United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
an employment discrimination case filed pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq. (“Title VII”), and the Americans
with Disabilities Act, 42 U.S.C. 42 U.S.C. § 12101 et
seq. (“ADA”). This matter is presently before
this Court on two motions for summary judgment filed by (1)
Defendant Sizemore, Inc. (Sizemore), and (2) Defendants
Hyosung USA, Inc. (Hyosung) and Mike Graham (Mr. Graham)
(docs. 24, & 21). Additionally, two motions to strike are
also before the Court filed by (1) Defendant Sizemore, and
(2) Defendants Hyosung and Mr. Graham (docs. 37, & 39).
This case was filed on September 8, 2017 (doc. 1) and
reassigned to this Court on October 4, 2018 (doc. 31).
action, Plaintiff Jolanda Vaughn alleges that while employed
by Sizemore as a janitorial supervisor, she was assigned to
Hyosung's facility in Decatur, Alabama. During her
assignment at the Hyosung facility, Plaintiff had an
altercation with Mr. Graham, a Hyosung employee, which
culminated in Mr. Graham allegedly striking Plaintiff's
hand and pushing Plaintiff, resulting in injuries to her back
and requiring her to take time off from work. Sizemore
terminated Plaintiff for making a false report regarding the
altercation. Yet, Plaintiff argues that Sizemore actually
terminated Plaintiff for discriminatory reasons based on her
gender and a disability.
filed a five count Complaint against Defendants alleging
claims for: (i) disability “discrimination and failure
to accommodate under the ADA [, Americans with Disabilities
Act, 42 U.S.C. § 12101, et. seq.]”
against Sizemore; (ii) sex-discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-5, against Hyosung and Sizemore; (iii)
retaliation under Title VII and the ADA against Hyosung and
Sizemore; (iv) negligent and/or wanton hiring, training,
supervision and retention against Hyosung and Sizemore; and
(v) assault and battery against all Defendants. (Doc. 1
review and for the reasons stated below, the Court sustains
in part and overrules in part the Defendants' objections
as to Plaintiff's evidence in opposition to
Defendants' motions for summary judgment. Additionally,
Defendants' motions for summary judgment are due to be
granted in part and denied in part.
DEFENDANTS' MOTIONS TO STRIKE
ask the Court to strike the same four (4) documents: (i)
“[t]he July 27, 2014 email regarding the advance
inquiry”; (ii) “[t]he June 2, 2014 email to
Catherine Perkins, Mike Eley, and Marc McClain regarding a
back injury”; (iii) “[t]he February 8, 2016 email
from [Plaintiff] to Herman Marks regarding reinstating
criminal charges against Mike Graham”; and (iv) the
state court order approving “[t]he Workers'
Compensation Settlement Agreement.” (Doc. 37 at 2-5;
Doc. 39 at 3-6.) Hyosung and Graham also ask the Court to
strike “[t]he September 18, 2015 email from [Plaintiff]
to Mike Eley and Andrea Skywark.” (Doc. 39 at 4.)
Court construes Defendants' motions to strike as an
objection under Rule 56(c)(2). See Taylor v. City of
Gadsden, 958 F.Supp.2d 1287, 1291 (N.D. Ala. 2013),
aff'd, 767 F.3d 1124 (11th Cir. 2014) (treating
motion to strike as an objection).
under Rule 56(c)(2) function like trial objections adjusted
for the pretrial setting, and “[t]he burden is on the
proponent to show that the material is admissible as
presented or to explain the admissible form that is
anticipated.” Fed.R.Civ.P. 56(c)(2), advisory committee
note (2010 amends). Rule 56(c)(2) enables a party to submit
evidence that ultimately will be admissible at trial in an
inadmissible form at the summary judgment stage. See
Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94
(11th Cir. 2012). A district court has broad discretion to
determine at the summary judgment stage what evidence it will
consider pursuant to Rule 56(c)(2). See Green v. City of
Northport, No. 7:11-CV- 2354-SLB, 2014 WL 1338106, at *1
(N.D. Ala. Mar. 31, 2014).
