Murdoch v. Medjet Assistance, LLC

Citation294 F.Supp.3d 1242
Decision Date01 March 2018
Docket NumberCase No.: 2:16–CV–0779–VEH
Parties Darlene MURDOCH, Plaintiff, v. MEDJET ASSISTANCE, LLC, et al., Defendants.
CourtU.S. District Court — Northern District of Alabama

Richard A. Bearden, Massey Stotser & Nichols PC, Birmingham, AL, for Plaintiff.

Kyle T. Smith, Sirote & Permutt PC, Birmingham, AL, for Defendants.


VIRGINIA EMERSON HOPKINS, United States District Judge


Plaintiff Darlene Murdoch ("Ms. Murdoch") initiated this employment case against her former employer Medjet Assistance, LLC ("Medjet") and its Chief Executive Officer, Roy Berger ("Mr. Berger") on April 21, 2017. (Doc. 1). Ms. Murdoch generally maintains that Mr. Berger sexually harassed her for a period of 6 to 7 months and that Medjet fired her in retaliation for reporting his harassment to Medjet (in a letter from her lawyer) and subsequently filing an EEOC charge about that same alleged conduct. Ms. Murdoch's complaint contains both federal and state law claims: (1) Title VII sexual harassment against Medjet (Count One); (2) Title VII retaliation against Medjet (Count Two); (3) negligent and/or wanton hiring, retention, training, and supervision against Medjet (Count Three); (4) invasion of privacy against both Mr. Berger and Medjet (Count Four); (5) assault and battery against both Mr. Berger and Medjet (Count Five); and (6) tort of outrage against both Mr. Berger and Medjet (Count Six).

Pending before the Court is Defendants' Motion for Summary Judgment (doc. 19) (the "Motion") filed on March 10, 2017. The Court has reviewed the parties' filings offered in support of and opposition to the Motion. (Docs. 20, 21, 25–28). For the reasons set out below, the Motion is GRANTED IN PART and otherwise DENIED or TERMED as MOOT .


Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.’ " International Stamp Art, Inc. v. U.S. Postal Service , 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

A. Background Facts About Medjet and Mr. Berger

Medjet operates a membership program that provides air medical transport and related services for members who become ill or injured while traveling. AF No. 1.1.2 The Birmingham-based company employs approximately 24 people. AF No. 1.2. Mr. Berger is Medjet's President and Chief Executive Officer. AF No. 1.3. As CEO of Medjet, Mr. Berger has ultimate hiring and firing authority. AAF No. 1.1.3 Mr. Berger has a reputation within Medjet of being a difficult boss. AAF No. 2.1.

B. Ms. Murdoch's Employment with Medjet

Ms. Murdoch was employed by Medjet as its Assistant Controller from August 2014 until August 28, 2015. AF No. 1.4. When Ms. Murdoch began her employment with Medjet, she reported to Michelle Lowery ("Ms. Lowery"), who was employed as the Controller. AF No. 2.1. As the Assistant Controller, Ms. Murdoch was responsible for accounts payable, accounts receivable, preparation of the daily sales report ("DSR"), reconciliation of the DSR on a monthly basis and other duties as needed to assist the Controller. AF No. 2.2. The preparation and reconciliation of the DSR was one of Ms. Murdoch's primary responsibilities. AF No. 2.3.

Ms. Lowery separated from employment with Medjet in mid-December of 2014, leaving Medjet without a Controller for approximately a month. AF No. 3.1. During that month, Ms. Murdoch took on additional responsibilities and reported directly to and worked more closely with Mr. Berger. AF No. 3.2. Ms. Murdoch performed her duties satisfactorily during that time period, and Mr. Berger decided to give her a pay increase to begin 2015 based upon her willingness to step in as needed after Ms. Lowery's unexpected departure. AF No. 3.3.

On January 12, 2015, Mona Roy (hereinafter "Ms. Roy") became employed as the Controller for Medjet. AF No. 4.1. Ms. Roy had previously been employed by Medjet and, on January 12, 2015 (doc. 21–1 at 4 at 12),4 was brought back to help restore order to the company's accounting functions, which had suffered due to Ms. Lowery's performance and departure. AF No. 4.2. When Ms. Roy was rehired, it was expected that she would serve as the Controller for a couple of years to supervise Ms. Murdoch and eventually train Ms. Murdoch to take over her duties. AF No. 4.2.

C. Medjet's Disciplinary Policy5

Concerning Medjet's disciplinary policy, Ms. Roy testified:

The discipline policy is to document errors, to discuss them with the employee, and when it is of sufficient nature, document it with the employee and have them sign it. Usually there are two people involved. And then termination if the behavior continues or [problems with] performance continues.

