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Vaughn v. Sizemore Inc.

United States District Court, N.D. Alabama, Northeastern Division

November 13, 2019




         This is 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).

         In this 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.

         Plaintiff 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 ¶¶ 7-14.)

         Upon 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' 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.)

         The 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).

         Objections 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).

         1. Objections to the July 27, 2014, and June 2, 2014 Emails

         Defendants 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 omitted).)

         Plaintiff 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.[1] 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.)

         Rule 37 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).

         This 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. (citations omitted).

         Plaintiff 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 challenged emails.

         First, 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.

         Additionally, 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.

         If 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.

         Second, 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 identify documents.

         Third, 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.

         Fourth, 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. 37(c)(1).

         Thus, 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.[2]

         2. Objections to the September 18, 2015 Email, the February 8, 2016 Email, and the Workers' Compensation Settlement Agreement Order

         Defendants 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 (emphasis omitted).)

         “Evidence 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.

         a. February 8, 2016 Email

         Defendants 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.)

         Sizemore 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.

         b. Order Approving the Workers' Compensation Settlement Agreement

         Defendants 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.)

         Hyosung 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.)[3]

         The 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.[4] Thus, the order is not relevant for showing Sizemore's motivation to terminate Plaintiff.

         Accordingly, 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.

         c. September 18, 2015 Email

         Hyosung 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).[5]

         Plaintiff 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.

         3. Summary

         The 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.


         “The 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).

         When 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)).

         In sum, 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 omitted).


         Sizemore 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).)

         From 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 (161:21-162:5).)[6]

         Plaintiff performed janitorial services and supervised Sizemore's janitorial staff at Hyosung. (Doc. 26-1 at 2, ¶ 3.)[7] 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).

         Plaintiff 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 discharge. (Id.)

         Sometime 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. ( 40 (154:12-13).)

         On 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).)[8]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 (64:23-65:1).)

         Plaintiff 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 (62:22-63:1).)

         On 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).)

         Later 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).)[9] 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 (103:19-23).)

         Plaintiff 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).)[10]

         Mr. 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).)[11]

         Plaintiff 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).)

         On 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.)[12] 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.


         About 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.)

         Sizemore 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.)[14]

         On 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).)

         Mr. 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.)

         On 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.)

         Sizemore 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.)

         In his 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.)

         Mr. 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 ...

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