Leslie v. Cumulus Media, Inc.

• Decision Date: 31 August 2011
• Docket Number: Civil Action No. 10–00309–KD–N.
• Citation: 814 F.Supp.2d 1326
• Parties: Daphne LESLIE, Plaintiff, v. CUMULUS MEDIA, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

814 F.Supp.2d 1326

Daphne LESLIE, Plaintiff,

v.CUMULUS MEDIA, INC., et al., Defendants.

Civil Action No. 10–00309–KD–N.

United States District Court, S.D. Alabama, Southern Division.

Aug. 31, 2011.

Samuel Fisher, Toni Jacqueline Braxton, Wiggins, Childs, Quinn, and Pantazis, LLC, Birmingham, AL, for Plaintiff.

Patricia J. Ponder, Windy Cockrell Bitzer, Hand Arendall, L.L.C., Jennifer Stapleton Morgan, T. Jefferson Deen, III, T. Jefferson Deen, III, P.C., Mobile, AL, for Defendants.

ORDER

KRISTI K. DuBOSE, District Judge.

This matter is before the Court on Plaintiff's motion for partial summary judgment (Docs. 39, 40, 41, 48), Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's Response (Doc. 49), and Plaintiff's Reply (Doc. 58); Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's' motion for summary judgment (Docs. 43, 44, 45), Plaintiff's Response (Docs. 50, 51, 52, 53, 55, 62) and Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's Reply (Doc. 59, 62); Plaintiff's motion to strike (Doc. 54) and Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's Response (Doc. 64); and Defendants Cumulus Media, Inc. and Cumulus Broadcasting, LLC's Motion to Strike (Doc. 60) and Plaintiff's Response (Doc. 65).

I. Factual Background¹

On June 17, 2010, Plaintiff Daphne Leslie (“Leslie”) initiated this action against Defendants for legal and equitable relief to redress unlawful discrimination and harassment on the basis of sex, disability and retaliation. (Doc. 1). Specifically, Leslie asserts claims against the Cumulus Defendants for sexual harassment/hostile work environment in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I),² retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (Count II), and wrongful termination in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (Count III); and state law claims against individual defendant Johnnie Coleman for invasion of privacy (Count IV) and intentional infliction of emotional distress (Count V), and against the Cumulus defendants for negligent hiring, training and supervision (Count VI). ( Id.)

A. Cumulus & Coleman

Cumulus Broadcasting, LLC (“Cumulus”) is a radio broadcasting company which owns and operates radio stations in midsized markets throughout the United States, including in Mobile, Alabama (“the Mobile market”). (Doc. 43–1 (Dep. Pizzati (Senior VP) at 7, 32)).³ During Leslie's employment, Gary Pizzati was the Senior Vice President of Cumulus, Monte Saunders was the Office/Business Manager, and Mark McMillen was the Market Manager.⁴ ( Id. (Dep. Pizzati at 7, 29, 32–33); Doc. 43–2 (Dep. Leslie at 29–30, 103–104); Doc. 43–12 (Aff. McMillen at ¶ 1); Doc. 53–4 (Dep. Saunders at 20–21)).

Defendant Johnnie Coleman (“Coleman”), hired in 1999 and rehired in 2007 after a few years' absence, was employed by Cumulus in the Sales Department as a Cumulus Account Executive. (Doc. 43–10 (Dep. Coleman at 22–23); Doc. 43–1 (Dep. Pizzati at 68–69)). Coleman voluntarily resigned on March 2, 2009, after Cumulus' Senior Vice President and General Counsel Richard Denning (“Denning”) investigated a January 12, 2009 e-mail text message (with attached photograph of his penis) that he sent to co-worker Daphne Leslie's cellular phone. (Doc. 43–3 (Dep. Denning at 104–105, 129–131, 164–167); Doc. 43–10 (Dep. Coleman at 58, 70); Doc. 43–11 (Notice of Employee Separation-“resigned after being questioned regarding his inappropriate behavior”); Doc. 49–9 (Aff. Denning at ¶¶ 1, 4)).

B. Leslie's Employment

On September 23, 2002, Daphne Leslie (“Leslie”) began at-will employment with Cumulus as an Account Executive in the Sales Department. (Doc. 43–2 (Dep. Leslie at 21, 26–27); Doc. 43–2 at 51–53). Leslie's immediate supervisor was Mark McMillen (“McMillen”), and Leslie also worked under the direction and supervision of Cumulus Senior Vice President Gary Pizzati (“Pizzati”). (Doc. 43–2 (Dep. Leslie at 26, 96–97, 101–102); Doc. 43–1 (Dep. Pizzati at 7, 28)). Leslie's job responsibilities included developing new business, handling outside sales calls, attracting/closing advertisers to sell products and services, presenting marketing/advertising ideas to area businesses, selling commercial advertising time, attaining budgeted revenue goals, and subscribing to daily, weekly and monthly accountability requirements of the sales system. (Doc. 43–2 (Dep. Leslie at 47–48)). Regular work attendance was expected and was important for Leslie's job. ( Id. (Dep. Leslie at 97)). Cumulus was flexible with its absentee policy, and employees such as Leslie could call in to the Sales Manager or Monte Saunders and self-designate available leave as sick or vacation days. ( Id. (Dep. Leslie at 97–99)).

