Walton v. Neptune Technology Group, Inc. et al

Filing 47

MEMORANDUM OPINION AND ORDER directing as follows: (1) Roper's Motion for Summary Judgment 17 is GRANTED with respect to all counts against it, and all claims against Roper are DISMISSED WITH PREJUDICE; (2) Neptune's Motion for Summary Ju dgment 17 is DENIED as MOOT with respect to Walton's claims of sexual harassment (Count One) as Walton has specifically abandoned such claims; (3) Neptune's Motion for Summary Judgment is GRANTED with respect to Walton's claims of ag e discrimination (Count Two), and those claims are DISMISSED WITHPREJUDICE; (3) Neptune's Motion for Summary Judgment 17 is DENIED with respect to Walton's claims of retaliation pursuant to Title VII only (Count Four) and to her claim of discrimination pursuant to the ADA (Count Three). Signed by Hon. Chief Judge Mark E. Fuller on 10/20/09. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R E B E C C A F. WALTON, ) ) P la in tif f , ) ) v. ) C A S E NO. 2:08-cv-5-MEF ) N E P T U N E TECHNOLOGY GROUP, INC., ) e t al., ) ) (WO-Not Recommended for Publication) Defendants. )

M E M O R A N D U M OPINION AND ORDER T h is suit is a dispute between Plaintiff Rebecca F. Walton ("Walton") and her former e m p lo ye r Neptune Technology Group, Inc. ("Neptune"). Walton contends that during her e m p lo ym e n t with Neptune, her supervisor Robert Conklin ("Conklin") subjected her to u n w e lc o m e sexual advances and retaliated against her after she rebuffed them.1 She also c o m p la in s that she suffered discrimination at the hands of Neptune on account of her age and h e r actual or perceived disability. Finally, she contends that Neptune retaliated against her f o r exercising her statutory rights to seek accommodation of her disability. Walton brings c la im s against Neptune under Title VII of the Civil Rights Act of 1964, as amended, 42

While Walton originally also brought suit for sexual harassment by Conklin during h e r employment with Neptune, she clarified at the pretrial that she was abandoning such c la im s . Her pretrial contentions correctly reflect this election to relinquish those claims. A c c o rd in g ly, to the extent that Defendants seek summary judgment on Walton's claims p u r s u a n t to Title VII for alleged sexual harassment, the motion is due to be DENIED as M OOT.

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U .S .C . § 2000e et seq. ("Title VII"); the Age Discrimination in Employment Act of 1967 (" A D E A " ), 29 U.S.C. § 621 et seq.; and the Americans with Disabilities Act, 42 U.S.C. § 1 2 1 0 1 et seq.2 The case is currently before the Court on the Motion for Summary Judgment (D o c . # 17) filed on March 10, 2009, by Neptune. For the reasons set forth below, the M o tio n for Summary Judgment is due to be GRANTED in part and DENIED in part. JURISDICTION AND VENUE J u ris d ic tio n over this matter is asserted pursuant to 28 U.S.C. §1331 (federal question) a n d 28 U.S.C. § 1343(a)(3) (civil rights). The parties do not contest personal jurisdiction or v e n u e and the Court finds adequate allegations of both. S T A N D A R D OF REVIEW FOR SUMMARY JUDGMENT U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty

It appeared from the Complaint that Walton also may have had claims pursuant to A la b a m a law, but she has clarified in her contentions for the pretrial order that she has no c la im s pursuant to Alabama law. 2

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L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. After the nonmoving party h a s responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as

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a matter of law. See Fed. R. Civ. P. 56(c). FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to Walton, the non-moving party, establish the following material facts: A . Walton's Experience Prior to Beginning to Work Under Conklin's Supervision N e p tu n e hired Walton as a cell meter operator in September of 2003. Initially, Walton w o rk e d on the third shift and Ed Henderson ("Henderson") was her supervisor. On one o cc asio n in May of 2004, Henderson documented some concerns about Walton's work p e rf o rm a n c e in a document addressing his recommendation that Neptune delay a merit in c re a se in Walton's pay. Henderson specially noted was that Walton had been observed not p a rticip a tin g in department housekeeping and that she had conduct and attitude problems in h e r interactions with both co-workers and supervisors. Despite this delay in increasing her p a y, in her three and a half years of employment, Neptune eventually increased Walton's pay f ro m $10.50/hour to $16.06/hour. B. Walton's Experience with Conklin as a Supervisor E v e n tu a lly, Walton transferred to second shift. Her new supervisor on that shift was R ic k y Morgan ("Morgan"). After Morgan transferred to first shift, Conklin became the s e c o n d shift supervisor in August of 2006. Neptune terminated Walton's employment on N o v e m b e r 30, 2006. At the time of the termination of her employment, Walton was fifty-two

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ye a rs old. This lawsuit arises out of Neptune's decision to terminate Walton's employment a n d Conklin's treatment of Walton from August of 2006 until November 30, 2006. In 2005, Walton began experiencing various problems with her health. By 2006, W a lto n suffered from rheumatoid arthritis, fibromyalgia, migraine headaches, neuropathy in h e r feet, and optic neuritis, which can be a precursor to multiple sclerosis and can affect d e p th perception. Walton recalls discussing some of her medical issues with Conklin in c lu d in g the migraine headaches, fibromyalgia, neuropathy in her feet, and her belief that sh e was likely developing multiple sclerosis. On April 21, 2006, one of Walton's doctors lim ite d her to a forty hour work week for medical reasons. Neptune approved intermittent F a m ily and Medical Leave Act leave to accommodate this restriction and did not require her to work more than forty hours Monday through Friday. She was not assigned to work w e e k e n d s or overtime. According to Walton, she kept her supervisor and the director of human resources w e ll informed about her medical problems. Furthermore, Walton indicates that her

s u p e rv is o rs prior to Conklin had allowed her to rotate to less physically taxing jobs and had let her work where she was less likely to become overheated. Conklin did not accommodate h e r in these ways and according to Walton, he changed her assignments to tasks he knew w o u ld be difficult for her given her health problems. It is unclear from Walton's own te s tim o n y if this failure to accommodate on the part of Conklin began as soon as he became h e r supervisor in August of 2006 or if it only began after the two conversations in September

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o f that year, which conversations she characterized as sexual overtures that she rebuffed. Walton does not allege that anyone other than Conklin ever made any sexual c o m m e n ts to her, propositioned her, or told any inappropriate jokes or stories in her presence. S h e states generally that Conklin threatened her job "many times." After a female employee h a d been fired, Conklin remarked to Walton that he thought a woman should do anything so th a t they could keep their job. Walton perceived this to be a veiled reference of a sexual n a tu re . She also avers that on one occasion in October of 2006, Conklin stared at her for an e n tire shift. The real meat of her sexual harassment claims, however, arise out of two c o n v e rs a tio n s with Conklin in September of 2006. On September 14, 2006, Walton was sitting and working in the "zest room" when C o n k lin entered the room and approached the desk where she was working. He pulled up th e crotch of his pants in a way she found sexually suggestive and sat on the corner of the d e sk with his crotch two feet in front of her face. He started talking to Walton about his wife an d explained that she had multiple sclerosis ("MS"), a condition which Walton's doctors h a d told her might be causing some of her problems.3 Conklin told Walton that his wife did n o t enjoy sex and that she had no feeling and he pointed to his crotch. He asked Walton if s h e knew what he was speaking of as far as being MS and not having those sensations. She re p lie d that she had no idea and turned and left the room.

