Wallace v. Leidos Innovations Corporation et al

REPLY to Response to Motion re MOTION for Summary Judgment

E.D. Tenn.Feb 11, 2019

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE DAVID W. WALLACE, ) ) Plaintiff, ) ) Case No. 3:17-cv-360 v. ) ) Judge Mattice LEIDOS INNOVATIONS CORPORATION, ) Magistrate Judge Guyton ) Defendant. ) DEFENDANT’S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT While his response tries to conjure issues of fact, Plaintiff offers no admissible evidence to support any factual dispute for the legally dispositive points raised in Defendant’s Motion for Summary Judgment. Plaintiff is silent on many key points in Leidos’s brief. He does not address – let alone rebut – the fact that Mantello made clear in her comments to Kennedy that “I don’t know about Leidos” and “I can’t speak for Leidos.” It is undisputed that Mantello did not have apparent authority to opine on Leidos’s behalf about Plaintiff, as she must have in order to have been acting within the scope of her employment. Plaintiff’s silence does not end there. Kennedy testified that ORAU’s President, Andy Page, was the decision-maker in his job revocation. Plaintiff did not depose Mr. Page, and thus he does not offer a single iota of admissible evidence as the reason he made that decision. There is no evidence in the record establishing that Page relied upon Mantello’s comments when making his decision, let alone if her comments were a substantial factor in his decision-making process (or any factor at all for that matter). There is no admissible evidence of causation, as Plaintiff must proffer for each of his claims. Based on his own admissions and the lack of requisite evidence in the record to support his Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 1 of 15 PageID #: 540 2 arguments, summary judgment is manifestly appropriate. I. MANTELLO’S STATEMENTS WERE OPINION, NOT DEFAMATION Plaintiff attempts to rely upon inadmissible hearsay to sustain his claim. In the summary of material facts portion of his Response, Plaintiff cites to his own declaration wherein he describes what ORAU’s President purportedly told him about Mantello’s statements. (Pl’s Br. at 3-4). This third-hand account is hearsay and inadmissible against Leidos. Plaintiff is attempting to use an out of court statement (i.e., what ORAU’s President allegedly told him) to prove the truth of the matters contained in those statements (i.e., that “Mantello had made statements that Wallace had issues involving sexual harassment”). (Id.). This is textbook hearsay and cannot support Plaintiff’s claim in any way. See FED. R. EVID. 802; see also Trollinger v. Tyson Foods, Inc., 543 F. Supp. 2d 842, 849 (E.D. Tenn. 2008) (“In presenting evidence to avoid summary judgment, Plaintiffs cannot rely on hearsay in affidavits or testimony …”). Further, Plaintiff’s attempt to characterize Kennedy’s comments about the definition of “sexual harassment” assumes that Kennedy was not referring to differing treatment based on one’s gender, a point that cannot be clearly drawn from Kennedy’s testimony. Mantello testified that she conveyed to Kennedy that “I felt that I was treated differently” by Plaintiff in that “my role was minimized” by him. (Mantello Dep. at 25-26). Mantello further stated that “I was not allowed to work major, significant, large, high-profile projects at Leidos, such as Savannah River, MSA or Nevada.” (Id. at 27). At no point did Kennedy rebut that particular testimony, and Plaintiff does not argue that Mantello did not provide Kennedy with these specifics as to her beliefs on how Plaintiff had treated her. Mantello expressed to Kennedy her opinion about Plaintiff and expressly stated that her comments were based on how she felt. (See id.). She gave a short explanation as to why she felt the way she did based on her perspective of interactions she had with Plaintiff. In Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 2 of 15 PageID #: 541 3 light of the way she expressed herself (personally, and not on behalf of Leidos), and given that she did not base her statements on any alleged defamatory ‘fact’, her comments were not capable of conveying a defamatory meaning as a matter of law.1 II. MANTELLO’S COMMENTS WERE OUTSIDE THE SCOPE OF HER EMPLOYMENT Whether Mantello was acting within the scope of her employment is a question of law for this Court to decide. See, e.g., Booker v. GTE.net LLC, 350 F.3d 515, 518 (6th Cir. 2003) (observing that “[t]he question of whether an employee’s conduct is within the scope of employment is a question of law”). The applicable facts are undisputed, and those facts show that Mantello’s acts were beyond the scope of her authority. Plaintiff cannot point to any evidence in the record to dispute that: (1) Leidos did not authorize