Lowe v. Cardinal Health Inc.

61 F.Supp.3d 1228

Jasminda LOWE, Plaintiff

v.CARDINAL HEALTH INC., Defendant.

Civil Action No. 2:13–CV–00833–AKK.

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

Signed Oct. 14, 2014.

Daniel E. Arciniegas, Jon C. Goldfarb, L. William Smith, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL, for Plaintiff.

Karen Tyra Dunlevey, Jackson Lewis LLP, Cincinnati, OH, Yvonne Norris Maddalena, Jackson Lewis P.C., Birmingham, AL, for Defendant.

MEMORANDUM OPINION

ABDUL K. KALLON, District Judge.

Jasminda Lowe pursues this claim against Cardinal Health Inc. for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and under Alabama law for invasion of privacy and negligent and/or wanton training, supervision, and/or retention. Doc. 1 at 1. Lowe contends that Cardinal Health discharged her because she rebuffed the alleged sexual advances of her supervisor, Ralph Ruggs, and that Ruggs had direct input into the majority of the disciplinary actions that led to her discharge. Id. at 7. Cardinal Health moves for summary judgment on all of Lowe's claims, doc. 28, and the motion is fully briefed and ripe for review, docs. 28, 34, and 36. Based on a review of the evidence and the law, the court finds that genuine material factual disputes exist regarding whether the alleged sexual harassment resulted in a tangible job detriment and whether a causal link exists between Lowe's protected activity and her discharge that precludes summary judgment on her sexual harassment and retaliation claims. However, summary judgment is due on Lowe's invasion of privacy and negligent and/or wanton supervision, training, and/or retention claims because Ruggs's alleged behavior does not entitle Lowe to recovery and because Lowe has not established that Cardinal Health failed to exercise due and proper diligence in response to Lowe's reports of sexual harassment. For these reasons, Cardinal Health's motion is due to be granted in part and denied in part.¹

I. SUMMARY JUDGEMENT STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” “Rule 56 [ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts.See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989) ). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ).

II. FACTUAL ALLEGATIONS

The following facts reflect an assessment of the record in the light most favorable to Lowe. On May 23, 2011, Lowe began work at Cardinal Health as a warehouse associate. Doc. 1 at 3. In 2012, Ralph Ruggs became Lowe's direct supervisor. Id.; doc. 28–1 at 9. As a warehouse associate, Lowe's responsibilities included taking and collecting, or “pulling,” products from the shelves to organize customer orders. Id. at 8, 18.

The disciplinary steps that ultimately culminated in Lowe's discharge began on March 6, 2012, when Ruggs disciplined Lowe by placing her on Coach and Counsel for “continued high error volume” and “continuous consumer complaints.” Id. at 53. The form Ruggs prepared informed Lowe that “[f]ailure to improve upon these errors will result in discipline through the proper step progression, and may result in further corrective action including termination.” Id. Coach and Counsel is the first step of Cardinal Health's disciplinary policy. The other three steps are: Step Two—Written Warning; Step Three—Final Warning; and Step Four—Termination. Id. at 52. Although it is intended as a progressive discipline policy, Cardinal Health may “bypass steps within the corrective action process depending on the seriousness of the nature of the offense.” Id. at 53.

On May 15, 2012, Ruggs called Lowe and another employee into his office to discuss productivity rates. Id. at 14. During this meeting, Ruggs informed Lowe that she was not meeting the newly implemented productivity standards for the month of May,² and that she needed to improve her productivity rates or Cardinal Health would discharge her. Id. This discussion did not result in a write-up and, as a result, Lowe remained at step one of the four-step process.

The following day, Lowe contacted Cardinal Health's Advice and Counsel Center (“ACC”)³ and relayed to Martha Cotton that Ruggs threatened to discharge her because she had a “slow” rate of productivity. Id. at 14. Lowe also informed Cotton that Ruggs had asked her to stay in his hotel room during a company meeting, made frequent comments to her such as “you look so sexy,” “you look so good,” and “you smell sex,” and that on one occasion Ruggs placed his hands on her shoulders when he commented, “you look so sexy.” Id. at 10, 15. In addition, Lowe reported that Ruggs was involved in a romantic relationship with a subordinate, Afiya Burwell, who held the same position as Lowe. Id. at 15, 19.

Cardinal Health launched an investigation that consisted of Lori LeDuc, a Human Resources employee, Raul Valdez, Manager of Warehouse Operations, and Everett Posey, Director of Operations, interviewing Lowe, Ruggs, Burwell, and several other employees on May 17, 2012. Doc. 28–1 at 17–18. In their respective interviews Ruggs and Burwell denied being involved in a romantic relationship, and Ruggs denied any inappropriate conduct towards Lowe or Burwell. Doc. 28–2 at 14, 27. The focus of Lowe's interview turned inevitably to her allegations concerning the alleged relationship between Ruggs and Burwell, with Posey and LeDuc asking her to disclose any information that she had regarding the alleged relationship. Id. at 31. Lowe also submitted a written statement after the interview. Doc. 28–1 at 57. A week later, Lowe contacted Posey and relayed that Burwell had told her that Burwell and Ruggs engaged in sex at work and that Ruggs had shown Burwell his penis during a one-on-one performance conversation. Id. at 20–21.

On May 29, 2012, Cardinal Health informed Lowe that it could not substantiate her allegations. Id. at 44. Additionally, to make matters worse for Lowe, the management team found that Lowe initially had withheld information about the alleged relationship between Burwell and Ruggs, by waiting until a week after her interview to disclose that Ruggs and Burwell had sex at work and that Ruggs showed Burwell his penis at work. Id. at 31. As a result, on June 6, 2012, Lowe received a Written Warning for “failing to be forthcoming and not providing pertinent information in a timely manner in an investigation.” Id. at 54. This written warning advanced Lowe to Step Two of the disciplinary process. Id.

Apparently, Lowe was not the first employee to report the alleged relationship between Ruggs and Burwell. Prior to Lowe, Doug Brown had informed Posey that Ruggs was engaged in a romantic relationship with Burwell. Doc. 28–2 at 11. Posey's investigation failed to substantiate the allegations.⁴ Id. During the subsequent investigation of Lowe's allegations, Brown came forward with new information about the nature of the romantic relationship between Ruggs and Burwell. Doc. 47–10 *SEALED* at 1–3. In his statement, Brown explained that “[a]t one time, in a conversation with Everett Posey, I expressed concerns that something along the Burwell/Ruggs situation might be happening without directly stating that it was going on.” Id. at 3. Brown's statement also contains information that could substantiate his allegations about Burwell and Ruggs's purported affair, which he appears not to have previously disclosed to Posey.⁵ Id. at 1–3. However, unlike Lowe, Brown received no discipline for providing this additional information. See generally doc. 47–13 *SEALED* (Brown's personnel file).

A week after the written warning, Ruggs informed Lowe that she had failed to meet the required productivity rate for the month of May, and...