Owens v. Lighthouse Counseling Center, Inc.

Filing 61

REPORT AND RECOMMENDATIONS re 52 MOTION for Summary Judgment filed by Lighthouse Counseling Center, Inc. Objections to R&R due by 4/27/2009; it is the Recommendation of the Mag Judge that the defendant's motion for summary judgment be granted and that this case be dismissed with prejudice;. Signed by Honorable Charles S. Coody on 4/13/09. (vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C E C E L I A OWENS, P l a in tif f , v. L IG H T H O U S E COUNSELING C E N T E R , INC., D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V I L ACTION NO. 2:06cv999-ID

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE I . INTRODUCTION T h e pro se plaintiff, Cecelia Owens ("Owens"), a former employee of the Lighthouse C o u n se lin g Center, Inc. ("Lighthouse"), brings this action pursuant to Title VII of the Civil R ig h ts Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1 9 8 1 , alleging that she was discriminated and retaliated against on the basis of her race (A f ric a n -A m e ric a n ) when she was terminated from her employment. She also asserts a state la w claim of tortious interference with a business relationship. Owens names the Lighthouse a s the sole defendant in this action. O w e n s seeks reinstatement, compensatory damages, punitive damages, injunctive re lie f , and attorney's fees. The court has jurisdiction of the plaintiff's federal claims pursuant to its federal question jurisdiction, 28 U.S.C. § 1331, and the jurisdictional grant in 28 U.S.C. § 2000e-5. It has supplemental jurisdiction of the state law claim pursuant to 28 U.S.C. § 1367.

N o w pending before the court is the Lighthouse's motion for summary judgment. O w e n s has filed a response in opposition to the motion. The court has carefully reviewed th e defendant's motion, the briefs filed in support of and in opposition to the motion, and the s u p p o rtin g and opposing evidentiary materials. Based on that review, the court concludes th a t the Lighthouse's motion for summary judgment should be granted. I I . THE SUMMARY JUDGMENT STANDARD Under FED.R.CIV.P. 56(c) summary judgment is proper "if the pleadings, depositions, a n sw e rs to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).1 The p a rty moving for summary judgment "always bears the initial responsibility of informing the d i str ic t court of the basis for its motion, and identifying those portions of the `pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. a t 323. The movant may meet this burden by presenting evidence showing there is no dispute

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In Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), the court stated:

[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) . . .requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial . . . We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves . . .

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o f material fact, or by showing that the nonmoving party has failed to present evidence in s u p p o rt of some element of its case on which it bears the ultimate burden of proof. Id. at 3 2 2 -3 2 4 . If the movant succeeds in demonstrating the absence of a material issue of fact, the b u rd e n shifts to the non-movant to establish, with evidence beyond the pleadings, that a g e n u in e issue material to the non-movant's case exists. See Clark v. Coats & Clark, Inc., 929 F .2 d 604, 608 (11 th Cir. 1991); see also FED.R.CIV.P. 56(e) ("When a motion for summary ju d g m e n t is made and supported ... an adverse party may not rest upon the mere allegations o r denials of [his] pleading, but [his] response ... must set forth specific facts showing that th e r e is a genuine issue for trial."). What is material is determined by the substantive law a p p lic a b le to the case. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A dispute o f material fact "is `genuine' ... if the evidence is such that a reasonable jury could return a v e rd ic t for the nonmoving party." Id. at 248. The non-movant "must do more than simply s h o w that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. C o ., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must p re se n t "affirmative evidence" of material factual conflicts to defeat a properly supported m o tio n for summary judgment. Anderson, 477 U.S. at 257. If the non-movant's response c o n sis ts of nothing more than conclusory allegations, the court must enter summary judgment f o r the movant. See Harris v. Ostrout, 65 F.3d 912 (11 th Cir. 1995); Peppers v. Coates, 887 F .2 d 1493 (11 th Cir. 1989). However, evidence presented by the non-movant must be

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b e liev e d and all justifiable inferences must be drawn in favor of the non-movant.2 Anderson, 4 7 7 U.S. at 255. After the non-moving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there remains no genuine issue of m a te ria l fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 5 6 (c ). III. DISCUSSION A . FACTS V ie w e d in the light most favorable to Owens and drawing all reasonable inferences in her favor, the following facts are treated as undisputed for the purposes of summary ju d g m e n t. The Lighthouse is a not-for-profit organization that provides counseling services a n d outpatient substance abuse treatment in Montgomery, Alabama. The Lighthouse is g o v e rn e d by a Board of Directors that oversees the organization, but its daily operation is u n d e r the authority of the Executive Director. (Dep. Candyce DeKruyff at 29). The plaintiff w a s hired by the Executive Director Candyce DeKruyff ("DeKruyff) to serve as the Deputy D ire c to r. Because Owens did not meet all the written qualifications for the position, D e K ru yf f sought and received a waiver from the Board of Directors to hire Owens. Owens began work on September 12, 2005, when DeKruyff went on maternity leave. W h ile DeKruyff was on maternity leave, Owens was "[t]o oversee the agency and report

"[W]hat is considered to be the `facts' at the summary judgment stage may not turn out to be the actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for summary judgment purposes." Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).