Objections to the July 27, 2014, and June 2, 2014
raise the same objections to the July 27, 2014, and June 2,
2014 emails: the emails were not produced during discovery
and the emails are “irrelevant and/or
immaterial.” (Doc. 37 at 2-4; Doc. 39 at 3-5 (emphasis
does not dispute that she always had possession, custody, or
control over the emails (see Doc. 42 at 1-6; Doc. 43
at 1-5), and Plaintiff uses these emails to support her
claims (see Doc. 42 at 3, 5; Doc. 43 at 3, 5).
Federal Rule of Civil Procedure 26 requires Plaintiff to
produce: “a copy - or a description by category and
location - of all documents, electronically stored
information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to
support its claims . . . .” Fed.R.Civ.P.
26(a)(1)(A)(ii). Plaintiff does not dispute that these
materials were encompassed by Sizemore's requests for
production (see Doc. 42 at 1-6), and the Court finds
that the materials were encompassed by Hyosung and
Graham's requests for production. Plaintiff does not argue
that she failed to produce or identify the documents in her
original or supplemental response as required by Rule 26(a).
(See Doc. 42 at 1-6; Doc. 43 at 1-5.)
provides that “[i]f a party fails to provide
information . . . as required by Rule 26(a) . . ., the party
is not allowed to use that information . . . to supply
evidence on a motion . . . unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). “The burden of establishing that a failure to
disclose was substantially justified or harmless rests on the
nondisclosing party.” Mitchell v. Ford Motor
Co., 318 Fed. App'x. 821, 824 (11th Cir. 2009)
(internal quotation marks and citation omitted).
Court has held that “a failure to disclose is
‘substantially justified' when there is a
‘justification to a degree that could satisfy a
reasonable person that parties could differ as to whether the
party was required to comply with the disclosure
request.'” Little v. City of Anniston,
No.: 1:15-CV-954-VEH, 2016 WL 7407094, at *3 (N.D. Ala. Dec.
22, 2016) (citations omitted). In addition, this Court has
held that “failure to comply with the mandate of the
rule is harmless ‘when there is no prejudice to the
party entitled to the disclosure.'” Id.
makes four arguments why her failure to provide the requested
emails should not result in the Court sustaining
Defendants' objections to Plaintiff's use of the
Plaintiff argues that “it was unnecessary to exchange
[the July 27, 2014 email], as it was already in the
possession of the Defendant [Sizemore]” and Sizemore
“has had [the June 2, 2014] email in its possession,
custody and control . . . .” (Doc. 42 at 1, 4;
see Doc. 43 at 2, 4.) Plaintiff provides no case
authority, and the Court's research has not disclosed any
cases for the proposition that a party is justified in
failing to produce or identify a document because an opposing
party (or one defendant among a group of defendants)
possessed that document.
Plaintiff's argument does not demonstrate Plaintiff's
failure to provide the emails did not prejudice Defendants.
Plaintiff conflates Sizemore's knowledge that the emails
exist with all of the Defendants' knowledge that
Plaintiff intends to use the emails to support her claims.
“The purpose of requiring the Plaintiff to at least
identify these documents as part of his initial disclosures
is to avoid surprise and minimize prejudice.”
Little, 2016 WL 7407094, at *4 (emphasis omitted).
Plaintiff's failure to produce or identify the emails
contradicts the purpose of disclosure.
Plaintiff had produced or identified the emails, then
Defendants would have had an opportunity to investigate,
prepare, and conduct discovery regarding Plaintiff's
anticipated use of these emails. Plaintiff fails to show how
her failure to produce or identify the emails did not
prejudice the Defendants.
Plaintiff argues that “this e-mail would have been
responsive to Plaintiff's Request for Production, but
Defendant [Sizemore] failed or refused to provide it.”
(Doc. 42 at 2, 4.) Plaintiff's argument is irrelevant. A
defendant's failure's to produce discovery does not
mitigate an opposing party's obligation to produce or
Plaintiff argues that “she only discovered [the emails]
in her possession after the dispositive motion
deadline.” (Doc. 42 at 2, 3, 5; Doc. 43 at 2, 4.)
Plaintiff's argument does not raise a dispute as to
whether she was required to comply with Defendants'
disclosure requests. Plaintiff has not explained the delay in
finding the document. Additionally, if the Court were to
accept Plaintiff's excuse as sufficient justification,
then future litigants would have little incentive to
thoroughly comply with discovery requests.
