Opinion
CIVIL ACTION NO. 02-T-1315-N
February 9, 2004
Britt Searcy Booth, Montgomery, AL, for THOMAS B. REINHART, JR. Plaintiff
Donna A. Bland, Donna A. Bland, Montgomery, AL, for THOMAS B. REINHART, JR. plaintiff
Harold P. Turk, Harold P. Turk, Montgomer, AL, for THOMAS B. REINHART, JR., Plaintiff
Priscilla Black Duncan, P. B. Duncan Associates, Montgomery, AL, for THOMAS B. REINHART, JR., Plaintiff
Roger S. Morrow, Wesley Romine, Morrow, Romine Pearson, Montgomery, AL, for CHARLES E. SANER, for Defendant
Walter R. Byars, Steiner Crum Baker, Montgomery, AL, for CITY OF MONTGOMERY, Defendant
ORDER
Plaintiff Thomas B. Reinhart, Jr. brought this lawsuit against his employer, defendant City of Montgomery, Alabama, and his former supervisor, defendant Charles E. Shaner, alleging discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12112- 12117, and retaliation in violation of the ADA, 42 U.S.C.A. § 12203, and asserting state-law claims of negligence, assault, and malicious interference with a contractual relationship. Jurisdiction is proper under 28 U.S.C.A. § 1331 (federal question), 28 U.S.C.A. § 1343 (civil rights), 42 U.S.C.A. §§ 2000e-5(f)(3) and 12117 (ADA), and 28 U.S.C.A. § 1367 (supplemental jurisdiction). The case is now before the court on the defendants' motions for summary judgment. For the reasons that follow, Shaner's motion will be granted, and the City of Montgomery's motion will be granted in part and denied in part.
I. SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under Rule 56, the party seeking summary judgment must first inform the court of the basis for the motion, and the burden then shifts to the non-moving party to demonstrate why summary judgment would not be proper Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986)see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (discussing burden-shifting under Rule 56). The non-moving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials in the pleadings. Fed.R.Civ.P. 56(e).
The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986). In doing so, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).
II. BACKGROUND
Reinhart suffers from petit mal epilepsy, which is the least severe form of epilepsy. He takes medication which controls his condition, and has not had a seizure in several years.
Reinhart has been employed as a laborer at the City of Montgomery's landfill since June 2000. Shaner was Reinhart's supervisor until Shaner resigned in 2002; he had known Reinhart since they had worked together in the early 1980s, and knew that Reinhart had epilepsy before Reinhart began to work at the landfill. Shaner suggested to Reinhart that he apply for a job as laborer at the landfill.
Reinhart was hired to do white-collar work, but after he was hired he was assigned to work outside, sometimes operating heavy machinery, with little training. He has been assigned to menial tasks and to work on defective machinery; at times he has not been allowed to operate machinery at all. Shaner assigned Reinhart to do tasks with the wrong equipment in ways that would be dangerous, such as sending him to a muddy hill with a loaded dump truck so he would get stuck.
Shaner told another employee that Reinhart had "fits, but I'm not supposed to tell anybody about it"; he ridiculed Reinhart by calling him names such as "dumbo," "stupid motherfucker," "retarded," and "dumb bastard," and "slow in the head."
In May 2001, Shaner completed a budget request form for the year 2002, and requested that Reinhart and three other laborers be promoted to Equipment Operator. After May 2001, Reinhart was involved in three accidents or incidents while operating equipment at the landfill; he had also had one previous incident, termed a "near miss," in February 2001. "Letters of counseling" detailing these incidents were placed in Reinhart's file. Reinhart alleges that other employees were involved in similar incidents but were not "counseled."
On March 21, 2002, Reinhart filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that he had been discriminated against on the basis of disability; he alleged that Shaner decided to convene the city's Accident Review Board to review an accident Reinhart had in January 2002 after Reinhart filed his complaint. Pursuant to the board's recommendation, a letter-of-counseling was placed in Reinhart's personnel file on March 29, 2002. Reinhart received another letter-of-counseling on April 9; also in early April, Shaner told Reinhart that he could not operate equipment at the landfill anymore.