Eventually, the doctors ruled out the MS diagnosis for Walton, but at this time she b e lie v e d it was possible that she was going to be diagnosed with this condition. 6

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O n September 18, 2006, Conklin approached Walton near one of the machines that s h e operated. He said "in reference to that conversation we had the other day, did you u n d e rs ta n d what I meant? What I meant is, my wife doesn't have any feeling in her privates a n d she doesn't enjoy me to touch her there." Another Neptune employee walked up and C o n k lin left to attend with that employee. There is no other evidence before this Court of any other statements or conversations b y Conklin to Walton of a sexual nature. Walton contends that there was talk at Neptune that C o n k lin had propositioned Beverly Johnston's sister, then a Neptune employee. While W alto n has no evidence of any "sexual" harassment by Conklin, she believes that her failure to favorably respond to what she considered a sexual overture caused Conklin to begin a c a m p a ig n to get her fired or subjected to disciplinary action. Walton admits that she did not re p o rt Conklin's conduct to anyone in a position of authority with Neptune. On Wednesday, September 20, 2006, Walton fell on a slippery area of floor while at w o rk . She injured her wrist and hand. A doctor completed a work status report on S e p t e m b e r 21, 2006. The doctor released her to work with restrictions for four days. The re stric tio n s included no lifting, carrying, pushing or pulling and limited stooping and b e n d in g . On Thursday, September 28, 2006 at around 4:30 p.m., Conklin told Walton that she n e e d ed to pick a mold machine and clean it from top to bottom. She asked him why, and he to ld her that it needed to be done. Walton perceived this request as punishment. According

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to Walton, Conklin had falsely accused her of "reading" on this date and required her to clean a large machine as punishment. Mike Hornsby ("Hornsby") was present when Conklin told W a lto n to clean a mold machine. Later that evening, Hornsby asked Walton which machine s h e had chosen. Walton replied that she was not going to clean any machine because it was n o t her responsibility. Hornsby told Walton that she probably should do as Conklin asked b e c a u se he had heard Mike Granger ("Granger"), the Production Manager, ask Conklin to h a v e her clean one of the molding machines. Walton expressed further dissatisfaction with h a v in g been assigned the task, but went and obtained cleaning supplies. Walton testified that sh e actually cleaned the machine after having questioned why the task had been assigned to h e r. She offers no testimony concerning how long the task took. Hornsby and Conklin did n o t think that she cleaned the whole machine and told human resources about the incident n o tin g that after only a few minutes of cleaning she went off to "pout." Conklin reported this in c id e n t to Granger who also spoke with Hornsby regarding the incident. Granger and F u lm e r met with Walton regarding this incident on October 3, 2006. O n October 4, 2006, Human Resources Director Stephanie Fulmer ("Fulmer") called W a lto n in to discuss the September 28, 2006 issue. After hearing Walton's version of the e v e n ts , Fulmer told Walton she would look into the matter further and that there might be rep erc u ssio n s from it. Walton heard nothing further from Fulmer about the matter. O n or slightly before October 12, 2006, Conklin reassigned Walton to a position on th e production line. This position did not allow her to rest her feet and legs by sitting. She

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a s k e d Conklin on October 12, 2006 to be allowed to rotate into another position, but he d e n ied her request. Walton began to ask cow-worker Beverly Johnston ("Johnston") to rotate p o s itio n s with her. According to Johnston, Walton was harassing her. Johnston complained to Conklin about Walton's harassment at around 9:00 p.m. on October 17, 2006. According to Johnston, Walton had started asking Johnston to switch jobs with her on October 16, 2006. J o h n s to n claimed that Walton was purposely holding up production on Johnston's part of the lin e . Conklin told her that if she was tampering with production she could be fired. Walton d e n ie d having done so. Conklin instructed Walton to stay out of Johnston's area and to focus o n her own job. According to Walton, Conklin told her not to talk to Johnston anymore. While he was her supervisor, Conklin was frequently critical of Walton's work p e rf o rm a n c e. On October 24, 2006, Conklin told Walton that there was a small crack in the m a in cases. According to Walton he accused her of being responsible for that problem g e ttin g through the line. On October 25, 2006, Conklin accused Walton of holding up the lin e . On November 1, 2006, Conklin accused Walton of failing to appropriately test the w a te rs at the wash station. On October 27, 2006, Walton left work early because she was sick. After Walton left w o rk early, Conklin encountered her outside Wal-Mart and demanded what she was doing there .4 She told him she was getting some medicine. Conklin was skeptical of Walton's

Walton assumes that because Conklin was there at that time he must have followed h e r, but there is no actual evidence of this in the record nor is it a reasonable inference from th e simple fact that they were there at the same time. 9

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c laim that she was ill. He asked other employees if she was really sick. He sent an email m essa g e to Fulmer reporting that he had seen Walton in front of Wal-Mart after she left work s ic k and stating that she frequently claims to be sick on most Fridays. C . Events Resulting in the Termination of Walton's Employment N e p tu n e terminated Walton's employment on November 30, 2006.5 There is a great d e a l of information before the Court from a variety of sources regarding the events during th e end of the second shift at Neptune from November 27, 2006 through November 29, 2006. S o m e witnesses contradict each other. For purposes of resolving this motion, the Court will v ie w the facts in the light most favorable to Walton and abstain from attempting to resolve a n y disputes as to material fact. That being said the Court will summarize the various a c c o u n ts here in the factual recitation noting where they are in conflict. O n the morning of November 27, 2006, Walton had a medical procedure and was not in good shape. She was experiencing some bladder problems and her knee was swollen. N e v e rth e le ss , she went to work. Once at work on the line, she asked Conklin to go and get h e r an Ace bandage. Conklin did so. During his trip to the nurse's station he also retrieved

