Johnson v. Federal Express Corp.

• Decision Date: 18 May 2001
• Docket Number: No. CIV. A. 00-D-354-N.,CIV. A. 00-D-354-N.
• Citation: 147 F.Supp.2d 1268
• Parties: Rebecca JOHNSON, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant.
• Court: U.S. District Court — Middle District of Alabama

Page 1268

147 F.Supp.2d 1268

Rebecca JOHNSON, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant.

No. CIV. A. 00-D-354-N.

United States District Court, M.D. Alabama, Northern Division.

May 18, 2001.

David R. Arendall, Stephanie S. Woodard, Birmingham, AL, for Plaintiff.

Charles A. Powell IV, Shannon L. Miller, Constangy, Brooks & Smith, Birmingham, AL, Richard C. Paul, FedEx Corp., Memphis, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is Defendant Federal Express Corporation's¹ Motion For Summary Judgment, which was filed March 15, 2001. Plaintiff Rebecca Johnson² filed a Response on April 6, and Defendant issued a Reply on May 1. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motion is due to be granted in part and denied in part.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction). The parties do not contest personal jurisdiction or venue.

II. SUMMARY JUDGMENT STANDARD

The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. INTRODUCTION

FedEx fired Rebecca Johnson after a forensic document examiner found it was highly likely that Johnson sent management an anonymous note threatening to "come in here one day and shoot up this place."³ Johnson, who was a customer service agent in Montgomery, Ala., had several other write-ups in her personnel file for insubordination, and another supervisor found Johnson fearsome. FedEx showed Johnson the door January 6, 2000. She alleges discrimination, violation of the Fair Credit Reporting Act, and a host of state law torts. Aside from her allegation of false imprisonment, every claim is due to be dismissed.

IV. FACTUAL BACKGROUND

Johnson is a black female, who was directly supervised by three operations managers: Nick Ashner, Don Wilkerson, and Danny Patterson. Above them in the chain of command was senior manager Jannette Maye. Maye, in turn, reported to managing director Randy King. King reported to Scott Bunker, vice president for the southern region.⁴

The FedEx supervisors where Johnson worked received a series of apocalyptic messages and letters between July 1999 and January 2000. Perhaps coincidentally, Johnson's problems all came to a head during the same time frame. Johnson's first warning and 2-day suspension came down July 6, after she took a long lunch break at an inappropriate time and was disrespectful to supervisor Ashner when she returned.⁵ While she was suspended, FedEx uncovered several flirtatious e-mails between Johnson and Wilkerson. The e-mails discussed private matters and suggested that the couple enjoyed an unusually close relationship, even though each individual had a spouse of his or her own.⁶ After Johnson returned to work, Maye began receiving pager messages with phone numbers of local funeral homes and the number "666."⁷ Maye believed Johnson sent the pages.

Maye was not the only supervisor who received disturbing, anonymous messages. A letter dated November 12 complained about Maye and Ashner and warned that "[s]ome one is going to come in here one-day and shoot up this place all because [Maye] and [Ashner] are abusive. OK, we're telling you all, when it happens, don't say we didn't warn you." FedEx believed Johnson sent the letter, as it was signed "Employees of MGM Station" and referred to certain events that hit close to home, including an affection for Wilkerson and a mistrust of Maye.⁸

FedEx hired forensic examiner Thomas Vastrick to review the letter. Once it became known that FedEx was taking the threats seriously, FedEx received two more anonymous notes that attempted to downplay things. FedEx's concerns were not allayed. The notes referenced meetings with Montgomery employees and ongoing occurrences at the Montgomery office, where Johnson worked. As a result, through a process of deductive reasoning, King became convinced that all three letters were penned by Johnson.⁹ On December 17, Vastrick issued an independent report stating with a "high degree of probability" that Johnson wrote the initial threatening letter. Vastrick defined a "high degree of probability" as being "a near virtual certainty."¹⁰