In June 2002, three other laborers who had less seniority at the landfill than Reinhart were promoted to Equipment Operator, but Reinhart was not promoted. The city cited Reinhart's four accidents and the fact that he was not then allowed to operate equipment, as the reason for the decision not to promote him.
Reinhart further states that Shaner wrote a report, or told his successor, that Reinhart had had a seizure while at work. Reinhart also charges that Shaner threatened him; after Shaner resigned, he came back to the landfill with a truck loaded with scrap tires, and said to Reinhart, "Don't get close to the truck, you might get hurt."
III. DISCUSSION
Reinhart makes five claims: (1) discrimination by the City of Montgomery in violation of the ADA; (2) retaliation by the city in violation of the ADA; (3) negligence by the city; (4) assault by Shaner; and (5) malicious interference with a contractual relationship by Shaner.
Reinhart has filed a motion to amend complaint and substitute pleading, filed January 2, 2004 (Doc. no. 40). His proposed "Substitution for Amended Complaint" does not change his allegations or the facts alleged; it simply combines his previously-filed amendments to his complaint into one single document, in compliance with local rules. Thus, this amendment will be allowed.
A. Motion to Strike
Shaner has filed a motion to strike over a dozen exhibits or portions of exhibits. In the process of resolving the pending summary-judgment motions, the court will implicitly consider the motion to strike as, instead, notices of objections to the testimony describedNorman v. Southern Guar. Ins. Co., 191 F. Supp.2d 1321, 1328 (M.D. Ala. 2002) Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1368 n. 1 (S.D. Ga. 1993). The court is capable of sifting evidence, as required by the summary-judgment standard, without resort to an exclusionary process, and the court will not allow the summary-judgment stage to degenerate into a battle of motions to strike.B. ADA Discrimination Claim
In order to prove an ADA employment-discrimination claim, a plaintiff must show that (1) he has a disability; (2) he was a qualified individual, meaning that with or without reasonable accommodations, he can perform the essential functions of the position in question; and (3) he was discriminated against because of his disability. Lucas v. W.W. Grainger, 257 F.3d 1249, 1255 (11th Cir. 2001).
A "disability" under the ADA is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C.A. § 12102(2).
Reinhart does not qualify as disabled under the first prong of this test, that is, "a physical or mental impairment that substantially limits one or more of the major life activities." While it is uncontroverted that he has petit mal epilepsy, his condition is successfully controlled by medication, and he has not had a seizure in years; moreover, corrective measures, like medication, are to be considered in determining whether a person is disabled under the ADA Sutton v. United Air Lines, 527 U.S. 471, 482, 119 S.Ct. 2139, 2146 (1999). There is no evidence that Reinhart's condition limits a "major life activity" such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The only limitations Reinhart reports as a result of his epilepsy is that he could not serve in the military or become a firefighter or police officer. If the major-life activity that is limited is "working," the person must be barred from a large class of jobs, not just one particular job Sutton, 527 U.S. at 491, 119 S.Ct. at 2151.
Neither does Reinhart have a record of an impairment that substantially limits a major-life activity. There is no record that Reinhart's epilepsy has ever limited a major-life activity. He has never had frequent seizures.
Reinhart argues that while he may not have actually been substantially impaired, he qualifies for protection under the third prong of the ADA test because he was "regarded as" having a substantially limiting impairment. An individual can show he is "regarded as" having an impairment by showing that he:
"(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has [no impairment] but is treated by a covered entity as having a substantially limiting impairment."29 C.F.R. § 1630.2(1). "These misperceptions often `resul[t] from stereotypic assumptions not truly indicative of . . . individual ability.'" Sutton v. United Air Lines, 527 U.S. 471, 489, 119 S.Ct. 2139, 2150 (1999).
