Mahone v. BBG Speciality Foods, Inc.

Filing 34

MEMORANDUM OPINION AND ORDER directing as follows: (1) def's 22 motion for summary judgment is GRANTED, and summary judgment is hereby entered in def's favor on all claims; (2) directing the clerk to close this file. Signed by Honorable Judge Susan Russ Walker on 3/28/18. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANDRE J. MAHONE,
Plaintiff,
v.
BBG SPECIALTY FOODS, INC.,
d/b/a TACO BELL,
Defendant.

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CASE NO.: 1:16cv00655-SRW

MEMORANDUM OPINION AND ORDER1
Plaintiff Andre J. Mahone brings this action against defendant BBG Specialty
Foods, Inc., d/b/a Taco Bell (“BBG”), alleging employment discrimination and retaliation
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), and the Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”). See Doc. 9 (Amended
Complaint). BBG is a Taco Bell restaurant franchisee. The plaintiff was employed by the
defendant at a Taco Bell in Dothan, Alabama, from November 29, 2013 until he was fired
on October 9, 2015. He was hired to the position of “team member,” and defendant
promoted him to “shift leader” on February 4, 2014. Plaintiff held the shift leader job title
until his termination from employment. This lawsuit concerns allegations of disparity in
plaintiff’s pay relative to female shift leaders, as well as allegations that the defendant
failed to promote the plaintiff to Assistant Manager because of gender discrimination.

1

On October 7, 2016, the parties consented to final dispositive jurisdiction by a Magistrate Judge pursuant
to 28 U.S.C. § 636(c). See Doc. 13; Doc. 14.

1

Plaintiff maintains that defendant terminated his employment on October 9, 2015 in
retaliation for the plaintiff’s complaints of gender discrimination.
This cause is presently before the court on defendant’s motion for summary
judgment. See Doc. 22. Plaintiff filed an opposition to the motion, see Doc. 29, and BBG
replied, see Doc. 30. Upon review of the motion and the record, the court concludes that
defendant’s motion for summary judgment is due to be granted.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment if it “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). For summary judgment purposes, an issue of fact is “material” if,
under the substantive law governing the claim, its presence or absence might affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the
movant fails to satisfy its initial burden, the motion for summary judgment will be denied.
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S.
Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the
opposing party to establish – “by producing affidavits or other relevant and admissible
evidence beyond the pleadings” – specific facts raising a genuine issue for trial. Josendis
v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A).
“All affidavits [and declarations] must be based on personal knowledge and must sets forth
facts that would be admissible under the Federal Rules of Evidence[.]” Josendis, F.3d at
1315; Fed. R. Civ. P. 56(c)(4). The court views the evidence and all reasonable factual
2

inferences in the light most favorable to the nonmovant. Miller’s Ale House, Inc. v. Boynton
Carolina Ale House, LLC, 702 F.3d at 1315; Fed. R. Civ. P. 56(c)(4). However, “[i]f no
reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine
issue of material fact and summary judgment will be granted.” Morton v. Kirkwood, 707
F.3d 1276, 1284 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted).
BACKGROUND AND UNDISPUTED FACTS2
I.

Material Facts Regarding Pay

In the nearly two years that the plaintiff was employed by defendant, he received
three pay raises. When defendant promoted plaintiff from team member to shift leader on
February 4, 2014, plaintiff received a raise from $7.50 per hour to $8.25 per hour. He also
received raises on May 28, 2014 and August 19, 2015 to $8.75 per hour and $9.00 per hour,
respectively. The latter two raises came after the plaintiff complained in July 2015 to the
Restaurant General Manager that female shift leaders were paid more per hour. Plaintiff
complained about discrimination generally, but he did not specify that he was complaining
about gender discrimination. The plaintiff testified that he was satisfied with the raise, and
he did not have any conversation with a member of management about pay discrimination

2

As it is required to do, the court has viewed the evidence presented on the motion for summary judgment
in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
These are the facts for summary judgment purposes only. They may or may not be the actual facts. See Cox
v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994) (“[W]hat we state as ‘facts’
in this opinion for purposes of reviewing the rulings on the summary judgment motion [ ] may not be the
actual facts.”) (citation and marks omitted). Also, the “facts” set out herein are gleaned from the parties’
evidentiary submissions but not from counsels’ unsubstantiated statements in the parties’ briefs.
“Statements by counsel in briefs are not evidence.” Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th
Cir. 1980). See also Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that
decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981, are
binding in the Eleventh Circuit).

3

after July 2015. (Doc. 23-4; Pl. Dep. 155, 190-91). Further, in his brief in response to the
instant motion, the plaintiff concedes that he did not make complaints about gender
discrimination after July 2015. See Doc. 29 at 4 (“Plaintiff agrees that he never explicitly
complained about being discriminated against after July 2015.”). There is no evidence of
record that the plaintiff complained at any other time about discrimination during his period
of employment with the defendant.
Throughout the entirety of plaintiff’s employment by defendant, the highest pay
differential between the plaintiff and that of the highest paid shift leader was $0.75 per
hour.
II.

Material Facts Regarding Promotion to Assistant Manager

Defendant hired Bonnie Emerson as the Assistant Manager effective May 13, 2015.
Defendant created the position because, in March 2015, the store began selling breakfast,
there were employees on-site from 6:00 a.m. until 1:00 a.m., and the Restaurant General
Manager could not be on-site for that amount of time. Emerson had twenty years of
restaurant management experience at or above the assistant manager level, and she had
been an Assistant Manager at another Taco Bell location in Tennessee. None of the shift
leaders at the restaurant at the time Emerson was hired as the Assistant Manager had that
amount of relevant experience, including the plaintiff. He had no management experience
at a level higher than the shift leader position. He admits that Emerson was more qualified
than he for the Assistant Manager position. See Doc. 29 at 6.
There is no evidence before the court that the plaintiff applied to be the Assistant
Manager. The plaintiff testifies that, “[s]ometime in February or March 2015, [he] had
4

conversations with [Restaurant General Manager] Charity Carnley about being promoted
to the Assistant Manager position. … She said that [he] might get the position or that [he]
would get the position.” Doc. 29-2 at 2. One of defendants’ former employees, Christopher
Trawick, submitted sworn testimony that, “As early as December 2014, Charity Carnley
… told [him] that [the plaintiff] would get the Assistant Manager position.” Doc. 29-3.
Plaintiff “believed” that Carnley “was the ultimate decision maker” with respect to
promotions. Doc. 29-2 at 2. However, the defendant presents uncontroverted evidence that
Carnley, as a Restaurant General Manager, lacked the authority to promote an employee.
Plaintiff was not a part of the decision-making team as to the hiring of an Assistant
Manager. He did not know who had final hiring authority, but he testified at his deposition
that he thought the decision would be made by the Restaurant General Manager and the
Market Coach, Sandy Howell. However, those individuals did not have hiring authority.
The Restaurant General Manager could make hiring recommendations to the Market Coach
and to Kay Nailen, one of BBG’s owners. The decision to hire Emerson was made by the
Market Coach with final approval from Nailen.
III.