Plaintiff argues that should the Court strike the document
Plaintiff “would suffer substantial prejudice . . .
.” (Doc. 42 at 3, 5; Doc. 43 at 2, 5.) Plaintiff's
argument shows that the emails support her claims, and that
Plaintiff should have disclosed the emails to Defendants.
Regardless, a court evaluating a motion to strike does not
consider whether the non-producing party will suffer harm as
a result of that party's inability to use documents that
were not produced in discovery. See Fed. R. Civ. P.
the Court sustains Defendants' objections regarding the
July 27, and June 2, 2014 emails and the Court grants the
motions to strike with respect to these emails.
Objections to the September 18, 2015 Email, the February 8,
2016 Email, and the Workers' Compensation Settlement
raise the same objections to the February 8, 2016 email and
Workers' Compensation Settlement Agreement Order: the
documents are “irrelevant and/or immaterial.”
(Doc. 37 at 4-6; Doc. 39 at 6 (emphasis omitted).) Hyosung
and Mr. Graham also object that the September 18, 2015 email
is “irrelevant and/or immaterial.” (Doc. 39 at 4
is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the
action.” Fed.R.Evid. 401.
February 8, 2016 Email
argue that the February 8, 2016 email “establishes an
already-known fact: that Plaintiff's criminal charges
against Defendant [Mr.] Graham were dismissed” and
“[t]he reason(s) for dismissal of those charges is
irrelevant and immaterial to the claims” against
Defendants. (Doc. 37 at 4; Doc. 39 at 6.) Plaintiff contends
that the “email clarifies that the case was not
dismissed on its merits” and “[t]his is relevant
because Defendant uses the dismissal of the criminal charges
as reason to believe the assault did not occur.” (Doc.
42 at 6; Doc. 43 at 6.) Defendants reply that Sizemore and
Hyosung did not rely on the dismissal of Plaintiff's
criminal complaint to support Sizemore's termination of
Plaintiff and Hyosung's investigation conclusions. (Doc.
45 at 3; Doc. 44 at 4.)
terminated Plaintiff and Hysoung concluded its investigation
prior to the dismissal of the complaint. (See Doc.
34-1 at 45 (stating that hearing was held on January 20,
2016).) Thus, the February 8, 2016, email has no relevance to
the claims Plaintiff alleges against Defendants and the
motion to strike shall be granted with respect to this email.
Order Approving the Workers' Compensation Settlement
argue that the state court order approving a workers'
compensation settlement agreement “establishes that
Sizemore's workers' compensation carrier and
Plaintiff” agreed on “the payment of workers'
compensation benefits[, ]” but the order does not
“address the validity of Plaintiff's claims and/or
. . . Sizemore, Inc.'s assessment of whether Plaintiff
was being truthful in making such claims.” (Doc. 37 at
5; Doc. 39 at 6.) Plaintiff responds that the order is
“relevant and material to [her] ADA claim and/or for
impeachment and/or rebuttal” because the order provides
evidence that “Defendant's claim that Plaintiff was
terminated due to falsifying a work injury are [sic] suspect
and contrary to its actions.” (Doc. 42 at 6-7.)
and Graham reply that the order does not relate to any claims
asserted against Hyosung and Graham because Plaintiff does
not argue that Hyosung was involved in resolving her
workers' compensation claim. (Doc. 44 at 4-5.) Sizemore
replies that its insurance carrier's decision to settle
Plaintiff's workers' compensation lawsuit “is
of no consequence to a determination of whether the
termination decision was motivated by sex or disability
discrimination . . . .” (Doc. 45 at 4.)
order has no relevance to Plaintiff's claims against
Hyosung and Graham because Hyosung and Graham had no
involvement in the settlement. The settlement order is
clearly between the plaintiff and Sizemore, not its insurance
carrier; however, the order was entered on May 17, 2018,
eight (8) months after this case was filed and over two (2)
years after the workers compensation claim was initiated.
Clearly the order is not relevant to a decision made by
Sizemore approximately two years prior to the
order. Thus, the order is not relevant for
showing Sizemore's motivation to terminate Plaintiff.
the order has no relevance to the claims Plaintiff alleges
against Defendants and the motion to strike shall be granted
with respect to this order.
