SMITH

Michael L. Weathers, Florence, AL, for Plaintiff. Stanley E. Graham, Waller Lansden Dortch & Davis LLP, Nashville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

SMITH, District Judge.

If the regional manager of a national food chain directs the manager of a restaurant under his supervision to hand over her keys to the workplace, and advises her “to quit because [she is] about to be fired,” is that equivalent to actually saying “you are fired”? The plaintiff contends that it is, while defendant construes plaintiff's submission of a letter of resignation the morning after such a conference as a voluntary act that does not give rise to an action under federal employment discrimination statutes seeking damages for “termination” of employment.

The factual scenario sketched in the preceding paragraph presents the most interesting question raised in this case: an action in which plaintiff alleges that her former employer violated Title VII of the Civil Rights Act of 1964 by twice failing to promote her to a General Manager position because of her sex, and by subsequently terminating her employment—either because of plaintiff's gender, or in retaliation for her complaints about gender discrimination and sexual harassment in the workplace. Plaintiff also alleges that defendant violated the Equal Pay Act of 1963 (and, arguably, Title VII) by paying her less than a similarly-situated male employee. In addition to those federal claims, plaintiff invokes this court's supplemental jurisdiction, and alleges that defendant violated state laws by condoning sexual harassment, failing to properly respond to complaints of sexual harassment, and making false, harmful statements about plaintiff.

This opinion addresses defendant's motion for summary judgment; and, upon consideration of that motion, the parties' briefs and evidentiary submissions, and the oral arguments of counsel, this court concludes that defendant's motion is due to be granted on most of plaintiff's claims, but denied as to two.

I. SUMMARY JUDGMENT PRINCIPLES

Federal Rule of Civil Procedure 56 provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In other words, summary judgment is proper “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). “A genuine issue of material fact ‘exists only if sufficient evidence is presented favoring the nonmoving party for a jury to return a verdict for that party.’ ” Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322, 1336 (11th Cir.1999) (quoting Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1284–85 (11th Cir.1997)).

“In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)). “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921);see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the determinative question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

II. SUMMARY OF FACTS

The defendant, Logan's Roadhouse, Inc., is headquartered in Nashville, Tennessee, and the company operates more than 180 company-owned “Logan's Roadhouse”® restaurants in twenty-three states, including Logan's Roadhouse # 312 in Florence, Alabama, as well as supervising the operations of 26 franchisee-owned restaurants serving moderately-priced food under that same tradename. Defendant hired plaintiff, Brandy A. Andazola, to be the Bar Manager of the Florence, Alabama restaurant on September 9, 2004. Within the hierarchy of defendant's restaurants, positions such as “Bar Manager,” “Kitchen Manager,” “Dining Room Manager,” and “Front of the House Manager” are classified as “assistant manager” posts, below the level (and supervision) of an “Assistant General Manager” and a “General Manager.” Plaintiff's employment ended on August 26, 2008, just short of the fourth anniversary of her hire date, under circumstances that will be discussed in detail in Part II(E), infra.

A. Plaintiff's Complaints About Sexual Harassment in the Workplace

Plaintiff alleges that she lodged complaints about the conduct of two employees, Peter Austin and Thomas Moody, that she perceived as sexual harassment. Peter Austin was the “Kitchen Manager” of Roadhouse # 312. During the time that plaintiff worked with Austin, he was undergoing a trans-gender sex-change. During the conversion, “his” behavior became increasingly bizarre. For example, one night in 2007, Austin removed his “breast” from his shirt and, in plaintiff's presence, “squirted milk” across the bar. That same evening, he tried to kiss a fellow employee. On another occasion in 2007, Austin asked plaintiff—who apparently did not adhere to traditional female gender roles —to kiss him, and to touch his “breasts.” Austin also had a “temper.” He yelled at plaintiff and other employees, and threw plates, tongs, knives, glasses, and sauté pans without concern for whom or what the objects might strike. When plaintiff or other employees organized areas of the restaurant, Austin came behind them and changed everything they had done. Plaintiff says that she complained to David Rodriguez, defendant's “Regional Manager” of the geographic area that encompassed Logan's Roadhouse # 312, about Austin's behavior on three occasions: the first time during May of 2008, and then again in July and on August 25th of the same year, but Rodriguez denied that she did so. She also says that she complained to Jim Edwards, who was the General Manager of Roadhouse # 312 until the end of July 2008. She says that she told Edwards that Austin was “harassing” other employees, and that he singled out women for his “harassment,” but Edwards took no corrective action.

Thomas Moody was the second employee about whom plaintiff complained. He was an hourly-wage employee in the Florence Roadhouse who initially was hired as a server, but later had bartender functions added to his serving duties. According to plaintiff, he told sexual jokes, uttered gender slurs, and made offensive hand motions in the presence of female employees. He also touched female employees in an inappropriate manner, ran his hands through their hair, and grabbed their buttocks. Plaintiff assisted another restaurant employee, Ginger Thompson, to lodge a written complaint against Moody on some date that is not clearly stated in the evidentiary materials presented to this court, but which would have occurred sometime prior to Thompson's last date of employment in September of 2006. Plaintiff delivered Thompson's complaint to Paul Tompkins, who then was General Manager of the Florence Roadhouse, and he said that “he would let Jim Edwards handle it since ... Thomas Moody and Jim Edwards were ... very close friends.” Afterwards, Moody's behavior improved.

B. Company Policies Against Discrimination, Harassment, and Fraternization

It is not disputed that defendant prohibited discrimination, harassment, and retaliation in the workplace, and provided several mechanisms for employees to report any alleged incidents of such misconduct. The following statements are copied from the defendant's “Restaurant Management Handbook.”

EQUAL EMPLOYMENT OPPORTUNITY

* * * * * *

Logan's will not tolerate any form of discrimination, harassment or retaliation affecting its employees or applicants due to race, color, religion, sex, sexual orientation, national origin, age, marital status, medical condition, or disability.

Employees who believe they have been subjected to unlawful or unfair discrimination, harassment, or retaliation must immediately advise their General Manager or Regional Manager. In addition, you can always call the Employee Relations Department toll-free at (800) 815–9056, extension 1225 to report issues or concerns about your employment at Logan's. You are also strongly encouraged to report inappropriate conduct that you observe, whether or not it affects you directly.

The company's anti-discrimination and anti-harassment policies are intended to result in effective responses to problems. They require you to provide the company an immediate opportunity to investigate and resolve your workplace concerns. You must notify your restaurant General Manager, Regional Manager, or the Employee Relations Department at the above number regarding issues of harassment, discrimination or retaliation. Employees are encouraged to use the chain of communication, but are not required to notify or speak to restaurant management prior to contacting the Employee Relations Department.

ANTI–HARASSMENT STATEMENT

At Logan's, we believe that all team members should be treated with courtesy, honesty and respect and should enjoy a work environment free from discrimination and from harassment. We will not permit harassment or retaliation by managers, team members, guests, or vendors. We are committed to having a workplace free from harassment or discrimination based on race, color, religion, sex, sexual orientation, national origin, age, marital status, medical condition, or disability. At Logan's, we consider the following types of conduct to be unacceptable:

¦ Unwelcome or obscene slurs, jokes, or harassing comments.

¦ Unwelcome or obscene graffiti, cartoons, drawings or other written comments.

¦ Unwelcome or obscene sexual advances, repeated unwelcome requests for dates, or requests for sexual favors.

¦ Unwelcome, obscene or offensive touching or other physical conduct directed at a team member.

¦ Threatening or requiring a team member to submit to sexual advances in return for an employment benefit.

¦ Retaliation for having reported possible harassment.

¦ Threatening or attempting to condition a team member's job status in any way, explicitly or implicitly, upon submission by a team member to harassment of any type.