BBG’s Termination of Plaintiff’s Employment

Plaintiff was responsible for making bank deposits, and there was a question about
a short deposit – a deposit that was less than defendant’s records indicated that it should be
– made by the plaintiff around October 2, 2015. Plaintiff testified that he was “very upset”
about being accused of making a short deposit. Doc. 23-4; see also Doc. 23-13 at 15-23
(text messages). Beginning on October 3, 2015, plaintiff sent late-night, profanity laden
texts to the Restaurant General Manager and the Market Coach about the deposit issue.
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Also on October 3, 2015, he argued with Assistant Manager Emerson about the deposit,
and he raised his voice during the altercation. Emerson called the Restaurant General
Manager to inform her about the argument. Thereafter, the Restaurant General Manager
called the store and sent the plaintiff home. On October 5, 2015, management discovered
that the deposit shortage was an error outside of the plaintiff’s control, and that the money
was in the defendant’s bank account. The plaintiff was not disciplined for making a short
deposit. However, he remained upset about the allegation of wrongdoing.
On the evening of October 8, 2015, plaintiff attended a meeting with his managers
in the lobby of the restaurant. According to the plaintiff, there were one or two customers
in the lobby or the nearby dining area. Near the end of the manager’s meeting, plaintiff and
a co-worker, Tawanna Stovall, argued. According to the plaintiff’s deposition, he did not
yell or curse at Stovall, but he raised his voice and he lost his temper. He asked the
Restaurant General Manager if he could leave, she responded that he could, and he clocked
out.
As plaintiff left the restaurant, another employee told plaintiff that the Restaurant
General Manager caused the altercation between the plaintiff and Stovall. He reentered the
restaurant, and confronted the Restaurant General Manager with a raised voice. He was
yelling “a little bit” and he was upset, but he did not use profanity during his altercation
with the Restaurant General Manager. Doc. 23-4 at 29. He also did not threaten her. See
id.
The following day, the plaintiff was scheduled to work, and he texted the Restaurant
General Manager to ask if he could miss his shift because he felt uncomfortable returning
6

to the restaurant. According to the plaintiff, she responded that he could miss work if he
found someone to cover the shift. For reasons that are not clear from the briefs or the
evidence of record, the plaintiff reported to the restaurant on October 9. The Restaurant
General Manager told him then that he was fired because he was “cussing” at her the night
before. Doc. 23-4 at 29.
Plaintiff testified that he was terminated for a number of reasons, including his
altercation with the Restaurant General Manager on October 8, his argument with Stovall
on October 8, the issue with the deposit on October 2, his argument with Emerson about
the deposit issue, his reaction to the accusation of wrongdoing about the short deposit, and
the text messages that he sent to the Restaurant General Manager to ask that she prepare
paperwork properly. See Doc. 23-4. The plaintiff testified that his termination came after
he complained on July 5, 2015, about discrimination with respect to pay and promotion,
but he did not testify that he was fired because of those complaints.3
DISCUSSION
I.

Mahone’s Claims

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In the plaintiff’s brief in opposition to the motion for summary judgment, plaintiff’s counsel asserts that,
as a matter of fact, “Plaintiff believes he was terminated because he complained about being discriminated
against and because he complained about being paid less than other females holding the shift leader
position.” Doc. 29 at 2. In support of this assertion, plaintiff’s counsel cites plaintiff’s EEOC Intake
Questionnaire, which is not sworn testimony made under penalty of perjury, and the plaintiff’s declaration
filed with the response in opposition to the defendant’s motion for summary judgment. See Doc. 29-1; Doc.
29-2. This assertion of fact is not supported by any evidence of record, including the EEOC Intake
Questionnaire (plaintiff was “fired over nonsense”), and the plaintiff’s declaration (no mention of a reason
for termination). Doc. 29-1 at 6; Doc. 29-2. Also, the assertion by plaintiff’s counsel contradicts the
plaintiff’s deposition testimony regarding the reasons he was terminated from his employment with
defendant. Accordingly, this statement by plaintiff’s counsel is given no weight, as it is not supported by –
and, indeed, is belied by – the evidence of record.

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The plaintiff’s claims are: (1) a Title VII claim for failure to promote him to the
Assistant Manager position that was awarded to Bonnie Emerson; (2) a Title VII disparate
treatment in pay claim due to gender discrimination based on plaintiff’s complaint to
management about discrimination in July 2015; (3) an EPA claim for disparate pay; (4) a
Title VII retaliation claim due to defendant’s termination of plaintiff’s employment on
October 9, 2015; and (5) and an EPA retaliation claim based on defendant’s termination of
plaintiff’s employment. The plaintiff does not plead additional legal claims in the amended
complaint, see Doc. 9, and no other claims are before the court.4

4

At his deposition, the plaintiff testified that he believed that he was denied a promotion to Restaurant
General Manager, and that the reason he did not secure that position was rooted in gender discrimination.
Doc. 23-4 at 33 (Q: “Are you making a claim for the general manager’s position? A: “At this point now,
yes, if I was in the assistant manager’s position and [the general manager’s position] became available, I
would’ve probably got it. Most likely, I would have.”). The plaintiff further testified that the position never
came available during his period of employment, he did not apply to be the Restaurant General Manager,
no one with BBG ever told him that he would be promoted to the position, and he was simply expressing
his “opinion” that events would have unfolded such that he might have been promoted to Restaurant General
Manager had he been promoted to Assistant Manager, had he not been fired, and had the position become
available. Id. The plaintiff never applied to become the Restaurant General Manager. See Doc. 23-4 at 19
(Pl. Deposition). In fact, there is no evidence of record to suggest that the plaintiff ever expressed interest
in becoming the Restaurant General Manager during his period of employment with defendant. In
opposition to defendant’s motion for summary judgment, plaintiff maintains that his failure to promote
claim with respect to the Restaurant General Manager position is based on the theory that promotion to
Restaurant General Manager “was a future promotional opportunity[] that was not offered to him[] as a
result of Defendant’s practices.” Doc. 29 at 6.
The plaintiff did not make a claim in the Amended Complaint for failure to promote to the
Restaurant General Manager position. See Doc. 9 at 4. He also did not attempt to amend his complaint to
include a such a claim after his deposition. The same is true for the Title VII claim for disparate treatment
in terms of discipline or work conditions that the plaintiff attempts to assert in his brief in opposition to the
motion for summary judgment. See Doc. 29 at 4 (plaintiff felt “singled out” and discriminated against due
to his gender when he was accused of having a short deposit and none of his female coworkers were
“questioned” in connection with the deposit problem). These claims are not pled in the amended complaint,
and they are not before the court. Pursuant to Federal Rule of Civil Procedure 8(a), a plaintiff’s complaint
or amendments thereto must set out the plaintiff’s claims for relief, and “[a] plaintiff cannot amend a
complaint through an argument in a brief opposing summary judgment.” Nickson v. Jackson Hosp. & Clinic
Inc., 2017 WL 4366735, at *4 (M.D. Ala. Sept. 29, 2017) (citing Hall v. Dekalb Cty. Gov’t, 503 F. App’x.
781, 786 (11th Cir. 2013)). Thus, defendant is entitled to summary judgment on plaintiff’s failure to
promote claim with respect to the Restaurant General Manager position as well as plaintiff’s disparate

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II.