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d ire c tly to the Executive Director." (Id. at 31). The managers and staff, including business m an ag er Carianne Stinson ("Stinson"), were to report directly to Owens in DeKruyff's absence. Almost immediately, Owens encountered resistence from Stinson. According to O w ens, [ f ]ro m day one of my employment, Stinson resented my presence, rejected my a u th o rity, and refused to be supervised by me. Stinson was highly in s u b o r d in a t e in constantly by-passing the me (sic) on all decisions, o rg a n iz a tio n a l issues, budget issues, client and employee issues by reporting o n ly to DeKruyff even though she was on leave at home. Stinson made it very c lea r by her insubordinate actions that she was not going to communicate with m e about anything and that she was not going to even acknowledge my p re se n c e in the organization, let alone my role. . . . Other executive employees a s well as lower level employees complained to me about Stinson all the time. S tin so n was condescending, disrespectful, highly authoritarian, and rightw in g e d in her interactions with everyone in the organization except DeKryuff (sic ) who was not present. Stinson did not like the fact that employees finally h a d me to voice their concerns and issues to. Stinson and DeKryuff (sic) m a n a g em e n t styles were highly punitive in nature. . . . Stinson did not like the f a c t that I had gained respect from employees and had established a great ra p o re (sic) in a very short time. Stinson was loosing (sic) control and she did n o t like it at all. DeKryuff (sic) promised to deal with the issues when she re tu rn e d from maternity leave. (Pl's Aff. in Opp. to Mot. for Summ. J. at 3, ¶ 3). S u f f ic e it to say, Owens and Stinson did not work well together. Consequently, when S tin so n tendered her resignation on October 25, 2005, Owens accepted it with alacrity.3 (Pl's E x . 8). Although DeKruyff directed that the business manager position be advertised and that
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Stinson's husband had accepted a job in Birmingham, Alabama.

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re su m e s be accepted, unbeknownst to Owens, Stinson's resignation was not guaranteed. W h e n Stinson informed the Board that she was resigning, the Board asked DeKruyff and S tin so n to see if they "could work out an arrangement for her to stay on and work remotely f ro m Birmingham." (DeKruyff's Dep. at 57; see also Def's Ex. I, Meeting Notes, Oct. 25, 2 0 0 5 ). O n November 8, 2005, at 3:07 p.m., Owens sent DeKruyff an email informing her that th e management team had selected three final candidates for the business manager position. (D e K ru yf f Dep. at 91-92). On November 9, 2005, DeKruyff offered Stinson "the opportunity to rescind [her] r e sig n a t i o n " and to "work remotely from Birmingham" as the Lighthouse's business m a n a g er. (Pl's Ex. 13). Stinson accepted.4 (Id.). DeKruyff readily admits that she did not d i s c u s s this possibility with Owens because the Board directed her to work it out with S tin so n . (DeKruyff's Dep. at 114). A t some point on November 9, DeKruyff notified Owens that Stinson was not re sig n in g but was going to work remotely from Birmingham. Owens and the management te a m then met after lunch to discuss the proposal of allowing Stinson to work from B irm i n g h a m as the Lighthouse's business manager, but Stinson was not invited to the m e e tin g . At 4:49 p.m., by email, Owens requested "an emergency management team

On November 22, 2005, DeKruyff presented to the Board the proposal to allow Stinson to work remotely from Birmingham which had previously been approved by the Board's Executive Committee. (Pl's Ex. 9).

