Opinion
Civil Action No. 1:01-CV-180-C
August 16, 2002
ORDER
On this date the Court considered Defendant's Motion for Summary Judgment filed on July 2, 2002, by Leonard's Prescription Pharmacy, Inc. ("Defendant"). Billi M. Tompkins ("Plaintiff") filed Plaintiff's Response to Defendant's Motion for Summary Judgment on July 22, 2002. Defendant's Reply Brief to Plaintiffs Brief in Opposition to Defendant's Motion for Summary Judgment was filed on August 5, 2002. After considering all the relevant arguments and evidence, the Court GRANTS in part Defendant's Motion for Summary Judgment
I. FACTUAL BACKGROUND
Plaintiff a female, is a resident of Dig Spring, Howard County, Texas. Defendant is a pharmacy doing business in Big Spring, Howard County, Texas. Defendant acknowledges that it is an "employer" engaged in an "industry affecting commerce" within the meaning of 42 U.S.C. § 2000e, et seq. ("Title VII").
Plaintiff was employed by Defendant from on or about June 3, 1997, until on or about July 5, 2000. Plaintiff asserts that her performance reviews were satisfactory or higher throughout the period of her employment. Defendant, however, claims that Defendant did not make or perform any formal performance reviews of any of its employees, including Plaintiff
Plaintiff alleges that she reported to Defendant on May 15, 2000, that she was pregnant and that one of Plaintiff's supervisors, Steve Corson, asked whether the pregnancy was going to affect Plaintiff's job performance. Plaintiff contacted Defendant's owner, Ed Corson, to request that Plaintiff's hours be reduced to thirty hours per week so that Plaintiff could maintain employment and health insurance benefits throughout Plaintiff's pregnancy. The parties do not dispute that Defendant agreed to this accommodation.
Pursuant to a note dated May 12, 2000, Plaintiff's physician excused Plaintiff from work due to medical complications for the days May 15 and 16, 2000. Pursuant to a note dated May 16, 2000, Plaintiff's physician excused Plaintiff from work until May 20, 2000. Pursuant to a note dated May 17, 2000, Plaintiff's physician excused Plaintiff from work due to medical reasons from May 15 to May 29, 2000. Plaintiff claims that on June 15, 2000, Plaintiff was forced to take emergency medical leave due to pregnancy-related complications. Pursuant to a note dated June 21, 2000, Plaintiff's physician excused Plaintiff from work for two weeks. Pursuant to a note dated July 27, 2000, Plaintiff's physician advised that "until further notice, [Plaintiff] can work split shifts."
During Plaintiff's emergency medical leave, Plaintiff alleges that Defendant requested, and Plaintiff agreed, that Plaintiff apply for Medicaid so that Defendant could cancel Plaintiff's health insurance. However, Defendant argues that Plaintiff was provided continuous group health insurance coverage during the entire period from January 1999 through December 2000. Defendant contends that Plaintiff's insurance coverage was not terminated until January 1, 2001, and that, by letter of January 22, 2001, Plaintiff was given "Notice of Group Continuation Privilege under Your Current Group Health Insurance Plan."
The parties agree that on July 5, 2000, Plaintiff spoke with Cathy Hunnicutt, one of Plaintiff's supervisors, about returning to work. Plaintiff claims that Defendant was unwilling to accommodate her work restrictions and terminated her employment. To the contrary, Defendant claims that Plaintiff informed Ms. Hunnicutt that Plaintiff would only be available for work after 2:00 pm, because Plaintiff could not afford day care for longer than two or three hours per day Ms. Hunnicutt asserts that she told Plaintiff that Defendant was not able to accommodate Plaintiff's request, because Defendant was fully staffed during the afternoon hours. Plaintiff did not return to work after July 5, 2000.
Plaintiff also alleges that Defendant thereafter gave potential employers of Plaintiff malicious, false, and negative job references regarding Plaintiff's employment with Defendant. Plaintiff alleges that Defendant's negative job references constituted defamation per se and caused tortious interference with prospective employer/employee relationships. Defendant argues that it responded to requests from Plaintiffs prospective employers who called for references with "no comment" and made no further statement to any prospective employer concerning Plaintiff's health or whether Plaintiff was physically able to perform her job duties.
