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Kevin Gerrard v. Garda Security

August 11, 2011

KEVIN GERRARD, PLAINTIFF,
v.
GARDA SECURITY, INC., JERRY SARGENT, INDIVIDUALLY, AND CHRISTINA MANSFIELD, INDIVIDUALLY, ANDREWS INTERNATIONAL INC., AS SUCCESSOR IN INTEREST TO GARDA SECURITY, INC., AS SUCCESSOR IN INTEREST TO VANCE UNIFORMED PROTECTION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Thursday, 11 August, 2011 03:01:52 PM Clerk, U.S. District Court, ILCD

ORDER & OPINION

This matter is before the Court on Defendants' Motion for Summary Judgment (Doc. 71). Plaintiff timely filed a Response (Doc. 82) to which Defendants filed a Reply (Doc. 88). For the following reasons, Defendants' Motion for Summary Judgment (Doc. 71) is GRANTED.

INTRODUCTION

Plaintiff was hired by Vance Uniformed Protection Services on August 6, 2004. (Doc. 71 ¶ 1). Vance was acquired by Defendant Garda Security, Inc., ("Garda") in 2005, which was in turn acquired by Defendant Andrews International, Inc., ("Andrews") in June 2009. (Doc. 71 ¶¶ 2, 150). Over the course of his employment, Plaintiff was the Managing Director of a division concerned with providing security-guard services to the facilities of its clients. (Doc. 71 ¶¶ 3-5).

Defendant Sargent was hired as Vance's EEO Director in December 2005, and he became Garda's Human Resources Director in 2007. (Doc. 71 ¶ 9). Defendant Mansfield began working for Vance in 2003, and eventually obtained the position of Garda's Vice President of Human Resources. (Doc. 71 ¶ 8).

On April 25, 2008, Plaintiff filed a three-count complaint in the Circuit Court of the Eleventh Judicial Circuit, McClean County, Illinois, alleging defamation against Defendants Garda, Sargent, and Mansfield. (Doc. 1-1 at 4). The Defendants removed the case to this Court on June 23, 2008, on the basis of diversity jurisdiction under 28 U.S.C. §§ 1332, 1441, & 1445. (Doc. 1). On September 14, 2009, Plaintiff filed a Third Amended Complaint,*fn1 in which he added claims for violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq. and the American with Disabilities Act of 1990*fn2 against Defendant Andrews, as Successor in Interest to Defendant Garda. (Doc. 42 at 6-13).

On February 15, 2011, Defendants filed their Motion for Summary Judgment, in which they seek judgment as a matter of law upon all of Plaintiff's claims. (Doc. 71). After requesting various extensions of time to respond, Plaintiff filed his Response to Defendants' Motion for Summary Judgment (Doc. 82) on April 25, 2011. On May 27, 2011, Defendants filed their Reply (Doc. 88). Accordingly, this matter is now ripe for review by this Court. Because Plaintiff's defamation claims and his FMLA claim are distinct in terms of both their facts and law, the Court will first discuss Plaintiff's defamation claims before turning to his FMLA claim.

DEFAMATION

I.Factual Background*fn3

As previously stated, Defendant Sargent was hired as Vance's EEO Director in December 2005, and he became Garda's Human Resources Director in 2007. (Doc. 71 ¶ 9). In these positions, one of Sargent's responsibilities was to investigate complaints made by employees against other employees. (Doc. 71 ¶ 10). In early 2006, Sargent became aware of a complaint lodged by a client in Huntsville Alabama, which was a site for which Plaintiff was responsible. (Doc. 71 ¶ 12). On March 14, 2006, Sargent travelled to Huntsville to conduct an on-site investigation. (Doc. 71 ¶ 13). As part of this investigation, Sargent spoke with several guards working at the site, with Glenn Bracken, the Project Manager at the site and Plaintiff's direct subordinate, and with Heather Hathaway, the client's safety manager and Garda's main point of contact for the site. (Doc. 71 ¶ 14). Sargent did not interview Plaintiff as part of his investigation. (Doc. 82 AMF ¶ 1).*fn4

Through his investigation, Sargent learned of numerous complaints which the guards and Hathaway had, most of which pertained to Bracken's management rather than Plaintiff's. (Doc. 71 ¶ 15). However, Hathaway did tell Sargent that Plaintiff was rude to her, only spoke to her briefly, and made her feel that she was not worth his time and energy, which she believed was caused by his dislike for dealing with females. (Doc. 71 ¶¶ 16-17). At the conclusion of his investigation, Sargent wrote a report ("Huntsville Report") detailing the allegations, his investigatory steps, and what he learned via the various interviews he conducted, but did not reach any conclusions regarding whether Plaintiff did what he was accused of or whether he should be disciplined. (Doc. 71 ¶¶ 21-22). Nonetheless, Plaintiff alleges that during his investigation Sargent told Bracken, Hathaway, and two other individuals*fn5 that Plaintiff had "screwed up" an earlier investigation at the Huntsville site, that he "didn't like [Plaintiff's] management style" and that the account should be reassigned to someone other than Plaintiff. (Doc. 71 ¶¶ 19-20). Plaintiff claims to have learned this information from Bracken. (Doc. 71 ¶¶ 19-20).