Reinhart argues that Shaner mistakenly believed that his actual impairment, petit mal epilepsy, rendered him "retarded and a safety risk." He does not specify which major-life activity Shaner regarded as limited, but his allegation suggests that Shaner might have seen him as limited in the major-life activities of thinking or working. In order to show that he was regarded as substantially limited in the life activity of working, Reinhart would have to show that he was perceived as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities."Carruthers v. BSA Advertising, Inc., ___ F.3d ___, 2004 WL 87396, *2 (11th Cir. 2004), 29 C.F.R. § 1630.2(j)(3)(i). He has not presented any evidence that would show this.
Order on pretrial hearing, entered Jan. 22, 2004 (Doc. no. 49), at 3 (Reinhart's contentions).
The EEOC has specifically enumerated working as a major-life activity. 29 C.F.R. § 1630.2(i); accord Carruthers v. BSA Advertising, Inc., ___ F.3d ___, 2004 WL 87396, *2 (11th Cir. Jan. 21, 2004). While the regulations do not name thinking as a major-life activity, it stands to reason that thinking is a major-life activity, and many circuits have so held. Wright v. Comp USA, Inc., 352 F.3d 472, 477 (1st Cir. 2003); Moskal v. Delphi Automotive Sys., Inc., 66 Fed. Appx. 547, 549 (6th Cir. 2003); Shaver v. Independent Stave Co., 350 F.3d 716, 720-21 (8th Cir. 2003); Fraser v. Goodale, 342 F.3d 1032, 1044 (9th Cir. 2003); Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 569 (3d Cir. 2002); EEOC v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001); Nawrot v. CPC Intern., 277 F.3d 896, 903 (7th Cir. 2002).
Reinhart does present some evidence which might show that Shaner viewed him as limited in the major-life activity of thinking. Specifically, Shaner called Reinhart "dumbo," "stupid motherfucker," "retard," "retarded," and "dumb bastard," and "slow in the head"; he also reportedly told another employee that Reinhart had "fits, but I'm not supposed to tell anybody about it."
It is possible for disparaging comments about an employee to raise a triable issue of fact as to whether the employee was regarded as disabled. For instance, in a recent Eighth Circuit Court of Appeals case, a plaintiff had epilepsy, and as a result had undergone surgery to remove part of his brain and to insert metal plates into his head. After the plaintiff's supervisor found out about his epilepsy and the surgery, the supervisor told the plaintiff's coworkers, and the coworkers and supervisor began calling him "platehead." Shaver v. Independent Stave Co., 350 F.3d 716, 722 (8th Cir. 2003). At least some of the plaintiff's coworkers also called him "stupid" in conjunction with calling him "platehead,"Shaver v. Independent Stave Co., 2003 WL 1203575, *1 (E.D. Mo. 2003), and regarded him as "not playing with a full deck." 350 F.3d at 720-21. The Eighth Circuit held that this evidence was sufficient to allow a jury to find that the plaintiff was disabled because he was regarded as limited in the major-life activity of thinking Shaver, 350 F.3d at 720-21.
However, in two other cases, courts ruled that employees who had impairments and were called disparaging names could not survive summary judgment on the issue of whether they were regarded as disabled. InCostello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916 (8th Cir. 2001), a teacher called student who had received special education services in the past "retarded," "dumb," and "stupid." The Eighth Circuit held that this "name-calling" did not raise a genuine issue of material fact as to whether the student was regarded as disabled Id. at 924. In Cook v. Cub Foods, Inc., 99 F. Supp.2d 945, 952 (N.D. Ill. 2000) (Kennelly, J.,), a supervisor called an employee with major depression "retard." The court stated that "[t]his random comment does not even come close to creating a triable issue as to whether Cub regarded Cook as being disabled." Id. at 952.