Plaintiff complains that Defendant (1) terminated Plaintiff's employment based on Plaintiff's gender in violation of Title VII; (2) interfered with Plaintiff's health insurance and emergency medical leave in violation of the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k); (3) failed to provide Plaintiff with up to twelve weeks unpaid medical and/or maternity leave in violation of the Family and Medical Leave Act of 1993 ("FMLA"); (4) interfered with Plaintiffs exercise of her rights to welfare medical benefits in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1140; (5) conducted itself in a manner so extreme and outrageous as to constitute intentional infliction of emotional distress; (6) acted in breach of its duty to prevent harm to Plaintiff by negligently hiring, training, retaining, and supervising Defendant's agents and employees; (7) tortiously interfered with Defendant's prospective employer/employee relationships; and (8) knowingly made false and malicious job references which constituted defarnationper se.
Defendant denies each and every of Plaintiffs allegations and affirmatively asserts that Plaintiff has failed to mitigate her damages; that any and all statements made by Defendant or any of its representatives which Plaintiff claims constituted defamation were true; that Plaintiff has failed to state a claim upon which relief can be granted for intentional infliction of emotional distress, tortious interference with prospective employer/employee relationship, and/or defamation per se; that Plaintiff is not an eligible employee under the FMLA; and that Plaintiff's failure to timely respond to Defendant's Request for Admissions constitutes Plaintiff's admission of same.
II. PROCEDURAL BACKGROUND
Plaintiff's Complaint and Jury Demand was filed on September 21, 2001? and Defendant's First Amended Answer was filed on February 15, 2002.
On May 22, 2002, Defendant's Motion for Sanctions or for an Order Compelling Discovery Responses was filed. Plaintiffs Response to Defendant's Motion for Sanctions and Order Compelling Discovery Responses was filed on May 31, 2002. Defendant's Reply to Plaintiff's Response to Defendant's Motion for Sanctions or for an Order Compelling Discovery Responses was filed on June 6, 2002. This Court's Order granting Defendant's Motion for Sanctions or for an Order Compelling Discovery Responses was filed on June 12, 2002. Plaintiff's Motion for Reconsideration of Sanctions was filed on June 14, 2002, and Defendant's Response to Plaintiffs Motion for Reconsideration of Sanctions was filed on June 17, 2002. This Court's Order denying Plaintiffs Motion for Reconsideration of Sanctions was filed on July S, 2002.
Defendant's Motion in Limine was filed on July 5, 2002. Plaintiff filed no response. This Court's Order granting Defendant's Motion in Limine was filed on July 29, 2002.
Defendant's Motion for Summary Judgment was filed on July 2, 2002, and Plaintiff's Response to Defendant's Motion for Summary Judgment was filed on July 22, 2002. Defendant's Reply Brief to Plaintiffs Brief in Opposition to Defendant's Motion for Summary Judgment was filed on August 5, 2002.
III. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, " when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party, Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrell, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
IV. DISCUSSION
Plaintiff complains that Defendant (1) terminated Plaintiff's employment based on Plaintiff's gender in violation of Title VII; (2) interfered with Plaintiffs health insurance and emergency medical leave in violation of the PDA; (3) failed to provide Plaintiff with up to twelve weeks unpaid medical and/or maternity leave in violation of the FMLA; (4) interfered with Plaintiff's exercise of her rights to welfare medical benefits in violation of ERISA; (5) conducted itself in a manner so extreme and outrageous as to constitute intentional infliction of emotional distress; (6) acted in breach of its duty to prevent harm to Plaintiff by negligently hiring, training, retaining, and supervising Defendant's agents and employees; (7) tortiously interfered with Defendant's prospective employer/employee relationships; and (8) knowingly made false and malicious job references which constituted defamation per se. Count One — Gender Discrimination
Plaintiff alleges that Defendant impermissibly discriminated against Plaintiff based on Plaintiff's gender (pregnancy-related complications). Defendant argues, inter alia, that (1) Plaintiff was not terminated by Defendant; (2) Defendant honored Plaintiff's physician's various instructions to excuse Plaintiff from work because of medical complications in connection with Plaintiff's pregnancy; and (3) Plaintiff was subsequently released by her physician to return to work but Plaintiff failed to do so.
Claims of gender-based discrimination are evaluated under the well-established three-part burden-shifting framework enunciated by the Supreme Court in McDonell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The first part of the McDonnell Douglas analysis requires Plaintiff to establish a prima facie case of discrimination by showing that (1) Plaintiff belongs to a protected group; (2) Plaintiff was qualified for the position held; (3) Plaintiff suffered an adverse employment action; and (4) others who were similarly situated to Plaintiff and not within her protected class were treated more favorably. Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
If Plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden shifts to Defendant to produce a legitimate, nondiscriminatory justification for its actions. McDonnell Douglas, 411 U.S. at 802. To satisfy this step of the analysis, Defendant may produce evidence, which, "taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). if Defendant satisfies this prong, there is no longer a mandatory inference of discrimination and the analysis shifts to the third and final step of the burden-shifting framework. Id. at 510-11. In the third stage of analysis, Plaintiff has a "full and fair opportunity to demonstrate" that Defendant's reason is a pretext for intentional discrimination. Id. at 507.08. To substantiate Plaintiff's claim of pretext, Plaintiff must demonstrate that discrimination based on Plaintiffs gender was at the heart of Defendant's decision. Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000).