¦ Offensive visual contact with sexual overtones, such as leering, gestures, or displaying obscene objects, cartoons, or pictures.

¦ Offering or exchanging employment benefits for sexual concessions, such as promising a promotion in exchange for sexual favors.

¦ Threatening withdrawal of benefits for refusal of sexual favors, such as suggesting the individual will receive a poor performance evaluation or a promotion will be withheld unless sexual favors are given.

At Logan's we are committed to making sure that team members are not harassed because of their race, color, religion, sex, sexual orientation, national origin, age, marital status, medical condition, or disability. However, we need your help to make sure we have a workplace free from harassment. We need you to tell us immediately if you believe you are being harassed or believe discrimination is occurring within our company. Do not wait to complain. We need to address these situations as quickly as possible. The first time you believe improper conduct in violation of this policy has occurred, you should make your concerns known immediately. You should report any possible harassment to the Employee Relations Manager at the Home Office on our hotline at:

(800) 815–9056, ext. 1225.

If you have concerns about the Employee Relations Group, you may contact the company's President directly.

All reports of possible harassment or discrimination will be investigated promptly. We will keep the investigation confidential to the extent that we can under the circumstances. We encourage team members to report any potential harassment or discrimination. Team members reporting violations of this policy will not be punished or retaliated against in any way. However, the company does not condone team members who report violations that have no basis or foundation and may take disciplinary measures if false or malicious claims are reported.

If it is determined that this policy has been violated, corrective action will be taken up to and including immediate separation from employment. The action to be taken will be determined based on the circumstances of each situation. If it is determined that this policy has not been violated or that there is not sufficient evidence to conclude that this policy has been violated, this will be communicated to you as the team member making the complaint, along with the reasons for this determination.

* * * * * *

HOTLINE

Logan's has set up a hotline to deal with claims of discrimination and harassment on the basis of race, color, religion, sex, sexual orientation, national origin, age, marital status, medical condition, or disability. If you feel that you have been discriminated against or harassed, call the hotline number at (800) 815–9056, ext. 1225 and follow the directions given. This is a private message and will be investigated by Employee Relations. Generally, your call will be returned within 48 hours after your message is received. Team members reporting discrimination or harassment will not be punished or retaliated against in any way.

Before actually beginning her employment for defendant, plaintiff was required to attend a two-week orientation during which she was trained on defendant's policies and procedures, including those outlined in the foregoing quotations from the defendant's “Restaurant Management Handbook.” Following that, she was a “manager in training” for approximately eight weeks at the company headquarters in Nashville, some at the Logan's Roadhouse in Decatur, Alabama, and finally at Restaurant # 312 in Florence. Plaintiff acknowledged on September 28, 2004 that: she had received a copy of defendant's “Restaurant Management Handbook”; she had read and understood “all of the policies, procedures and practices of Logan's Roadhouse, Inc.”; she “had the opportunity to ask questions about Logan's Roadhouse, Inc. policies, procedures and practices”; she had agreed, as a condition of her employment, to abide by those policies, procedures, and practices; and, finally, that her failure to comply with those policies, practices, and procedures “ will result in discipline, up to and including separation from employment.”

In order to provide a workplace that was “free from actual or perceived conflicts of interest or favoritism caused by dating or other relationships that occur between people in the workplace,” defendant also “expressly prohibited ... management to date or be involved privately with any other managers or team members in their restaurant” —the so-called anti-fraternization policy. On the same day that plaintiff acknowledged her receipt of defendant's “Restaurant Management Handbook,” she separately acknowledged that she had “received, reviewed, and [understood] the Logan's Roadhouse's [ sic ] policy on Dating and Other Relationships,” including her recognition that a breach of those policies “ may result in discipline, up to and including immediate separation from employment.”

Defendant additionally provided “both a 1–800 Hotline and a direct dial extension to report any compensation and pay issues.”

In response to the uncontested fact that “Plaintiff did not call the corporate Hotline to report any complaints of discrimination, harassment, retaliation, or compensation issues,” plaintiff retorted that Regional Manager David Rodriguez had instructed her to lodge such complaints only with him, and not to communicate with defendant's corporate headquarters or others. Rodriguez denied her riposte.

C. Plaintiff's Failure to be Selected for General Manager Positions

Jim Edwards resigned as General Manager of defendant's Florence Roadhouse at the end of July 2008. At the time, he was under investigation for allegedly allowing (or requiring) hourly-wage employees to work “off the clock.” During the very brief, approximate one-week interval between Edwards's resignation and the selection of his replacement, plaintiff contends that she effectively served as “acting General Manager.” She testified that she asked to be considered for permanent promotion to the position, and that Rodriguez told her she would be considered, but he denied that. Rodriguez interviewed Hank Luking, then serving as General Manager of defendant's recently-opened Athens, Alabama Roadhouse, and thereafter told his corporate superior, Jim Kuehnhold, that

Luking was interested in coming to Florence. That's where he began, I believe, and his family was there, he owned a home there. And I felt that [,] based upon his experience, he'd recently been GM of the year, that he would be a great asset to help correct some of the issues in the [Florence] restaurant.
Kuehnhold awarded the position to Luking.

Prior to the selection of Luking as General Manager of the Athens Roadhouse, he had been General Manager of the Logan's restaurant in Decatur, Alabama. When defendant opened the Athens Roadhouse, Luking was transferred from Decatur and made General Manager of the new restaurant. According to plaintiff, Rodriguez told her that, “in order to be a GM [General Manager] in this company,” a person first had to complete the Assistant General Manager “program”; and that, for the first year after the opening of a new restaurant, such as the Athens Roadhouse, company policy only permitted someone who had previously served as a General Manager to manage the facility. Luking held the Athens position for only three months before being transferred to Florence.

Plaintiff said that, after Hank Luking was made General Manager of Restaurant # 312 in Florence, she expressed an interest in being promoted to the Athens General Manager position vacated by his transfer, but the slot was awarded instead to Nykael Stewart, who already was employed in the Athens restaurant in some capacity that is not clearly disclosed in this record. Plaintiff notes that, contrary to David Rodriguez's alleged representations to her about company policy, Stewart had no previous experience as a General Manager at any Logan's Roadhouse. Moreover, plaintiff touts the fact that she successfully completed defendant's Assistant General Manager training program in September of 2007, but Stewart allegedly had not.

D. The Alleged Gender–Based Wage Disparity

Plaintiff's starting salary was $37,000 annually. She received a raise each year. When her employment ended, her salary was $45,000 a year. Plaintiff complains about the fact that Peter Austin, the Kitchen Manager of Roadhouse # 312 who is profiled in Part II(A), supra, was paid more than she.

E. The End of Plaintiff's Employment

The events leading to the end of plaintiff's employment began, according to her narrative, before Jim Edwards resigned as General Manager of the Florence Roadhouse. She alleges that Edwards met in June of 2008 with Julian Ordonez, the manager of a Florence sports bar and grill named “Sidelines,” and concocted a plan for Ordonez to cause plaintiff to be fired by lodging a false complaint with defendant's corporate headquarters about plaintiff's alleged “unprofessional conduct” while in the Sidelines bar. Plaintiff alleges that she knows this because a Sidelines employee named Bionca Sherrod–Holady overheard Edwards and Ordonez hatching their plan. Ms. Sherrod–Holady executed a declaration that plaintiff submitted in opposition to defendant's motion for summary judgment, and the pertinent parts of that document read as follows:

I have known Brandy A. Andazola for a number of years.

I worked at Sidelines, a sportsbar/restaurant in Florence, Lauderdale County, Alabama, while Brandy was still employed by Logan's Restaurant in Florence, Lauderdale County, Alabama.