Disparate Treatment Gender Discrimination Claims
A.

Title VII Failure to Promote Claim5

The McDonnell Douglas framework was established by the Supreme Court for
evaluating a Title VII plaintiff’s claims of discrimination against an employer where, as
here, there is no direct evidence of discrimination. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.
1997); Brown v. Ala. Dep’t of Trans., 597 F.3d 1160, 1174 (11th Cir. 2010). The plaintiff
must first make out a prima facie case of discrimination. Tex. Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 252-53 (1981); Walker v. Mortham, 158 F.3d 1177, 1183 (11th
Cir. 1998); Combs, 106 F.3d at 1527-28. “Establishment of the prima facie case in effect
creates a presumption that the employer unlawfully discriminated against the employee. If
the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of
the presumption, the court must enter judgment for the plaintiff because no issue of fact
remains in the case.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254) (internal
quotations marks omitted).
If the plaintiff establishes a prima facie case, the employer has the burden of
producing “legitimate, nondiscriminatory reasons for the challenged employment action.”
Combs, 106 F.3d at 1528 (citing McDonnell Douglas, 411 U.S. at 802). “To satisfy this

treatment claim regarding defendant’s treatment of him and the investigation related to the short deposit in
October 2015 because the plaintiff did not assert such claims in the amended complaint.
5

Defendant argues that the plaintiff’s failure to promote claim is barred because he did not file a timely
charge of discrimination as to this claim. See Doc. 23 at 15-16. For the reasons discussed infra, the
plaintiff’s failure to promote claim fails on its merits. Thus, the court does not reach the statute of limitations
issue.

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intermediate burden, the employer need only produce admissible evidence which would
allow the trier of fact rationally to conclude that the employment decision had not been
motivated by discriminatory animus.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S.
at 257). If the employer articulates a legitimate, nondiscriminatory reason for its decision,
the mandatory inference of discrimination arising from the prima facie case is destroyed.
Walker, 158 F.3d at 1184.
The plaintiff must then produce evidence “including the previously produced
evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to
conclude that the reasons given by the employer were not the real reasons for the adverse
employment decision.” Combs, 106 F.3d at 1528. A plaintiff may establish pretext by
producing evidence that reveals “such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in [the defendant’s] proffered legitimate reasons for its
actions that a reasonable factfinder could find them unworthy of credence.” Springer v.
Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (quoting
Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)) (internal quotation marks
omitted). However, “[a] reason is not pretext for discrimination ‘unless it is shown both
that the reason was false, and that discrimination was the real reason.’” Id. (citing Brooks
v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in the
original)).
It is well-established in the Eleventh Circuit that:
Under the McDonnell Douglas framework, to prevail on a claim of
failure to promote, a plaintiff may establish a prima facie case of …
discrimination by showing that: (1) [he] is a member of a protected class; (2)
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[he] was qualified and applied for the promotion; (3) [he] was rejected
despite [his] qualifications; and (4) other equally or less qualified employees
who were not members of the protected class were promoted.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). “The comparators
for the fourth prong must be “‘similarly situated in all relevant respects.’” Brown v.
Alabama Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (quoting Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir.1997)).
The plaintiff is a member of a protected class, but he fails to meet any of the
remaining elements of a prima facie case. Moreover, the plaintiff does not argue that he
satisfies a prima facie case in his response to the defendant’s motion for summary
judgment, and he has waived any such arguments that could have been raised.6
Nevertheless, the court will address the claim on its merits.

6

The Eleventh Circuit recently reiterated that,
“To prevail on a particular theory of liability, a party must present that argument to the
district court. Our adversarial system requires it; district courts cannot concoct or resurrect
arguments neither made nor advanced by the parties.” Fils v. City of Aventura, 647 F.3d
1272, 1284 (11th Cir. 2011) (citation omitted); see also Maradiaga v. United States, 679
F.3d 1286, 1293-94 (11th Cir. 2012) (“[D]istrict courts cannot concoct or resurrect
arguments neither made nor advanced by the parties. That federal courts can take notice of
[the law] does not mean that a party ... need not cite it to the court or present argument
based upon it, or that federal courts must scour the law ... for possible arguments a [party]
might have made.”) (citation and quotation marks omitted); cf. In re Antrobus, 563 F.3d
1092, 1099-1100 (10th Cir. 2009) (“Under our rules we are not permitted to invent
arguments even for pro se litigants; certainly, we cannot revive ones foregone nearly a year
ago by such well-counseled litigants.”); Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir.
2009) (“It is not our job, especially in a counseled civil case, to create arguments for
someone who has not made them or to assemble them from assorted hints and references
scattered throughout the brief.”).

Reaves v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1137, 1149 (11th Cir. 2017). Also, “[t]he onus is upon the
parties to formulate arguments[.]” A.L. v. Jackson Cty. Sch. Bd., 635 F. App’x 774, 787 (11th Cir. 2015)
(quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)).

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As to the second element of the prima facie case, the plaintiff did not apply for the
position – he merely discussed the possibility that he might become the Assistant Manager
with the Restaurant General Manager. See Taylor v. Austal, U.S.A., LLC, 829 F. Supp. 2d
1162, 1177 (S.D. Ala. 2011) (“A plaintiff claiming that he was discriminatorily denied a
promotion usually must show that he actually applied for the position as part of his prima
facie case.”) (citing Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999) and Combs, 106
F.3d at 1539 n. 11). The plaintiff subjectively believed that the Restaurant General
Manager was the ultimate decision maker, but the undisputed evidence of record is that she
lacked hiring or promotion authority. Also, the plaintiff adduces no evidence that he was
qualified for the Assistant Manager position. As to the third element, Bonnie Emerson, a
woman, was hired to the Assistant Manager position; however, the undisputed evidence is
that the ultimate decision makers did not know of plaintiff’s interest in the job.
Accordingly, he has not shown that he “was rejected despite his qualifications.” Wilson,
376 F.3d at 1089.
Finally, the plaintiff does not satisfy the fourth element. He “concedes” that his
qualifications “were not superior” to Emerson’s qualifications. Doc. 29 at 6. Thus, the
remaining question at issue is whether plaintiff’s and Emerson’s qualifications are equal.
See Wilson, 376 F.3d at 1089. The court concludes that they are not on this record. Prior to
being hired to the Assistant Manager position, Emerson had approximately twenty years
of restaurant management experience at the assistant manager, co-manager, or manager
positions, including eighteen months as an Assistant Manager at a Taco Bell restaurant in
Tennessee. The plaintiff’s highest management position was that of team leader or the
12