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m ee tin g " with DeKruyff to discuss the matter. O n November 10, 2005, at 9:08 a.m., DeKruyff emailed Owens and the management te a m informing them she was aware of "issues and concerns regarding the business manager p o s itio n ," but that she did not consider the matter to be an emergency. She notified the team th a t she would address the matter when she returned from maternity leave on November 14, 2005. Interpreting the "tone" of the email, Owens responded to DeKruyff's email with one o f her own at 11:24 a.m. In it, she asked DeKruyff if she was "retaliating against [her] for ra is in g the issue of disparate treatment/possible discrimination of employees or for requesting to follow company policy?" (Pl's Ex. 6). Specifically, according to Owens, "[t]his issue of re sig n a tio n and retraction and working in another city is unprecedented, and is a federal Civil R ig h ts case in the making." (Id.). This was the first time Owens accused DeKruyff of d is c rim in a tio n and retaliation. (DeKruyff's Dep. at 199-200). In the email, Owens also explained why she did not invite Stinson to the meeting. C a ria n n e was not invited or a part of this meeting because Carianne has not c o m m u n ic a te d with me as her supervisor any of these issues at hand for o b v io u s reasons. She continues to be insubordinate in every way as it relates to me as her supervisor. The recent Mike King situation that cost the o rg a n i z a tio n over $600 was a clear oversight on Carianne's part. She was in f o rm e d of the sensitive nature of the situation with this landlord last month, a n d she did not seek my counsel or direction in the handling of his rent checks. G iv e n the situation, I have done nothing unprofessional in my position as D e p u ty. (Pl's Ex. 6).

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O w e n s next sent an email to Stinson at 12:04 p.m., "reinstating" an October 18, 2005, c o a c h in g note to Stinson's personnel file. According to Owens, Stinson had failed to d e m o n s tra te that she was not "insubordinate." Owens also accused Stinson of communicating w ith her in "an unprofessional, rude or condescending manner." (Id.) Stinson responded to O w e n s ' email at 1:41 p.m.. At 6:43 p.m. on November 10, 2005, DeKruyff removed Stinson from Owens' s u p e rv is io n . (Id.) Cecelia ­ It is apparent to me that you and Carianne have not been able to resolve the is s u e s between you as seen in the e-mail that you sent her earlier today (re f e re n c in g the coaching note of October 18, 2005) and which you copied me on. T h e re f o re , I am removing you as Carianne's supervisor effective immediately, u n til such a time as I see fit to re-instate this supervisory relationship. I a p p re c ia te your cooperation with this directive and I will also inform Carianne th a t she is to now report directly to me. (Id .). According to Owens, this is DeKruyff's first act of retaliation against her. (Id.) On November 14, 2005, DeKruyff returned from maternity leave. She promptly gave O w e n s a coaching note regarding the team meeting on November 10, 2005. As per our conversation earlier today, I am very disturbed that you would e ith e r call or participate in a management team meeting to discuss the business m a n a g e r position/Carianne (as stated in your email) without Carianne present. It is completely inappropriate and unprofessional to discuss these issues with C a ria n n e 's peers prior to discussing any concerns that you may have with me a s your supervisor. I also feel that your decision to do so shows very poor ju d g m e n t and I have to say that I expect both a higher degree of p ro f e ss io n a lis m and much more maturity in judgment from someone in the 8

D e p u ty Director position. Your participation in a meeting of this nature is a d iv is iv e action and does not work towards the goal of teamwork that you say th a t you have. ( I d .) O w e n s responded by accusing DeKruyff of reacting inappropriately. A n y inappropriateness in this business manager position has been by Carianne a n d yourself. . . The divisiveness in this situation is from you and Carianne. T h is coaching note is in retaliation for my bringing to your attention that your p ro p o s a l is disparate and discriminatory against other employees in the same s itu a tio n based upon their race and violates their civil rights and mine. ( I d .) DeKruyff interpreted Owens' actions as "an attempt to undermine the authority of the E x e c u tiv e Director." (DeKruyff Dep. at 274). Owens was terminated on November 18, 2 0 0 5 . Owens was subsequently replaced by a white female, Teresa Houser. O n November 28, 2005, Owens was hired by the Council on Substance Abuse (" C O S A " ) by the president Alice Murphy ("Murphy"). (Def's Ex. H, Aff. Alice Murphy, ¶ 2 ). Murphy fired Owens from COSA on February 6, 2006, because the agency was dissatisfied with her performance and her attitude. She made unjustified s a la ry demands, caused morale problems, attempted to get another employee f ire d , and performed her tasks in a mediocre fashion. She especially appeared to have exaggerated her experience in the area of grants. (Id . at ¶ 3). Murphy categorically denied that DeKruyff or anyone else from the Lighthouse p la ye d a role in Owens' termination. (Id.). Owens filed this action on November 3, 2006.