Shortly before Brandy's employment with Logan's ended, Jim Edwards, [who then was] General Manager at Logan's and Brandy's immediate supervisor, came into Sidelines. I also know Jim because I frequently went to Logan's Restaurant in Florence, Alabama at that time. Jim sat in a booth in [the] Sidelines bar with Julian Ordonez, a manager at Sidelines.

Jim and Julian were talking loudly enough that I and others in the Sidelines bar could hear what they were saying.

I personally know Jim and Julian were planning ways to get Logan's to fire Brandy because they were making those plans in my presence.

I personally know Jim, Julian, and Thomas Moody were going to provide Logan's with false and untruthful information about Brandy to get Logan's to fire Brandy because Jim and Julian were making these plans in my presence. I personally know Jim, Julian, and Thomas were going to make a complaint to Logan's falsely claiming that Brandy was in Sidelines wearing a Logan's manager shirt, drinking, very intoxicated, acting unprofessionally, and causing a scene because Jim and Julian were discussing these things in my presence.

I personally know Jim and Julian were planning how they were going to cause harm and damage to Brandy's character and life because they were making those plans in my presence.

While Jim was at Sidelines, I personally saw, with my own eyes, Jim and Julian writing a letter which they were to going to have Thomas mail to Logan's to get Brandy fired.

I also personally know that Jim and Julian were going to call Logan's to get Brandy fired because they discussed making the call in my presence.

I personally know that Jim, Julian, and Thomas were going to make an untruthful complaint to Logan's about Brandy to get her fired because Julian and Jim discussed in my presence how they and Thomas were going to do this.

I never saw Brandy wearing a Logan's manager shirt, drinking, very intoxicated, acting unprofessionally, and causing a scene at Sidelines that night or at any other time.

There were many people in Sidelines bar by the time Jim left Sidelines. By the time Jim left Sidelines, he had told me and a number of other people in Sidelines' bar who did not work at Logan's that Brandy had been at Sidelines that night wearing a Logan's manager shirt, drinking, very intoxicated, acting unprofessionally, and causing a scene and he was going to get Brandy fired.

According to the Declaration of David Rodriguez submitted in support of summary judgment, someone identifying himself as “the manager” of “Sidelines” placed a telephone call to “Logan's” in June of 2008, and reported that plaintiff

had patronized the restaurant's bar the prior evening and caused a scene, all while wearing a Logan's manager shirt. The complaint also reported that Plaintiff was drinking to excess, being disorderly and intoxicated, and making accusations about the management at Sidelines [sic].
Furthermore, according to Rodriguez, “[a]t about the same time” as the foregoing report, “Logan's also received information that Plaintiff was fraternizing with hourly employees—whom she supervised—outside of work.”

Consequently, Rodriguez says that he “visited Restaurant # 312 on or about July 10, 2008 to discuss [both] complaints with Plaintiff,” and that he “placed Plaintiff on a Final Written Warning for unprofessionalism.” Plaintiff denies that Rodriguez met with her on July 10, 2008 to discuss any complaints, and she “adamantly” denies that he issued her a “Final Written Warning.”

Those were not the events that immediately preceded the end of plaintiff's employment, however. Instead, on or about August 4, 2008, Thomas Moody, the hourly-wage employee who was the subject of the sexual harassment complaint that plaintiff had assisted Ginger Thompson to file sometime prior to September of 2006, addressed the following letter to defendant's corporate headquarters:

My name is Thomas Moody, and [I] have been employed as a server, bartender, and trainer by your company for the last 8 years. I am currently employed by the Florence, AL location, restaurant # 312. Although I understand the “chain of command,” I am left in a quandary because I have an issue that needs to be addressed, but because we no longer have a general manager,[ ] and this issue directly involves the individual that feels she will fill the vacant spot, I felt it more prudent to write this letter. As I am about to explain, it is a serious, and heartfelt issue, but it has been advised to me to initiate action with this letter, which will be filed as a legal document.

Approximately 3 months ago there were 4 vacancies left in my current restaurant's bartender positioning. As I have had years of experience bartending, including time at the Chattanooga, TN Logan's Roadhouse, I fully expected to be considered for one of the positions. The current bar manager, Brandy Andazola, would not even consider me or give me a chance.[ ] After speaking with our general manager at the time, Jim Edwards, and explaining the situation, he over-rode her decision and instructed her to give me an opportunity.

This first provokes the question of why she would not even consider me for one of the positions. It is a well known fact, here locally, that Brandy practices favoritism/discrimination. She is a socialite that has tendencies of rewarding the employees that relish in partaking of her vices with her. I have actually obtained photos of her at our local bars drinking with employees, at least one of which filled one of the bartender positions. Then there is the party she threw for the employees, which I did not attend. The party is also a matter of public record, as that 3 employees were arrested that evening at her house, on various charges, all concerning a controlled substance. Being male I am of no interest to Brandy in a sexual nature, and since I am a single father I tend not to go out socially very often .... [ sic ] It does seem to me that these facts should not impede my career with Logan's.

Secondly, now that the previous general manager is no longer with the company, it seems to be “open season” on me and my one and only bartending shift. I currently am the lunch shift bartender on Sundays (typically the shift that nobody wants anyway!) The last time I worked I actually heard Brandy instruct the S.A. that was on duty NOT to help me. It seems to me that with this one action she managed to undermine all five of our values .... not a simple feat in and of itself.

In a nutshell, the only things that I hope to accomplish by writing this letter are, first, to not be discriminated against in the workplace because I choose not to be social outside of work with my immediate supervisor, and secondly, to be treated with the same courtesy, honest, and respect that Brandy's “favorites” enjoy. Thank you in advance for your attention to these issues. Please feel free to contact me on my cell phone for any necessary communication[.]

A copy of Moody's letter, together with a group of six photographs depicting plaintiff in social situations with other employees, was provided to David Rodriguez on some date that is not clearly specified in this record. Further, the means by which the documents came into Rodriguez's possession are not entirely clear, although it appears that at least the photographs were hand-delivered to him by Moody, while Moody's letter may have been transmitted to Rodriguez by Logan's corporate headquarters and/or Moody himself.

In any event, a copy of Moody's letter and the photographs depicting plaintiff in social situations with hourly employees became the focus of questions that Rodriguez asked plaintiff during a conference held in the Florence Roadhouse on August 25, 2008. Hank Luking was the only other person present.

Rodriguez handed the photographs to plaintiff, and asked her a series of questions about both the scenes depicted in the pictures and the accusations contained in Moody's letter. She explained that the photographs were not of recent vintage, but had been taken two years before, and gave a written statement to that effect. Nevertheless, according to plaintiff, Rodriguez then either asked for, or demanded that she hand over, her keys to the restaurant. According to plaintiff, she then was “advised to quit because I was about to be fired.” The following day, plaintiff delivered a letter of resignation to Rodriguez reading as follows: “To Whom It May Concern: Regretfully, I must resign as Assistant Manager of Logan's Roadhouse Store # 312. Thank you all, for the opportunities and experiences. Best of luck. Brandy Andazola. 8/26/08.”

III. DISCUSSION

A common element of all Title VII disparate treatment and retaliation claims is “some form of legally cognizable adverse action by the employer.” Brown v. Brody, 199 F.3d 446, 453 (D.C.Cir.1999) (citing Doe v. Dekalb County School District, 145 F.3d 1441, 1448 n. 10 (11th Cir.1998)). An employment action is considered sufficiently “adverse” to be actionable under federal discrimination statutes “ only if it results in some tangible, negative effect on the plaintiff's employment.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir.2001) (addressing an ADA retaliation claim) (emphasis supplied). The “classic and ultimate ‘tangible employment action’ ” is, of course, termination of a person's employment. Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1246 n. 18 (11th Cir.1998).