Mantello to make any comment about Plaintiff;2 (2) Leidos did not direct Mantello to make any comment about Plaintiff; (3) It was not within Mantello’s job description to comment about Leidos’ former employees; (4) Mantello’s comments did not serve Leidos’ purposes (rather, as Plaintiff himself stated, Mantello was “acting to further her own interests” and Leidos would not have approved 1 Kennedy conceded in her deposition that “it’s certainly possible” that she was the one who brought up the topic of harassment, rather than Mantello. (Kennedy Dep. at 47). That aside, it is telling that there is no record of Mantello conveying specifics of anything resembling sexual harassment, such as untoward comments, requests for dates, and so forth. Instead, the only specific facts mentioned anywhere in the record that was conveyed to Kennedy was Mantello’s belief that “I was treated differently by Plaintiff,” that my role was minimized,” and “I was not allowed to work major, significant, high profile projects at Leidos.” (Mantello Dep. at 25-27). 2 Plaintiff concedes that Leidos did not authorize Mantello to comment about Plaintiff. (“The issue is not whether Mantello was expressly authorized to make the defamatory statements…but whether she was acting within the scope of her employment.” (Pl’s Br. at 14-15)). Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 3 of 15 PageID #: 542 4 of Mantello’s motives for damaging him)3; and (5) Mantello made it clear to Kennedy that she had no authority, apparent or otherwise, to speak on behalf of Leidos. Plaintiff’s brief does not even attempt to contradict these key points. Based on this evidence, as well as Plaintiff’s inability to dispute it, Plaintiff has failed to establish that Leidos is vicariously liable for Mantello’s comments. Summary judgment as to all of Plaintiff’s claims is appropriate on this basis alone. Similar to his silence on the five points above, Plaintiff makes no attempt to address or distinguish any of the cases Leidos cites regarding scope of employment. Rather, Plaintiff recites the same legal framework as Leidos cites, and offers three cases in an effort to argue that Leidos is liable for Mantello’s comments. However, Plaintiff’s three cases are clearly distinguishable from the present case and are ineffective in supporting his argument. First, Plaintiff cites to Thompson v. Orange Lake Country Club, Inc., 224 F. Supp. 2d 1368 (M.D. Fla. 2002) for the proposition that a corporate employer can be held vicariously liable for an intentional act (defamation) of its employee when the employee is acting within the scope of the employer’s apparent authority. Contrary to the case in Thompson, Mantello specifically disavowed any notion that she had authority to speak on behalf of Leidos. Mantello testified that in responding to Kennedy’s mention of Plaintiff, she clearly told Kennedy, “I don’t know about Leidos, I can’t speak for Leidos.” (Mantello Dep. at 22-23). At no point did Kennedy deny this aspect of their conversation in her deposition. Plaintiff does nothing to show that Mantello did not adorn her comments with the caveat that “I can’t speak for Leidos.” Further, when Kennedy made an additional inquiry about Plaintiff, Mantello directed Kennedy to the Human Resource 3 See Compl. ¶ 20; Pl.’s Dep. at 110. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 4 of 15 PageID #: 543 5 departments of Lockheed Martin and Leidos—i.e., she directed Kennedy to the department with the apparent authority to speak about one of Leidos’s former employees. (Mantello Dep. at 28). Unlike the case in Thompson, it is undisputed that Mantello made it clear to Kennedy that she was not speaking on behalf of Leidos. Plaintiff does not even argue that Kennedy reasonably believed that Mantello had some apparent authority to speak on behalf of Leidos. Rather than conveying apparent authority to speak on Leidos’ behalf, Mantello specifically renounced any such authority. Thompson is distinguishable and offers no support for Plaintiff’s position. In Cooper v. Alabama Farm Bureau Mut. Cas. Ins. Co., 385 So.2d 630, 632 (Ala. 1980) the plaintiff alleged that his insurance agent implied in a conversation with his bank that plaintiff had intentionally burned his own pickup truck. Plaintiff points to Cooper for the general principle that a corporation can be held liable for a slanderous utterance made by an employee acting “within the line and scope of the agent’s employment.” However, despite that finding, the Cooper case stops there and offers no further analysis as to how the “line and scope” of employment is determined. The Cooper case offers no additional support for Plaintiff’s argument that Mantello’s comments were somehow in the scope of her employment. Finally, Plaintiff cites Brohate v. Hehr