Bozeman v. Per-Se Technologies, Inc.

• Decision Date: 16 October 2006
• Docket Number: No. 1:03-CV-3970-RLV.,1:03-CV-3970-RLV.
• Parties: Terry BOZEMAN, Plaintiff, v. PER-SE TECHNOLOGIES, INC.; Per-Se Transaction Services, Inc., William M. Dagher; Charles Moore; and Phillip M. Pead, Defendants.
• Court: U.S. District Court — Northern District of Georgia

456 F.Supp.2d 1282

Terry BOZEMAN, Plaintiff, v. PER-SE TECHNOLOGIES, INC.; Per-Se Transaction Services, Inc., William M. Dagher; Charles Moore; and Phillip M. Pead, Defendants.

No. 1:03-CV-3970-RLV.

United States District Court, N.D. Georgia, Atlanta Division.

October 16, 2006.

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Christopher Garrett Moorman, Office of Christopher G. Moorman, Richard Wayne Hendrix, Finch McCranie, Atlanta, GA, for Plaintiff.

Alicia P. Starkman, Matthew J. Gilligan, Robert P. Riordan, Alston & Bird, Atlanta, GA, for Defendants.

ORDER

VINING, Senior District Judge.

The plaintiffs Motion to Exceed Page Limitation and Correct Record Testimony [Doc. No. 300] is GRANTED; the defendants' Motion for Leave to Increase Page Limit [Doc. No. 301] is GRANTED.

After making a de novo review of the record and after carefully considering the report and recommendation of the magistrate judge, together with the objections thereto, the court receives it with approval and adopts it as the opinion and order of this court.

FELDMAN, United States Magistrate Judge.

Attached is the Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and this Court's Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.

MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION AND ORDER

History of the Case

Part One

This is a civil rights employment discrimination case filed pursuant to Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.) (hereinafter "Title VII") by Terry Bozeman (hereinafter "the Plaintiff'), who was employed as the Human Resources Director of Per-Se Technologies, Inc. in the eHealth Solutions Division, against defendants Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. (hereafter collectively referred to as "Per-Se"), and Per-Se employees Phillip M. Pead (hereafter referred to as "Pead"), Charles Moore (hereafter referred to as "Moore"), and William N. Dagher (hereafter referred to as "Dagher").¹ In his Second Amended Complaint filed on June 23, 2004² [Doc. 43], the Plaintiff alleges that the defendants violated his civil rights by (1) retaliating against him in violation of Title VII (i.e., causing him to suffer adverse employment actions including threats, harassment, intimidation, humiliation, reduction and/or elimination of job functions, reduction in status and constructive discharge) because of (a) his participation in investigations of alleged discrimination committed by the defendants against other company employees [Doc. 43, ¶¶ 18-19, 21-29], and (b) alleging that Per-Se filed inaccurate required federal employer reports and concealed evidence of its commitment to equal employment opportunity laws from the Government [Id. at ¶¶ 20, 54, 71]; (2) intentionally inflicting emotional distress upon him in violation of Georgia law [Id. at ¶¶ 106-121]; (3) negligently supervising, retaining, and hiring employees in violation of Georgia law [Id. at ¶¶ 122-130]; and (4) violating the Sarbanes—Oxley Act (18 U.S.C. § 1514A) by retaliating against him for reporting financial irregularities to the Securities and Exchange Commission ("SEC") [Id. at ¶¶ 131-143].³

On July 9, 2004, the defendants filed their Answer to the Plaintiffs Second Amended Complaint [Doc. 48]. In their Answer, Per-Se Technologies, Inc. and Per-Se Transaction Services, Inc. asserted three Counterclaims against the Plaintiff, to wit: (1) damages for computer theft and computer trespass in violation of O.C.G.A. § 16-9-93; (2) conversion; and (3) attorney's fees and expenses of litigation incurred in bringing these Counterclaims. See [Doc. 48, pp. 48-53].