While there is evidence that Shaner called Reinhart names such as "retard," "dumbo," and "slow in the head," there is no evidence to show that this name-calling was related to Reinhart's epilepsy. InShaver, by contrast, there was evidence that the plaintiff's coworkers and supervisor had begun to regard him, and refer to him, as "stupid" and "not playing with a full deck" soon after they found out about his epilepsy and the plate in his head; thus, a jury in that case could conclude that the plaintiff was regarded as limited because of his impairment. Here, it would require pure speculation to conclude that Shaner called Reinhart names because of his epilepsy.
Reinhart has not shown he qualifies as disabled under any of the three prongs of the ADA test. Summary judgment is therefore appropriate on his ADA claim.
C. ADA Retaliation Claim
Reinhart claims he was retaliated against after he filed an EEOC complaint. The ADA states, "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C.A. § 12203. The framework for analyzing retaliation claims under the ADA is similar to that set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973). The plaintiff must first establish a prima-facie case of retaliation. This prima-facie case has three elements: (1) the plaintiff must have engaged in statutorily protected activity; (2) the plaintiff must have suffered an adverse-employment action; and (3) there must be a causal link between the adverse action and the protected activity. Williams v. Motorola, 303 F.3d 1284, 1291 (11th Cir. 2002).Once the plaintiff establishes a prima-facie case of retaliation, an inference arises that illegal discrimination occurred. It is then up to the employer to articulate a legitimate, nondiscriminatory reason for the adverse-employment actions taken. If the employer successfully does so, the burden shifts back to the plaintiff to show that the proffered reason is pretextual.Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1333 (11th Cir. 1999).
1. Prima-Facie Case of Retaliation
Beginning with Reinhart's prima-facie case, it is clear that Reinhart has satisfied the first prong of the test by showing he engaged in statutorily protected activity. There are two kinds of statutorily protected activity: "opposition" to discriminatory practices, and "participation" in formal investigations, proceedings, or hearings. Filing an EEOC charge is certainly "participation" activity. EEOC v. Total Systems Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).
Reinhart also satisfies the second prong of the prima facie test; he has produced evidence that he suffered adverse-employment actions. Reinhart filed his EEOC complaint on March 21, 2002. On March 29, a letter-of-counseling regarding an accident that had occurred in January was placed in his personnel file. On April 8, the front grill of the vehicle Reinhart was operating fell off and he ran over it, causing some damage to the "bush hog" (an apparatus that attaches to a tractor and is used to cut grass). Reinhart received a letter-of-counseling on April 9 for "failure to report an incident," ostensibly because he did not report the April 8 accident until the following day. Reinhart responds that he did report the incident; when it occurred, neither Shaner nor Noah Johnson, his deputy, were working, so Reinhart took the broken equipment to the shop and gave it to Johnny Shaner, the mechanic who is Shaner's nephew. Further, Reinhart states that he had reported that the front grill was loose days before but it had not been fixed. Also in early April, Shaner told Reinhart he could not operate equipment at the landfill any longer.
The city alleges that an assistant city attorney told Reinhart to report any harassment or retaliation resulting from his EEOC complaint to the city's legal department. Reinhart did report the denial of the promotion to Equipment Operator, but made no other reports. However, Reinhart was not required to report anything to the city, so his failure to do so is immaterial. Indeed, given his belief that the city was retaliating against him for filing an EEOC complaint, it is not surprising that he chose not to make reports to the city about that alleged retaliation.
Defense exhibit 8 to city's evidentiary submission, filed July 2, 2003 (Doc. no. 21). On January 8, 2002, Reinhart backed into a parked sanitation vehicle while operating a trash compactor. The letter-of-counseling was placed in his file after the city's Accident Review Board ruled unanimously that the accident was preventable. It is not clear when the Accident Review Board was convened or when it made this determination.
Defense exhibit 9 to city's evidentiary submission, filed July 2, 2003 (Doc. no. 21).
