Pace v. Alfa Mut. Ins. Co.

• Citation: 178 F.Supp.3d 1201
• Decision Date: 06 April 2016
• Docket Number: CASE NO.: 2:13-CV-697-WKW
• Parties: Robert W. Pace, Plaintiff, v. Alfa Mutual Insurance Company, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

178 F.Supp.3d 1201

Robert W. Pace, Plaintiff,

v.Alfa Mutual Insurance Company, et al., Defendants.

CASE NO.: 2:13-CV-697-WKW

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

Signed April 6, 2016

David Craig Allred, David Earl Allred, Allred & Allred, PC, Montgomery, AL, for Plaintiff.

Thomas Andrew Davis, Rhonda Steele Nabors, Yvonne Norris Maddalena, Jackson Lewis PC, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE

This is an employment discrimination case. On September 26, 2013, Plaintiff Robert W. Pace (“Plaintiff”) filed a complaint against Defendants Alfa Mutual Insurance Company, Alfa Life Insurance Corporation, and Alfa Corporation (collectively “Alfa”). Plaintiff claims that Alfa retaliated against him for participating in a sexual harassment investigation and lawsuit (Count I), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

(Doc. # 1). Plaintiff further asserts several state law claims: (1) negligent and/or wanton hiring, training, supervision and retention (Count II); (2) fraudulent misrepresentation (Count III); (3) fraudulent suppression (Count IV); and (4) negligent and/or wanton misrepresentation and suppression (Count V).

On March 31, 2016, the court entered an order granting in part and denying in part Alfa's motion for summary judgment. (Doc. # 97.) This opinion sets forth the reasoning underlying that ruling.¹

I. JURISDICTION AND VENUE

Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331

and 1337. Personal jurisdiction and venue are not contested.

II. BACKGROUND AND OPERATIVE FACTS²

Plaintiff began his employment with Alfa in November of 1986 in Mississippi. He served twenty-seven years with Alfa as an at-will employee. From approximately April of 1990 to April of 2013, he was employed by Alfa as Senior Vice President of Marketing for the State of Mississippi. Plaintiff held the same position for the State of Georgia from January of 2010 through April of 2013. Between 1997 and June of 2000, Alvin H. Dees, Jr., Executive Vice President of Marketing, was Plaintiff's direct supervisor.

In September of 2000, an Alfa employee named Tracy Reid Wilson filed an action against Dees and Alfa, charging them with sexual harassment, discrimination, and retaliation (“Wilson matter”).³ During the litigation of the Wilson matter, Plaintiff was interviewed on several occasions either by representatives of Alfa or their counsel. Plaintiff was also deposed as a witness in that case. According to Plaintiff, Dees was present at Plaintiff's deposition in the Wilson matter.

Plaintiff testified that, in or around September of 2000, after he was interviewed in connection with the Wilson matter, Dees confronted Plaintiff and asked him about what he was asked in the interview and how he responded. Plaintiff further testified with respect to this encounter that: (1) Plaintiff told Dees he was asked about any business trips the two of them had together; (2) Plaintiff specifically discussed with Dees a trip to Galveston where Dees and Wilson were in the hotel room for a couple of days; and (3) after telling Dees that the situation has placed him in a difficult situation, Dees became furious and told Plaintiff while walking away that “he was through with [Plaintiff].” Dees testified that he did not recall having this conversation with Plaintiff and that he did not know Plaintiff was a witness in the Wilson action. (Doc. # 68-3 at depo. p. 62.)

Before the litigation involving the Wilson action had occurred, Plaintiff interacted with Dees and Wilson on various occasions. Plaintiff testified that “[he] was very much aware that [Dees] knew that [Plaintiff] knew many damaging things to [Dees] that would have been” harmful to Dees had Plaintiff revealed them. (Doc. # 68-1 at depo. p. 20.) Plaintiff was aware that Wilson had accompanied Dees and Plaintiff “on a number of business trips,” in addition to the Galveston trip, and that Wilson “had no business purpose for being there.” (Doc. # 68-1 at depo. p. 14.) Plaintiff was also present when Dees and Wilson concocted a scheme to set up Alfa's president at the time, Goodwin Myrick, by having Wilson seduce Myrick so that he could get Myrick fired and Dees could advance in the company. (Doc. # 68-1 at depo. pp. 35-36.) According to Plaintiff, Dees was aware that Wilson “had been confiding a lot of harmful information to [Plaintiff].” (Doc. # 68-1 at depo. p. 35.)

Dees's employment with Alfa ended with an early retirement in October of 2000. (Doc. # 68-3 at depo. pp. 20, 54.) Jerry Newby, Alfa's president from December of 1998 through December of 2012, testified that he had talked to Dees after the Wilson action had commenced. (Doc. # 90-1 at depo. p. 17.) Newby informed Dees that he could not have Dees working for the company anymore because Newby could not trust him. (Doc. # 90-1 at depo. pp. 17, 20.) Newby further testified that if Dees had not retired, he would not have allowed Dees to continue his employment. (Doc. # 90-1 at depo. p. 21.)