The major premise of defendant's motion for summary judgment—indeed, the metaphorical linchpin upon which all other arguments hinge—is the contention that plaintiff “did not suffer any adverse employment action. Plaintiff voluntarily resigned from her employment at Logan's, and her claim that she was ‘discharged’ is baseless.”

Defendant's reliance upon the Eleventh Circuit's decision in Ross v. City of Perry, 396 Fed.Appx. 668 (11th Cir.2010), as the basis for its argument that plaintiff's “resignation was not involuntary, and therefore it was not an adverse employment action under Title VII,” is misguided. Wholly apart from the fact that the Ross opinion is not published and, therefore, not entitled to binding, precedential weight under Eleventh Circuit Rule 36–2, the substantive law discussed in that opinion is out of place in the context of this case: that is, the principles discussed in Ross v. City of Perry and cases like it apply only to those actions in which the determinative question is whether a plaintiff's resignation from a public employment position was voluntary, as opposed to being obtained by coercion or duress, or by misrepresentations of the public employer. See, e.g., Hargray v. City of Hallandale, 57 F.3d 1560, 1568–72 (11th Cir.1995).

In contrast, the present case raises a much more interesting issue; that is: when an Alabama private employer, who can fire an employee for any reason—a good reason, a bad reason, or no reason at all, so long as the basis for termination is not a violation of federal employment discrimination statutes—acts in a manner that communicates to a reasonably prudent employee that she is about to be terminated, and the employee subsequently resigns, does that amount to either a “constructive discharge,” or an “adverse employment action” that rises to the level of an actual termination?

Federal circuit courts of appeals tend to view cases that present such fact patterns in subtly but, nevertheless, substantively different manners. Some circuits analyze such factual scenarios as if they were a sub-category of “constructive discharges,” while other circuits treat them as if they amount to an “actual discharge.” The Seventh Circuit, for example, has held that, “[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer's conduct may amount to [a] constructive discharge.” Equal Employment Opportunity Commission v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir.2002) (alteration supplied, footnote omitted) (citing, e.g., Bragg v. Navistar International Transportation Corp., 164 F.3d 373, 377 (7th Cir.1998) (“Constructive discharge exists to give Title VII protection to a plaintiff who decides to quit rather than wait around to be fired.”)). See also, e.g., Hunt v. City of Markham, Illinois, 219 F.3d 649, 655 (7th Cir.2000) (“A person who is told repeatedly that he is not wanted, has no future, and can't count on ever getting another raise would not be acting unreasonably if he decided that to remain with this employer would necessarily be inconsistent with even a minimal sense of self-respect, and therefore intolerable.”).

The Second and Eighth Circuits, on the other hand, have characterized fact patterns that would lead a reasonably prudent person to believe that her tenure had been terminated as an “actual termination.” See Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 88 (2nd Cir.1996) (“An actual discharge ... occurs when the employer uses language or engages in conduct that ‘would logically lead a prudent person to believe his tenure has been terminated.’ ”) (quoting National Labor Relations Board v. Trumbull Asphalt Co. of Delaware, 327 F.2d 841, 843 (8th Cir.1964) (Blackmun, J.) (holding that “[t]he fact of discharge ... does not depend on the use of formal words of firing. It is sufficient if the words or actions of the employer ‘would logically lead a prudent person to believe his tenure had been terminated.’ ”) (quoting Putnam v. Lower, 236 F.2d 561, 566 (9th Cir.1956))).

The Eleventh Circuit fits into the cleavage between the conflicting positions sketched above, and holds that circumstances like those described require an “analysis of the employer's intent”—an inquiry into the totality of circumstances that “must be undertaken with close scrutiny of the evidence in each case.” Thomas v. Dillard Department Stores, Inc., 116 F.3d 1432, 1434, 1435 (11th Cir.1997). The Thomas panel approvingly cited opinions of the former Fifth Circuit and the Second and Fourth Circuits: i.e., Payne v. Crane Co., 560 F.2d 198, 199 (5th Cir.1977) (holding that an actual discharge occurs when an employer “by acts or words, shows a clear intention to dispense with the servicesof an employee”); Chertkova, 92 F.3d at 88 (holding that an “actual discharge ... occurs when the employer uses language or engages in conduct that would logically lead a prudent person to believe his tenure has been terminated”) (citation and internal quotation marks omitted); and Equal Employment Opportunity Commission v. Service News Co., 898 F.2d 958, 962 (4th Cir.1990) (“No specific words need be present to support a finding of actual discharge.”).

In short, within the Eleventh Circuit, “[t]he proper legal standard requires analysis of the employer's intent, which may be inferred not only from words but also from conduct, as well as the specific circumstances of the challenged job action.” Thomas, 116 F.3d at 1437 (emphasis supplied); see also Luna v. Walgreen Co., 347 Fed.Appx. 469, 473 (11th Cir.2009) (same). “[I]t is also clear in light of the case law that the lack of specific words [e.g., ‘you are fired’] is not dispositive.” Thomas, 116 F.3d at 1437 (emphasis and alteration supplied) (citing Chertkova, 92 F.3d at 88, and Service News, 898 F.2d at 962).

For example, in the former Fifth Circuit's opinion in National Labor Relations Board v. Ridgeway Trucking Co., 622 F.2d 1222 (5th Cir.1980), the only issue was whether the employer's General Manager had terminated the employment of striking truck drivers when telling the drivers that “if they were not going to go to work they should leave the property,” and that “if they did not leave the premises, he would have to call the authorities.” Id. at 1223. The former Fifth Circuit held, in an opinion still binding on this court, that “[a]n employer need not use the term ‘fired’ in order for a discharge to occur. The test of whether an employee was discharged depends upon the reasonable inference that the employees could draw from the language used by the employer.” Id. at 1224 (emphasis supplied) (citing Liberty Mutual Insurance Co. v. National Labor Relations Board, 592 F.2d 595, 604 (1st Cir.1979); The C.J. Krehbiel Co., 227 N.L.R.B. 383, 384 (1976)).

Defendant's account of the circumstances surrounding plaintiff's departure is sketched in David Rodriguez's deposition, during which he gave the following account of the discussion he and Hank Luking allegedly had with plaintiff on August 25, 2008.

We sat down. [I said:] Some information had been brought to our attention that we need to talk to you about. And, you know, we showed [plaintiff] the pictures [that had been submitted by Thomas Moody]. We let her know that we were researching this information. That it is a serious issue. And we were going to continue to research, utilize our home office. You know, we said it is a terminable offense and we're going to take it seriously, but what we would like to do is hold your keys to protect you from any possibility of being accused of any wrongdoing. To go ahead and go home. We're going to continue to research, get with our home office, come back in the morning and we'll discuss any decisions made.
Even that benign account of the words spoken in plaintiff's last meeting does not support defendant's major premise. Rather, viewing that chronicle, as this court must, in the light most favorable to plaintiff, the non-moving party, and, reading it in conjunction with plaintiff's testimony that Rodriguez either asked for, or demanded that she hand-over, her keys to the restaurant, and that he then “advised [her] to quit because [she] was about to be fired,” this court cannot say, as a matter of law, that no reasonable employee could draw the same inference that plaintiff has testified she drew from the language used by defendant's Regional Manager. Consequently, the other arguments asserted by defendant in support of its motion for summary judgment must be addressed.

A. Termination Based Upon Plaintiff's Sex

In discharge situations, courts generally require a plaintiff to demonstrate that: (1) she was a member of a class of persons protected by Title VII; (2) she was qualified for the position from which she was discharged; (3) despite her qualifications, she was discharged; and (4) following the termination of her employment, the defendant either replaced plaintiff with someone outside the protected class, or retained other employees who were not within the protected class and who possessed comparable or lesser qualifications.