Several months after the Huntsville investigation terminated, on July 11, 2006, Cathy Salves -- a direct subordinate of Plaintiff's -- submitted a "Formal Complaint Against [Plaintiff]" to Sargent. (Doc. 27 ¶¶ 23-24). In her formal complaint, Salves made various allegations against Plaintiff, the main thrust of which was that she had "reached a point where [she could] no longer take [Plaintiff's] abusive, aggressive, harassing, bullying, in-your-face micromanaging style." (Doc. 71 ¶¶ 24-25). After sending her complaint, however, Salves spoke with Sargent and asked him not to investigate or take any further action. (Doc. 71 ¶ 26).

Two months later, in September 2006, Sargent received another written complaint against Plaintiff, this one from Roger Traughber, a "roving director" for Garda. (Doc. 71 ¶¶ 28-30). In addition to his written complaint, Traughber also called Sargent several times to complain that Plaintiff had spoken to him in an intimidating and harassing manner, that Plaintiff had made "belittling and demeaning" statements to him, and that he felt that Plaintiff was "out to get him for some reason." (Doc. 71 ¶ 30). Plaintiff prepared a written response to Traughber's complaint, in which he denied the allegations and dismissed Traughber's complaint as a "'hatchet job' from a disgruntled subordinate who does not want to be held accountable." (Doc. 71-11 at 3). At this time, Plaintiff states that Sargent told a Project Manager named Robbie Tyson that Plaintiff was harassing and intimidating the employees and that Traughber and others had complained about him. (Doc. 71 ¶ 32).*fn6

Also in September of 2006, Sargent received complaints from Brenda and Larry Wells regarding their interactions with Plaintiff. (Doc. 71 ¶¶ 31-35). The Wells were a husband and wife who worked for Garda at an International Truck & Engine ("ITE") site in Conway, Arkansas. (Doc. 71 ¶ 31). Larry was a Project Manager at the site and subordinate of Plaintiff's and Brenda was Captain of the Guard. (Doc. 71 ¶ 31). The Wells alleged, among other things, that Plaintiff was rude and intimidating to Larry and that he had been generally dismissive of Brenda and her opinions because she was female. (Doc. 71 ¶ 35). Plaintiff submitted a written response to these complaints in which he denied any allegations of wrongdoing. (Doc. 71-13). Plaintiff wrote that he believed this situation was "ludicrous," that he believed Traughber had encouraged the Wells' complaints, and that if it was not rectified promptly, he would file a defamation action against both Traughber and the Wells. (Doc. 71-13).

Sargent did not go on site to investigate the Wells' complaints. (Doc. 82 AMF ¶ 3). However, he did speak with John Maddox, an ITE employee and Garda's point of contact at the site. (Doc. 71 ¶ 37). Maddox told Sargent that in the several meetings he had held with Plaintiff, he found him to be "arrogant" and "dismissive," and that Plaintiff had bad-mouthed his own employees-specifically Brenda and Larry Wells-to Maddox. (Doc. 71 ¶¶ 38-39). At some point, Sargent also spoke with Tom Parrish, Plaintiff's direct supervisor. (Doc. 83-2 at 59-60). Parrish told Sargent that he was with Plaintiff at the Arkansas site at the time that the events giving rise to the Wells' initial complaint took place, and that he never saw any of the alleged actions take place. (Doc. 83-2 at 64).

On October 16, 2006, Sargent wrote a memo to Parrish and Obie Moore, Garda's then-Senior Vice President, summarizing the complaints made by Traughber, the Wells, and Maddox. (Doc. 71-9). Sargent was careful to note that many of the complaints against Plaintiff were matters of "perception" or "perceived behavior," and that there were no other witnesses to the events. (Doc. 71-9). He concluded his report by stating: "One can only draw the conclusion that the client is validating the employee's complaints concerning behavioral issues and interpersonal skill with [Plaintiff] . . . these complaints were not the first complaints of a similar nature that have been filed against [Plaintiff], but to my knowledge only the first ones that were not withdrawn before the investigation was completed. It should be noted that [Plaintiff's] managerial skills were not in dispute here, but only his interpersonal skills and his perceived harassing and intimidating behavior toward subordinates and relationships with clients." (Doc. 71-9 at 7).

Sargent also believed that a formal written warning was appropriate as a result of this investigation. (Doc. 71 ¶ 43). Accordingly, on October 24, 2006, Sargent prepared a first draft of a written warning to Plaintiff for Parrish's signature. (Doc. 71 ¶ 44). This initial draft opened with the language: "This memo shall serve as a final written notice of unsatisfactory performance referencing improper activities and language, including, but not limited to, harassment, sexual harassment, and hostile work environment." (Doc. 71-14). However, after discussing the warning with Parrish, Sargent "softened" the warning in a second draft. (Doc. 71 ¶ 46; 83-2 at 73-74).*fn7 Accordingly, the opening paragraph of the second draft read: "As you know, we have completed our investigation into three allegations of Harassment against you. While this investigation did not demonstrate a pattern of harassment by you against the three complainants, it does demonstrate a need for you to evaluate your approach to your subordinates." (Doc. 71-15).*fn8

Finally, Sargent prepared a memorandum to Larry and Brenda Wells informing them of the results of his investigation. (Doc. 71 ¶ 51). Sargent concluded the memo by stating: "My investigation revealed that there was no available corroborating evidence to prove or disprove any allegations made by Larry and Brenda Wells, or in the rebuttal statements provided by [Plaintiff]. Statements relied upon in this complaint were either taken out of context, or not corroborated, so as to make one believe that it was more likely than not that the statements were not made or were unproven. [Plaintiff] was advised to be more cognizant of making potential statements that could be construed or perceived by another in any manner other than that intended." (Doc. 71 ¶ ...


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