The parties do not dispute that Plaintiff, a female, is a member of a protected class or that Plaintiff was qualified for the position held. Thus, the first two elements of Plaintiff's prima fade case have been met. As to the third and fourth prongs of Plaintiff's prima facie case, Plaintiff claims that she was terminated sometime "between June 20, 2000 and July 5, 2000" and that such termination was because of Plaintiff's "gender (pregnancy-related complications)."
First, Defendant argues that because Plaintiff failed to timely answer or object to Defendant's Request for Admissions pursuant to Rule 36 of the Federal Rules of Civil Procedure, the admissions sought by Defendant are deemed admitted by Plaintiff. Defendant's Request for Admissions sought answers and/or objections to the following:
1. Prior to your pregnancy, you had never been requested by Defendant to work eight hours straight without a break of at least one hour.
2. Exhibits "A," "B," and "C" are the only doctor's excuses you presented to Defendant as a result of your pregnant condition.
3. On or about July 5, 2000, you advised Cathy Hunnicutt that your treating physician had released you to go back to work.
4. You were advised by your physician that after July 5, 2000, you could work four hours in the morning, take an hour for lunch, and then work another four hours.
5. You were advised by your physician that after July 5, 2000, you could work six hours in a row.
6. You were advised by your physician that after July 5, 2000, you. could work six hours a day six or seven days a week.
7. You advised Cathy Hunnicutt on or about July 5, 2000, that you were ready to return to work, but that you would have to come in after two o'clock p.m. because you did not have sufficient finances to be able to afford day care for your daughter for longer than two or three hours.
8. Your physician advised you that he had no problem with you working full time after July 5, 2000.
9. You did not advise Cathy Hunnicutt or any other representative of Defendant that you were not physically able to return to your previous schedule of thirty hours per week after July 5, 2000.
10. You cud not advise Cathy Hunnicutt or any other representative of Defendant that any physician bad advised you that you should not return to your previous schedule of thirty hours per week after July 5, 2000.
11. You advised Steve Carson or Cathy Hunnicutt that you had to quit your job with Defendant because of child care issues.
12. You never requested of Cathy Hunnicutt or any other representative of Defendant that you be permitted to work thirty hours per week after July 5, 2000.
13. You were never advised by Cathy Hunnicutt or any other representative of Defendant that after July 5, 2000, you would have to work eight hours straight without an hour break for lunch.
14. On or after June 30, 2000, you never advised any representative of Defendant that you could work six hours per day, or two four hour shifts per day.
15. You have told one or more persons that you did not return to work with Defendant after you were released by your physician because you were advised that you would have to work a fill forty hours per week in order to return to work.
16. Prior to preparing the statement you asked Cathy Hunnicutt to sign on or about July 5, 2000, you advised Ms. Hunnicutt that you needed to have her sign a statement so that you could apply for unemployment benefits.
17. Prior to the time you brought the statement you prepared for Cathy Hunnicutt to sign on or about July 5, 2000, she advised you that she would not sign anything stating that you were fired.
18. Steve Corson discouraged you [from) applying for Medicaid and advised you that Defendant was not canceling your insurance coverage.
19. You called Cathy Hunnicutt between July 5, 2000, and July 20, 2000, and asked if a full-time position was still available with Defendant and were advised that such a position was still available.
20. You called Ed Corson on or about May 29, 2000, and advised him that you had met with your boyfriend and your mother and decided that you should apply for Medicaid.
Second, in addition to Plaintiffs failure to timely answer or object to Defendant's Request for Admissions, Defendant argues that Plaintiff subsequently failed to take advantage of the remedial procedures available under Rule 36 to withdraw or amend the matters deemed admitted. Consequently, Defendant argues that Plaintiff's deemed admissions negate Plaintiff's allegation that Defendant terminated Plaintiff Thus, Defendant argues that Plaintiff is unable to establish the third prong of Plaintiff's prima facie case. This Court agrees.
Rule 36 provides that written requests for admissions, "for purposes of the pending action only, " may be served upon any other party and that "each matter of which an admission is requested . . . is admitted unless, within 30 days after service of the request, . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter." FED. R. CIV. P. 36 (a). Moreover, "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." FED. R CIV. P. 36(b).