Mfg. Co., 243 Cal. App. 2d 133, 138 (1966), another case that simply stands for the proposition that a corporate employee or agent who commits slander while “acting in the course of his duties” can create corporate liability. In Brohate, the court noted that “the pleadings as a whole reveal that appellant was being sued because he was in fact acting as a director at the time of the alleged slander.” Id. (emphasis added). While it was accepted that the appellant in Brohate was acting within the scope of his role as a corporate director at the time of the alleged slander, that is not the case with respect to Mantello’s actions in this matter. Here, the undisputed evidence establishes that Mantello was not acting in the course of her employment Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 5 of 15 PageID #: 544 6 when she commented about Plaintiff. (See Bull Decl., Doket No. 28-7). The Brohate case operated off of a foregone conclusion that cannot be drawn in this case. In the face of Leidos’s citation of authority from the Sixth Circuit, Plaintiff has provided the Court with distinguishable cases from Florida, Alabama and California. As briefed previously, the Sixth Circuit has held that “An employer simply cannot be held liable ‘under the doctrine of respondeat superior unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the operator’s employment.” Booker v. GTE.net LLC, 350 F.3d 515 (6th Cir. 2003) (citation omitted). Plaintiff has failed to proffer any binding authority in an applicable setting, where a court held that an employee acted within the scope of her authority by defaming a former coworker or intentionally interfering with his relations with a subsequent employer. Finally, in discussing the scope of Mantello’s work and her conversations with Kennedy, Plaintiff’s argument is, respectfully, nonsensical. If Mantello’s work-related focus in her conversations with Kennedy was on the potential teaming between Leidos and ORAU to successfully bid on a potential government contract, her comments about Plaintiff ran counter to that focus and were related to her own personal interests (as Plaintiff himself pled in his Complaint).4 The comments certainly had nothing to do with advancing Leidos’s goals or business interests. 4 Again, Plaintiff’s own Complaint alleges that Mantello was “acting to further her own interests,” and Plaintiff testified that Leidos would not have approved of Mantello’s motives for “damaging” him. (Compl. at ¶ 20; Pl. Dep. at 110). This is yet another aspect of Leidos’s brief upon which Plaintiff remains silent and does not even try to meaningfully engage. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 6 of 15 PageID #: 545 7 III. PLAINTIFF CANNOT ESTABLISH PROXIMATE CAUSE AS REQUIRED FOR EACH OF HIS CLAIMS 1. Proximate Cause Must Be Established as to Each of Plaintiff’s Claims While Plaintiff attempts to steer this Court away from examining proximate cause in this case,5 it is well settled that Plaintiff’s ability to establish proximate cause is an essential component of each of his claims, including slander. Proximate cause is a required element of claims for inducement of breach of contract and intentional interference with a business relationship. See, e.g., Smith v. Harriman Utility Bd., 26 S.W. 3d 879, 886 (Tenn. Ct. App. 2000) (listing the sixth element of a claim for inducement of breach of contract as being “the act complained of must be the proximate cause of the breach of the contract”); Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (observing that a plaintiff must prove as part of his prima facie case that a defendant’s tortious inference resulted in damage to the plaintiff). Both Tennessee courts and the Sixth Circuit have addressed the need for showing proximate cause to recover damages in defamation actions. See Shipley v. Tennessee Farmers Mut. Ins. Co., 1991 WL 77540, at *6 (Tenn. Ct. App., May 15, 1991) (“For damages to be recoverable under an action of defamation the damages must be the direct and proximate cause of the alleged publication.”); Elec. Furnace Corp. v. Deering Milliken Research Corp., 325 F.2d 761, 765 (6th Cir. 1963) (“But libel per quod standing alone without proof of actual damages, proximately caused by the libel, will not support a verdict for the plaintiff.”) (emphasis added). Plaintiff tries to convince the Court that proximate cause is not even an issue in this case. That position has been 5 Plaintiff’s cites Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 548 (1983) when arguing that proximate cause is not an issue to be addressed in defamation cases or claims of intentional wrongdoing. (Pl.’s Br. at 20). What Plaintiff fails to apprise the Court, however, is that the portions of that case that he cites are drawn from the dissenting opinion. What is more, Assoc. Gen. Contractors of California was an anti-trust case. A dissenting opinion from a non-applicable case does nothing to move the needle in the instant matter. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 7 of 15 PageID #: 546 8 rejected by both the Sixth Circuit and Tennessee Court of Appeals. 2. Plaintiff Has Failed to Proffer Admissible Evidence that Mantello’s Comments Substantially Caused Plaintiff’s Job Offer to be Revoked Proximate cause puts a limit on the causal chain, such that, even though the plaintiff’s injury would not have happened without defendant’s breach, defendant will not be held liable for injuries that were not substantially caused by its conduct or were not reasonably foreseeable results of its conduct. Haynes v. Hamilton County, 883 S.W. 2d 606, 612 (Tenn. 1994). Here, Plaintiff’s decision not to obtain written discovery or any depositions of Defendant’s employees or ORAU’s decision-makers severely limits his exploration of proximate cause in this case.6 Plaintiff never deposed ORAU’s decision-maker, so as to discover why exactly his job offer was withdrawn, and thus he can only speculate as to what substantially caused that decision. While Jamey Kennedy testified that Mantello’s comments “had an impact,” there is no evidence in the record of what that impact was. How did those comments impact ORAU’s decision-making? Was that impact minimal or substantial? The record is silent in those regards. Kennedy also testified that the negative opinions of Plaintiff voiced by two ORAU employees (Richard Valentine and Kathy Ethridge) had an impact in her decision to escalate concerns to ORAU’s President. (Kennedy Dep. at 29-31, 40-41). In responding to Defendant’s motion, Plaintiff is wholly silent as to those two ORAU employees’ complaints or their impact on ORAU’s ultimate decision to revoke Plaintiff’s job offer. What played a more substantial role in Kennedy’s decision to speak with ORAU’s President Andy Page – the comments of Mantello (a non-ORAU 6 As set forth previously, the only discovery in which Plaintiff engaged occurred during the phase of limited discovery devoted to one issue – i.e., whether Mantello was subject to personal jurisdiction. The jurisdictional depositions of Kennedy and Mantello were limited to one hour each and further limited to the question of personal jurisdiction. After fact discovery in this case opened, Plaintiff did not engage in any discovery at all regarding the substantive issues in this case. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 8 of 15 PageID #: 547 9 employee), or the comments of ORAU employees Valentine and Ethridge? Did Mantello’s comments even play any role in Page’s decision-making? Again, the record is blank on this score. Critically, Kennedy testified that she did not make, nor was she involved in, the decision to revoke Plaintiff’s job offer. (Kennedy Dep. at p. 30, 34.). Instead, that decision was made by ORAU’s President, Andy Page. (Id. at 30). Plaintiff has not provided any admissible evidence as to why exactly Page made the decision to revoke Plaintiff’s job offer. The record is devoid of any admissible evidence on Page’s grounds for that decision. Plaintiff has offered no testimony or other admissible evidence as to whether Mantello’s alleged comments even played a role in Page’s own thought process—let alone a substantial role.7 Plaintiff’s argument that “the testimony of Kennedy is proof of causation” is untethered to the record and legally invalid as to the question of proximate cause. (See Pl.’s Br. at 22). While Plaintiff attempts to aver that Mantello’s comments substantially caused ORAU’s decision to revoke his job offer, Kennedy’s testimony cannot and does not evidence that. To the contrary, Kennedy makes it clear that Mantello’s input was only one of at least three (known) factors that caused her to elevate the issue to Page. Her testimony is equally clear that she was not the decision- maker in the revocation of Plaintiff’s job offer. In short, contrary to Plaintiff’s argument, Kennedy’s testimony is not evidence, let alone, proof of causation. 7 Kennedy testified that ORAU employees Valentine and Etheridge had previously endured “dealings with David in the past” and “freely offered their opinion” upon learning that their employer had hired Plaintiff. (Kennedy Dep. at 29-30; see also 32-33). It stands to reason that a decision-maker would rely much more heavily on the opinions of his own employees when determining whether Plaintiff would be a good fit for his organization, rather than the opinion of an outsider. Considering issues such as employee workplace morale and harmony, one could understand why ORAU’s President would take very seriously his own employees’ protestations about hiring Plaintiff. In any event, Plaintiff has not offered any evidence as to the basis for Page’s decision-making. Plaintiff is left to speculate what exactly drove Page’s decision- making. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 9 of 15 PageID #: 548 10 3. Plaintiff Cannot Circumvent His State Court Pleading that Gender Bias was the Cause of ORAU’s Revocation Decision While Plaintiff has failed to offer evidence as to Page’s decision-making, he has proffered his own admissions as to his belief as to what caused ORAU’s revocation—i.e., ORAU’s (alleged) discriminatory animus. Plaintiff’s brief characterizes his assertions of discriminations as “vague statements of the Plaintiff reflecting that the discriminatory actions of ORAU resulted in his injuries” and essentially asks the Court to ignore those allegations. (Pl.’s Br. at 23). Plaintiff’s allegations of discrimination were anything but vague, and his inconvenient pleading cannot be ignored. Plaintiff specifically pled that ORAU actually revoked his job offer because of his male gender, in violation of the Tennessee Human Rights Act (“THRA”). (Pl. Dep. at 116-121, Ex. 15). Under the THRA, discrimination must be the “but for” cause of the complained-of employment decision. See, e.g., Hugo v. Millennium Labs., Inc., 993 F. Supp. 2d 812, 828 (E.D. Tenn.), aff'd, 590 F. App’x 541 (6th Cir. 2014) (observing that under the THRA, discrimination must be the “but for” reason of the defendant’s adverse employment action). To have pursued his state court action in a manner consistent with Tenn. R. Civ. P. 11, Plaintiff must have possessed a good faith factual basis for pleading that gender discrimination was the “but for” reason ORAU revoked his offer. What his more, Plaintiff specified that ORAU violated its own policies in revoking his job offer, and he even went so far as to blame the #MeToo movement for ORAU’s decision. (Pl.’s Dep. at 120-22). Plaintiff’s allegations of gender discrimination against ORAU are anything but vague. There is simply nothing in the record that Plaintiff can rely upon to build a case for proximate cause. Nor is there any evidence in the record that rehabilitates or disproves his own allegation that ORAU’s allegedly discriminatory decision to revoke his job offer was the cause of Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 10 of 15 PageID #: 549 11 his alleged damages. (Pl. Dep. at p. 120-122, Ex. 15). Importantly, Plaintiff did not assert that ORAU’s decision was “a cause,” he inherently pled it was the “but for cause,” which leaves no room for Plaintiff to now argue that Leidos is actually substantially to blame for those same damages. 4. There Is No Evidence to Conclude That It Was Foreseeable that ORAU Would Revoke Plaintiff’s Job Offer Based on Mantello’s Comments, Nor That Such a Decision Even Occurred Plaintiff offers no dispute as to Mantello’s testimony that despite her desire not to work with Plaintiff, she assured Kennedy that his employment with ORAU would not negatively impact the potential teaming relationship between ORAU and Leidos. (Mantello Dep. at 22-23). Mantello’s understanding of Plaintiff’s status with ORAU is important with respect to foreseeability. As far as she knew, Plaintiff had the job. Perhaps the foreseeability analysis may have been different if Mantello had understood that Plaintiff was in the interview process or was only being considered for the ORAU position. But as far as Mantello knew, ORAU had already hired Plaintiff. (See Mantello Dep. at 18-19)8. Given this context, Mantello had no reason to believe that her brief comments to Kennedy, coupled with the caveats of “I don’t speak for Leidos” and her feelings “will not impact our future for teaming discussions,” would result in ORAU taking the drastic step of terminating his employment. (Mantello Dep. at 18, 22-23). Furthermore, considering that Plaintiff has not even offered any evidence as to Page’s decision-making, it strains credulity to suggest that Mantello should have foreseen that her comments would cause Plaintiff’s termination when there is no proof that such a causal connection actually ever transpired. 8 As Mantello testified, Bob Bull and Jamie Kennedy separately informed her that Plaintiff had been “hired” by ORAU. (Mantello Dep. at 18, 19). Mantello testified that, “I was only told he was hired. I was never told he was interviewing.” (Id. at 18). As far as Mantello knew, Plaintiff already had the job. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 11 of 15 PageID #: 550 12 To show that Mantello’s comments were the proximate cause of his harm, Plaintiff must prove that it was foreseeable that her brief comments would get him fired. The record does not support such a conclusion. IV. PLAINTIFF ADMITS HE HAD NO CONTRACT AS REQUIRED FOR AN INDUCEMENT OF BREACH OF CONTRACT CLAIM Leidos contends that Plaintiff cannot establish his claim for inducement of breach of contract, for the simple reason that no contract ever existed to be breached. In addition, Leidos also argues that Plaintiff cannot show the requisite intent, proximate cause or that Mantello’s comments were made in the scope of her employment. In response to these arguments, Plaintiff concedes that he was to be an at-will employee of ORAU and that he had no contract with ORAU. Legally, his claim for inducement of breach of contract ends there. Plaintiff’s attempt to argue about his “property interest in continued employment” goes to his claim for intentional interference with business relationships, not to the claim for inducement of breach of contract. As for the cases he cites, those that reference tortious interference with a contract actually involved a contract,9 something that Plaintiff is clearly lacking. In Forrester v. Stockstill, 869 S.W.2d 328 (Tenn. 1994), the Tennessee Supreme Court made it clear: an employee-at-will has no contractual right to continued employment and thus no claim for procurement of breach of contract can arise out of his discharge. For that reason, Plaintiff’s cited cases are clearly distinguishable and provide no support for Plaintiff’s claim for inducement of breach of contract. 9 Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758 (Tenn. 1977)(Court denied motion to dismiss claim involving alleged contract of employment); Baldwin v. Pirelli Armstrong Tire Corp., 3 S.W. 3d 1, 6 (Tenn. Ct. App. 1999) (Individual contracts with employees contained company’s promises regarding permanent employment that created more than just at will employment and thus Complaint stated cause of action for breach of contract). Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 12 of 15 PageID #: 551 13 Further, the parties are in agreement that the claim for intentional interference with business relationships does not require the existence of a contract and thus, Leidos did not raise an argument in that regard. Plaintiff’s argument about having a “property interest in continued employment” is not a disputed element at issue for purposes of this summary judgment motion. (Pl. Br. at 24-25). V. PLAINTIFF CANNOT DISPUTE THE EVIDENCE PERTAINING TO MANTELLO’S LACK OF INTENT Plaintiff offers no argument as to the undisputed facts pertaining to Mantello’s lack of intent. To succeed on his tortious interference claim, Plaintiff must prove that Mantello intended to interfere with his business relationship with ORAU. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (observing that the third element of a prima facie case of tortious interference is “the defendant's intent to cause the breach or termination of the business relationship”). As his only effort at showing this necessary element of intent, Plaintiff cites Kennedy’s perception that Mantello’s reaction to hearing Plaintiff’s name was “visceral” and “palpable.” (Pl.’s Br. at 25). Evidence that Mantello harbored less-than-positive feelings for Plaintiff is a far cry from evidence that she intended to bring about his termination by ORAU. If Mantello intended to interfere with his employment, why would she volunteer that “I don’t speak for Leidos” and assure Kennedy that his hiring “will not impact our future for teaming discussions”? Plaintiffs’ brief does nothing counter the overall way in which Mantello avoided taking any affirmative action to interfere with Plaintiff’s employment with ORAU, gave a limited response when directly asked about Plaintiff, and directed Kennedy to human resources to the extent she wished to ask any further questions about Plaintiff. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 13 of 15 PageID #: 552 14 VI. CONCLUSION Plaintiff’s response only served to confirm what the record already made plain—dismissal is appropriate. Leidos respectfully requests that Plaintiff’s claims be dismissed in their entirety, with prejudice. Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 14 of 15 PageID #: 553 15 Respectfully submitted on February 11, 2019. /s/ Jonathan O. Harris Jonathan O. Harris, TN #021508 Anne T. McKnight, TN #026476 Thomas W. Whitworth, TN #29581 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 401 Commerce Street, Suite 1200 Nashville, TN 37219-2446 Telephone: 615.254.1900 Facsimile: 615.254.1908 CERTIFICATE OF SERVICE I hereby certify that on February 11, 2019, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon the following: Thomas M. Leveille Tarpy, Cox, Fleishman & Leveille, PLLC 1111 N. Northshore Drive Landmark Tower North, Suite N-290 Knoxville, TN 37919 /s/ Jonathan O. Harris 37367246.1 Case 3:17-cv-00360-HSM-HBG Document 33 Filed 02/11/19 Page 15 of 15 PageID #: 554