Shifting the frame of reference slightly, the Eleventh Circuit has sometimes held that a plaintiff seeking to make out a prima facie case of disparate treatment discrimination in the termination of his or her employment “must generally show that (1) plaintiff is a member of a protected class; (2) plaintiff suffered an adverse employment action; (3) the employer treated similarly situated employees outside of the protected class more favorably; and (4) plaintiff was qualified to do the job.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir.2001)); see also, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). That is the formulation which will be applied here; and, in doing so, the only element requiring discussion is the third: whether defendant treated similarly-situated male employees more favorably.

Some binding authorities have allowed the third element of the applicable prima facie formulation to be satisfied upon a showing “that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged in by a male employee whom [the employer] retained.” Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982) (alterations supplied); see also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984) (same). “When an individual proves that [she] was fired but one outside [her] class was retained although both violated the same work rule, this raises an inference that the rule was discriminatorily applied against that individual, regardless of the race or sex of the replacement.” Id. at 1186.

“In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1311 (11th Cir.), opinion modified by151 F.3d 1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). “The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.” Id. (internal quotations and citations omitted). We require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989) (“Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.”).
Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir.1999) (emphasis supplied).

Thus, plaintiff must show that male employees of defendant were guilty of the same, or “nearly identical,” misconduct, yet were not terminated, or were disciplined in different ways. Id.;see also, e.g., Silvera v. Orange County School Board, 244 F.3d 1253, 1259 (11th Cir.2001) (“The most important factors in the disciplinary context ... are the nature of the offenses committed and the nature of the punishments imposed.”). “Absent some other similarly situated but differently disciplined worker, there can be no disparate treatment.” Abel v. Dubberly, 210 F.3d 1334, 1339 (11th Cir.2000).

Prior to asking plaintiff for her keys, David Rodriguez told her that she was under investigation for violation of defendant's anti-fraternization policy. In response to the motion for summary judgment, plaintiff alleges that Rodriguez was himself guilty of violating the same policy. She presented a photograph depicting Rodriguez embracing Lindsey Nichols, the hostess of Restaurant # 312, whose head is nuzzled on his left shoulder. According to plaintiff, Rodriguez paid a great deal of attention to Ms. Nichols whenever he was in the Florence Roadhouse.

I mean, this would be a typical picture when ... Lindsey Nichols was working. That's where he stayed[—]up there right beside her, all over her. If she walked out to the front, to the front doors, there is where he was. Wherever she went[,] that's were he was.
She also alleged that she had personally observed Rodriguez “hugging all over” the female bartenders of Logan's Decatur Roadhouse, and testified that he had asked hourly employees to accompany him on trips to Tunica, Mississippi, to watch him box.

Rodriguez is not a fair comparitor. The fraternization allegedly engaged in by him is different from plaintiff's, because the gravamen of Thomas Moody's complaint was that plaintiff rewarded the hourly employees with whom she socialized, whereas plaintiff presented no evidence that Rodriguez exhibited favoritism in the assignment, schedule, or promotion of any female employees who allegedly became the subject of his attention. Accordingly, summaryjudgment is due to be entered in favor of defendant on this version of plaintiff's termination claim.

B. Termination in Retaliation for Protected Conduct

Plaintiff alternatively contends that she was fired in retaliation for her protected activities. She separately alleges that she personally complained about the sexual harassment of both Peter Austin and Thomas Moody (opposition clause), and assisted Ginger Thompson to draft and lodge a written complaint against Moody on some date prior to September of 2006 (participation clause).

Generally speaking, a plaintiff must satisfy three elements in order to establish a prima facie case of retaliation: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there was a causal linkage between the protected conduct and the adverse employment action. See, e.g., Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir.2002); Bass v. Board of County Commissioners, 256 F.3d 1095, 1117 (11th Cir.2001); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11th Cir.2000). “If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a legitimate reason for the adverse action.” Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir.2006). If the defendant does so, the plaintiff must then show that the defendant's proffered reason for the adverse action is a pretext for retaliation. See id.

The third prima facie element is the only one requiring discussion.

The demonstration of a casual linkage at the summary judgment stage is far less onerous than proving causation by a preponderance of the evidence at trial. At the summary judgment stage, “a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir.1994) (quoting Equal Employment Opportunity Commission v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571–72 (11th Cir.1993)).

“Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated.” Bass, 256 F.3d at 1119 (citing Gupta v. Florida Board of Regents, 212 F.3d 571, 590 (11th Cir.2000)); see also, e.g., Wascura v. City of South Miami, 257 F.3d 1238, 1244–45 (11th Cir.2001) (holding that “a close temporal proximity between two events may support a finding of a causal connection between those two events.”) (citing Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir.2000) (“The general rule is that close temporal proximity between the employee's protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.”) (emphasis supplied)).

Conversely, when there is an extended period of time between the protected activity and the adverse action, the less likely it becomes that a causal linkage between the two events will be found. Indeed, as the Supreme Court has observed, the temporal gap must be “very close” in order to support the conclusion of a causal linkage. Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ( per curiam ) (quoting O'Neal v. Ferguson Construction Co., 237 F.3d 1248, 1253 (10th Cir.2001), and also citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997), and Hughes v. Derwinski, 967 F.2d 1168, 1174–75 (7th Cir.1992), for the proposition that three- and four-month gaps, respectively, between an employer's knowledge of protected activity and an adverse employment action are not sufficiently close to serve as circumstantial evidence of a causal relationship between the two events).

The pertinent question in a case such as this one, where there is no evidence directly linking plaintiff's protected activities to the termination of her employment, is: “ How long is too long? ” The Eleventh Circuit has held that a temporal gap of only one month between the plaintiff's act of filing an EEOC charge alleging that her employer denied her a sales representative position because of her sex and subsequent termination of the plaintiff's employment was sufficiently close to establish a causal nexus. Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir.1986) (“The short period of time ... between the filing of the discrimination complaint and the plaintiff's discharge belies any assertion by the defendant that the plaintiff failed to prove causation.”). On the other hand, the Supreme Court has held that a temporal gap of twenty months “suggests, by itself, no causality at all.” Breeden, 532 U.S. at 274, 121 S.Ct. 1508.

Here, the event that proximately caused David Rodriguez to initiate an investigation into plaintiff's alleged violations of defendant's anti-fraternization policy was the letter that Thomas Moody mailed on or after August 4, 2008. Significantly, however, plaintiff's acts of assisting Ginger Thompson to draft and lodge a formal written complaint about Moody's sexual harassment, and plaintiff's hand-delivery of that charge to the General Manager of the Florence restaurant, all occurred on some unspecified date prior to September of 2006, nearly two full years prior to plaintiff's August 25, 2008 conference with Rodriguez and Hank Luking. That is too long to circumstantially support a conclusion of causation. See, e.g., Pennington v. City of Huntsville, 261 F.3d 1262, 1266 n. 4 (11th Cir.2001) (opining that a two year break between the plaintiff's grievance and the employer's adverse action “probably would prevent a court from finding a causal nexus”); Maniccia, 171 F.3d at 1369–70 (holding that gaps of fifteen and twenty-one months between the employee's and employer's respective actions were too great to support a causal nexus).

Plaintiff also testified that she complained to David Rodriguez about Moody's sexual harassment of female employees, and that her termination was in retaliation for those complaints. The rub lies in the fact that plaintiff either could not, or did not, specify the dates on which she allegedly lodged such complaints if, in fact, she did so. Consequently, there is no basis for determining whether there is a causal linkage, and summary judgment also is due to be entered in favor of defendant on the alternative aspect of plaintiff's retaliation claim.