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B . RACE DISCRIMINATION CLAIM O w e n s contends that she was subjected to a discriminatory termination based on her ra c e in violation of Title VII and 42 U.S.C. § 1981.5 Title VII prohibits discrimination on th e basis of race, color, religion, sex, or national origin in a variety of employment practices.6 S e e Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1555 (11 th Cir. 1995). The plaintiff's c la im is governed by the familiar tripartite framework established by the United States S u p r e m e Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't. o f Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). In an employment discrimination case, the p la in tif f bears the ultimate burden of proving that the defendant intentionally discriminated ag ains t her. Burdine, 450 U.S. at 253. This Circuit has consistently held that federal courts, in resolving discrimination claims, do not review the accuracy of an employer's decision to term inate a plaintiff's employment. See e.g., Jones v. Bessemer Carraway Med. Ctr., 151 F .3 d 1321, 1324 n.16 (11 th Cir. 1998) (citing Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1 1 8 1 , 1187 (11 th Cir. 1984). T o be successful, Owens must first prove, by a preponderance of the evidence, a prima f a c ie case of discrimination. Burdine, 450 U.S. at 252-53. If she establishes a prima facie

The same prima facie elements are required to prove a 42 U.S.C. § 1981 discrimination claim as are required to prove a Title VII discrimination claim. Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Brown v. American Honda Motor Co., 939 F.2d 946 (11th Cir. 1991). Consequently, the court analyzes Owens' claims against Lighthouse within the Title VII analytical framework. 42 U.S.C.A. § 2000e-2(a)(1) provides: "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."
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ca se, the Lighthouse then has the burden of producing "some legitimate, non-discriminatory re a s o n " for the challenged employment action. See McDonnell Douglas, 411 U.S. at 802. If the Lighthouse satisfies this burden, the plaintiff must then prove, by a preponderance of th e evidence, that the articulated reasons were mere pretext for intentional discrimination. B u r d in e , 450 U.S. at 256. In the summary judgment context, the plaintiff needs only present e v id e n c e from which a trier of fact could conclude the defendant intentionally discriminated ag ains t her. T o defeat the Lighthouse's motion for summary judgment, Owens must first establish a prima facie case of discrimination by one of three generally accepted methods: (1) p re se n tin g direct evidence of discriminatory intent; (2) presenting evidence to satisfy the f o u r-p a rt circumstantial evidence test set out in McDonnell-Douglas, supra; or (3) presenting s ta tis tic a l proof.7 Carter v. City of Miami, 870 F.2d 578, 581 (11 th Cir. 1989). Because O w e n s has not presented direct or statistical evidence of discrimination, the court proceeds to evaluate her circumstantial evidence of racial discrimination under the four-part

Direct evidence of employment discrimination consists of statements by a person with control over the employment decision "sufficient to prove discrimination without inference or presumption." See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th Cir. 1993) (citing Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989). The Eleventh Circuit has severely limited the type of language constituting direct evidence of discrimination. See, e.g., Evans v. McClain of Ga., Inc., 131 F.3d 957, 962 (11th Cir. 1997); Burrell v. Bd. of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 n.7 (11th Cir. 1997); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1082 (11th Cir. 1990). This Circuit holds that a plaintiff presents direct evidence of discrimination where "actions or statements of an employer reflect a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee." Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641-42 (11th Cir. 1998); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997). Owens does not argue that there exists direct evidence of intentional discrimination in this case, nor has she presented any statistical evidence supporting her claim of intentional discrimination.

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M c D o n n e ll-D o u g la s test. T o establish a prima facie case of discriminatory discharge, Owens must show (1) that s h e is a member of a protected class; (2) that she was qualified for the job from which she w a s discharged; (3) that she was discharged; and (4) that her former position was filled by a non-class member. See Jones v. Gerwens, 874 F.2d 1534 (11 th Cir. 1989); Cf., Evans v. M c C la in of Ga., 131 F.3d 957, 964 (11 th Cir. 1997); Edwards v. Wallace Cmty. Coll., 49 F.3d 1 5 1 7 , 1521 (11 th Cir. 1995). The parties do not dispute that Owens is African-American and th a t she was terminated. Nor do the parties dispute that Owens was qualified for her p o s itio n 8 and that her position was filled by Teresa Houser, a white female. Consequently, th e court concludes that the plaintiff has established a prima facie cases of discrimination. B e c au s e Owens has established a prima facie case of discriminatory discharge, the b u rd e n shifts to the defendant to offer a legitimate, nondiscriminatory reason for terminating O w e n s . McDonnell-Douglas, 411 U.S. at 802 - 804. The Eleventh Circuit holds that "[t]o s a tis f y this intermediate burden, the employer need only produce admissible evidence which w o u ld allow the trier of fact rationally to conclude that the employment decision had not b e e n motivated by discriminatory animus." Combs v. Plantation Patterns, 106 F.3d 1519, 1 5 2 7 -2 8 (11 th Cir. 1997). Moreover, the defendant's burden is "exceedingly light." Miranda v . B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11 th Cir. 1992). The Lighthouse

It is undisputed that DeKruyff sought a waiver to hire Owens because Owens did not meet the written requirements for the position of Deputy Director. However, the Lighthouse does not argue, and the court cannot conclude, that Owens was not qualified for the position of Deputy Director.