At the time of the termination of her employment, Walton was 52 years old. C u r r e n t l y, about 25% of Neptune's employees are 52 years of age or older. At the time N e p tu n e discharged Walton approximately 135 of its employees were 52 years of age or o ld e r. Walton testified in her deposition about the ages of the other employees, but gave no in d ic a tio n that she had personal knowledge concerning the actual age of other Neptune e m p lo ye e s. Her testimony is plainly based on her impression or guess regarding the ages of c o -w o rk e rs . Moreover, she admitted that a number of the first shift employees were older a n d had worked for Neptune for many years. 10

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s o m e medicine for another worker, Alisha Moore ("Moore") who was having cramps. W a lto n admits that her bladder problems caused her to have to make several visits to the b a th ro o m during this shift. On November 27, 2006, near the end of the second shift at 11:10 p.m., but while the s e c o n d shift employees were still "on the clock," Rhonna Funderburk ("Funderburk"), a lead e m p lo ye e from third shift, heard Walton in the bathroom tell two other second shift e m p l o ye e s "we can hide in the bathroom. He can't come in here." Next Walton said "Ed w ill send Rhonna in here because he has done that before." When Funderburk left the b a th ro o m she reported what she had seen and heard to Henderson. She also sent him an e m a il very early on November 29, 2006 documenting the incident. At 2:35 a.m. on N o v e m b e r 29, 2009, Henderson forwarded Funderburk's email message along with one of h is own confirming that he had seen Walton leave the bathroom at 11:25 p.m. on that night to Conklin, Fulmer, and other members of the management team. In his affidavit, Henderson re ite ra te s that he saw Walton and the other employees leave the bathroom at 11:25 p.m. on N o v e m b e r 27, 2006. On November 28, 2006, production finished early, and Walton had completed all of h e r cleanup work. Walton asked Conklin what he would like them to do as they had finished e a rly. She avers that Conklin replied: "Out of sight, out of mind. If I was [sic] you, I'd go to the bathroom." Walton, Moore and another employee Victoria Roberts ("Roberts") went to the bathroom. Walton went into a stall and then came out and washed her hands. Roberts

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th e n said that with all three of them in there at the same time "they" (presumably m a n a g em e n t) were going to think that "we" (Walton, Moore and Roberts) were avoiding w o rk . Moore and Roberts said they were going to stay in the bathroom. While Walton was w a sh in g her hands, Funderburk, a third shift lead person who had been in a bathroom stall, e x ite d the stall. Walton went out on the floor to look for her badge because she had realized h e r badge was missing. As she left the bathroom, she passed right in front of Funderburk. W a lto n states that she was only in the restroom between 11:19 and 11:24 p.m. and that two o th e r workers were also in there during that time. Eventually, Walton found her badge and c lo c k e d out late. According to an email message from Conklin dated November 29, 2006 at 11:50 p .m .,6 production stopped at 11:00 p.m. on that date and the second shift employees were c le a n in g and performing required checks, except for Walton who could not be located. C o n k lin searched for her and decided that she was hiding in the bathroom again. He watched th a t area for awhile and eventually asked an employee named "Lynn" to go in and see who w a s in the bathroom. Lynn did as requested and then reported to Conklin that Walton and M o o re were in there. At 11:20 p.m., Conklin saw Walton and Moore come out of the b athro o m . Based on this incident, Conklin recommended that Neptune terminate Walton's

Conklin is no longer a Neptune employee. Neither party has presented any sworn te stim o n y from Conklin in the form of an affidavit or deposition testimony. For purposes of h is motion, the Court considers the copies of his email predicated upon the assumption that th e se documents convey information capable of being rendered admissible without making a n y finding as to the admissibility of the emails at trial. 12

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e m p lo ym e n t. He explained that in his view she was not a team player and had repeatedly had tro u b le following instructions and performing required tasks. Conklin identified seven d if f ere n t company rules he believed Walton had violated. M o o re 's testimony provides a conflicting account of the events of November 28, 2 0 0 6 . Moore claims that she went to the bathroom that evening and when she entered the b a th ro o m Walton was already there. Moore claims that Roberts entered the bathroom after s h e did. Once Moore and Roberts were in the bathroom, Moore contends that Walton stated th a t they could hide in the bathroom and the supervisor would not be able to find them. This s e e m s very similar to the description of events Funderburk places on November 27, 2006. It is not clear who is mistaken about the date or on how many instances Walton was observed i n the bathroom at the end of her shift. In her testimony, Walton denies making any s ta te m e n t about hiding out in the bathroom or staying in the bathroom. Additionally, Walton d e n ie s having stayed in the bathroom to avoid work on other occasions. She admits that an e m p lo ye e named Osteen had been sent in to check on Walton on a prior occasion when she w a s in the bathroom. Fulmer prepared a letter dated November 30, 2006, which informed Walton that her e m p lo ym en t was being terminated effective immediately. The letter indicated that on two o c c as io n s Walton had been observed in the restroom for extended periods of time at the end o f her shift rather than in her assigned work area. The letter further indicated that both in c id e n ts occurred after she had been warned on November 27, 2006 that the overlap time

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b e tw e e n shifts was not free time, but rather a time to clean and perform "TPM checks." W h e n Walton arrived at work on November 30, 2006, Fulmer called Walton to her office. F u lm e r, Conklin, and another member of management were present for this meeting with W a lto n . Fulmer told Walton that the meeting was concerning an incident on the 27th in the re str o o m and that they had learned she had been hiding in the restroom. Walton denied h a v in g done so. Fulmer told Walton she was being insubordinate. Fulmer told Walton that W a lto n had been warned previously. Walton asked to see the warnings. Fulmer said they w e re in her file. According to Walton, Fulmer did not show her any paperwork, but instead r e p e a te d l y asked Walton to turn in her badge and leave. Walton turned to Conklin's boss, w h o was present, and said "there are things that you need to know that he's doing and he is d o in g things that are not right." Fulmer repeated her request that Walton submit her badge a n d leave. Walton gave Fulmer her badge. Conklin escorted Walton to her locker and then o u t to the parking lot. Joe Breeding ("Breeding"), the Vice President of Human Resources at Neptune, has p ro v id e d this Court with sworn testimony that he is the person at Neptune with final authority w ith regard to hiring and firing decisions. Breeding states that he made the decision to te rm in a te Walton's employment after he learned of the incident in which Walton had been re p o rte d to have been hiding in the restroom to avoid work.7 He further contends that

Because of the lack of specificity in Breeding's affidavit, it is not entirely clear to t h e Court which incident or incidents triggered his decision to terminate Walton's e m p lo ym e n t. It appears that he may be referring to the November 27, 2009 incident that 14