FedEx's investigation took place around the same time that Johnson got a second write-up for insubordination. Supervisor Patterson determined that Johnson was rude to a co-worker and misrepresented comments that Patterson had made about the delivery of a package. Patterson hit Johnson with an unpaid 2-day disciplinary suspension beginning December 15.¹¹ Based on Vastrick's findings about the threatening letters, FedEx converted this suspension into an paid investigative suspension. FedEx continued to investigate, and Johnson met with FedEx's security personnel to discuss matters. Johnson continued to deny any involvement with the letters. King got fed up and fired her three weeks later.¹²

V. DISCUSSION

Johnson brings three federal claims, and the court will exercise pendant jurisdiction over Johnson's three state claims. At the outset, the court finds that Johnson has abandoned her claim under the federal wiretap statute, 18 U.S.C. § 2510 et seq. The court also finds that summary judgment is due to be granted on the federal claims because Plaintiff has not complied with the court's orders for citation to the record.

The burden is on the parties to designate specific facts within the record showing the presence of a genuine dispute for trial. See FED. R. CIV. P. 56(e). As the Uniform Scheduling Order makes clear, counsel must choose his specific facts and explain why the law supports his claim on the facts.¹³ See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995). It is bad enough when counsel does not cite to the particular lines of depositions upon which he relies. It is much worse when counsel points blithely to blanket portions of the record (such as multi-page exhibits or documents) and invites the court to divine his intent. The invitation is not well taken.

The court has previously warned that "[s]hotgun pleadings are not allowed; a lawsuit is not a game of hunt the peanut." Dinkins v. Charoen Pokphand, 133 F.Supp.2d 1254, 1261 (M.D.Ala.2001). Because counsel has disregarded this warning, the court finds that Plaintiff's evidence has not been properly produced, and summary judgment is due to be granted. See Pearson v. Prime Healthcare Corp., 2000 WL 33224801 at *4 (M.D.Ala.2000); Twin City Fire Ins. Co. v. Colonial Life & Acc. Ins. Co., 2000 WL 1785309 at *1 (M.D.Ala. 2000). For purposes of a more complete record, however, the court analyzes Plaintiff's federal claims below, with the Title VII discussion remaining unpublished.

A. Fair Credit Reporting Act

Johnson's federal claim is that FedEx violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., when it collected her handwriting samples and sent them to Vastrick for comparison with the anonymous letters. Johnson contends that Vastrick is a "consumer reporting agency," that Vastrick's handwriting analysis is a "consumer report" or an "investigative consumer report," and that FedEx violated the statute by procuring the report and relying on it for "employment purposes" without complying with the statute's numerous notice-and-delay requirements. See 15 U.S.C. §§ 1681a(d)-(f), (h), 1681b(b), 1681d. The requirements are rather onerous. Among other things, employers must notify the employee that a report is being obtained, give her a copy of the report before taking any adverse employment action, and afford her adequate time to challenge the report's accuracy. See id. §§ 1681b(b), 1681d.

Johnson relies heavily on two advisory opinion letters written by Federal Trade Commission ("FTC") staff attorneys in 1999. Two citizens asked FTC to assume that an employer wished to investigate a charge of sexual harassment leveled against an employee. The issue presented was whether an investigatory report relying on company documents and conversations with employees, and compiled by an outside agency, constituted an "investigative consumer report," under FCRA. Id. § 1681a(e). The FTC letters, known as the Vail letter and the Meisinger letter, stated that an employer does, indeed, trigger the FRCA if it uses such information to take an adverse employment action. See FTC Vail Staff Op. Ltr. (April 5, 1999); FTC Meisinger Staff Op. Ltr. (Aug. 31, 1999).¹⁴

The letters are not binding and not persuasive. The ABA Section of Labor and Employment Law and other commentators have pointed out that the application of the FCRA's notice-and-delay provisions would undermine the efficiency and efficacy of employers' legitimate workplace investigations. See Theresa L. Butler, The FCRA and Workplace Investigations, 15 LAB. LAW. 391, 399-400 (2000); Kim S. Ruark, Comment, Damned If You Do, Damned If You Don't?, 17 GA. ST. U.L. REV. 575, 598-603 & n. 201 (2000). Moreover, FTC appears to have drawn a false analogy...