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a s s e rts that it terminated Owens because of her "uncongenial style of management." D e K r u yf f testified that it was her decision to terminate Owens, and she did so because O w e n s was insubordinate when she involved other employees in a team meeting regarding S tin s o n . In addition, Owens was divisive, unprofessional, insubordinate, and uncooperative. T h e court concludes that the Lighthouse has offered legitimate, non-discriminatory reasons f o r terminating Owens. A t this juncture, to defeat the motion for summary judgment, Owens must present e v i d e n c e creating a genuine issue of material fact on the issue of pretext because she "has th e ultimate burden of proving the reason to be a pretext for unlawful discrimination." D e n n e y v. City of Albany, 247 F.3d 1172, 1183 (11 th Cir. 2001). Owens can create a jury q u e stio n by demonstrating that Lighthouse's legitimate, nondiscriminatory reasons should n o t be believed or by showing that in light of all the evidence, discriminatory reasons more lik e ly motivated the Lighthouse's decision. See Mayfield v. Patterson Pump Co., 101 F.3d 1 3 7 1 , 1376 (11 th Cir. 1996). In order to show pretext, the plaintiff must "demonstrate that the proffered re a so n was not the true reason for the employment decision. . . . [The plaintiff] m a y succeed in this either directly by persuading the court that a d is c rim in a to ry reason more likely motivated the employer or indirectly by s h o w in g that the employer's proffered explanation is unworthy of credence." T e x . Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1 0 9 5 , 67 L.Ed.2d 207 (1981). "[A] plaintiff withstands summary adjudication b y producing sufficient evidence to allow a reasonable finder of fact to c o n c lu d e that the defendant's articulated reasons for its decision are not b e lie v a b le ." Howard v. BP Oil Co., 32 F.3d 520, 526 (11 th Cir. 1994) (citing S t. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 4 0 7 (1993)). In evaluating a summary judgment motion, "[t]he district court 13

m u s t evaluate whether the plaintiff has demonstrated such weaknesses, im p la u sib ilitie s, inconsistencies, incoherencies, or contradictions in the e m p lo ye r's proffered legitimate reasons for its actions that a reasonable f a ctf in d e r could find them unworthy of credence." Combs v. Plantation P a tte rn s , 106 F.3d 1519, 1538 (11 th Cir. 1997) (internal citations omitted). J a c k s o n v. State of Ala. State Tenure Comm., 405 F.3d 1276, 1289 (11 th Cir. 2005). O w e n s asserts that Lighthouse's reasons for terminating her were pretextual because sh e performed her work well and there was no evidence that her work product was poor. W h ethe r or not Owens performed her work well is immaterial. In evaluating a plaintiff's e v id e n c e of pretext, the court is not required to agree with the employer's proffered reasons f o r discharge. Instead, the crucial question is whether the employer was motivated by a ra c ia lly discriminatory bias. See e.g., Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (1 1 th Cir. 1998) (citing Combs, 106 F.3d at 1538). It is at this juncture that her claim fails. Owens has come forward with no evidence to suggest that Lighthouse's reasons are pretext for race discrimination. Her own

u n s u b s ta n tia te d opinion that the termination decision was somehow motivated by race is not a n appropriate proxy for evidence. She presents no facts from which the court could c o n c lu d e that her termination was due to her race nor does she point to any evidence to su b sta n tiate her allegations. Her self-serving rhetoric, with no attendant facts, is simply in s u f f ic ie n t to defeat summary judgment. Owens offers no evidence, other than her own s p e c u la tiv e opinion, that her termination are motivated by race discrimination. She cannot re ly on her own unsubstantiated opinion that the decision was somehow motivated by an