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C o n k lin 's recommendation that Walton be fired is not what caused him to determine that she s h o u ld be fired, but rather, his decision came as a result of his own determination that Walton h a d violated company rules. Specifically, he contends Neptune's investigation of reports of m is c o n d u c t by Walton from employees other than Conklin revealed that more than one e m p lo ye e stated that Walton had not only hidden in the bathroom but had made a comment a b o u t hiding in the bathroom. D. Neptune's Policies L ik e many employers Neptune has policies which prohibit workplace discrimination a n d harassment whether that harassment be sexual or of another sort. Neptune provides w ritte n versions of these policies to its employees. Walton received a copy. Additionally, R o p e r Industries, Inc. ("Roper") 8 had a hotline, which was publicized at the Neptune facility, f o r the reporting of inappropriate behavior or ethics violations. Neptune also has a

d isc ip lin a ry policy which provides for progressive discipline for the violation of certain c o m p a n y work rules. The first step is a counseling session by the supervisor. While the first w a rn in g may be verbal, a written notice of the counseling should be submitted to the human re so u rc e s department for placement in the employee's file. A second violation in a year re su lts in a formal written warning. A third violation in a year results in a three day

Funderburk described in the November 29, 2006 email message. It was in that message that F u n d e rb u rk claimed that she heard Walton encouraging other employees to join her in hiding in the bathroom. This is a fact that Breeding references.
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Roper is Neptune's parent corporation. 15

s u s p e n sio n and a final written warning. Any further violations in a year result in discharge. T h e company reserves the right to immediately discharge employees in more serious cases o r to deviate from the policy when there are extenuating circumstances. Other work rule v io la tio n s are listed in the disciplinary policy are more serious offenses warranting s u s p e n sio n or discharge. This more serious list includes: "sleeping on the job or hiding for th e purpose of avoiding work." E. Disciplinary Action Against Other Employees N e p tu n e did not terminate the employment of Moore and Roberts. Conklin told F u lm e r that they were both hard workers. He also told Fulmer that he believed that neither o f them stayed in the bathroom as long as Walton and that Roberts had told him earlier that s h e had been having female problems and stomach cramps. He told Fulmer that he had v e rb a lly reprimanded Moore and Roberts. F. Walton's Unemployment Compensation Claim A f te r the termination of her employment, Walton sought unemployment c o m p e n s a tio n . In response to her claim, the State of Alabama Department of Industrial R e la tio n s ("the ADIR") requested information from Neptune about the termination of her e m p lo ym e n t. Neptune responded that it had employed Walton until November 30, 2006, but that she was discharged due to an incident on November 29, 2006 in which she violated work ru le s by hiding in the restroom to avoid work. Neptune further contended that Walton had b e e n previously warned about the inappropriateness of this type of conduct on November 27,

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2 0 0 6 . Under Section 25-4-78(3)(b), an employee discharged from a position for misconduct a t work after having previously been warned is not entitled to unemployment compensation. T h e ADIR awarded Walton unemployment compensation benefits. After having conducted a n evidentiary hearing, the ADIR determined that Walton was absent from work on N o v e m b e r 26, 2006, the date on which the supervisor gave a general counseling to all e m p lo ye e s regarding the requirement to continue working and not to leave their assigned a re a s. Because it found that she had not previously been warned against the misconduct for w h ich she was discharged, it found that § 25-4-78(3) did not apply and she was entitled to th e unemployment compensation payments she sought. The ADIR Administrative Hearing O f f ic e r mentioned that Walton denied having engaged in the conduct for which she was d i s c h a rg e d , but did not make a finding to award benefits on the basis of that denial, rather its finding was based on the failure of Neptune to demonstrate that she had been warned not to engage in the misconduct for which it terminated her prior to discharging her. PROCEDURAL HISTORY O n March 5, 2007, Walton filed a Charge of Discrimination with the Equal E m p lo ym e n t Opportunity Commission ("EEOC"). In her charge, Walton complained of d is c rim in a tio n due to her sex, age, and disability, as well as retaliation. The EEOC issued a Dismissal and Notice of Rights on October 3, 2007. Walton filed this lawsuit on January 2 , 2008. In this lawsuit, she seeks damages, declaratory relief, injunctive relief, attorney's f e es , and costs. She alleges a violation of Title VII arising out Conklin's sexual harassment

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o f her. She alleges age discrimination in violation of the ADEA. She alleges disability d is c rim in a tio n in violation of the ADA.9 Finally, Walton alleges retaliation against her after s h e has exercised her statutory rights. Notably, the Complaint fails to specify under which s ta tu to ry or statutes the retaliation claim is made. Although the Complaint alludes to claims p u rs u a n t to Alabama law in the introductory paragraphs, none are actually set forth in the a lleg a tio n s of the Complaint. Neptune and Roper have sought summary judgment on all of Walton's claims. W a lto n responds by opposing this motion. In so doing, she sheds additional light on the sp e c if ic nature of her claims in this action. She elaborates on the incidents with Conklin in s u p p o rt of her sexual harassment claim. She explains the nature of her disabilities during her e m p lo ym e n t with Neptune and complains that while prior supervisors had accommodated h er, Conklin refused to do so and in fact, assigned her to tasks he knew she could not perform w ith o u t pain. She contends that the termination of her employment was discriminatory b e c au s e other employees who were not as old or who did not have a disability engaged in the sa m e conduct she did, but were not fired or even disciplined. She also denies engaging in th e conduct for which Neptune fired her. As for her claim of retaliation, Walton specifies th a t she had no problems at Neptune until after she rebuffed Conklin's sexual advances. She

In the Complaint, Walton alleges that "Calhoun had an actual or perceived disability a n d was denied an employment opportunity and terminated from a position she was already p erf o rm ing . Calhoun was refused employment due to her disability and Defendant's p e rc e p tio n that Plaintiff was disabled." Compl. at ¶ 37. The Court is at a loss to understand h o w those allegations relate in anyway to the fact of this case. 18

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a ttr ib u te s all of her problems with Conklin after his overtures to his desire to retaliate against h e r for rejecting him and ultimately to see her get fired. Walton also faults Fulmer for failing to follow Neptune's own progressive discipline policy and failing to properly inquire into the a lle g a tio n s made against Walton after Walton denied the charges against her. DISCUSSION A . Claims Against Roper I t is unclear from the Complaint itself whether Walton is attempting to hold both N e p tu n e and its parent company Roper liable.1 0 To be sure both entities are identified in the s e c tio n of the caption where the defendant's name is to be placed. Walton alleges that N e p tu n e employed her, but further states that Roper is the parent company of Neptune and id e n tif ie s the number of employees it employs. Compl. at ¶¶ 3 & 4. Walton sought service o f both Neptune and Roper. Due to this ambiguity, Roper has joined in the Neptune motion f o r summary judgment arguing that it cannot be held liable under the applicable law. Walton m a k e s no effort to refute this argument or to address whether she intended to state a claim a g a in s t Roper as well as against Neptune. Consequently, the Court lacks both a factual and a legal predicate upon which to base any finding of liability against Roper. For this reason, th e motion for summary judgment is due to be GRANTED to the extent that it seeks ju d g m e n t as a matter of all as to all of Walton's claims against Roper. This preliminary issue