equivalent management level at other fast food restaurants. Simply put, the evidence of
record does not present “a sufficient disagreement to require submission to a jury” on the
issue of a comparison of plaintiff’s and Emerson’s qualifications. Lee v. GTE Fla., Inc.,
226 F.3d 1249, 1253 (11th Cir. 2000) (citation omitted). No reasonable juror could find
that the plaintiff and Emerson are equally qualified for the Assistant Manager position, and
the plaintiff does not argue the point.7
Assuming that plaintiff could make out a prima facie case, the defendant contends
that Emerson was hired, in part, because of her superior qualifications, and that is a
legitimate, non-discriminatory basis for a promotion or hiring decision. See Burdine, 450
U.S. at 259 (An “employer has discretion to choose among equally qualified candidates,
provided the decision is not based upon unlawful criteria.”); Brooks v. Cty. Comm’n of
Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (an employer’s hiring of a more
qualified candidate meets is a legitimate business decision that shifts the burden to the
plaintiff to show pretext); Beal v. Convergys Corp., 489 F. App’x 421, 423-24 (11th Cir.
2012) (an employer’s decision to hire a more qualified candidate is a legitimate, nondiscriminatory reason for a hiring decision).
Thus, the burden shifts to the plaintiff to show pretext. “A reason is not pretext for
discrimination ‘unless it is shown both that the reason was false, and that discrimination

7

The plaintiff asserts that there is evidence that his performance was superior to Emerson’s, and he argues
that performance “is clearly a question of fact[] that a reasonable jury should decide.” Doc. 29 at 6. The
plaintiff asks, “How could performance, (sic) not be an issue?” Id. Under well-established, binding
precedent, qualifications for a position are material to a failure to promote claim. See, e.g., Wilson, 376 F.3d
at 1089. The plaintiff has not made any legal argument supported by case law that job performance is also
material to a failure to promote claim in the sense that he advocates.

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was the real reason.’” Brooks, 446 F.3d at 1163 (quoting St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515, 113 S. Ct. 2742 (1993)). In the failure to promote context,
[a] plaintiff may not establish that an employer’s proffered reason is
pretextual merely by questioning the wisdom of the employer’s reasons, at
least not where ... the reason is one that might motivate a reasonable
employer.” Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.
1997), cert. denied, sub nom., Combs v. Meadowcraft Co., 522 U.S. 1045,
118 S. Ct. 685, 139 L. Ed. 2d 632 (1998); see also Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999), cert.
denied, 529 U.S. 1109, 120 S. Ct. 1962, 146 L. Ed. 2d 793 (2000)
(emphasizing that courts “are not in the business of adjudging whether
employment decisions are prudent or fair. Instead our sole concern is whether
unlawful discriminatory animus motivates a challenged employment
decision.”); Deines v. Texas Dept. of Protective and Regulatory Servs., 164
F.3d 277, 281 (5th Cir. 1999) (explaining that “it is not the function of the
jury to scrutinize the employer’s judgment as to who is best qualified to fill
the position.... The single issue for the trier of fact is whether the employer’s
selection of a particular applicant over the plaintiff was motivated by
discrimination.”).
Lee, 226 F.3d at 1253.
On the evidence of record, no reasonable juror could find that the defendant’s hiring
of Emerson was motivated by discriminatory animus upon comparing the qualifications of
the two employees for the Assistant Manager position. See Lee, 226 F.3d at 1255 (“None
of Lee’s proffered evidence established that she was more qualified than Hines, let alone
so clearly more qualified for the position than Hines that a reasonable juror could infer
discriminatory intent from the comparison.”) (emphasis in original and citations omitted);
Beal, 489 F. App’x at 424 (The plaintiff “failed to show that no reasonable person could
have chosen the selected candidates over her.”) (citing Brooks, 446 F.3d at 1163 (holding
that in the failure-to-promote context, “[a] plaintiff must show that the disparities between
the successful applicant’s and her own qualifications were of such weight and significance
14

that no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff”)).
Moreover, the plaintiff has not provided any argument or evidence that the
defendant’s hiring of Emerson is based on gender discrimination. The plaintiff maintains
that defendant should have made a different promotion decision because the Restaurant
General Manager told plaintiff that he would be promoted and because Emerson had a
performance problem during her short tenure as a team leader.8 A quarrel with the wisdom
of an employer’s decision is not sufficient to show pretext; rather, the plaintiff must submit
evidence of discrimination. See Lee, 226 F.3d at 1253. There simply is none on this record.
The defendant is entitled to summary judgment on plaintiff’s Title VII failure to
promote claim because plaintiff has not made out a prima facie case of gender
discrimination and, even assuming that he did so, he cannot establish pretext.
B.

Unequal Pay Claims Under Title VII and the EPA

A plaintiff can sue his employer for gender-based pay disparities under Title VII
and the EPA. In Miranda v. B & B Cash Grocery Store, Inc., the Eleventh Circuit explained
the similarities and differences between these federal statutory remedies. Similarly to the
instant case, Miranda
involves the application of two statutes passed by Congress to help eliminate
gender-based discrimination in the workplace: The Equal Pay Act and Title
VII. ...
Gender-based discrimination in rates of pay to employees, whether
male or female, is prohibited by the Equal Pay Act of 1963, which is a portion
8

Emerson ultimately became the Assistant Manager; however, she was employed as a shift leader from
January 5, 2013 to May 13, 2015.