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im p ro p e r motive. "[U]nsubstantiated assertions alone are not enough to withstand a motion f o r summary judgment." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11 th Cir. 1987). S e e e.g., Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11 th Cir. 1998) (c o n c lu so ry allegations without specific supporting facts have no probative value); Bald M o u n ta in Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11 th Cir. 1989) ("Mere conclusions and u n su p p o rte d factual allegations are legally insufficient to create a dispute to defeat summary ju d g m e n t." ) The plaintiff has simply failed to come forward with any evidence that she was tre a te d differently because of her race. Although a pro se plaintiff, Owens is not absolved of her duty to provide the court w ith specific facts showing that there is a genuine issue for trial. Brown v. Crawford, 906 F .2 d 667, 670 (11 th Cir. 1990). Owens cannot rely on conclusory evidence. See e.g., Is e n b e r g h v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 443-44 (11 th Cir. 1996) (h o ld in g that "[C]onclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext . . . where [an employer] has offered . . . extensive evidence of legitimate, non-discriminatory reasons for its actions."). Owens has presented no evidence th a t her termination was based on improper motives. Title VII does not make unexplained differences in treatment per se illegal nor d o e s it make inconsistent or irrational employment practices illegal . . . The la w does not require, nor could it ever realistically require, employers to treat a l l of their employees all of the time in all matters with absolute, antiseptic, h in d s ig h t equality. What the law does require is that an employer not d is c rim in a te against an employee on the basis of the employee's protected c la s s characteristics.

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E .E .O .C . v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10 th Cir. 1992). T h e fact that Owens disagreed with DeKruyff's management style is not evidence of d is c rim in a tio n . Even if DeKruyff was a poor manager, it does not follow that her decision to terminate Owens was based on an impermissible reason such as race discrimination. Thus, O w e n s has failed to present sufficient evidence to demonstrate that any genuine issue of fact e x is ts from which a reasonable fact finder could conclude that the Lighthouse's reasons for te rm in a tin g her were pretextual and that the Lighthouse intended to discriminate against her o n the basis of her race. Liberally construing her pleadings as the court is required to do, Owens appears to a rg u e that the Lighthouse's subjective reasons for her termination should not be believed. In this circuit, a "subjective reason is a legally sufficient, legitimate nondiscriminatory reason if a defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Chapman v. AI Transport, 229 F.3d 1012, 1034 (11 th Cir. 2000) (en b a n c ). While subjective reasons can be valid, the reasons must be capable of withstanding o b je c tiv e evaluation. Id. Owens was employed by the Lighthouse for nine weeks. During that time, she and S tin s o n were unable to work together. When Stinson tendered her resignation, DeKruyff and th e Board of Directors who valued Stinson as an employee, wanted her to continue working fo r Lighthouse. (Belser Dep. at 45, 70). DeKruyff, the executive committee of the Board a n d Stinson reached an agreement to allow Stinson to continue working from Birmingham.

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It was not a decision with which Owens agreed, as her subsequent actions reflected. D e K ru yf f testified that she decided to terminate Owens when Owens was unwilling to accept the Board's decision to allow Stinson to work from Birmingham. (DeKruyff Dep. a t 223-25). DeKruyff considered Owens' action of meeting with the management team to b e unprofessional, inappropriate, insubordination, and an attempt to undermine her authority. (Id .). DeKruyff articulates specific facts to support of her subjective reasons for terminating O w en s. While the plaintiff may disagree that her actions warranted termination, the court d o e s not examine the reasonableness of the action. Abel v. Dubberly, 210 F.3d 1334, 1339 n .5 (11 th Cir. 2000) ("Although termination may, to some, seem a draconian response given the level of the Plaintiff's offense, the reasonableness of [the defendant's] disciplinary p o licies are not a consideration.") The plaintiff has failed to meet her burden at the summary judgment stage. It is not n e c es s a ry for Owens to prove that the Lighthouse's articulated reasons for terminating her a re false. However, she must present sufficient evidence to demonstrate that a reasonable f a ct finder could conclude that the Lighthouse's reasons should not be believed. This she has n o t done. Regardless of whether Owens believes that her work performance was sufficient to continue her employment, she has presented no evidence that the decision to terminate her w a s racially motivated and that the Lighthouse's reasons for terminating her were pretextual. A c c o rd in g ly, the court concludes that the defendant is entitled to summary judgment on this c o u n t.

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C . Retaliation Claim O w e n s also asserts a separate claim of retaliation pursuant to Title VII.9 In order to e sta b lis h a prima facie case of retaliation, Owens must demonstrate that (1) she participated in protected expression; (2) she suffered an adverse employment action; and (3) there is some c a u s a l relationship between the two events. Gutpa v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11 th Cir. 2000) abrogated on different grounds by Crawford v. Carroll, 529 F.3d 961, 9707 1 (11 th Cir. 2008); Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11 th Cir. 1998). The c a u s a l connection requirement must be construed broadly. See generally E.E.O.C. v. R e ic h h o ld Chem., Inc., 988 F.2d 1564, 1571-72 (11 th Cir. 1993) ("a plaintiff merely has to p ro v e that the protected activity and the negative employment action are not completely u n re late d " ). Once the plaintiff makes out a prima facie case of retaliation, "the burden shifts to the defendant to rebut the presumption of retaliation by producing legitimate reasons for th e adverse employment action." Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (1 1 th Cir. 1997). If the defendant offers a legitimate reason for the adverse employment a c tio n , the presumption of retaliation disappears. Id. The plaintiff must then show that the e m p lo ye r's proffered reasons for taking the adverse action were actually a pretext for

9

Title VII provides, in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because [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) (1982)

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p ro h ib ite d retaliatory conduct. Olmsted, 141 F.3d at 1460.