In June 2002, three other laborers were promoted to Equipment Operator, but Reinhart was not promoted. Shaner had recommended that all four be promoted in 2001. The other three had less seniority at the landfill than Reinhart. Reinhart further states that false material was inserted into his personnel file and that he was subjected to additional scrutiny at work in retaliation for his EEOC charge.
The City of Montgomery argues that the denial of a promotion cannot constitute retaliation because it is not technically a "change" in Reinhart's employment condition. This is incorrect; a denial of a promotion does constitute an adverse-employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (citingWalker v. Mortham, 158 F.3d 1177, 1187 (11th Cir. 1998)). Some of the other reprisals Reinhart alleges, such as the restrictions on his ability to operate machinery, could also constitute adverse-employment actions, as they could constitute a "serious and material change in the terms, conditions, or privileges of employment." Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). It is not necessary to determine whether each action would individually constitute adverse-employment actions; it is enough that the various actions, including the denial of a promotion, "considered collectively are sufficient to constitute prohibited discrimination." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998).
The third prong of a prima-facie retaliation case, the causal relationship between the adverse action and the protected activity, requires only a showing "that the protected activity and the adverse action are not completely unrelated." Wideman, 141 F.3d at 1457 (11th Cir. 2001) (internal citations omitted). Reinhart has accomplished this by showing that the city knew of his EEOC charge and that the adverse-employment actions began almost immediately thereafter.
The city states that "[t]he requested promotions for the other three Laborers were temporarily delayed pending an internal examination of personnel records and investigation of Thomas Reinhart's claim of discrimination," thereby admitting that the city knew of the EEOC complaint before it decided not to promote Reinhart. City's brief in support of summary judgment, filed July 2, 2003 (Doc. no. 20), at 2.
2. Employer's Legitimate, Nondiscriminatory Reason
Because Reinhart has made out a prima-facie case of retaliation, the burden shifts to the city to articulate a legitimate, nondiscriminatory reason for the alleged adverse actions. The city has met this burden. It claims that Reinhart received letters of counseling because he backed into a parked sanitation vehicle while operating a trash compactor on January 8, 2002, and ran over a grill, and failed to report that he had done so, on April 8, 2002. Reinhart's last accident, or his alleged failure to report it, was the reason he was restricted from operating machinery in April 2002. As for the denial of promotion, at the time the decisions about promotions were made, the city explained its decision as follows:"[The three laborers who were promoted] have displayed safe operating procedures while operating the Landfill equipment . . .[they] are good employees and do not have any Records of Counseling in their files.
"Although Thomas Reinhart, Jr. has been at the Landfill longer than the other candidates, he has had several incidents while operating Landfill equipment, and he currently is not allowed to operate the equipment because he had a minor accident and did not report it to his supervisor. Mr. Reinhart has several Records of Counseling in his file and is not a recommended candidate at this time."
The city denies that Reinhart was subject to any additional scrutiny at work, stating that the interim supervisor who took over when Shaner resigned, Willie Peak, was responsive to Reinhart's requests for training. Finally, the city responds to Reinhart's allegation that false material was placed into his file by explaining that Peak wrote himself a handwritten note after a meeting with Reinhart, and included a comment about an incident which had occurred previously in which Reinhart allegedly had a seizure while at work. (Reinhart denies that he had a seizure at work.) This note was not forwarded on to the city's permanent personnel files.
These explanations all constitute legitimate, nondiscriminatory reasons for the actions of which Reinhart complains.
3. Reinhart's Showing of Pretext
Because Reinhart has made out a prima-facie case of retaliation and the city has proffered legitimate, nondiscriminatory reasons for its treatment of Reinhart, the burden shifts back to Reinhart to show that the city's reasons are pretextual. Reinhart questions whether the "incidents" he was involved in were actually his fault. For instance, as to the April 8 incident in which Reinhart ran over the front grill of the vehicle he was operating, Reinhart says he had reported that the grill was loose days before, but it was not fixed. Further, he disagrees with the city's contention that he did not report that incident.