At the Pretrial Conference, counsel for Walton appeared to concede that there were n o viable claims against Roper. 19

10

h a v in g been addressed, the Court will not address Walton's remaining claims against her e m p lo ye r, Neptune. B . ADEA Claim T h e ADEA makes it "unlawful for an employer...to fail or refuse to hire or to d isc h a rg e any individual or otherwise discriminate against any individual with respect to his co m p en satio n , terms, conditions, or privileges of employment, because of such individual's a g e ." 29 U.S.C. § 623(a)(1). When a plaintiff alleges disparate treatment, `liability depends o n whether the protected trait (under the ADEA, age) actually m o tiv a te d the employer's decision. That is, the plaintiff's age m u st have "actually played a role in [the employer's d e c is io n m a k in g ] process and had a determinative influence on th e outcome. R e e v e s v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper C o . v. Biggins, 507 U.S. 604, 610 (1993). The courts have often recognized that this inquiry im p lic a te s analyses of the mental processes of employers for which there is seldom eyew itn e s s testimony. Id. Consequently, the courts have applied some variation on the f ra m e w o rk articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its p ro g e n y to analyze ADEA cases brought primarily on circumstantial evidence. Reeves, 530 U .S . at 141 (collecting cases); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (1 1 th Cir.), cert. denied, 525 U.S. 962 (1998). Thus, an employee bringing a claim under the A D E A must initially establish a prima facie case of discrimination through one of three m e th o d s : by presenting direct evidence of discriminatory intent, presenting circumstantial 20

e v id e n c e of discrimination by satisfying the analysis set forth in McDonnell Douglas and its p rog en y, or by introducing statistical evidence of discrimination. See, e.g., Walker v. N a tio n s B a n k of Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995).11 T o establish a discrimination claim by circumstantial evidence using the McDonnell D o u g l a s framework, the employee has the initial burden of showing, by a preponderance of th e evidence, a prima facie case of the proscribed practice. Young v. General Foods Corp., 8 4 0 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1989). The essence of the p r im a facie case is that the employee presents circumstantial evidence sufficient to generate a reasonable inference by the fact finder that the employer used prohibited criteria in making a n adverse decision about the employee. If established, the prima facie case raises a re b u tta b le presumption that the employer is liable to the employee. Texas Dep't of Cmty. A ffa ir s v. Burdine, 450 U.S. 248 (1981). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of d is c rim in a tio n ." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Once a plaintiff establishes the requisite elements of the prima facie case, the d e f en d a n t has the burden of producing a legitimate, non-discriminatory reason for the c h a lle n g e d employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing Texas D e p 't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is

Walton offers no evidence that could be appropriately considered direct or sta tistica l evidence of age discrimination. Accordingly, the Court will limit its discussion to h e r circumstantial evidence. 21

11

" e x ce e d in g ly light." Holifield, 115 F.3d at 1564. This burden is one of production, not p e rs u a s io n and consequently, the employer need only produce evidence that could allow a ratio n al fact-finder to conclude that the challenged employment action was not made for a d is c rim in a to ry reason. See, e.g., Davis v. Qualico Miscellaneous, Inc., 161 F. Supp. 2d 1314, 1 3 2 1 (M.D. Ala. 2001). If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once the e m p lo ye r articulates a legitimate, non-discriminatory reason, the burden returns to the e m p lo ye e to supply "evidence, including the previously produced evidence establishing the p r im a facie case, sufficient to permit a reasonable fact-finder to conclude that the reasons g iv e n by the employer were not the real reasons for the adverse employment decision." D a v is , 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th C ir. 2000) (en banc)). The plaintiff may seek to demonstrate that the proffered reason was n o t the true reason for the employment decision "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the e m p lo ye r's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; C o m b s , 106 F.3d at 1528. A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to

22

c o n c lu d e that the employer unlawfully discriminated. Reeves, 530 U.S. at 148. In this case, Walton claims that the termination of her employment was d is c rim in a to ry1 2 because Neptune did not terminate the employment of the two younger w o m e n employees who stayed in the restroom in the same incident or incidents 1 3 which gave ris e to the termination of Walton's employment. A plaintiff's prima facie case for a discharge-discrimination c la im must show the following elements: (1) the plaintiff is a m e m b e r of a protected class; (2) the plaintiff was qualified for th e position at issue; (3) the plaintiff was discharged despite his q u a lif ic a tio n ; and (4) the plaintiff was subject to differential tre a tm e n t, that is, he was either (a) replaced by someone who w as not a member of the plaintiff's protected class or (b) a s im ila rly situated employee who was not a member of the p ro te c te d class engaged in nearly identical conduct and was not d is c h a rg e d . K e e l v. U.S. Dep't of Air Force, 256 F. Supp. 2d 1269, 1285 (M.D. Ala. 2003), aff'd without o p in io n , 99 Fed. Appx. 880 (11th Cir. Mar 02, 2004); Davis v. Qualico Miscellaneous Inc., 1 6 1 F. Supp. 2d 1314, 1319 (M.D. Ala. 2001). Accord, Williams v. Motorola, 303 F.3d 1 2 8 4 , 1293 (11th Cir. 2002). Importantly, an employee cannot establish a prima facie case o f discrimination by simply arguing that he belonged to a protected class and that he did not
12

As will be discussed later, Walton also claims that the termination of her e m p lo ym e n t was motivated by a desire to retaliate against her for her exercise of her rights u n d e r the ADA and for refusing Conklin's sexual advances. The exact events relating to the hiding in the bathroom are replete with disputed is s u e s as to material facts. Due to the procedural posture of this case, the Court cannot and w ill not attempt to resolve those disputes or make credibility determinations. Unfortunately, ev en the affidavit from Breeding, the person alleged to have decided to terminate Walton's e m p lo ym e n t, fails to clearly explain the precise basis for this decision. 23
13

e n g a g e in the conduct for which he alleges his employment was terminated. See, e.g., Jones v . Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), superseded in part on d e n ia l of reh'g, 151 F.3d 1321 (11th Cir. 1998)1 4 ; Keel, 265 F. Supp. 2d at 1285; Thomas v. A la . Council on Human Relations, Inc., 248 F. Supp. 2d 1105, 1119 (M.D. Ala. 2003); C o o p e r v. Diversicare Mgmt. Servs. Co., 115 F. Supp. 2d 1311, 1318-19 (M.D. Ala. 1999). T h e re is no dispute in this case that Walton is a member of a protected class in that a t the time of the termination of her employment she was more than forty years of age. In d e e d , in this case there is no dispute that Walton was a member of that protected class of p e rs o n s over forty years of age at the time Neptune hired her, as well as at the time of her d is c h a rg e . There is no dispute in this case that Walton was qualified for the position which s h e held with Neptune and that she was discharged despite this qualification. Walton does n o t attempt to establish a prima facie case by showing that Walton was replaced by someone w h o was younger than forty. Instead, she denies having engaged in the conduct for which s h e was terminated1 5 and points to two employees she contends are similarly situated except f o r the fact that they were under forty years of age, who engaged in what she argues was n e a rly identical conduct and were not discharged.