Presently pending before the undersigned are (1) the Plaintiffs February 1, 2006 Motion for Partial Summary Judgment, Brief in Support thereof, Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 210], and supporting exhibits [Doc. 211] (hereafter referred to as "PX-"), including a copy of the parties' Stipulation of facts (PX-1); excerpts from the depositions of Karen Baker ("Baker Depo.") (PX-2), Dan Swaine ("Swaine Depo.") (PX-3), Charles Moore ("Moore Depo.") (PX-4), William Dagher ("Dagher Depo.") (PX-5), Liesl Rowe ("Rowe Depo.") (PX-6), Jackie Jackson ("Jackson Depo.") (PX-7), Phil Pead ("Pead Depo.") (PX-8), and Kellen Jameson ("Jameson Depo.") (PX-9); and the Plaintiffs Affidavit⁴ ("Pl.Aff.") (PX-10). On March 9, 2006, the defendants filed their (2) Response in Opposition to Plaintiffs Motion for Partial Summary Judgment [Doc. 262], including their Response to Plaintiffs Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried [Doc. 263], and (3) their Notice of Objection to the Plaintiff's Affidavit, and Motion to Strike the Plaintiff's Affidavit with an incorporated Brief in Support thereof [Doc. 261]. On March 23, 2006, the Plaintiff filed his (4) Response to Defendants' Motion to Strike the Plaintiffs Affidavit and Brief in Opposition thereto [Doc. 265], to which the defendants (5) replied on April 10, 2006 [Doc. 276]⁵.

Also pending before this Court are (6) Per-Se's February 6, 2006 Motion for Summary Judgment, Brief in Support thereof, and Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Does. 223, 227]. In addition, on February 6, 2006, defendants Pead, Moore, and Dagher filed individual ((7),(8), (9)) Motions for Summary Judgment and Briefs in Support thereof [226, 229, 225, 230, 224, 231].⁶ The defendants also filed a joint Appendix in Support of their Motions for Summary Judgment [Doc. 228] with supporting exhibits (hereafter referred to as "DX-"), including the deposition excerpts of Terry Bozeman ("Pl. Depo.") (DX-1), William Dagher ("Dagher Depo.") (DX-2), Charles Moore ("Moore Depo.") (DX-3), Kellen Jameson ("Jameson Depo.") (DX-4), Karen Baker ("Baker Depo.") (DX-5), Dan Swaine ("Swaine Depo.") (DX-6), Jennifer Bender ("Bender Depo.") (DX-7), Liesl Rowe ("Rowe Depo.") (DX-8), Tracy Fried ("Fried Depo.") (DX-9), and Patrick Coleman, M.D. ("Coleman Depo.") (DX-10); the declarations of Dan Swaine ("Swaine Decl.") (DX-11), Maria Dress ("Dress Decl.") (DX-12), Karen Baker ("Baker Decl.") (DX-13), Matthew Myers ("Myers Decl.") (DX-14), and Kellen Jameson ("Jameson Decl.") (DX-15); Plaintiff's Responses to Defendant Per-Se Technologies, Inc.'s Amended First Interrogatories to Plaintiff (DX-16); and the Plaintiff's Responses to Defendant Per-Se Technologies, Inc.'s First Request for Admissions (DX-17).

Subsequent thereto, (10) the Plaintiff filed his February 21, 2006 Response to defendants Moore, Dagher, and Pead's individual Motions for Summary Judgment and Brief in Opposition thereto [Doc. 237], his March 15, 2006 Memorandum in Response to the Defendants' Motions for Summary Judgment [Doc. 255], Responses to Defendants' Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Doe. 257], and his own Statement of Material Facts in Support of the Denial of Defendants' Motions for Summary Judgment [Doc. 256], and (11) his February 24, 2006 Cross-Motion for Summary Judgment as to Per-Se Technologies, Inc.'s Counterclaim, Brief in Support thereof, and Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried⁷ [Does. 240-1, 240-2].

On March 20, 2006, (12) the defendants filed a Motion to Strike Plaintiffs Cross-Motion for Summary Judgment with respect to Defendant Per-Se Technologies, Inc.'s Counterclaim, and Brief in Support thereof [Does. 259-1, 259-2], and (13) their Response in Opposition to the Plaintiff's Cross-Motion for Summary Judgment (as to Defendant Per-Se Technologies, Inc.'s Counterclaim) [Doc. 260]. On March 23, 2006, (14) the Plaintiff filed his Response to Defendants' Motion to Strike his own Cross-Motion for Summary Judgment and Brief in Opposition thereto [Doc. 264], to which (15) the defendants replied on April 10, 2006 [Doc. 277]. Furthermore, (16) on April 7, 2006, the defendants filed their Response to Plaintiffs Statement of Material Facts in Support of Denial of Defendants' Motions for Summary Judgment [Doc. 275], and (17) their Reply Briefs in Support of their Motions for Summary Judgment [Does. 274, 271, 272, 273],⁸

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

In his Motion for Partial Summary Judgment, the Plaintiff contends that he is entitled to summary judgment on his (1) Title VII retaliation claims because under the authority of Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), he can make out a prima facie case showing that a retaliatory motive played a part in the defendants' adverse employment actions taken against him (i.e., a mixed-motive theory); and his (2) constructive discharge claim under the authority of Penn....