Reinhart also states that other employees were also involved in accidents involving landfill equipment, but did not receive letters of counseling and were promoted anyway. Specifically, he points to Albert Haney, who Reinhart claims was involved in at least two accidents at the landfill before June 2002, but was nonetheless promoted from laborer to Equipment Operator in June. On May 3, 2002, Haney collided with a private charity truck on the landfill property, and a police accident report was filled out. While Reinhart was brought before the city's Accident Review Board for his January 2002 accident which resulted in a police accident report, there is no evidence that Haney was brought before the Accident Review Board, and apparently no letter-of-counseling was placed in his file.
Reinhart presents admissible evidence to show that Haney was involved in two accidents before June 2002, see plaintiff's exhibits 16 and 17 to Reinhart's evidentiary exhibits, filed Aug. 11, 2003 (Doc. no. 29). Reinhart also presents a handwritten document entitled "Log of Dale Zeigler," plaintiff's exhibit 18, listing several other dates on which Haney was allegedly involved in accidents, but this document is not sworn, certified, or even signed, and thus will not be considered for purposes of the summary judgment motions. Fed.R.Civ.P. 56(e).
Plaintiff's exhibit 17 to Reinhart's evidentiary exhibits, filed Aug. 11, 2003 (Doc. no. 29).
A jury could find that Reinhart was written up for minor incidents when other employees, like Haney, were not punished for similar incidents. A jury could also question whether Reinhart was really prevented from operating equipment in April 2002 because of his "failure to report" the incident involving the grill, when he claims the incident was not his fault and that he did report it. The jury could conclude that the decision not to promote Reinhart was actually retaliation for his EEOC complaint; therefore, summary judgment will not be granted on Reinhart's retaliation claim.
D. Negligent Supervision
Reinhart alleges the city was negligent in its supervision of the landill and in promotion, hiring, and equal treatment of protected classes, thus fostering an environment of "discrimination and favoritism." To prove "negligent supervision," a plaintiff must show that an employer knew of its employee's incompetence or would have known had the employer exercised due diligence. Collins v. Wilkerson, 679 So.2d 1100, 1103 (Ala.Civ.App. 1996) (citingLane v. Central Bank of Alabama, N.A., 425 So.2d 1098 (Ala. 1983)). Further, "negligence is not synonymous with incompetency, and a single instance of negligence will not prove an employee incompetent, nor will it impute knowledge to his employer of incompetency; the most competent employee may be negligent." Id.
Plaintiff's substitution for amended complaint.
Reinhart fails even to identify which employee was allegedly incompetent. He also fails to point to any evidence that would show why the city knew or should have known of this incompetence. Therefore, summary judgment on the negligent supervision claim is appropriate.
E. Assault
Reinhart alleges that Shaner assaulted him. Under Alabama law, an assault is "an intentional, unlawful offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well founded fear of imminent battery coupled with apparent and present ability to effectuate the attempt, if not prevent it." Wright v. Wright, 654 So.2d 542, 544 (Ala. 1994). "Although words, standing alone, do not constitute assault, when considered in combination with an offender's show of force or other action, a cause of action for assault may lie." Id.
Reinhart lists four incidents as constituting assault, but none of them rise to the level of an assault. First, soon after Reinhart filed his EEOC charge, Shaner's attorney sent him a letter threatening to sue him. A letter threatening legal action is by no stretch of the imagination an "offer to touch the person of another in a rude or angry manner." Second, Reinhart says Shaner made a "vocal threat to `get' him." He includes no further detail about this alleged incident, and without some "show of force or other action" Shaner's words alone cannot constitute assault.
Plaintiff's brief in opposition to summary judgment, filed Nov. 12, 2003 (Doc. no. 34), at 9.
Id.