C. Plaintiff's Failure to Promote Claims

Plaintiff's failure to promote claims grow out of the fact that she was twice passed-over for promotion to General Manager positions: first, when defendant transferred Hank Luking from its newly-opened, Athens Roadhouse facility to Roadhouse # 312 in Florence, following Jim Edwards's resignation; and, second, when Nykael Stewart was named as Luking's replacement in Athens.

A plaintiff who asserts that an employer violated federal employment discrimination statutes by failing to promote her must satisfy four prima facie elements: (1) she is a member of a protected group; (2) she applied for, and was qualified to fill, a position for which the defendant was accepting applications; (3) despite her qualifications, she was rejected for promotion; and (4) after plaintiff's rejection, the employer either kept the position open, or filled it with a person outside her protected class. See, e.g., Walker v. Mortham, 158 F.3d 1177, 1179 n. 2, 1185–93 (11th Cir.1998) (explaining that a plaintiff need not introduce evidence of the relative qualification of the person promoted instead of plaintiff as part of her prima facie case for failure to promote). The issues with respect to both of plaintiff's failure to promote claims are the same and, thus, the court will analyze the prima facie elements simultaneously.

It is not disputed that plaintiff, as a female, is a member of a class protected by Title VII, or that she was twice passed-over for promotion, or that each promotion was awarded to a male. Thus, defendant's motion for summary judgment pivots upon the second element, and the question of whether plaintiff was qualified to fill the promotional positions she sought.

David Rodriguez testified in the following passages from his Declaration that he did not consider plaintiff qualified to be promoted to a General Manager position because, on or about July 10, 2008, he allegedly had placed plaintiff on a “Final Written Warning” for unprofessional conduct:

5. In June 2008, Logan's received a complaint about Plaintiff from the manager of another local restaurant, Sidelines.

6. The complaint stated that Plaintiff had patronized the restaurant's bar the prior evening and caused a scene, all while wearing a Logan's manager shirt. The complaint also reported that Plaintiff was drinking to excess, being disorderly and intoxicated, and making accusations about the management at Sidelines.

7. At about the same time, Logan's also received information that Plaintiff was fraternizing with hourly employees—whom she supervised—outside of work.

8. I visited Restaurant # 312 on or about July 10, 2008 to discuss these complaints with Plaintiff.

9. Also as a result of these complaints, I placed Plaintiff on a Final Written Warning for unprofessionalism. A copy of the Final Written Warning is attached hereto as Exhibit 1.

10. Because Plaintiff was on a Final Written Warning, I did not consider her to be qualified for a promotion to General Manager.

11. On or about August 25, 2008, I visited Restaurant # 312 to discuss yet another complaint of alleged fraternization and unprofessional conduct with Plaintiff. The next day, Plaintiff approached me at the restaurant and handed me a letter which states, “Regretfully, I must resign as assistant Manager of Logan's Roadhouse Store # 312. Thank you all, for the opportunities and experiences. Best of luck. Brandy Andazola.”
As previously noted in Part II(E) of this opinion, plaintiff denies that Rodriguez met with her on July 10, 2008, and she “adamantly” denies that he issued her a “Final Written Warning.” Plaintiff's denial draws strength from the fact that the copy of the “Final Written Warning” allegedly issued to her, and attached to Rodriguez's Declaration as “Exhibit 1,” is neither dated nor signed by him or by plaintiff. Thus, the question of whether plaintiff was ever placed on a “Final Written Warning” is a genuinely-disputed issue of material fact. Further, at the summary judgment stage, a court must review all evidence in favor of the non-moving party. See Chapman, e.g., 229 F.3d at 1023. Accordingly, this court must assume that plaintiff was not placed on a Final Written Warning, and that she satisfies the second element of a prima facie failure to promote claim. The burden, therefore, shifts to defendant to present some other, legitimate, non-discriminatory reason for twice failing to promote plaintiff.

Defendant's alternative response is, at best, confusing. Defendant argues that plaintiff “cannot show she was similarly situated to either of [the] individuals” promoted instead of her: a contention that this court construes as saying that plaintiff was less qualified than either Hank Luking or Nykael Stewart.

When an employer offers as its reason for not promoting a plaintiff the assertion that the person who was promoted was “more qualified,” and the plaintiff responds by asserting that she was equally or more qualified than the person promoted, the plaintiff can survive summary judgment only if the “disparities in qualifications [are] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir.2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006); see also Ash, 546 U.S. at 456–58, 126 S.Ct. 1195. Moreover, “a plaintiff employee may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason, as long as the reason is one that might motivate a reasonable employer.” Pennington, 261 F.3d at 1267 (citation omitted); see also, e.g., Rowell v. BellSouth Corp., 433 F.3d 794, 798–99 (11th Cir.2005) (explaining that “[i]t is by now axiomatic that we cannot second-guess the business decisions of an employer”).

1. The promotions awarded to Hank Luking

Without any question, Hank Luking had significant experience as a General Manager of at least two other restaurants owned and operated by defendant ( e.g., the Decatur and Athens facilities), while plaintiff had never served as the permanent General Manager of a “Logan's Roadhouse” restaurant. Her abbreviated experience as acting General Manager of the Florence Roadhouse for no more than a week is not comparable to Luking's extensive experience as an actual General Manager. Admittedly, plaintiff had some experience as a general manager of other restaurants, but none were owned or operated by defendant. Consequently, that experience was neither within the knowledge of defendant's decision-makers, nor comparable to Luking's experience working as a General Manager of several restaurants owned by defendant.

In short, Luking clearly was more qualified for the positions sought by plaintiff, and plaintiff has hardly demonstrated “disparities in qualifications [that are] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Cooper, 390 F.3d at 732. Because plaintiff fails to present evidence sufficient to create a triable issue as to pretext, summary judgment is due to be entered in favor of defendant on plaintiff's claims related to the promotional positions awarded to Hank Luking.

That conclusion does not end the discussion of plaintiff's failure to promote claims, however. The court now must address defendant's asserted, nondiscriminatory reason for promoting Nykael Stewart to General Manager of its Athens Roadhouse, following Luking's transfer to Florence.

2. The promotion awarded to Nykael Stewart

Defendant's brief asserts that Stewart was promoted because he was Assistant General Manager of the Athens restaurant at the time of Luking's transfer. However, defendant does not provideany evidence showing either that Stewart held the position alleged, or that it was the reason he was promoted.

On a motion for summary judgment, the defendant must clearly set forth through the presentation of evidence the reason(s) for a plaintiff's rejection. See, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506–07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an explanation to rebut the prima facie case— i.e., the burden of ‘ producing evidence ’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’ ”) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (emphasis added). Thus, a reason asserted only in a defendant's brief, and never asserted in or supported by the evidentiary record, is not sufficient to meet the defendant's burden. Because defendant has failed to present evidence demonstrating that the non-discriminatory reason asserted in its brief was the actual reason for promoting plaintiff, it failed to satisfy the second step of the McDonnell Douglas framework. Thus, summary judgment is due to be denied on plaintiff's claim that she was discriminated against when defendant promoted Nykael Stewart, rather than her, to the position of General Manager of Logan's Athens Roadhouse restaurant.

D. Gender–Based Wage Disparity Claims

The Equal Pay Act was enacted in 1963, and made part of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., under which it has been administered and enforced. The text of the statute prohibiting discrimination in the payment of wages on the basis of an employee's sex provides, in relevant part, that:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to ( i ) a seniority system; ( ii ) a merit system; ( iii ) a system which measures earnings by quantity or quality of production; or ( iv ) a differential based on any other factor other than sex:....
29 U.S.C. § 206(d)(1) (emphasis supplied). An employee establishes a prima facie Equal Pay Act claim by “showing that [her] employer paid employees of opposite genders different wages for equal work for jobs which require ‘equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Steger v. General Electric Co., 318 F.3d 1066, 1077–78 (11th Cir.2003) (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995)); see also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir.1992) (“A plaintiff suing under the Equal Pay Act must meet the fairly strict standard of proving that she performed substantially similar work for less pay.”). “A plaintiff establishes a prima facie case by comparing the jobs held by the female and male employees, and by showing that those jobs are substantially equal, not by comparing the skills and qualifications of the individual employees holding those jobs.” Brock v. Georgia Southwestern College, 765 F.2d 1026, 1032 (11th Cir.1985) (emphasis supplied).