September 18, 2015 Email
and Mr. Graham argue that Plaintiff sent the September 18,
2015 email to a Sizemore employee, Hyosung and Mr. Graham
were not involved in conduct discussed in the email, and the
email does not relate to Plaintiff's claims against them.
(Doc. 39 at 4.) Plaintiff does not argue that the email
relates to her claims against Hyosung and Mr. Graham (Doc. 43
at 3-4), and Plaintiff has not cited the email in her brief
opposing their motion (see Doc. 33).
does not use the challenged email against Hyosung and Mr.
Graham. Therefore, Hyosung and Mr. Graham's objection to
the email is moot. Thus, the Court overrules the objection
with respect to this email as moot.
Court sustains Defendants' objections and grants the
motions to strike with respect to: (i) the July 27, 2014
email; (ii) the June 2, 2014 email; (iii) the February 8,
2016 email; and (iv) the state court order approving the
Workers' Compensation Settlement. The Court overrules
Hyosung and Mr. Graham's objection and denies the motion
to strike with respect to the September 18, 2015 email.
SUMMARY JUDGMENT STANDARD
court shall grant summary judgment 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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only
the cited materials, but it may consider other materials in
the record.” Fed.R.Civ.P. 56(c)(3).
considering a summary judgment motion, the Court must view
the evidence in the record in the light most favorable to the
non-moving party and draw reasonable inferences in favor of
the non-moving party. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
“[A]t the summary judgment stage[, ] the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
“‘Genuine disputes [of material fact] are those
in which the evidence is such that a reasonable jury could
return a verdict for the non-movant. For factual issues to be
considered genuine, they must have a real basis in the
record.'” Evans v. Books-A-Million, 762
F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996)). “A litigant's self-serving statements based
on personal knowledge or observation can defeat summary
judgment.” United States v. Stein, 881 F.3d
853, 857 (11th Cir. 2018); see Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (“To
be sure, Feliciano's sworn statements are self-serving,
but that alone does not permit us to disregard them at the
summary judgment stage.”). Even if the Court doubts the
veracity of the evidence, the Court cannot make credibility
determinations of the evidence. Feliciano, 707 F.3d
at 1252 (citing Anderson, 477 U.S. at 255). However,
conclusory statements in a declaration cannot by themselves
create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990)).
the standard for granting summary judgment mirrors the
standard for a directed verdict. Anderson, 477 U.S.
at 250 (citing Brady v. Southern R. Co., 320 U.S.
476, 479-480 (1943)). The district court may grant summary
judgment when, “under governing law, there can be but
one reasonable conclusion as to the verdict.”
Id. at 250. “[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party . . . . If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-50 (internal citations
offers janitorial, staffing and security services to
businesses. (Doc. 26-1 at 2, ¶ 2.) Hyosung manufactures
textile reinforcement materials for use in tires. (Doc. 26-3
at 8 (25:18-21).) Sizemore provides janitorial and security
services on-site at Hyosung's Decatur, Alabama facility.
(Doc. 23-2 at 3, ¶ 5.) Sizemore and Hyosung's
contract permits Hyosung to “reasonably request the
removal of any Sizemore employee . . . .” (Doc. 34-1 at
49 (§ 6).)
June 2008 until October 5, 2015, Plaintiff worked for
Sizemore as the janitorial supervisor at Hyosung's
facility in Decatur. (Doc. 26-1 at 2, ¶ 3; Doc. 23-2 at
3, ¶ 5.) During the relevant time period, Hyosung's
Human Resources Director was Jim Garber and the Plant Manager
was John Gormen. (Doc. 23-2 at 2, ¶ 2; Doc. 23-1 at 42
performed janitorial services and supervised Sizemore's
janitorial staff at Hyosung. (Doc. 26-1 at 2, ¶
3.) Plaintiff reported to Mike Eley,
Sizemore's regional manager, who worked in Carrollton
Georgia. (Doc. 26-1 at 2, ¶ 3; Doc. 26-3 at 10
(33:11-21).) During the relevant time period, Andrea
Skywark was Sizemore's highest level human resources
employee (Doc. 26-1 at 2-3, ¶ 4), and Preston Sizemore
was Sizemore's President and Chief Executive Officer
(Doc. 26-2 at 2, ¶ 2).
received and signed a copy of Sizemore's policy. (Doc.