The Eleventh Circuit Court of Appeals withdrew part of its opinion in this case o n rehearing and substituted a new section which can be found at Jones v. Bessemer C a r r a w a y Med. Ctr., 151 F.3d 1321 (11th Cir. 1998). Nothing in this Memorandum Opinion is based on the portion of the opinion in Jones which was withdrawn on rehearing. Walton denies ever hiding to avoid work and denies encouraging others to hide in o rd e r to avoid work. 24
15

14

In evaluating this claim, the Court must be mindful of the binding precedent from the E le v e n th Circuit Court of Appeals which requires Walton to be similarly situated in all re le v a n t respects to those comparators she identifies. See, e.g., Morris v. Emory Clinic, Inc., 4 0 2 F.3d 1076, 1082 (11th Cir. 2005) (doctor discharged from clinic due to patient c o m p la in ts about his conduct who couldn't show that he was replaced by someone outside h is protected class and who couldn't show that a comparable person outside his protected c la s s received "nearly identical" complaints, but was not fired failed to establish a prima f a c ie case); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (re v e rs in g judgment in favor of plaintiff because employer entitled to judgment as a matter o f law where plaintiff's comparator engaged in fewer instances of misconduct than plaintiff); M a n ic c ia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (affirming summary judgment in employer's favor where alleged misconduct of comparators was not sufficiently similar to support disparate treatment claim); Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1 9 9 7 ) (affirming summary judgment where plaintiff failed to produce sufficient evidence that n o n -m in o rity employees with which he compares his treatment were similarly situated in all a sp e c ts , or that their conduct was of comparable seriousness to the conduct for which he was d isc h a rg e d ); Jones v. Gerwens, 874 F.2d 1534, 1540-42 (11th Cir. 1989); Nix, 738 F.2d at 1 1 8 5 -8 7 (African-American plaintiff who was replaced by another African-American after te rm in a tio n for violation of work rule failed to make out a prima facie case of race d isc rim in a tio n because he did not meet his burden of showing that a white employee in

25

s im ila r circumstances was retained while he was fired). In evaluating the similarity of the co m p ara tors identified by the plaintiff, the most important variables in a discriminatory d isc ip lin e case are the nature of the offenses committed and the nature of the punishments im p o s e d . See, Jones v. Gerwens, 874 F.2d at 1539. Both the "quantity and the quality of the c o m p a r a to r's misconduct must be nearly identical to prevent courts from second-guessing e m p lo ye rs ' reasonable decisions and confusing apples and oranges." Maniccia, 171 F.3d at 1 3 6 8 . In making this analysis a court must keep in mind that "Title VII does not take away a n employer's right to interpret its rules as it chooses, and to make determinations as it sees f it under those rules[.]" Id. at 1369. Moreover, the actions of the employer toward the p ro f f ere d comparators are only relevant if the decisionmaker knew of the rule violations by th e comparators and took no action against them. Jones v. Gerwens, 874 F.2d at 1542. It is undisputed that Neptune terminated the employment of Walton. It took this a c tio n after Funderburk, Henderson, and Conklin reported to management that Walton, M o o re , and Roberts was hiding in the restroom to avoid work and that Walton was exhorting o th e rs to do the same.1 6 It is undisputed that hiding to avoid work is a serious work rule in f ra c tio n that can result in discharge under Neptune's disciplinary policy. It is undisputed th a t Neptune did not terminate the employment of two women younger than forty years of

Walton denies having stayed in the restroom as long as Moore and Roberts did. S h e also denies exhorting the others to stay in the restroom to avoid work and attributes a c o m m e n t about staying in the bathroom so their supervisor could not find them to Roberts.

16

26

a g e , Moore and Roberts, who were also spotted in the restroom at the same time as Walton. In s te a d , Neptune allowed Conklin to merely give them an oral reprimand. When the Court views the evidence in the light most favorable to Walton and refrains f ro m attempting to resolve the extant genuine issues of material fact, the Court must find that W a lto n has offered sufficient evidence from which a reasonable jury might find of a prima fa c ie case of age discrimination in that similarly situated employees who were not more than f o rty years of age engaged in nearly identical conduct and were not discharged. O n c e the plaintiff establishes a prima-facie case, the burden then shifts to the e m p lo ye r to articulate a legitimate, non-discriminatory reason for the challenged employment ac tio n . See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997); Davis, 161 F. S u p p . 2d at 1321. The employer's burden is "exceedingly light." Id. This burden is one of p ro d u c tio n , not persuasion and consequently, the employer need only produce evidence that c o u ld allow a rational fact-finder to conclude that the challenged employment action was not m a d e for a discriminatory reason. See, e.g., Davis, 161 F. Supp. 2d at 1321. Neptune has d o n e this by showing that it decided to terminate Walton's employment because Breeding b e l ie v e d that she was the one who had hidden in the bathroom and exhorted others to do so a n d because Breeding believed that this was not the first time that Walton had engaged in su c h conduct.1 7

Certainly there is evidence of this in the letter Neptune produced which articulates th e reasons for the termination of Walton's employment. Again, Breeding's affidavit is not n e a rly as clear about the reasons for the decisions, but he does indicate that he believed she 27

17

O n c e the employer offers this legitimate, non-discriminatory reason, the burden r e tu rn s to the employee to supply "evidence, including the previously produced evidence e sta b lis h in g the prima facie case, sufficient to permit a reasonable fact-finder to conclude th a t the reasons given by the employer were not the real reasons for the adverse employment d e c is io n ." Davis, 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1 0 2 4 (11th Cir. 2000) (en banc)). Where an employer has subjected an employee to d is c ip lin a ry action or terminated the employment of the employee for misconduct, the e m p lo ye e may show that the employer's proffered reason is pretextual by setting forth e v id e n c e that other employees, not within the plaintiff's protected class, who engaged in s im ila r acts were not similarly treated. Davis, 161 F. Supp. 2d at 1322. Some cases suggest that a plaintiff in these circumstances may also establish pretext b y showing that the employer's proffered reasons have no basis in fact because the employee d id not engage in the conduct on which the employer acted. See, e.g., Anderson v. Savage L a b s ., Inc., 675 F.2d 1221, 1224 (11th Cir. 1982) (noting this means of proof in dicta in a c a se where employee conceded that he had violated the work rule on which his termination w a s based); Davis, 161 F. Supp. 2d at 1322 (citing Anderson in overview of paradigm). Other cases suggest that reliance on this method of proof of pretext is "problematic."