In December of 2012, Jimmy Parnell was elected president and chief executive officer (“CEO”) of Alfa. (Doc. # 68-1 at depo. p. 232; Doc. # 68-4 at depo. pp. 7-8.) As an outsider, Dees had supported Parnell's campaign to become president. (Doc. # 68-3 at depo. p. 9.) At that time, Plaintiff asked Parnell whether there would be any changes with respect to Plaintiff's position as vice president of marketing for Mississippi and Georgia, and Parnell told Plaintiff that he “had been a bright spot in this organization for years now” and that he had “nothing to be concerned about” with respect to his job or position in the company. (Doc. # 68-1 at depo. p. 88; Doc. # 68-4 at depo. p. 72.) Plaintiff assumed Parnell's reassurance meant “whatever restructuring was going to happen in the near future in the early stages of his tenure, that it was not going to affect [Plaintiff] because [his] job and [his] status w[ere] secure for this period of time.” (Doc. # 68-1 at depo. p. 90.) Plaintiff relied on Parnell's reassurance by continuing to work for Alfa rather than move to a different company. (Doc. # 68-1 at depo. p. 89.)

In the fall of 2012, the president of Cotton States, Jeff Koerner, indicated to Plaintiff that he might have a position available for Plaintiff at Cotton States. (Doc. # 68-1 at depo. pp. 112-13.) Plaintiff chose not to pursue this potential lead for a job after his conversation with Parnell and was otherwise never offered any position with Cotton States. (Doc. # 68-1 at depo. p. 113.) Plaintiff did not look at any other job opportunity during this time when Alfa's leadership was changing.

During his campaign to become Alfa's president and CEO, Parnell stated that he would rehire Dees even though he was familiar with the controversy surrounding the Wilson action. (Doc. # 68-1 at depo. p. 229; Doc. # 68-3 at depo. pp. 9-10.) Despite dissension from some of Alfa's board members, Parnell was granted authority to rehire Dees, and his hiring became effective on February 1, 2013. (Doc. # 68-4 at depo. pp. 33-34.) Effective February 1, 2013, Dees assumed the position of executive vice president of marketing—the position he had held previously—and again served as Plaintiff's supervisor. (Doc. # 68-2 at p. 10; Doc. # 68-3 at depo. p. 16.) Before Dees returned to Alfa, Plaintiff's production was up 13 percent and was better than all other districts in Alfa's organization. (Doc. # 68-3 at depo. p. 31.)

On January 31, 2013, Plaintiff and Dees engaged in a telephone conversation in which Dees said, “[B]oy, I bet you thought you'd never have to mess with me again now, didn't you?” (Doc. # 68-1 at depo. p. 9.) When Plaintiff mentioned the name of Jerry Newby to Dees during a conversation, Dees told Plaintiff that Newby had ruined his life and that Newby “got rid of” Dees even though Dees had offered to pay the settlement in the Wilson case. (Doc. # 68-1 at depo. p. 25.) Dees also communicated to Plaintiff his anger regarding Alfa's general counsel, Al Scott, who had tried to prevent Dees from returning to the company. (Doc. # 68-1 at depo. pp. 25-26.)

Plaintiff testified about several instances of Dees's hostility toward him upon Dees's return to Alfa. During his first week back on the job, Dees transferred Plaintiff's administrative assistant, Allison Nicholson, to be his own assistant without notifying Plaintiff. (Doc. # 68-1 at depo. pp. 130, 137, 277.) When Plaintiff discussed the transfer matter with Dees, his supervisor said, “[I]f that's the worst thing I do to you, ... you'll be all right.” (Doc. # 68-1 at depo. p. 277.) Next, during a managerial meeting, Plaintiff commented that there were some underwriting issues that were keeping him up at night to which Dees walked over to Plaintiff and said, “[T]hat ain't why you're losing sleep at night now, is it?” (Doc. # 68-1 at depo. pp. 131-32.) Plaintiff further testified that: (1) Dees presented a video at a sales meeting showing Plaintiff from the torso down but with his head cut off; (2) it was clear he was “an outcast” as nobody would look him in the eye; (3) Carol Gholson, a high-level managerial employee with Alfa and who had observed Dees's interaction with Plaintiff, advised Plaintiff that he should go work for another company; and (4) another agent informed Plaintiff that Plaintiff was on Dees's hit list. (Doc. # 68-1 at depo. pp. 132, 134-35.)

After Parnell's election, many personnel and structural changes occurred at Alfa. One change involved Plaintiff's peer, Patrick Smith, who held the position of senior vice president of marketing for Alabama during the relevant time period. (Doc. # 68-1 at depo. p. 49; Doc. 68-3 at depo. p. 89.) Smith's job was eliminated on February 15, 2013, and he was then fired. (Doc. # 68-1 at depo. p. 49-50, Doc. 68-2 at p. 8; Doc. 68-3 at depo. p. 89.) Other changes also took place at Alfa:

(1) On March 22, 2013, Chad Watts was demoted from

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