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of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 206(d) (1976),
as well as by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. The Equal Pay Act was directed only at wage discrimination between
the sexes and forbids the specific practice of paying unequal wages for equal
work to employees of the opposite sex. Title VII, on the other hand, forbids
discrimination on the basis of gender, race, or national origin in a wide range
of employment practices, including hiring, firing, training, and promoting.
See, e.g., Waters v. Turner, 874 F.2d 797, 801 n. 10 (11th Cir. 1989); Beall
v. Curtis, 603 F. Supp. 1563, 1580 (M.D. Ga.), aff'd without op., 778 F.2d
791 (11th Cir. 1985). ...
The burdens of proof are different under the two laws. A plaintiff
suing under the Equal Pay Act must meet the fairly strict standard of proving
that she performed substantially similar work for less pay. The burden then
falls to the employer to establish one of the four affirmative defenses
provided in the statute. Under the disparate treatment approach of Title VII,
however, there is a relaxed standard of similarity between male and femaleoccupied jobs, but a plaintiff has the burden of proving an intent to
discriminate on the basis of sex (or race or national origin).
***
Title VII and the Equal Pay Act exist side by side in the effort to rid
the workforce of gender-based discrimination. Plaintiffs have two tools for
relief, each of which provides different burdens of proof and may produce
different amounts of compensation. …
In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39
L.Ed.2d 147 (1974), the Supreme Court held that Title VII was intended to
“supplement, rather than supplant, existing laws and institutions relating to
employment discrimination” and that “the legislative history of Title VII
manifests a congressional intent to allow an individual to pursue
independently his rights under both Title VII and other applicable federal
statutes.” Id. 415 U.S. at 46-49 & n. 9, 94 S. Ct. at 1019-20 & n. 9.
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1525-27 (11th Cir. 1992)
(footnotes omitted).
1. Title VII – Disparate Treatment as to Compensation

16

Under Title VII, it is unlawful for an employer to discriminate against an employee
on the basis of his gender with respect to the terms and conditions of his employment,
including compensation. See 42 U.S.C. § 2000e-2(a); Gooden v. Internal Revenue Serv.,
679 F. App’x 958, 964 (11th Cir. 2017) (“Title VII prohibits employment discrimination
on the basis of race or gender[.]”). “To prevail on a disparate treatment claim, a plaintiff
must generally demonstrate that an employer intentionally discriminated against [him] on
the basis of a protected characteristic.” Gooden, 679 F. App’x at 964 (citing Ricci v.
DeStefano, 557 U.S. 557, 577 (2009)). Here, the plaintiff must present evidence that, when
viewed in a light most favorable to him, demonstrates that the defendant discriminated
against him on the basis of his gender.
In adjudicating a motion for summary judgment on a Title VII disparate treatment
in pay claim based on gender discrimination, the court employs a variant of the McDonnell
Douglas framework, as follows:
To make a prima facie case of wage discrimination under Title VII, the
plaintiff must show that [he] is a member of a protected class, [he] received
lower wages than similarly situated comparators outside the protected class,
and [he] was qualified to receive a higher wage. Cooper v. S. Co., 390 F.3d
695, 734-35 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson
Foods, Inc., 546 U.S. 454, 457, 126 S. Ct. 1195, 163 L. Ed. 2d 1053 (2006).
Once the plaintiff establishes a prima facie case, the burden shifts to
the employer to present a legitimate, non-discriminatory reason for its action.
Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (per curiam). If the
defendant meets its burden, the presumption of discrimination is rebutted and
the employee must show that the employer’s reasons were pretext for
discrimination. Id. A plaintiff may show pretext by pointing to the
“weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s rationale.” Holland v. Gee, 677 F.3d 1047,
1055-56 (11th Cir. 2012) (quotation marks and citation omitted). The
plaintiff must show that the evidence, when viewed as a whole, creates a
17

reasonable inference that the employer engaged in discrimination. Smith v.
Lockheed–Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011). “In other
words, the plaintiff has the opportunity to come forward with evidence,
including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given
by the employer were not the real reasons for the adverse employment
decision.” Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308-09 (11th
Cir. 2012) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir. 1997)). Although a comment unrelated to the adverse decision may
contribute to a circumstantial case for pretext, it will usually not be sufficient
absent some additional evidence supporting a finding of pretext. Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002).
Dimino v. Georgia Dep’t of Admin. Servs., 631 F. App’x 745, 749 (11th Cir. 2015).
The plaintiff has shown that he is a member of a protected class and that he received
lower wages than women who were employed as shift leaders by the defendant at the Taco
Bell where the plaintiff also worked as a shift leader. The plaintiff identifies Bonnie
Emerson, Tawanna Stovall, and Kimesha Massaline as shift leaders who earned a higher
hourly rate of pay than he did. Doc. 29 at 7-8. Assuming, without deciding, that Emerson,
Stovall, and Massaline are similarly situated comparators, and that the plaintiff establishes
a prima facie case, the defendant nevertheless has met its burden to show legitimate, nondiscriminatory reasons for the differences in the hourly rates of pay. See Combs, 106 F.3d
at 1528.
Emerson was paid $9.00 per hour as a team leader, which was $.25 more than the
plaintiff during this time, because of Emerson’s substantial restaurant experience. Doc. 23
at 24. Stovall worked as a shift leader with defendant for two years longer than the plaintiff,
and defendant justifies her higher rate of pay as due to “her prior experience and length of
service.” Id. at 24-25. Massaline made $.25 more per hour than the plaintiff from August

18

2014 to August 2015 because she had nine more months of experience as a shift leader
while employed by the defendant. Id. at 25-26. The plaintiff does not rebut the defendant’s
proffered legitimate, non-discriminatory reasons for these pay disparities.
As to pretext, the plaintiff has produced no evidence whatsoever that the defendant’s
pay decisions were discriminatory. He asserts that Emerson’s performance as a shift leader
was substandard, that plaintiff’s prior experience as an employee of “a separate company
associated with the [defendant’s] owners” is equivalent to Stovall’s experience as a shift
leader, and that plaintiff’s experience as a shift leader at a Backyard Burger restaurant
should count the same as Massaline’s experience as a shift leader with defendant. Doc. 29
at 7-8. However, a plaintiff cannot show pretext by disagreeing the wisdom of an
employer’s decisions or by arguing that other decisions should have been made. See Lee,
226 F.3d at 1253. As with the plaintiff’s failure to promote claim, he has presented no
evidence beyond his own conclusory opinion that the defendant discriminated against him
on the basis of his gender. A court is under no obligation to consider a party’s conclusory
testimony in ruling on summary judgment. See Merriweather v. Charter Commc’ns, LLC,
2015 WL 790771, at *19 (M.D. Ala. 2015) (a plaintiff’s conclusory opinion on a material
issue of fact is not properly considered at summary judgment); see also id. at n. 17 (“A
court is under no obligation to consider a party’s conclusory testimony when ruling on
summary judgment.”) (citing Carter v. Three Springs Residential Treatment, 132 F.3d 635,
642 and n. 6 (11th Cir. 1998)). Moreover, “[s]peculation or conjecture cannot create a
genuine issue of material fact, and a mere scintilla of evidence in support of the nonmoving
party cannot overcome a motion for summary judgment.” S.E.C. v. Monterosso, 756 F.3d
19