26-3 at 51.) The policy directed Plaintiff to “report
incidents of sexual harassment as soon as possible after
their occurrence to [her] Supervisor and/or Division
manager.” (Id. at 51-52.) Plaintiff also
received and signed a Sizemore document listing
“[c]auses for disciplinary action - up to and including
immediate dismissal.” (Doc. 26-3 at 53 (normal
capitalization applied and emphasis removed).) This document
lists “[f]alsification of information . . . in order to
. . . retain a job” an offense worthy of discipline or
in 2015 (prior to August 25, 2015), Plaintiff explained that
she was in the Hyosung break room and Mr. Graham entered
“the break room, snatch[ed] the paper up and put it on
top of his lunch box and started just screaming and cussing
at me because he thought I was going to throw it away again .
. . .” (Doc. 26-3 at 40 (154:5-9).) Plaintiff stated
that she reported the incident to Mr. Graham's Hyosung
supervisor, Mark Swanner. (Id.at 40 (154:12-13).)
August 24, 2015, after 5:00 p.m., Plaintiff was at work
training a new employee and was pulling trash in Mill 2.
(Doc. 26-3 at 16 (60:13-20; 64:20).) Plaintiff saw a cell
phone in the main aisle (an area for forklifts and tow motor
truck traffic), and she did not see anyone in the area.
(Id. (60:21-23).) Plaintiff picked up the phone and
went to the break room, and the area for smoking.
(Id. (60:23-61:2).) She did not see anyone in these
locations or around the looms. (Id.
(60:2-3).)Plaintiff went to Mr. Gorman's office,
which was located in a different building, but Plaintiff
could not give him the phone because a corporate office
employee was in Mr. Gorman's office. (Id. at 17
(61:8-9; 62:16-17).) Plaintiff told her coworker, Rhonda
Brewer, that Plaintiff had the phone; Plaintiff could not
find anyone in Mill 2. (Id. at 18 (65:12-15).)
Plaintiff took the trash cart back to the cage, secured the
phone in her glove box, and went home. (Id. at 17-18
contacted a Sizemore manager, Melinda Rusk, who works in
Madison, Alabama, and informed Ms. Rusk that she had found a
phone. (Doc. 26-3 at 23 (77:8-9, 86:14-87:4).) Plaintiff
asked Ms. Rusk if there was a lost and found policy because
Ms. Rusk worked for Sizemore security at Hyosung.
(Id. (87:5-13.) Plaintiff also reviewed a book for a
policy. (Id. (87:14).) Sizemore, however, did not
have a lost and found policy. (Id. at 17
August 25, 2015, around 2:00 p.m., Plaintiff returned to work
and started to pull trash. (Id. at 18 (67:18-68:5).)
Plaintiff saw Rowdy Carden, a Hyosung employee, on a towmotor
truck coming out of Mill 2, and Plaintiff asked him if he
worked the previous night and knew anyone who lost a
cellphone. (Id. at 18 (68:6-15).) Mr. Carden told
Plaintiff that Mr. Graham lost his cellphone, and Plaintiff
told Mr. Carden to tell Mr. Graham that Plaintiff found his
phone, secured his phone, and would bring it to Mr. Graham.
(Id. at 18 (68:16-20).) Plaintiff continued with her
duties because Mr. Graham's shift did not start until
4:00 p.m. (Id. at 18-19 (68:22-69:3).)
during her shift, Plaintiff went to Mill 2 and was walking
down the aisle and approached Mr. Graham. (Id. at 19
(69:17-70:1).) Mr. Graham was irate because Plaintiff had his
phone in her hand. (Id. (70:1-2).) Mr. Graham
“began yelling and cursing [at Plaintiff] and said to
get away from him . . . .” (Doc. 26-3 at 56.) Mr.
Graham came out from underneath a creel rack and Plaintiff
asked him what was wrong. (Doc. 26-3 at 19
(70:3-5).) Mr. Graham “snatched the phone out
of [Plaintiff's] hand and hit [her] hand, and [she]
started to cry . . . .” (Id. (70:5-7).) Mr.