“Once the employee presents a prima facie case, the employer may avoid liability by proving by a preponderance of the evidence that the pay differences are based on ‘(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex.’ ” Id. at 1078 (quoting 29 U.S.C. § 206(d)(1)).

The burden to prove these affirmative defenses is heavy and must demonstrate that “ ‘the factor of sex provided no basis for the wage differential.’ ” Irby, 44 F.3d at 954 (quoting Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir.1994)). Further, the employer must show that none of the decision-makers, whether in middle or upper management, were influenced by gender bias. See Anderson v. WBMG–42, 253 F.3d 561, 566 (11th Cir.2001). Although an employer may not rely on a “general practice” as a factor “other than sex,” [Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1194 (11th Cir.1990) ], it may consider factors such as the “ ‘unique characteristics of the same job; ... an individual's experience, training or ability; or ... special exigent circumstances connected with the business.’ ” Irby, 44 F.3d at 955 (quoting Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir.1988)). An employer's evidence of its routine practices is relevant to prove that its conduct at a particular time conformed to its routine practices. Federal Rule of Evidence 406.
Id. (bracketed alteration supplied). Then, if the employer satisfies the burden to prove an affirmative defense, the burden shifts back to the plaintiff to “rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential.” Irby, 44 F.3d at 954.

The only male employee plaintiff cites as a relevant comparitor is Peter Austin. Defendant admits, through the declaration of David Rodriguez, that Austin was paid more than plaintiff. Even so, plaintiff cannot make out a prima facie Equal Pay Act claim for the difference between her pay and that of Austin because she cannot show that they performed “equal work on jobs the performance of which require[d] equal skill, effort, and responsibility.” 29 U.S.C. § 206(d)(1) (alteration supplied); see also Steger, 318 F.3d at 1077–78. Plaintiff was employed in the position of Bar Manager. Austin was employed as Kitchen Manager. Plaintiff neither asserted, nor provided evidence tending to show, that those positions required “equal skill, effort, and responsibility,” or that they were “performed under similar working conditions.” Additionally, as the job title of “Kitchen Manager” indicates, the duties of that position would require the occupant to possess cooking, food preparation, and kitchen management skills, and it would entail responsibility for the kitchen area of the restaurant. A “Bar Manager,” on the other hand, likely would be required to possess a very different skillset ( e.g., drink preparation, bar management, operation of a cash register, and accounting functions), and would be responsible for an entirely different area of the restaurant.

Even assuming that plaintiff established a prima facie Equal Pay Act claim, defendant asserts a factor other than sex to explain the pay differential. Defendant states that Austin was paid more than plaintiff because he had been employed by the company for a substantially longer period of time—three years and eleven months longer. Plaintiff does not dispute that Austin was employed longer than she, nor does she dispute that the length of time an employee worked for defendant is a legitimate factor in determining the amount paid in salary. Significantly, plaintiff presents no evidence to show that defendant's asserted reason for the pay disparity is pretextual. In fact, the evidence she does present tends to corroborate defendant's assertion that it paid higher salaries to those persons employed by the company for longer periods of time: i.e., plaintiff received a pay raise each year she was employed by defendant.

Even though it is not clear whether plaintiff asserts a gender-based wage-discrimination claim under Title VII, the court will assume that she intended to do so, and analyze it accordingly. An employee establishes a prima facie case of gender-based wage-discrimination under Title VII “by demonstrating [1] that she is female and [2] that the job she occupied was similar to higher paying jobs occupied by males.” Miranda, 975 F.2d at 1529 (bracketed alterations supplied); see also Meeks, 15 F.3d at 1019. Production of evidence establishing those elements gives rise to a presumption that the employer intended to discriminate on the basis of sex, and the employer then must articulate a legitimate, non-discriminatory reason for the pay disparity. Miranda, 975 F.2d at 1529;Meeks, 15 F.3d at 1019. If the defendant articulates a legitimate, non-discriminatory reason, “the burden returns to the plaintiff to establish by a preponderance of the evidence that the proffered justifications are actually a pretext for gender-based discrimination.” Miranda, 975 F.2d at 1529.

As discussed above in relation to plaintiff's Equal Pay Act claim, defendant asserts a legitimate, non-discriminatory reason for paying Austin more than plaintiff (Austin was employed by defendant for a far longer period than plaintiff), and plaintiff presents no evidence to show that defendant's stated, non-discriminatory explanation for the disparity is pretextual. For those reasons, summary judgment is due to be granted in favor of defendant on plaintiff's wage-disparity claim, regardless of whether it is analyzed under the Equal Pay Act or Title VII.

E. State Law Claims

Plaintiff also alleged four state-law tort claims in her complaint: a claim for intentional infliction of emotional distress; another for negligent hiring, training, supervision, and retention; a third for defamation; and, finally, a claim for invasion of privacy. Each is addressed in the remainder of this opinion.

1. Intentional infliction of emotional distress

Plaintiff withdrew her claim for intentional infliction of emotional distress (sometimes referred to as Alabama's “tort of outrage”) in the brief she filed in opposition to the motion for summary judgment. Accordingly, summary judgment is due to be entered in favor of defendant on that claim.

2. Invasion of privacy and defamation

Plaintiff contends that she suffered an invasion of privacy and was slandered when Edwards and Ordonez met in the “Sidelines” Bar and Grill during June of 2008, and allegedly concocted a plan for Ordonez to cause plaintiff's firing by lodging a false complaint about her “unprofessional,” intoxicated conduct while in the Sidelines Bar wearing a Logan's manager shirt.

Liability for defamation under Alabama law hinges upon proof of the following four elements:

1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.
McCaig v. Talladega Publishing Co., Inc., 544 So.2d 875, 877 (Ala.1989) (citing Restatement (Second) of Torts § 558 (1977)).

The tort named “invasion of privacy” actually comprises four distinct wrongs under Alabama law: i.e.,

1) the intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use.
Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 708 (1983). Only one of those wrongs is relevant here: “putting the plaintiff in a false, but not necessarily defamatory, position in the public eye.” Id.

The Alabama Supreme Court adopted the Restatement of Torts definition of the “false light” variant of the invasion of privacy tort. See Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178 (Ala.1993) (applying the Restatement (Second) of Torts § 652E (1977) when ruling on a false light invasion of privacy claim). The Restatement defines the elements of that tort as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement (Second) of Torts § 652E (1977).

Plaintiff's complaint does not allege any specific facts or events as the basis for her defamation or invasion of privacy claims. Her brief only discusses the conversation between Edwards and Ordonez at “Sidelines” as the factual basis for her defamation claim, and does not present a factual basis for her invasion of privacy claim. Instead, plaintiff's brief addresses the latter claim only when stating (with a citation to Bionca Sherrod–Holaday's declaration) that “Andazola has proven that Logan's, by and through Edwards, Austin, Moody, and Rodriguez have put her in a false light in the public eye and in the eye of the restaurant community in Florence.”