1326, 1333 (11th Cir. 2014) (internal quotation marks omitted). The plaintiff simply has
not identified or supplied any evidence of record from which a reasonable juror could
conclude that defendant discriminated against him on the basis of his gender. See Brooks,
446 F.3d at 1163 (“A reason is not pretext for discrimination unless it is shown both that
the reason was false, and that discrimination was the real reason.”) (internal marks and
citation omitted).
Because plaintiff does not carry his burden to show gender discrimination,
defendant is entitled to summary judgment.
2. EPA Pay Claim
The burden-shifting paradigm that a court must employ in assessing the viability of
an Equal Pay Act claim on summary judgment is as follows:
To prevail on a claim under the EPA, an employee must first establish a
prima-facie case “by showing that the employer paid employees of opposite
genders different wages for equal work for jobs which require equal skill,
effort, and responsibility, and which are performed under similar working
conditions.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir.
2003) (citing 29 U.S.C. § 206(d)(1) and Corning Glass Works v. Brennan,
417 U.S. 188, 195, 94 S. Ct. 2223, 41 L.Ed.2d 1 (1974) (quotation omitted)).
Once the employee presents a prima-facie case, the employer may avoid
liability by proving by a preponderance of the evidence that the pay
differential is based on: “(i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of production; or (iv)
... any other factor other than sex.” Id. at 1078 (quoting 29 U.S.C. §
206(d)(1)). “The burden to prove these affirmative defenses is heavy”: the
employer must show that “‘the factor of sex provided no basis for the wage
differential.’” Id. (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)).
If the employer overcomes this heavy burden, “the employee ‘must rebut the
[employer’s] explanation by showing with affirmative evidence that it is
pretextual or offered as a post-event justification for a gender-based
differential.’” Id. (quoting Irby, 44 F.3d at 954).

20

Nelson v. Chattahoochee Valley Hosp. Soc., 731 F. Supp. 2d 1217, 1235-36 (M.D. Ala.
2010).
Regarding the prima facie case, while “the plaintiff need not prove that [his] job and
those of [his] comparators are identical [,] ... the standard for determining whether jobs are
equal in terms of skill, effort, and responsibility is high.” Mulhall v. Advance Sec., Inc., 19
F.3d 586, 592 (11th Cir. 1994) (internal quotation marks and alterations omitted). The
plaintiff bears “the burden of demonstrating that the ‘jobs at issue are substantially
similar[.]’” Blackman v. Fla. Dep’t of Bus. & Prof’l Regulation, 599 F. App’x 907, 910
(11th Cir. 2015) (quoting Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th Cir. 1998)).
To satisfy this burden, the plaintiff must come forward with evidence that his job is
“substantially similar” to his comparators. Id. “Job titles are a factor for consideration, but
are not dispositive.” Mulhall, 19 F.3d at 592 (citation omitted). If a plaintiff leaves “the
district court in the dark regarding the content of [a comparator’s] position … [the plaintiff]
fail[s] to establish a prima facie case under the EPA.” Blackman, 599 F. App’x at 910. Such
is the case here.
As in his Title VII disparate treatment in pay claim, the plaintiff identifies Emerson,
Stovall, and Massaline as his comparators. See Doc. 29 at 7-8. While it is undisputed that
those individuals are women and that they were paid at a higher rate than the plaintiff, these
are not the only factors that the court must consider.
As before, the plaintiff makes no effort to identify evidence in the record to meet
his burden to establish a prima facie case on his Equal Pay Act claim. See Doc. 29. On that

21

basis alone, the plaintiff has waived and abandoned the issue, and defendant is entitled to
summary judgment. See n. 6, supra.
The plaintiff’s omission notwithstanding, there is no evidence of record to satisfy
his heavy burden to make a prima facie showing under the EPA. At all times relevant to
the plaintiff’s EPA pay claim, the plaintiff and Emerson, Stovall, and Massaline held the
job title of “shift leader.” As noted supra, a job title alone is insufficient for a plaintiff to
make a prima facie case under the EPA. See Mulhall, 19 F.3d at 592. The only evidence in
the record about the shift leader position is found in Market Coach Gail Gilmore’s affidavit,
which the plaintiff does not cite. Gilmore testifies that,
A shift leader is the first promotion above team member. We typically begin
to look at a shift leader to see if they have or will develop good management
skills. It is important for a shift leader to be able to work with all kinds of
people and to be able to lead them to good work performance. A good shift
leader must be able to get along well with others. If they can’t work with
others, then they will not be able to manage their team very well.
Doc. 23-14 at 1.
There is a “descriptive” component that the plaintiff is required to satisfy at the
prima facie stage. Mulhall, 19 F.3d at 590 (citing Mitchell v. Jefferson County Bd. of Educ.,
936 F.2d 539, 547 (11th Cir. 1991); EEOC v. White & Son Enters., 881 F.2d 1006, 1009
(11th Cir. 1989)). Gilmore’s affidavit testimony does not shed any light on the “skill, effort,
and responsibility” associated with the shift leader position except in noting that a shift
leader is expected to work with others and lead subordinates to perform well. Mulhall, 19
F.3d at 592. There is no record evidence that Gilmore’s testimony articulates the entirety
of the job requirements for a shift leader, and there is no evidence that all shift leaders must

22

have the same skills, exert similar effort, and carry out the same job responsibilities. In
addition, Massaline is identified as having been a “traveling shift leader” for part of the
relevant time period, see Doc. 23 at 25, and the plaintiff does not explain whether and how
that position is comparable to a shift leader’s position.
In short, the plaintiff has asked the court merely to conjecture that he, Emerson,
Stovall, and Massaline are comparators. Evidence which the plaintiff might have gathered
and filed into the record is conspicuously absent. For example, the plaintiff did not file a
deposition of defendant’s corporate representative, at which plaintiff’s counsel could have
attempted to elicit testimony about the material aspects of the shift leader position, and
about whether the skill, effort, and responsibilities are substantially similar for all who hold
that job title. And, even if plaintiff could not have secured such a deposition, he did not
produce evidence by any other means to meet the high standard for determining that jobs
are equal in terms of skill, effort, and responsibility. Blackman, 599 F. App’x at 910.
The plaintiff has not established a prima facie case under the EPA, and the court’s
inquiry ends here. The defendant is entitled to summary judgment on plaintiff’s EPA pay
claim.
III.

Retaliation
A. Title VII

“Retaliation is a separate violation of Title VII.” Gupta v. Florida Board of Regents,
212 F.3d 571, 586 (11th Cir. 2000). Section 704(a) of Title VII of the Civil Rights Act of
1964 provides protection for employees who oppose or participate in activities to correct
an employer’s discriminatory practices.
23

It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment ... because he [the
employee] has opposed any practice made an unlawful employment practice
by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
this subchapter.
42 U.S.C. § 2000e–3(a). Congress thus recognized two predicates for retaliation claims:
one for opposition to discriminatory practices, and another for participation in protected
activity.
Under the opposition clause, an employer may not retaliate against an
employee because the employee “has opposed any practice made an unlawful
employment practice by this subchapter.” ... And, under the participation
clause, an employer may not retaliate against an employee because the
employee “has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.”
Equal Employment Opportunity Commission v. Total System Services, Inc.,221 F.3d 1171,
1174 (11th Cir. 2000) (citations omitted). The plaintiff’s retaliation claim is brought under
the opposition clause. See Doc. 9.
Proving that an employer retaliated against an employee is rarely a straightforward
undertaking. A plaintiff’s case generally rests on circumstantial evidence, because direct
evidence of an employer’s intent or motivation often is either unavailable or difficult to
acquire. See Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1071 (3rd Cir.
1996) (en banc). Such is the case here, where the parties rely only on circumstantial
evidence. Federal courts typically evaluate the sufficiency of circumstantial evidence using
some variant of the McDonnell Douglas framework. See St. Mary’s Honor Center, 509
U.S. 502.