Owens alleges that she was retaliated against for "raising the issue of racial
d isc rim in a tio n and disparate treatment of an African-American employee." (Pl's Res. in O p p . to Def's Mot. for Summ. J. at 3, ¶ 3). Specifically, she told DeKruyff that by allowing S tin s o n to rescind her resignation, she was engaging in disparate treatment because LaShea H ib b le r, a black female, was not permitted to withdraw her resignation. Owens contends that D e K ru yf f retaliated against her by verbally counseling her, accusing her of "unprofessional b e h a v io r and insubordination," 1 0 and very shortly thereafter, terminating her. Complaining a b o u t racial discrimination is a protected activity; termination is an adverse employment a c tio n ; and termination within days of complaining about discrimination is a sufficient causal c o n n e ctio n . "This court has interpreted the causal link requirement broadly; a plaintiff m e re ly has to prove that the protected activity and the negative employment action are not c o m p le te ly unrelated." E.E.O.C., 988 F.2d at 1571-72 quoting Simmons v. Camden County B d . of Ed., 757 F.2d 1187, 1189 (11 th Cir. 1985). Consequently, the court concludes that O w e n s has established a prima facie case of retaliation. A t this juncture, the burden shifts to Lighthouse to rebut the presumption of retaliation b y offering legitimate reasons for Owens' termination. DeKruyff testified about her reasons f o r terminating Owens.

To the extent that Owens complains that the November 14, 2005 coaching note was an act of retaliation, the law is clear that a negative performance evaluation does not constitute an adverse employment action for purposes of Title VII. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1243 (11th Cir. 2001).

10

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Q:

A:

Q:

A:

W e ll, would you please state again since you decided ­ or began to d e c id e on November the 9 th , what things specifically were helping you to decide that you're going to get rid of the Deputy Director so that the b u s in e s s manager could stay? T e rm in a tin g you and [Stinson] staying are two separate issues. My b e l ie f that it was necessary that you no longer be at the Lighthouse b e g a n when you were unwilling to receive the information that I was w o rk in g with the Board and choosing to maintain Carianne as an e m p lo yee and work with her in that situation, that you then had this m e e ti n g with the management team and excluded Carianne, which sh o w e d an extreme level of unprofessionalism and inappropriate b eh av io r. And in the fact that you continued to send e-mails and work w ith in the system and around the system and undermine my authority w ith the members of the management team made it very apparent to me th a t you no longer needed to be the Deputy Director at the Lighthouse u n d e r my authority. S o are you considering ­ are you considering my disagreement with yo u r decision or with your proposal, which was told to me at the time, a re you considering that to be an unwillingness to accept what you w a n te d to do? It was your insubordination in response to that. * * *

Q: A:

S o what do you describe as insubordination? T h a t you were unwilling to accept. Because after I gave you my resp o n se as to what I was planning to do in maintaining Carianne, that's w h e n you chose to inform the management team, have ­ try and call me in to an emergency meeting three days before I returned to work from m a te rn ity leave, and try and discuss the issues when it was settled.

(D e K ru yf f Dep. at 223-25). DeKruyff terminated Owens because she was divisive, unprofessional, and

u n c o o p e ra tiv e . DeKruyff considered Owens' actions regarding the team meeting without S tin so n to be insubordinate. She also considered Owens' behavior indicative of her inability to work within a team setting, in particular with DeKruyff or Stinson. The reasons offered 20

