrates that
the [employer] engaged in a discriminatory practice or
discriminatory practices with malice or with reckless
indifference to the federally protected rights of an
aggrieved individual.” 42 U.S.C. § 1981a(b).
Ala-Koch argues that Plaintiff cannot meet this standard as a
matter of law because it “affirmatively established it
exercised reasonable care to prevent and correct
discriminatory behavior in the workplace.” (Doc. 226 at
8). However, despite Ala-Koch's written policies, there
is a genuine issue of material fact whether Ala-Koch made a
good faith effort to comply with Title VII and whether it
knew of and failed to prevent or correct discrimination
against Plaintiff. For example, Plaintiff presents
substantial evidence of widespread, flagrant misconduct by
the leadership of Ala-Koch's local HR
Department-i.e. the very employees who would enforce
Ala-Koch's anti-discrimination policies-including at
least one time when an employee allegedly complained to the
Corporate Director of Human Resources who then merely
referred the complaint back to local HR to investigate.
See Doc. 196 at 15. Ala-Koch's motion is due to
be denied on this issue.
the retaliation claim, Ala-Koch argues that Plaintiff's
“email did not mention race discrimination and the
unrefuted record evidence establishes he did not have an
objectively reasonable belief race discrimination was
occurring, as a matter of law, Fuller cannot establish he
engaged in protected activity.” Ala-Koch's argument
ignores that the evidence is to be construed in the light
most favorable to the non-moving party. Further, this
Court's denial of summary judgment on that issue was
without prejudice specifically because “the question
whether HR employees are covered by retaliation protection
when they raise claims on behalf of other employees and
whether they can still be fired for the manner in which they
raise those claims is currently pending before the en
banc Eleventh Circuit. See Gogel v. Kia Motors Mfg.
of Georgia, Inc., 904 F.3d 1226, 1237 (11th Cir. 2018),
reh'g en banc granted, opinion vacated, No.
16-16850, 2019 WL 2498915 (11th Cir. June 17, 2019).”
Ala-Koch argues that the outcome in Gogel will be
irrelevant, but the Court is disinclined to speculate about
the likely reasoning of an en banc Eleventh Circuit
opinion. Ala-Koch is reminded that “[t]his issue may be
addressed again, if appropriate, after the Eleventh Circuit
decides Gogel.” (Doc. 225 at 14).
on the foregoing, it is ORDERED that
Defendant Ala-Koch's Motion to Amend the Court's
Summary Judgment Order (Doc. 226) is GRANTED IN
PART as to Plaintiff's state law claims Count I,
Count II, Count III, and Count IV. It is
DENIED as to all other requested relief.