24

“A prima facie case of retaliation under Title VII requires the plaintiff to show that:
(1) [he] engaged in an activity protected under Title VII; (2) [he] suffered an adverse
employment action; and (3) there was a causal connection between the protected activity
and the adverse employment action.”9 Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). For
purposes of ruling on the instant motion for summary judgment, the court finds that the
plaintiff satisfies the first two elements of a prima facie case – i.e., he complained about
discrimination in July 2015 and defendant fired him in October 2015. That said, the
plaintiff has not produced evidence of causation, and the third element of a prima facie
case is not met.
The Supreme Court recently clarified a plaintiff’s burden, holding that, as to the
causation standard for a retaliation claim, a plaintiff must “show that the [adverse
employment action] would not have occurred in the absence of – that is, but-for – the
defendant’s conduct.” University of Texas Southwestern Med. v. Nassar, 570 U.S. 338,
346-47, 133 S. Ct. 2517, 2525 (2013). In other words, a plaintiff has to “establish that his

9

Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show, through
admissible evidence, a legitimate, non-retaliatory reason for the adverse employment action. See Burdine,
450 U.S. at 255. If a defendant carries its burden of producing “admissible evidence which would allow the
trier of fact rationally to conclude that the employment decision had not been motivated by [retaliatory]
animus,” id. at 257, the presumption of retaliation created by the prima facie case “drops from the case,”
and “the factual inquiry proceeds to a new level of specificity.” Id. at 255 & n.10. The burden then shifts to
the plaintiff to “come forward with evidence, including the previously produced evidence establishing the
prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision,” but merely pretext for retaliation.
Combs, 106 F.3d at 1528 (citing Burdine, 450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804).

25

or her protected activity was a but-for cause [and not just a motivating factor] of the alleged
adverse employment action by the employer.” Nassar, 570 U.S. at 362.
The Eleventh Circuit
recognized that a plaintiff can establish a prima facie case of retaliation under
the opposition clause of Title VII if [s]he shows that [s]he had a good faith,
reasonable belief that the employer was engaged in unlawful employment
practices. See Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d
397, 400 (11th Cir. 1989). It is critical to emphasize that a plaintiff's burden
under this standard has both a subjective and an objective component. A
plaintiff must not only show that [s]he subjectively (that is, in good faith)
believed that h[er] employer was engaged in unlawful employment practices,
but also that h[er] belief was objectively reasonable in light of the facts and
record presented. It thus is not enough for a plaintiff to allege that h[er] belief
in this regard was honest and bona fide; the allegations and record must also
indicate that the belief, though perhaps mistaken, was objectively reasonable.
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). The
plaintiff does not have to “prove the underlying discriminatory conduct that [she] opposed
was actually unlawful in order to establish a prima facie case and overcome a motion for
summary judgment[.]” Id. However, the objective reasonableness of her belief that the
conduct is unreasonable must be shown. The court is required to “measure ‘against existing
substantive law’ the objective reasonableness of [a plaintiff’s] belief that [her employer]
engaged in an unlawful employment practice.” Tatt v. Atlanta Gas Light Co., 138 F. App’x
145, 147 (11th Cir. 2005) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351
(11th Cir. 1999)).
Here, the plaintiff testified that he believed that he was discriminated against on the
basis of his gender. However, his subjective belief is not objectively reasonable in light of
the evidence proffered in this case. Plaintiff’s gender discrimination claims are premised

26

on the general facts that women who held the position of “team leader” were paid more per
hour than the plaintiff, and that a woman, not the plaintiff, was promoted to the position of
Assistant Manager. Other than noting the different genders of those involved, the plaintiff
provides nothing beyond conclusory speculation that defendant discriminated against him
because of his gender. The plaintiff’s speculation is not evidence that can overcome a
properly supported motion for summary judgment. See Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011) (stating that “‘evidence’ consisting of
one speculative inference heaped upon another” was “entirely insufficient” to overcome
summary judgment); Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)
(“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the
demolition of which is a primary goal of summary judgment.”) (quoting Hedberg v. Ind.
Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir. 1995)). Plaintiff has not identified any action
or comment that objectively could be construed as having been motivated by his gender.
The only evidence of gender discrimination is the plaintiff’s conclusory assertion. That
alone, is not enough to establish objective reasonableness.
Even assuming that plaintiff has demonstrated objective reasonableness, his
opposition claim does not survive summary judgment because he has not satisfied the third
prong of a prima facie case of retaliation – causation. The plaintiff argues that causation is
clear because he was questioned about the October 2, 2015 deposit shortage issue and “no
female employee was questioned about such deposit shortage.” Doc. 29 at 6. However, the
assertion that defendant did not question any women is made by plaintiff’s counsel, without
citation to evidence of record. As noted above, “[s]tatements by counsel in briefs are not
27

evidence.” Skyline Corp., 613 F.2d at 1337; see also Gilley, 2016 WL 814885, at *1 n. 2.
Thus, the court does not consider this unsubstantiated statement. Even assuming that the
statement could be corroborated by evidence, the plaintiff does not argue, and it is not selfevident, how defendant’s failure to question other employees about an issue regarding a
deposit made by the plaintiff demonstrates that defendant terminated plaintiff’s
employment because of his July 2015 complaint of discrimination.
The plaintiff’s other contention in opposition to summary judgment on his
retaliation claim is that defendant terminated his employment after he argued with Stovall
at the October 8, 2015 meeting, but Stovall kept her job, and she went on to become the
Restaurant General Manager. See Doc. 29 at 7. That argument ignores key, undisputed
evidence. First, the plaintiff does not contest that the defendant’s articulated reason for
terminating his employment is because of his altercation with the Restaurant General
Manager immediately after his argument with Stovall. In fact, he testified that he believed
that one of the reasons for his termination was his altercation with the Restaurant General
Manager. Viewing the evidence in a light most favorable to the plaintiff, the defendant did
not fire the plaintiff because of his argument with Stovall, and the fact that Stovall’s
employment was not terminated is irrelevant because she did not engage in substantially
similar conduct to that of the plaintiff – e.g., she did not have an altercation with the
Restaurant General Manager.
To make a comparison of the plaintiff’s treatment to that of [someone outside
of the plaintiff’s protected class], the plaintiff must show that he and the
employees are similarly situated in all relevant respects. … it is necessary to
consider whether the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.”
28