Even assuming for the sake of discussion that the conversation between Edwards and Ordonez in the “Sidelines” Bar can form the basis for defamation and invasion of privacy claims, plaintiff failed to show that defendant is liable for the words and conduct of those individuals. Defamation and invasion of privacy are both intentional torts. See, e.g., Serra Chevrolet, Inc. v. Reylander, 975 So.2d 909, 910 (Ala.2007) (referring to defamation and invasion of privacy as “intentional torts”) (quoting Potts v. Baptist Health System, Inc., 853 So.2d 194, 195 (Ala.2002)); Surrency v. Harbison, 489 So.2d 1097, 1101 (Ala.1986) (describing defamation as an intentional tort). And, an employer can be held liable for the intentional torts of its employees only if it is proven that: “(1) the employee's acts [were] committed in furtherance of the business of the employer; (2) the employee's acts [were] within the line and scope of his employment; or (3) the employer participated in, authorized, or ratified the tortious acts.” Ex parte Atmore Community Hospital, 719 So.2d 1190, 1194 (Ala.1998) (alterations supplied) (citing Potts v. BE & K Construction Co., 604 So.2d 398, 400 (Ala.1992)).

Here, Ordonez was not defendant's employee and, thus, defendant cannot be liable for his conduct. Additionally, plaintiff presents inconsistent evidence on the critical question of whether the conspiratorial conversation between Edwards and Ordonez in the Sidelines Bar occurred while Edwards still was employed by defendant. Of course, if Edwards was not employed by defendant on the date the alleged conspiracy was hatched, defendant cannot be held liable for his statements and actions at that time. Assuming that Edwards still was employed by defendant, however, the analysis then turns to the issues of whether Edwards's statements and actions were committed in furtherance of defendant's business, whether they were within the line and scope of his employment, or whether defendant participated in, authorized, or ratified the allegedly tortious acts.

The acts of an employee are committed in furtherance of the business of his employer when the employer derives a benefit from the acts of the employee, or when the acts of the employee serve a purpose of the employer. See Ex parte Atmore, 719 So.2d at 1194 The acts of an employee are not committed in furtherance of the business of his employer, however, when the “alleged conduct was aimed solely at satisfying [the employee's] own ... desires.” Id. (bracketed alteration supplied). Here, plaintiff neither argues, nor presents evidence showing, that the conspiratorial scheme allegedly concocted by Edwards and Ordonez either furthered, or served a purpose of, defendant's business.

“An employee's tortious acts occur within the scope of his employment if the acts are ‘so closely connected with what the servant is employed to do and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.’ ” Id. (quoting Prosser & Keeton, The Law of Torts 503 (5th ed.1984)). Here, the conversation did not occur within any of defendant's restaurants, and there is no evidence that it occurred during hours normally worked by Edwards for defendant. See Land v. Shaffer Trucking, Inc., 290 Ala. 243, 275 So.2d 671, 674 (1973) (“Where the servant abandons his master's business for personal reasons, the employment is suspended, and the master is not liable for the negligence of the servant during the suspended employment, and during the time of the servant's departure from the master's business.”) (citing Engel v. Davis, 256 Ala. 661, 57 So.2d 76 (1952)). Furthermore, defendant employed Edwards to manage a restaurant, and spreading falsehoods about an employee of his restaurant did nothing to serve that objective.

“An employer ratifies conduct if: (1) the employer has actual knowledge of the tortious conduct; (2) based on this knowledge, the employer knew the conduct constituted a tort; and (3) the employer failed to take adequate steps to remedy the situation.” Ex parte Atmore Community Hospital, 719 So.2d at 1195. Here, there is no evidence that any of Edwards's supervisors knew of the conversation he allegedly had with Ordonez at any time prior to this litigation. Because plaintiff fails to present evidence that the alleged tortious conduct occurred in furtherance of defendant's business, within the scope of Edwards employment, or that defendant ratified the conduct, she cannot establish that defendant is liable for the alleged defamation or invasion of privacy committed by Edwards, and summary judgment is due to be granted on her defamation and invasion of privacy claims.

3. Negligent hiring, training, supervision, and retention

In Big B, Inc. v. Cottingham, 634 So.2d 999 (Ala.1993), the Alabama Supreme Court recognized a cause of action for negligent or wanton hiring, training, retention, and supervision, and held that an employer (a “master”), is liable for the “incompetency” of his employee (a “servant”) when

notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. It is incumbent on the party charging negligence to show it by proper evidence. This may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master, or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care must have had them brought to his notice. While such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of, it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant to leave it to the jury whether they would have come to his knowledge, had he exercised ordinary care.
Id. at 1003 (quoting Thompson v. Havard, 285 Ala. 718, 235 So.2d 853, 858 (1970)). However, not just any “incompetency” suffices to give rise to a cause of action for so-called “negligent hiring, training, retention, and supervision liability.” Rather, there must be an underlying common law tort recognized by Alabama courts: that is, in order to prevail, the plaintiff must prove that the allegedly incompetent employee committed a tortious act. See Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala.1999) (affirming summary judgment on a negligent supervision and training claim for lack of an underlying tort).

Plaintiff's claim is based upon the assertion that defendant “negligently failed to discipline or terminate those employees who actively harassed and conspired against Andazola,” failed to administer its policies against sexual harassment, failed to properly train its employees concerning harassment, and failed to protect plaintiff from harassment. Under Alabama law, an independent cause of action for sexual harassment does not exist and, thus, the alleged sexual harassment alone cannot be the underlying tort necessary for plaintiff's negligent hiring, training, supervision, and retention claim. Id. at 824–25.

However, the Alabama Supreme Court has recognized a sexual harassment exception to the requirement that a common law tort must underlie a negligent hiring, training, supervision, and retention claim. The exception provides that “the manner in which a sexual-harassment complaint is handled when sexual harassment has, in fact, occurred c[an] form the basis for a claim for negligent or wanton supervision” when the handling of the complaint did not cause the harassment to cease or caused it to only temporarily cease. Id. at 825 (bracketed alteration supplied); see also Patterson v. Augat Wiring Systems, Inc., 944 F.Supp. 1509, 1528–29 (M.D.Ala.1996); Machen v. Childersburg Bancorporation, Inc., 761 So.2d 981, 986–88 (Ala.1999); Mardis v. Robbins Tire & Rubber Co., 669 So.2d 885, 889–90 (Ala.1995) (holding that for purposes of the defendant employer's motion for summary judgment, the existence of a genuine issue of material fact regarding whether the employer had failed to take adequate corrective action in investigating a complaint of sexual harassment precluded the entry of summary judgment on the employee's claims of negligent supervision and training); Big B, Inc., 634 So.2d at 1003–04. A plaintiff cannot make out a claim based on the handling of a sexual harassment complaint unless the plaintiff can prove that the underlying sexual harassment occurred. Stevenson, 762 So.2d at 825.

Here, plaintiff has presented evidence to show that she was sexually harassed by Austin and Moody. She also presents evidence to show that she complained about the sexual harassment to Rodriguez and Edwards on multiple occasions. She presents evidence that the only actions defendant took to remedy the harassing behavior by Moody was that Edwards spoke to Moody, and no action was taken to remedy the harassing behavior by Austin despite her repeated complaints. Finally, she presents evidence that the harassment perpetrated by Moody and Austin was ongoing throughout her employment despite her complaints and defendant's actions. Based on these facts, plaintiff establishes a claim for negligent hiring, training, retention, and supervision based on the handling of her sexual harassment complaints, and summary judgment is due to be denied on this claim.

IV. CONCLUSION AND ORDER

Upon consideration of the foregoing issues, defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. Summary judgment is granted on all claims except plaintiff's Title VII disparate treatment claim for denial of her application for promotion to the position of General Manager of the Athens, Alabama “Roadhouse” (the one awarded to Nykael Stewart), and, her state-law “negligent hiring, training, retention, and supervision claim.” A pretrial conference and trial date will be set by separate order.