Third, Reinhart says that, after Shaner resigned from his position at the landfill, he returned there to unload some tires from his truck. Reinhart approached the truck, and Shaner, standing in the back of his truck, said, "Don't get close to the truck, you might get hurt." The evidence shows that this statement was not accompanied by any movement or other action which would suggest that Shaner intended to injure Reinhart. Fourth, Reinhart states that, "[b]y using his nephew Johnnie Shaner's position as one of only two Landfill mechanics, Charles Shaner has directly threatened Reinhart's life by ordering [sic] to operate dangerously defective equipment." Even if this is true, it does not amount to an "offer to touch the person of another in a rude or angry manner." Therefore, summary judgment is appropriate on Reinhart's assault claim.
Id.
F. Malicious Interference with a Contractual Relationship
Reinhart also alleges that Shaner maliciously interfered with his contractual relationship with the City of Montgomery. Under Alabama law, "a prima facie case of intentional interference with business or contractual relations requires proof of the following elements: (1) The existence of a contract or business relation; (2) defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of defendant's interference." Lowder Realty, Inc. v. Odom, 495 So.2d 23, 25 (Ala. 1986). Corporate employees may individually commit the tort of intentional interference with contractual relations to which their employer is a party, but only if they were acting "outside the scope of their employment" and were acting with "actual malice." Hickman v. Winston County Hosp. Bd., 508 So.2d 237, 239 (Ala. 1987). The plaintiff bears the burden of showing that the employee was acting outside the scope of his authority.
Reinhart claims that Shaner "knowingly, intentionally, and maliciously" interfered with his work record, held him to a higher standard than others, denied him opportunities, publicly denigrated him, and "published a false document" alleging he had had a seizure at work.
Reinhart's claim must fail because he has not shown that Shaner acted outside the scope of his authority. The necessary showing for an intentional interference claim is very high. For instance, inHickman v. Winston County Hosp. Bd., 508 So.2d 237 (Ala. 1987), the plaintiff's supervisors promoted a man the plaintiff had trained even though the plaintiff had much more seniority, changed the inventory system and instructed other employees not to tell the plaintiff it had been changed, put unfavorable write-ups in the plaintiff's file while other employees who were involved in the same incidents were not written up, and told new employees not to listen to the plaintiff, even though she was to train the new employees. They also scheduled her on Christmas and New Year's Day for three years in a row after she asked not to be scheduled on those days. As a result of all this, the plaintiff suffered health problems and had to quit her job. Nonetheless, the Alabama Supreme Court found that the plaintiff had not presented evidence that the supervisors were acting outside the scope of their authority, so the defendants were entitled to a directed verdict. Id. see also Morrow v. Auburn University at Montgomery, 973 F. Supp. 1392, 1409-10 (M.D. Ala. 1997) (Carroll, M.J.).
Shaner's alleged actions towards Reinhart were, if anything, less severe than the actions taken by the supervisors in Hickman. None of Reinhart's allegations show that Shaner was acting outside the scope of his authority as a supervisor. Thus, summary judgment is appropriate on this claim.
For the foregoing reasons, it is ORDERED as follows:
(1) Defendant Charles E. Shaner's motion for summary judgment, filed October 17, 2003 (Doc. no. 30), is granted, and judgment is entered in favor of defendant Shaner and against plaintiff Thomas B. Reinhart, Jr., with plaintiff Reinhart taking nothing by his complaint as to defendant Shaner.
(2) Defendant City of Montgomery's motion for summary judgment, filed July 2, 2003 (Doc. no. 19), is granted in all respects except as to plaintiff Reinhart's ADA retaliation claim.
(3) Defendant Shaner's motions to dismiss, etc., filed December 23, 2002 (Doc. no. 7), and January 28, 2003 (Doc. no. 16), are denied as moot.
(4) Plaintiff Reinhart's motion to amend complaint and substitute pleading, filed January 2, 2004 (Doc. no. 40), is granted.
(5) Defendant Shaner's motion to strike, filed November 17, 2003 (Doc. no. 35), is denied.
This case will proceed to trial on plaintiff Reinhart's ADA retaliation claim against defendant City of Montgomery, Alabama.
DONE.