(Doc. 21–1 at 8 at 25–26).

Whitney Kerr ("Ms. Kerr"), Mr. Berger's Executive Assistant (doc. 26–5 at 3 at 8),6 testified that she does not believe that Medjet has "a written policy for discipline." (Doc. 26–5 at 9 at 31). Ms. Kerr indicated that "it's usually two days off without pay if you are caught doing something that was wrong or you have not done something that you were supposed to do." Id.

Mr. Berger mentioned the use of suspensions in the context of disciplining Ms. Roy. More specifically, Mr. Berger disciplined Ms. Roy once recently and "[t]hrough the years, [he disciplined her]....[p]robably three or four times." (Doc. 21–2 at 21 at 77).7 In direct response to the question from opposing counsel about whether he recalled, "what the punishment was or would have been?" Mr. Berger stated, "[i]t would have been a couple of days suspension." (Doc. 21–2 at 21 at 77).

His counsel then asked Mr. Berger whether he meant "the one time or other times?" Id. Mr. Berger then modified his prior response with a more specific answer for the most recent time and indicated he had no recollection of what discipline he used for the other instances:

I'm talking about the one time was a couple of days suspension recently. Yes. The other times I have no recollection.


D. Ms. Murdoch's Job Performance Issues and Discharge

As Ms. Roy stated in her declaration, "[v]ery soon after [she] began supervising [Ms.] Murdoch, [she] recognized that there were deficiencies in [Ms. Murdoch's] performance." (Doc. 21–4 at 2 ¶ 4).9 More specifically, Ms. Murdoch struggled with prepaid memberships and timely completing the DSR, and she made numerous mistakes, including a major payroll error and an overstatement of cash in a monthly closing. Id.

Ms. Roy testified that she had "multiple discussions" with Ms. Murdoch "[a]bout performance issues" and that she "put a lot of notes in [Ms. Murdoch's] file." (Doc. 21–1 at 8 at 25).10 According to Ms. Roy, Ms. Murdoch "didn't have the attention to detail that [the Assistant Controller] position requires." (Id. at 11 at 37). Ms. Roy also indicated that Ms. Murdoch lacked initiative. (See id. ("There also has to be initiative to look beyond just the immediate.") ).

In April of 2015, Ms. Roy realized that Ms. Murdoch "had not applied a payment to a customer, thereby overstating the cash by $15,000 and potentially shorting people on a bonus." (Doc. 21–1 at 7 at 24); (see also id. at 20 at 73–74 ("The fact that she didn't realize that, because she balanced the credit cards, that she could have overstated cash by $15,000."); (id. at 74 ("It was a Daily Sales Report error that could have impacted all of the employees within the organization.") ); (Doc. 21–3 at 92 ("MEMO FOR FILE—Darlene Murdoch" from Ms. Roy dated April 20, 2015, pertaining to Ms. Murdoch's failure to "post a credit card payment to an outstanding invoice") ).11

At some point during April 2015, Ms. Roy "told [Ms. Murdoch that she] was concerned about her ability to perform the job [of Assistant Controller]" and indicated that Ms. Murdoch should look for another job. (Doc. 21–1 at 10–11 at 36–37; id. at 27 at 103); (Doc. 21–4 at 3 ¶ 5). "Mr. Berger did not ask [Ms. Roy] to make that communication to [Ms.] Murdoch]." Id.

On June 25, 2015, Ms. Roy issued a written disciplinary warning to Ms. Murdoch for failing to timely submit the DSR on June 23, 2015. AF No. 6.2. As the " DETAILS " section of the form filled out by Ms. Roy explained:

On June 23, 2015, I discovered that the Sales Report for that day had not been sent. I called [Ms. Murdoch] at 5:00 to let her know that I had not received the DSR. I asked if she had sent it and she said she wasn't sure if she did or not. I asked her to verify that it was sent—it had not been. The report was sent at 5:10 pm.
The DSR is a daily function with the same routine every day.

(Doc. 21–1 at 35).

This written warning also stated (in boilerplate fashion) at the top of the form:

You are receiving this First Written Warning as a result of the issue(s) described below. Please be aware that this is the first step in MEDJET Assistance's discipline process. We trust that you will correct this matter by improving your performance of your job and/or refraining from the act or omissions that has led to this Warning Notice. Any subsequent Written Warnings will lead to further discipline, up to and including discharge.

(Doc. 21–1 at 35). Ms. Murdoch and Ms. Roy both signed this disciplinary document. Id. During...

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