This Court finds that the record shows that Plaintiff failed to timely answer or object to Defendants Request for Admissions and, therefore, pursuant to Rule 36, each matter of which an admission was requested therein is deemed admitted. This Court also finds that Plaintiff failed to move this Court for permission to withdraw or amend said admissions. Thus, this Court finds, for purposes of the pending action only, that such matters are deemed admitted and are hereby conclusively established. Accordingly, pursuant to the conclusively established matters admitted by Plaintiff in matters numbered one through twenty supra, Plaintiff cannot show that Defendant terminated Plaintiff's employment and/or that such termination was based on Plaintiff's "gender (pregnancy-related complications)."
Moreover, even assuming arguendo that the matters numbered one through twenty supra had not been deemed admitted and conclusively established, Plaintiff has not shown that she was in fact terminated, that Plaintiff's gender was at the heart of Defendant's decision, or that Plaintiff was treated any differently than similarly situated non-members of the protected class. See Garcia v. Woman's Hosp. of Tex., 143 E.3d 227, 231 (5th Cir. 1998) ( Garcia II) (concluding that plaintiff's evidence must support a finding that plaintiff was intentionally treated differently from other non-pregnant employees).
Consequently, notwithstanding Plaintiffs deemed admissions, this Court finds that Plaintiff's summary judgment evidence in and of itself is wholly insufficient to establish Plaintiff's prima facie case of gender discrimination. This Court, therefore, finds that summary judgment is appropriate as to Count One of Plaintiff's Complaint.
Count Two — Violation of the PDA
Plaintiff complains that Defendant discriminated against Plaintiff because of Plaintiff's pregnancy-related complications and that Defendant interfered with Plaintiff's health insurance benefits and emergency medical leave. Defendant argues that Defendant complied with each of Plaintiff's physician's requests to excuse Plaintiff from work because of Plaintiff's medical complications and, further, that Defendant maintained Plaintiff's health insurance benefits continuously through December 31, 2000, notwithstanding the fact that Plaintiff failed to return to Defendant's employ after July 5, 2000.
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1).
The PDA amended the definition of "sex" as follows:
The terms "because of sex" or "on the basis of sex" include but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.Id. § 2000e(k).
The PDA did not amend Title VII in any other way. Garcia v. Women's Hosp. of Tex., 97 F.3d 810, 812 (5th Cir. 1996) ( Garcia I). Therefore, a claim of pregnancy discrimination is analyzed under the same rules used for discrimination claims in general. Id. Further, it is well established that Title VII prohibits intentional disparate treatment discrimination, as well as employment practices that result in disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1970).
To establish a prima facie violation of the PDA, Plaintiff must show that (I) Defendant's policies, or the application of Defendant's policies, intentionally treated Plaintiff differently than non-pregnant employees because of her pregnancy, i.e., disparate treatment, or (2) Defendant's policies had a disproportionately negative impact on pregnant employees like herself as compared to non-pregnant employees, i.e., disparate impact. Garcia II, 143 F.3d at 231.
Here, Plaintiff claims disparate treatment, as well as Defendant's interference with Plaintiff's health insurance, in violation of the PDA. First, as discussed supra, Plaintiff failed to make out a prima facie case of gender discrimination because Plaintiff could not show that she was treated any differently than similarly situated non-members of the protected class. Second, Plaintiff can point to no policies promulgated by Defendant which classified Plaintiff or any other pregnant employees differently from all other non-pregnant employees. Third, Plaintiff has offered no evidence that Defendant's conduct was in any way "because of' or "on the basis of" Plaintiff's pregnancy. Fourth, Peter Lewis Armstrong, Defendant's health insurance carrier representative, verified in his summary judgment Affidavit that Plaintiff's health insurance coverage was continuous from January 1, 1999, through December 31, 2000, and that Plaintiff was sent a "Notice of Group Continuation Privilege under Your Group Health Insurance Plan" on January 22, 2001. Fifth, Ed Corson, an officer and director of Defendant, verified in his Affidavit that Plaintiffs health coverage was continuously maintained through December 31, 2000, and that Plaintiff did not pay any part of the costs necessary to maintain the health insurance coverage. Finally, Jimmy Anderson, an officer and director of Defendant, stated in his Affidavit that Plaintiff, on December 19, 2000, specifically declined to apply for continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), 29 U.S.C. § 1161, et seq., because Plaintiff stated that she was already receiving Medicaid.
Because the record before the Court will not support a finding that Plaintiff was intentionally treated differently from other non-pregnant employees because of her pregnancy, Plaintiff's PDA disparate treatment claim must fail. This Court, therefore, finds that summary judgment is appropriate as to Count Two of Plaintiff's Complaint.