Graham told Plaintiff that he should go to Ron Hamilton, the
Hyosung maintenance manager, [to inform “on
[Plaintiff]], ” and Plaintiff asked him, “For
what? I found your phone.” (Id. (70:8-9).) Mr.
Graham told Plaintiff that she needed to stop crying or he
would “give [her] a reason to cry when [he] whip[ped]
her ass and put [her] in the hospital.” (Id.
(70:10-13).) Mr. Graham called her a “lying
B[itch]” during the altercation. (Id. at 27
explained that after she returned the cell phone to Mr.
Graham in the southwest corner of Loom 21 she proceeded to
gather the trash from in the east side of Loom 21, an area
where she was “backed in a corner.” (Doc. 26-3 at
19 (70:14-16; 71:3-6).) John Rittenberry, who was in Mill 2,
walked over to Mr. Graham and stood with Mr. Graham and
looked at his phone. (Id. (70:19-20).) Then, Mr.
Rittenberry walked about 50 to 100 feet towards and behind
certain looms where he and Kathy Patterson were working.
(Doc. 26-3 at 19 (70:22-71:2).)
Graham approached her and “[h]e just took his hand and
pushed [her] and said, . . . [‘]Get the fuck out of my
way, get away from me.'” (Doc. 26-3 at 19 (71:6-
11).) Plaintiff “hit the loom” with her head and
shoulder, and twisted her body as she tripped over an
electrical cord. (Doc. 26-3 at 19 (71:11-18).) Plaintiff
walked towards the back of the facility and she saw Mr.
Rittenberry and Ms. Patterson. (Doc. 26-3 at 21 (79:2-8).)
Plaintiff states that she asked Mr. Rittenberry and Ms.
Patterson whether they saw Plaintiff's altercation with
Mr. Graham. (Doc. 26-3 at 21 (79:13-18), 42 (161:1-6).)
Plaintiff states Mr. Rittenberry replied, “That's
between you and Graham. I'm not getting involved.”
(Id.) Plaintiff also testified that Ms. Patterson
“shook her head no and pointed to her ears and her eyes
. . . .” (Doc. 23-1 at 21 (79:13-18).)
called Ms. Rusk to report the incident and asked her to
photograph Plaintiff's back. (Doc. 26-3 at 21 (78:7-8),
24 (90:2-7).) On August 26, 2015, Ms. Rusk took photographs
of Plaintiff. (Doc. 26-3 at 24 (90:17-23).)
August 25, 2015, at 8:30 p.m., Plaintiff emailed Mr. Eley,
Mr. Hamilton, and Mr. Gorman. (Doc. 26-3 at 56; Doc. 26-1 at
3, ¶ 5.) Plaintiff wrote that the previous day
she found a cell phone, and she explained the altercation
involving Mr. Graham. (Doc. 26-3 at 56.) Plaintiff noted that
as a result of the altercation:
I was crying so bad and shaking I had to call someone to get
me home. All I did was return a [cell phone] I found on the
floor, this is not the first time he cussed me and threatened
me in front of Hyosung employees. I am scared of what he
might do to me now.
five hours after the altercation, on August 26, 2015, at 1:25
a.m., Plaintiff emailed Mr. Eley stating: “With him
pushing and making me twist my back I am going to need to go
to doctor. It is hurting really bad. And several of his co
workers saw him . . . .” (Doc. 26-3 at 57.) Later that
same day, at 10:00 a.m., Plaintiff completed a statement in
which she reported in relevant part:
I walked over to Mill 2 and asked [Mr.] Graham “Are you
missing a phone”; he got very upset and began cursing
me and grabbed [the] phone out of my hand. I started crying
and asked him what was wrong? He told me to get way from him
and said I should go to Ron [Hamilton] on you. I asked what
for? I found your phone laying in aisle way and didn't
know who's it was and want to turn it in to John Gorman
but he had someone in his office. [Mr. Graham] called me a
lying B[itch] and said he would give me something to cry
about by whooping my A[ss] and sending me to the hospital. He
came around to the side of loom where I was and shoved me
into the loom and said get the F[uck] away from me and he
proceeded to crawl under yarn and go between creel racks. I
walked off crying and shaking so hard.