had been hiding to avoid work and telling other employees that they could hide to avoid w o rk . While it is clear that part of the reason Breeding reached this conclusion was the in f o r m a t io n he received from Conklin, it is also clear that Breeding also relied on in f o rm a tio n received from other employees. 28

C o o p e r , 115 F. Supp. 2d at 1319 (citing Walker v. NationsBank of Fla., 53 F.3d 1548, 1564 (11 th Cir. 1995) (Johnson, J., specially concurring). E v id e n c e showing a false factual predicate underlying the e m p l o ye r's proffered reason does not unequivocally prove that th e employer did not rely on the reason in making the e m p l o ym e n t decision. Instead, it may merely indicate that the e m p l o ye r, acting in good faith, made the disputed employment d e c isio n on the basis of erroneous information. It is obviously n o t a violation of federal employment discrimination laws for an e m p l o ye r to err in assessing the performance of an employee. T h u s , establishing pretext is not merely demonstrating that the e m p l o ye r made a mistake, but that the employer did not give an h o n e s t account of its behavior. Id. (internal citations omitted). Rather than simply disputing whether she engaged in the c o n d u c t at issue, the employee could establish pretext by "presenting evidence tending to s h o w that the predicate facts underlying the proffered reason were false" and that "the e m p lo ye r knew them to be false at the time of [its] purported reliance" or that "the proffered re a so n may involve a disputed fact of a kind that it is improbable that the employer could be m is ta k e n about it." Walker, 53 F.3d at 1564 n.7; Cooper, 115 F. Supp. 2d at 1320. In order to show that the proffered reason for the termination of Walton's employment w a s pretextual, Walton must show that Breeding based his decision to discharge her on an u n re a so n a b le belief that Walton hid in the restroom to avoid working at the end of her shift a n d exhorted other employees to do the same. See, e.g., Silvera v. Orange County Sch. Bd., 2 4 4 F.3d 1253, 1261 (11th Cir. 2001), cert. denied, 122 S. Ct. 402 (2001) (pretext means m o re than a mistake by the employer; actions taken based on a mistaken, non-discriminatory

29

b e lief do not violate Title VII); Lee v. GTE Fla, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000), c e r t. denied, 532 U.S. 958 (2001) ("A plaintiff must show not merely that the defendant's e m p lo ym e n t decisions were mistaken, but that were in fact motivated by [the protected c h a ra c ter istic] ."); Equal Employment Opportunity Comm'n v. Total Sys. Servs., Inc., 221 F .3 d 1171 (11th Cir. 2000) (plaintiff could be properly discharged on defendant's good faith b e lief that she lied in an internal investigation); Alexander v. Fulton County, Ga., 207 F.3d 1 3 0 3 , 1339 (11th Cir. 2000), reh'g denied, 218 F.3d 749 (11 th Cir. 2000) ("a plaintiff must sh o w not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by race."); Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1 9 9 1 ) (court's pretext inquiry is properly limited to whether the decision-makers believed the e m p lo ye e had engaged in conduct for which he was terminated and if so whether this belief w as the reason for the discharge, not whether plaintiff was actually guilty of the conduct); C o n n o r v. Fort Gordon Bus Co., 761 F.2d 1495, 1501 (11th Cir. 1985) (employer's belief, h o n e s t but mistaken, may nonetheless provide legitimate reason for discharge). With respect to her age discrimination claim, Walton offers little evidence or a rg u m e n t beyond the facts offered in support of the prima facie case to establish pretext. W a lto n has failed to present any evidence from which a reasonable factfinder could find that B re e d in g did not really believe that Walton had hidden in the restroom to avoid work and

30

e n c o u ra g e d others to do the same. Indeed, more than one Neptune employee 1 8 had reported to higher management that Walton had done both prior to the decision to terminate her e m p lo ym e n t. Walton has not presented any evidence from which a reasonable factfinder c o u ld find that Breeding decided to terminate her employment because of her age. Walton h a s failed to present evidence from which a reasonable factfinder could call into question B re e d in g 's determination that the other employees had engaged in less serious conduct w a r r a n tin g a lesser punishment. In the absence of these types of evidence, Neptune is e n title d to summary judgment on Walton's ADEA claims alleging that the termination of her e m p lo ym e n t was age discrimination. Neptune's motion is due to be GRANTED as to W a lto n 's claims pursuant to the ADEA. C . Title VII Claims 1 . Sexual Harassment T itle VII of the Civil Rights Act of 1964 prohibits an employer from discriminating " a g ain s t any individual with respect to [her] compensation, terms, conditions, or privileges o f employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). It has lo n g been recognized that "[t]he phrase terms, conditions, or privileges of employment e v in c e s a congressional intent to strike at the entire spectrum of disparate treatment of men a n d women in employment, which includes requiring people to work in a discriminatorily h o s tile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
18

There is no evidence that this employee, Funderburk, was connected in any way to

C o n k lin . 31

(in te rn a l citations omitted). While Walton originally alleged that she was discriminated against on the basis of her s e x because while she was employed with Neptune her supervisor subjected her to sexual h ara ssm e n t , she has subsequently abandoned these claims.1 9 For this reason, Neptune's m o tio n for summary judgment is due to be DENIED as MOOT. 2 . Retaliation In addition to prohibiting discrimination on the basis of sex, Title VII also contains p ro v is io n s which prohibit retaliation against employees who engage in certain protected c o n d u c t. Under Title VII, it is also an unlawful employment practice for an employer to d is c rim in a te against an employee "because [s]he has opposed any practice made an unlawful e m p lo ym e n t practice by this subchapter, or because [s]he has made a charge, testified, a ss iste d , or participate in any manner in an investigation, proceeding, or hearing under this s u b c h a p te r." 42 U.S.C. § 2000e-3(a). Walton alleges that Conklin retaliated against her after s h e rebuffed his sexual advances. As previously stated, Walton's final federal claim against Neptune is brought pursuant to Title VII for what she alleges was retaliation against her. Specifically, Walton contends t h a t rebuffing or rejecting what she believed to be Conklin's sexual overtures towards her re s u lte d in Conklin causing the termination of Walton's employment.