Leslie was a good employee and “a good seller” and prior to 2009 was rarely absent. (Doc. 43–1) (Dep. Pizzati at 7, 28; Doc. 43–2 (Dep. Leslie at 101–102)). However, in 2008 Leslie experienced a 25% decline in sales for the year. (Doc. 43–1 (Dep. Pizzati at 54)). According to Pizzati, this would require some management action as it is a performance based business: “there'd be a conversation first. And if the pattern or performance continued, then we could go and sit down and formulate a document and put that employee on notice.” ( Id. (Dep. Pizzati at 54–57)). In December 2008, McMillen counseled the entire sales staff on all of their collective performance. ( Id. (Dep. Pizzati at 58)). While there was no blanket policy for performance standards that would require discipline if an employee dropped below a certain level, the company had fired sales or market managers if they did not perform up to standards, after first counseling them and giving them written discipline. ( Id. (Dep. Pizzati at 66–67)).

Subsequently on March 23, 2009, Cumulus issued Leslie a work performance memorandum noting “several serious deficiencies that need to be addressed in order for you to be a successful account executive”. Cumulus refers to the memo as “an action step probably because her performance wasn't where it needed to be.” (Doc. 43–1 (Dep. Pizzati at 93, 96); Doc. 43–2 at 159–164; Doc. 43–12 (Aff. McMillen at 2–3); Doc. 43–17 (e-mails); Doc. 51–8 (3/23/09 Memo)). ⁵ According to Cumulus, Leslie's “performance was off by 23,000 or 24,000 dollars.” (Doc. 43–1 (Dep. Pizzati at 93, 96)). Other employees received similar work performance memos at that time. ( Id. (Dep. Pizzati at 94–96); Doc. 51–10; Doc. 51–11). The memo included the words “disciplinary action including possible termination[ ]” which according to Leslie, threatened disciplinary action. (Doc. 43–2 (Dep. Leslie at 193–195, 218–219)). However, Leslie was never demoted or docked in pay and other than the memo, was never reprimanded or disciplined. ( Id.)(Dep. Leslie at 28–29, 90–92).

Additionally in 2009, for reasons unknown to Cumulus, Leslie was absent from work on various days in February, March and early April, and was consecutively absent from April 21–May 19, 2009 and June 1–August 20, 2009; she first used FMLA leave on May 4, 2009. (Doc. 43–7 at 7–12; ⁶ Doc. 43–2 (Dep. Leslie at 13–14, 122–123, 125–126, 129, 144, 147–148, 153–154, 156); Doc. 43–7 (Dep. Saunders at 90–93, 101, 112)).⁷ According to Leslie, she was under a doctor's care in April and May 2009. (Doc. 52–1 (Decltn. Leslie at ¶ 10)).

Specifically, on April 3, 2009, McMillen e-mailed Pizzati and Denning about Leslie's sick days and her use of same since January 1, 2009, noting that her taking of time off was recurring and when she was going to be absent “we usually find out at the moment.” (Doc. 43–2 at 169). On April 22, 2009, Leslie's treating physician Dr. Blanchard submitted a note to Cumulus stating that she would be out of work for two (2) weeks due to medical problems. According to Leslie, when she returned to work McMillen requested that she have her physician fill out FMLA paperwork for that time off even though she thought it had been designated as vacation time.⁸ (Doc. 43–2 (Dep. Leslie at 125–127); Doc. 43–2 at 96). Leslie returned to work May 20–29, 2009. (Doc. 43–2 (Dep. Leslie at 126)).

According to Saunders (and Cumulus) Leslie was out on FMLA leave as of May 4, 2009. (Doc. 53–4 (Dep. Saunders at 93)). Specifically, on May 13 and 14, 2009, McMillen e-mailed Leslie (noting that he had previously e-mailed her and called her on her cell phone) requesting that she update him on when she expected to return to work (stating that he had heard from Hazel Dyess at Cumulus that she would be sending in a doctor's note covering her absences for the week). (Doc. 43–2 (Dep. Leslie at 200–201); Doc. 43–2 at 168). On May 14, 2009, Leslie requested, via e-mail, FMLA documents from Hazel Dyess at Cumulus (per Saunders' discussion with her), and on May 15, 2009, Dyess faxed the FMLA paperwork to Leslie. (Doc. 59–7 at 1–5). Also on May 15, 2009, McMillen sent a letter memo with FMLA paperwork to Leslie, notifying her of her FMLA rights so that she could use FMLA leave if she qualified and noting that her FMLA leave would start on May 4, 2009.⁹ (Doc. 43–2 (Dep. Leslie at 128–129); Doc. 43–2 at 98 (5/5/19 FMLA Memo); Doc. 43–3 (Dep. Denning at 168–169)). Leslie submitted this information to her physician. Leslie provided Cumulus with a doctor's excuse which indicated she would return to work on May 20, 2009. (Doc. 43–2 (Dep. Leslie at 201)). Leslie's physician Dr. Blanchard completed the relevant paperwork on May 20, 2009 and returned same noting that Leslie's condition commenced April 8, 2009, she had “stress related issues” and was unable to perform any of her job functions—“unable to drive, may be difficult to interact with people” and that the dates of Leslie's incapacity “will vary[.]” (Doc. 43–2 (Dep. Leslie at 129–131); Doc. 43–2 at 101–104). On May 20, 2009, Cumulus Business Manager Saunders e-mailed Leslie notifying her that her FMLA leave commenced on May...