(Doc. 26-3 at 58-59.)
considered the incident to be a workers' compensation
injury and referred Plaintiff to a medical services provider,
the Occupational Health Group (OHG). (Doc. 26-1 at 4, ¶
8.) On August 26, 2015, Plaintiff visited OHG. (Doc. 26-3 at
60.) The OHG doctor diagnosed Plaintiff as having contusions
on her back, neck and shoulder, and recommended a “[n]o
work” restriction. (Id. at 61-62.) Sizemore
placed Plaintiff on workers' compensation leave and
submitted a claim to its workers' compensation insurer.
(Doc. 26-1 at 4, ¶ 8.)
August 27, 2015, Plaintiff met with Mr. Swanner and Mr.
Garber. (Doc. 26-3 at 41 (159: 8-9).) During the meeting,
Plaintiff described the altercation with Mr. Graham. (Doc.
23-1 at 42 (164:19-20).) Mr. Swanner told Plaintiff that Mr.
Graham “had a reputation for blowing up” over his
work, and Mr. Swanner coached Mr. Graham “on how to
approach [Plaintiff] over the cellphone incident.”
(Doc. 26-3 at 41 (159:14-20).) Mr. Garber advised Plaintiff
“to consider getting a warrant for Mr. Graham.”
(Doc. 26-3 at 43 (165:10-12).) Mr. Garber and Mr. Swanner
advised Plaintiff to follow Sizemore and her doctor's
instructions. (Doc. 26-3 at 43 (166:13-19).)
Garber determined that an investigation was necessary since
Plaintiff's allegations involved actions by a Hyosung
employee. (Doc. 23-2 at 4, ¶ 8.) Mr. Garber investigated
the matter with Benji King, the union representative at
Hyosung. (Id.) Mr. Garber obtained information from
Mr. Graham, Ms. Patterson, and Mr. Rittenberry.
(Id.) Mr. Garber stated that “[w]e were unable
to locate any witness, other than [Plaintiff], who stated
that Mr. Graham had in fact hit or struck or shoved
[Plaintiff].” (Id. at 5, ¶ 9.)
September 1, 2015, Plaintiff filed a complaint in the
Municipal Court of Decatur, Alabama against Mr. Graham
alleging that Mr. Graham pushed Plaintiff into a machine.
(Doc. 34-1 at 15.) On September 8, 2015, Plaintiff again
visited OHG and complained that her pain had worsened. (Doc.
26-3 at 63.) The OHG recommended a “[n]o work”
restriction. (Doc. 26-3 at 64.)
communicated with Hyosung's managers about the incident
with Plaintiff and Mr. Graham. (Doc. 26-1 at 5, ¶ 9.)
The managers stated that Mr. Graham and the witnesses
contradicted Plaintiff's allegation that Mr. Graham
pushed Plaintiff. (Id.) Ms. Skywark asked
Sizemore's Director of Corporate Security, Allan Davis,
to investigate the incident. (Id. at 5, ¶ 10.)
Mr. Davis worked with Hyosung and the employees' union
representative to schedule interviews. (Id.) In the
presence of Mr. Garber and Mr. King, Mr. Davis separately
interviewed Hyosung employees Mr. Graham, Mr. Rittenberry,
Ms. Patterson, Randy Hinkle and Dean Menean. (Id.)
interview, Mr. Graham stated, around 7:00 to 7:30 p.m.,
Plaintiff approached him at work with his phone, and he
stated, “I then came up from under the grill (piece of
equipment), and told her to give me my ‘damn'
phone, reached out, and grabbed my phone out of her
hand.” (Doc. 26-1 at 12.) He stated, “Once I got
my phone . . . I did grab it out of her hand, and that was
the only time I came in contact with her. . . . John
Rittenberry and Kathy Patterson, were present and witnessed
[Plaintiff's] actions.” (Id.)
Rittenberry signed a statement describing the altercation:
[Plaintiff] came up to me and asked if I knew where Mike
Graham was. I noticed she had a cell phone in her hand. I
state[d] he was one loom over working. I then watched her
approach Mike . . . and heard Mike ask her to put it back
where it ...