b y DeKruyff are legitimate, non-retaliatory reasons for terminating Owens' employment. T h u s , Owens must now present some evidence to rebut DeKruyff's reasons for terminating h e r. It is here that her retaliation claim fails. If the employer does so, the plaintiff must rebut that reason with evidence s h o w i n g that it is a pretext for illegal discrimination. See Id. This requires " s ig n if ic a n t probative evidence" of pretext, not mere conclusory allegations. M a y f ie ld v. Patterson Pump Co., 101 F.3d 1371, 1376 (11 th Cir. 1996) (qu o tatio n marks and citation omitted). Further, the focus is on the employer's b e lie f s rather than the employee's own perceptions. See Holifield v. Reno, 115 F .3 d 1555, 1565 (11 th Cir. 1997) (per curiam). L a tr e c e Lockett v. Choice Hotels Int'l., Inc., 2009 WL 468298, *6 (11 th Cir. Feb. 26, 2009). O w en s presents no evidence that DeKruyff's reasons for terminating her were p r e te x tu a l. While Owens asserts that her termination was in retaliation for complaining a b o u t Hibbler's disparate treatment, she offers nothing except her hollow rhetoric and co lorfu l hyperbole that she was retaliated against. To defeat the motion for summary ju d g m e n t, Owens must present evidence creating a genuine issue of material fact. A c c o rd in g ly, the court concludes that the plaintiff has failed to meet her burden of e sta b lis h in g that the Lighthouse's reason for terminating her was pretext for retaliation. L ig h th o u s e is entitled to summary judgment on the plaintiff's retaliation claim. D. Tortious Interference with a Business Relationship Claim A la b a m a recognizes a tort of intentional interference with business relations. See G r o s s v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986). We hold that this tort of intentional interference with business or contractual r e la tio n s , to be actionable, requires: 21

(1 ) The existence of a contract or business relation; (2 ) Defendant's knowledge of the contract or business relation; (3 ) Intentional interference by the defendant with the contract o r business relation; (4 ) Absence of justification for the defendant's interference; and (5 ) Damage to the plaintiff as a result of defendant's in te rf e re n c e . G r o s s, 494 So. 2d at 597 (footnotes omitted). See also Lowder Realty, Inc. v. Odom, 495 So. 2 d 23, 25 (Ala. 1986); Soap Co. v. Ecolab, Inc., 646 So. 2d 1366, 1371 (Ala. 1994); Teitel v . Wal-Mart Stores, Inc., 287 F.Supp.2d 1268, 1279 (M.D. Ala. 2003) (citing Parsons v. A a r o n , 849 So. 2d 932, 946 (Ala. 2002)). O w e n s contends that Lighthouse tortiously interfered with her employment with the C o u n c il on Substance Abuse. I feel like the Lighthouse either made derogatory statements through c o m m u n ic a tio n s with Alice Murphy, because it was directly afer January 25 th , a meeting when Candyce DeKruyff came to COSA and physically saw me th e re ­ I was in charge of that meeting ­ that my employment was terminated. A n d then, again, when the Lighthouse showed up at ths court p ro c e ed in g between myself and Alice Murphy ­ the Lighthouse was there. T h e re was a tape recording put up. I didn't even know what was going on. J u s t all kinds of attempts to intimidate me during that proceeding. I was never to ld by the judge or COSA's attorney that, okay ­ I just saw David Belser c o m e up to the podium and place a tape recorder during my proceeding with an o th er employer. A ll this was going on, so I feel like they interfered with a matter, really, th a t had nothing to do with them. (P l's Dep. at 206-07). O w e n s has failed to allege the requisite elements of an intentional interference with a business relation claim. The plaintiff presents no evidence showing that anyone interfered 22

w ith her employment with COSA. Although the plaintiff testified that "she feels" like L ig h th o u s e employees interfered with her employment, she does not point to any evidence th a t suggests that they did. The plaintiff merely speculates that DeKyruff must have " sla n d e re d " her. Conclusions based only on conjecture or speculation do not satisfy the p la in tif f 's burden to offer sufficient facts to defeat a defendant's properly supported motion f o r summary judgment. The undisputed evidence before the court demonstrates that Alice M u rp h y, the President of COSA, did not speak to anyone from the Lighthouse until after O w e n s was terminated from COSA. (Def's Ex. H, Aff. Murphy at ¶ 3). "Neither Candyce D e K r u yf f nor anyone acting on behalf of The Lighthouse did anything that contributed to my d e c is i o n regarding her discharge. No one from the Lighthouse asked that she be fired, s u g g e ste d that she be fired, or, in any way, caused me to fire Ms. Owens." (Id.) This court therefore concludes that the plaintiff has failed to present sufficient e v id e n c e demonstrating a genuine issue of material fact. Consequently, the motion for s u m m a r y judgment with respect to the plaintiff's tortious interference claim is due to be g ra n te d in favor of the Lighthouse. I V . CONCLUSION A c c o rd in g ly, for the reasons as stated, it is the RECOMMENDATION of the M a g is tra te Judge that the defendant's motion for summary judgment be GRANTED and that th is case be DISMISSED with prejudice. It is further O R D E R E D that the parties shall file any objections to the said Recommendation on

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o r before April 27, 2009. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 13 th day of April, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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