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The plaintiff has not shown that
he and Stovall were disciplined differently for the same infractions.
Further, plaintiff has not identified or produced evidence that would allow a
reasonable factfinder to find causation. Moreover, viewing the facts in the light most
favorable to plaintiff, he cannot establish that retaliation was the “but-for” cause of his
termination. See Butterworth v. Laboratory Corp. of America Holdings, 581 F. App’x 813,
817 (11th Cir. 2014) (holding that without establishing but-for causation, plaintiff failed
adequately to support her claim for Title VII retaliation). To the contrary, he testifies that
a number of reasons were the cause of defendant’s decision to terminate his employment.
See Doc. 23-4. Accordingly, he has not made out a prima facie case of retaliation based on
his complaint in July 2015 and his termination in October 2015, and defendant is entitled
to summary judgment on that claim.
Also, assuming, without deciding, that plaintiff established a prima facie case, he
cannot overcome defendant’s legitimate, non-retaliatory reason for terminating his
employment. Defendant relies on the undisputed evidence of record, which includes the
plaintiff’s deposition testimony, that it terminated his employment because of his
altercation with the Restaurant General Manager on October 8, 2015, during which the
plaintiff raised his voice. This is a legitimate, non-retaliatory explanation for the
defendant’s decision to terminate the plaintiff’s employment.
Thus, it is plaintiff’s burden to come forward with evidence sufficient to permit a
reasonable factfinder to conclude that defendant’s stated reasons were not the real reasons

29

for his termination, but merely pretexts for retaliation. Plaintiff cannot demonstrate pretext
unless it is shown both that the reasons were false and that retaliation was the real reason.
See St. Mary’s Honor Ctr., 509 U.S. at 515. See also Chapman, 229 F.3d at 1030 (stating
the plaintiff must meet each proffered reason “head on,” and cannot succeed by simply
disputing the wisdom of the employer’s proffered reasons). Here, the plaintiff disputes the
defendant’s stated reason for terminating his employment without identifying evidence that
indicates that the reason was false and the true motivation was retaliation. Further, in light
of the plaintiff’s deposition testimony that his altercation with the Restaurant General
Manager was a reason for his termination, plaintiff has testified that he believes the
defendant’s stated reason, and he cannot demonstrate on the evidence of record that it was
not the real reason or that the reason was false. Also, there is no evidence of record that the
plaintiff’s termination was retaliation for his July 2015 complaint of discrimination.
As the plaintiff cannot establish a prima facie case of retaliation, show pretext, or
meet the onerous Nassar standard to maintain a retaliation claim under Title VII,
defendant’s motion for summary judgment is due to be granted as to defendant’s retaliation
claim.
B. EPA Retaliation
The defendant assumes for the sake of argument that an EPA retaliation claim is
cognizable, and it sets out the standard for a retaliation claim under the Fair Labor
Standards Act (“FLSA”), within which the EPA is codified, as the balancing test that this
court should employ. See Doc. 23 at 21-22 (citing 29 U.S.C. §§ 206(d); 215(a)(3) and

30

quoting Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000) (setting out
elements of FLSA retaliation)). The plaintiff is silent on the issue. See Doc. 29.
The court has not located any Eleventh Circuit case setting out the test that a court
should employ in adjudicating a motion for summary judgment on an EPA retaliation
claim. However, a sister district court in the Eleventh Circuit has followed the example set
by the United States Court of Appeals for the Seventh Circuit and found that a plaintiff
must show the same elements as would be required to make out a prima facie case for
retaliation under Title VII and the EPA. See Saridakis v. S. Broward Hosp. Dist., 681 F.
Supp. 2d 1338, 1353 (S.D. Fla. 2009) (citing Culver v. Gorman & Co., 416 F.3d 540, 545
(7th Cir. 2005) (citing, in turn, Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir.
2001)). Also, the elements and the burden-shifting paradigm for a claim of retaliation under
the FLSA and Title VII are substantively identical.
The FLSA protects persons against retaliation for asserting their rights under
the statute. See 29 U.S.C. § 215(a)(3). A prima facie case of FLSA retaliation
requires a demonstration by the plaintiff of the following: “(1) she engaged
in activity protected under [the] act; (2) she subsequently suffered adverse
action by the employer; and (3) a causal connection existed between the
employee's activity and the adverse action.” Richmond v. ONEOK, Inc., 120
F.3d 205, 208-09 (10th Cir. 1997). If the employer asserts a legitimate reason
for the adverse action, the plaintiff may attempt to show pretext. See id. In
demonstrating causation, the plaintiff must prove that the adverse action
would not have been taken “but for” the assertion of FLSA rights. See Reich
v. Davis, 50 F.3d 962, 965–66 (11th Cir. 1995).
Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000). Thus, the court is
persuaded that the analytical framework endorsed in Saridakis and set out in Wolf is the
correct way to approach an EPA retaliation claim that is challenged on a motion for
summary judgement.
31

In opposing defendant’s motion for summary judgment on the EPA retaliation
claim, the plaintiff incorporates by reference his arguments in opposition to summary
judgment on his Title VII retaliation claim. See Doc. 29 at 7. The plaintiff concedes that
the temporal proximity between plaintiff’s complaint about pay in July 2015 – the last time
he complained about pay discrimination – and his termination in October 2015 is too
remote as a matter of law to show causation. See Doc. 29 at 6 (“The Plaintiff concedes that,
if temporal proximity, were the only consideration, his claim would be due to fail, as a
matter of law.”). The court agrees. See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (temporal proximity can be evidence of causation but “mere
temporal proximity, without more, must be ‘very close.’” (quoting Clark County Sch. Dist.
v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001)). Moreover, the undisputed
evidence of record is that the plaintiff received the pay raise after the July 2015 complaint
effective in August 2015, see Doc. 23-14 at 1 (Market Coach Aff.), and that he was satisfied
with that resolution. See Doc. 23-4. The plaintiff maintains that he complained that his pay
raise was not added to his paycheck until September 2015, but complaining about the
timing of a raise is not the same as complaining about wage discrimination.
For the reasons discussed supra regarding defendant’s entitlement to summary
judgment on plaintiff’s Title VII retaliation, summary judgment is due to be granted in
defendant’s favor on the EPA retaliation claim as well.
CONCLUSION AND ORDER
For the foregoing reasons, it is ORDERED as follows:

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(1) Defendant’s motion for summary judgment, see Doc. 22, is GRANTED, and
summary judgment is hereby entered in defendant’s favor on all claims.
(2) The Clerk of Court is DIRECTED to close this file.
A separate final judgment will be entered.
Done, on this the 28th day of March, 2018.
/s/ Susan Russ Walker_________
Susan Russ Walker
United States Magistrate Judge

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