Count Three — Violation of the FMLA
Plaintiff claims that Defendant did not grant Plaintiff up to twelve weeks unpaid medical and/or maternity leave and that Plaintiff's job was not protected during Plaintiff's medical leave. Defendant's First Amended Answer affirmatively asserts that Plaintiff is not an "eligible employee" under the FMLA and, therefore, Plaintiffs Count Three cannot be sustained.
The FMLA provides that
[t]he term "eligible employee" does not include —
(ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.29 U.S.C. § 2611(2)(B)(ii).
In Defendant's First Amended Answer, as an "Additional Defense — Plaintiff Not 'Eligible Employee,'" Defendant asserts that "[a]t no time relevant to these proceedings did Defendant employ as many as 50 employees." Plaintiff has offered no controverting argument.
This Court finds that Plaintiff has failed to "come forward . . . with significant probative evidence showing a triable issue of fact" as to Plaintiff's status as an eligible employee under the FMLA. Because Defendant's "pleading on file . . . show[s] that there is no genuine issue" as to the number of employees employed by Defendant during the time relevant to the case sub judice, this Court finds that Plaintiff is not an eligible employee under the FMLA and, thus, the FMLA is inapplicable. This Court. therefore, finds that summary judgment is appropriate as to Count Three of Plaintiffs Complaint.
Count Four — Violation of ERISA
Plaintiff complains that Defendant discriminated against Plaintiff in Defendant's employment practices and that Defendant interfered with the exercise of Plaintiff's rights to medical benefits under ERISA. Defendant reiterates that (1) Peter Lewis Armstrong, Defendant's health insurance carrier representative, verified in his summary judgment Affidavit that Plaintiff's health insurance coverage was continuous from January 1, 1999) through December 31, 2000, and that Plaintiff was sent a "Notice of Group Continuation Privilege under Your Group Health Insurance Plan" on January 22, 2001; (2) Ed Corson, an officer and director of Defendant, verified in his Affidavit that Plaintiff's health coverage was continuously maintained through December 31, 2000, and that Plaintiff did not pay any part of the costs necessary to maintain the health insurance coverage; and (3) Jimmy Anderson, an officer and director of Defendant, stated in his Affidavit that Plaintiff, on December 19, 2000, specifically declined to apply for continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), 29 U.S.C. § 1161, et seq., because Plaintiff stated that she was already receiving Medicaid.
ERISA provides that
[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.29 U.S.C. § 1140 (1999).
For Plaintiff to prevail on a claim that Defendant terminated Plaintiff in order to interfere with Plaintiff's benefits in violation of ERISA, Plaintiff is required to demonstrate that Defendant discharged Plaintiff with the specific intent of interfering with Plaintiff's ERISA benefits. Simmons v. Wilicox, 911 E.2d 1077, 1032 (5th Cir. 1990) (precluding recovery on claim that former employee was terminated in order to interfere with her benefits in violation of ERISA when former employee failed to establish that employer or superior discharged her with specific intent to interfere with employee' s ERISA benefits).
Even assuming arguendo that Plaintiff could prove that she had been discharged by Defendant, the record before this Court is wholly devoid of evidence supporting, either directly or inferentially, such a specific intent on Defendant's behalf. Plaintiff's speculative allegations, without more, are insufficient to support Plaintiff's ERISA claim. This Court, therefore, finds that summary judgment is appropriate as to Count Four of Plaintiff's Complaint.
Pendent State Law Claims Count Five — Intentional Infliction of Emotional Distress Count Six — Negligent Hiring, Retention Supervision, and Training Count Seven — Tortious Interference with Prospective Employment Relationship Count Eight — Defamation Per Se
Having granted Defendant's Motion for Summary Judgment as to each of Plaintiffs federal causes of action as set forth in Counts One, Two, Three, and Four, this Court, pursuant to 28 U.S.C. § 1367 (c), declines to exercise its supplemental jurisdiction as to Plaintiff's pendent state law claims as set forth in Counts Five, Six, Seven, and Eight
CONCLUSION
After considering all the relevant arguments and evidence, this Court GRANTS Defendant's Motion for summary Judgment as to Plaintiff's Counts One, Two, Three, and Four. Pursuant to 28 U.S.C. § 1367 (c). this Court declines to exercise its supplemental jurisdiction over Plaintiff's pendent state law claims as set forth in Counts Five, Six, Seven, and Eight and dismisses same without prejudice to Plaintiffs refiling, the proper forum.
SO ORDERED