Walton's counsel specifically relinquished them at the pretrial conference and a m e n d e d her contentions for the pretrial order to omit any reference to such claims. 32

19

T h e analysis of a claim of retaliation based on circumstantial evidence 2 0 is similar to th e analysis of a discrimination claim based on circumstantial evidence. To establish a prima facie case of retaliation, [an employee] m u s t show: (1) she engaged in protected activity; (2) her e m p l o ye r was aware of that activity; (3) she suffered adverse e m p l o ym e n t action; and (4) there was a causal link between her p ro te c te d activity and the adverse employment action. M a n ic c ia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999) (citing Little v. United Tech., 103 F .3 d 956, 959 (11th Cir. 1997)). Accord, Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11 th Cir. 1998) (citations omitted). Neptune does not challenge Walton's contention that th e evidence supports the first three elements of the prima facie case, and the Court accepts W a lto n 's assertion that they are established for purposes of this motion.21 A s is common in these types of cases, the real issue with respect to Walton's prima fa c ie showing on her retaliation claim is the fourth element which requires a showing of a c a u sa l link between the alleged adverse employment action and the protected activity. "The c a u sa l link element is construed broadly so that `a plaintiff merely has to prove that the p rotec ted activity and the negative employment action are not completely unrelated.'"

20

There is no direct evidence of retaliation in this case.

This is not inconsistent with the Court's finding that Walton was not sexually h a ra ss e d . Even if Conklin's treatment of Walton was not a violation of Title VII, Walton c o u ld have engaged in protected expression by opposing it if she establishes that she had a g o o d faith and reasonable believe that Conklin's conduct was unlawful. "To establish that a plaintiff engaged in statutorily protected expression, ... a plaintiff must show that she `had a good faith, reasonable belief that the employer was engaged in unlawful employment p ra c tic e s.'" Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). 33

21

P e n n in g to n v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001) (citations omitted). One c o m m o n method of establishing the causal link element is close temporal proximity between th e adverse employment action and the protected activity. Of course, this is not the sole m e a n s of establishing the causal link element; rather it is merely the most commonly used a p p ro a c h . Indeed, the close temporal proximity between Walton's rejection of Conklin and the events resulting in the termination of Walton's employment less than three months later, is sufficient circumstantial evidence to satisfy the requirement that Walton have evidence of a ll the elements of the prima facie case of retaliation. If the plaintiff establishes a prima facie case of retaliation, the burden then shifts to th e employer to rebut the presumption by articulating legitimate, non-retaliatory reasons for its employment action. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11 th Cir. 1997); O lm s te d , 141 F.3d at 1460. "This intermediate burden is exceedingly light." Id. (internal q u o ta tio n s omitted). The employer has the burden of production, not of persuasion, and thus d o e s not have to persuade a court that it was actually motivated by the reason advanced. See M c D o n n e ll Douglas v. Green, 411 U.S. 792, 802 (1973); Texas Dep't of Comty. Affairs v. B u r d in e , 450 U.S. 248, 253-255 (1981). The provisions in Title VII against retaliation are designed and intended to prevent e m p lo ye rs from improperly punishing employees who have exercised their right to engage in protected conduct. These provisions are not intended to insulate an employee from d is c ip lin e for violating the employer's rules or disrupting the workplace.

34

O n c e the employer satisfies this burden of production, as Neptune has here, "the p re s u m p tio n of [retaliation] is eliminated and `the plaintiff has the opportunity to come f o rw a rd with evidence, including the previously produced evidence establishing the prima fa c ie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by th e employer were not the real reasons for the adverse employment decision.'" Chapman v. A I Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citations omitted). The establishment o f a prima facie case does not in itself entitle a plaintiff to survive a motion for summary j u d g m e n t. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987); Pace v. S o u t h e r n Ry. Sys., 701 F.2d 1383, 1389 (11th Cir. 1983). After an employer proffers nonr e ta lia to r y reasons for its actions, "[i]n order to avoid summary judgment, a plaintiff must p r o d u c e sufficient evidence for a reasonable factfinder to conclude that each of the e m p lo ye r's proffered . . . reasons is pretextual." Chapman, 229 F.3d at 1037. In support of her contention that Neptune's proffered reasons are pretextual again a p p e ars to argue that the timing of the events in question constitutes circumstantial evidence o f some connection between her protected conduct and her suspension and termination. C lo s e temporal proximity between protected conduct and an adverse employment decision ca n n o t alone create a genuine issue of material fact on the issue of whether the employer's p r o f f e re d non-retaliatory reason was pretextual. See, e.g., Wascura, 257 F.3d at 1245; S te w a r t v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287-88 (11th Cir. 1997); P a d r o n v. BellSouth Telecomm., Inc., 196 F. Supp. 2d 1250, 1256-60 (S.D. Fla. 2002), aff'd

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w ith o u t opinion, 62 Fed. App. 317 (11th Cir. 2003). Accord, Tran v. Trustees of State Colls. in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004). Walton argues far more than just the temporal proximity to establish evidence that the re a s o n given was a retaliation for pretext. She contends that Neptune did not follow its own p rog ressive discipline policy; however given the language of the policy itself, the Court c a n n o t say that is a fair and reasonable inference in this case. She contends that she never h a d any disciplinary problems during more than three years of employment until after she re b u f fe d Conklin.2 2 She notes the great many problems she had with Conklin criticizing her w o rk after she rebuffed him. She contends that Neptune gave false information about a prior w a r n in g having been given to her when it argued against her receiving unemployment c o m p e n s a tio n . She contends that Neptune did not ask for or listen to her version of the e v e n ts and conducted a one-sided investigation. She points to the involvement of Conklin a s a key force in influencing the decision to terminate her employment.2 3 Walton has

This argument is mostly supported by the evidence. She did have negative c o m m e n ts from a prior supervisor which resulted in a delay in her receiving a raise, but that w a s very early in her employment. Nearly all of the negative information in Walton's file c a m e after Conklin was her supervisor. Of course, Conklin is the person Walton charges had the motive to retaliate against h e r because of her rebuff of his sexual advances. Walton contends and Neptune does not d isp u te that rebuffing unwelcome sexual advances is protected conduct under Title VII. This m a k e s Conklin's involvement in sullying Walton's name and trying to get her discharged or d is c ip lin e d suspect especially in view of the timing of these events. Because there is no e v id e n c e that Conklin or anyone else at Neptune had any bias against Walton because of her a g e , the analysis is a bit different than that of the Walton's claim that her discharge c o n s titu te d age discrimination. 36
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p rese n ted evidence which if believed establishes that all the workers other than Walton were w a rn e d against failing to work during their whole shift on November 26, 2006; that on N o v e m b e r 27, 2006, Conklin was aware of a report by another supervisory employee a c cu s in g Walton of hiding in the bathroom to avoid work; and that on November 28, 2006, C o n k l i n exhorted Walton to hide in the bathroom at the end of her shift. Certainly, a re a so n a b le fact-finder could