Adkison v. Sikorsky Support Services, Inc.

Filing 42

MEMORANDUM OPINION AND ORDER as follows: 1) Granting 28 MOTION for Summary Judgment filed by Sikorsky Support Services, Inc.; 2) That the plaintiff's claims be and are hereby dismissed with prejudice; 3) That all pending deadlines are terminated and all pending motions are hereby denied as moot; and 4) That costs of this proceeding be and are hereby taxed against the plaintiff.. Signed by Honorable Charles S. Coody on 4/24/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A N E T ADKISON, P l a in tif f , v. S IK O R S K Y AIRCRAFT CORP., D e f e n d a n t. ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:08cv99-CSC

M E M O R A N D U M OPINION and ORDER I. INTRODUCTION P la in tif f Janet Adkison ("Adkison"), a white female, alleges a violation of 42 U.S.C. § 1981 against her prospective employer, Sikorsky Aircraft Corporation ("Sikorsky"). A d k is o n contends that she was discriminated against when she was dismissed from a m a n d a to ry pre-employment training program because of her relationship with an AfricanA m erican man. Adkison seeks compensatory damages, punitive damages, and attorney's fees. The court has jurisdiction of this claim pursuant to 28 U.S.C. § 1331 and § 1343. P u r s u a n t to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a U n ited States Magistrate Judge conducting all proceedings in this case and ordering the entry o f final judgment. T h is action is now pending before the court on Sikorsky's motion for summary ju d g m e n t. Adkison has filed a response in opposition to the motion. The court has carefully

re v ie w e d the defendant's motion, the briefs filed in support of and in opposition to the m o tio n , and the supporting and opposing evidentiary materials. Based on that review, the c o u rt concludes that Sikorsky'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 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

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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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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 re 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 b e liev e d and all justifiable inferences must be drawn in favor of the non-movant.2 Anderson,

"[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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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 Adkison 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 . Plaintiff Janet Adkison ("Adkison") who is white is engaged to Keith Sistrunk ("S istrun k ") who is African-American. They have lived together for over two years. (Pl's D ep . at 9). Sistrunk works at Sikorsky. (Id. at 47). Adkison found out that Sikorsky was h irin g 3 so she applied at the unemployment office at the Career Center in Troy, Alabama.4 (Id . at 50 & 53). Sikorsky was seeking applicants for "Aircraft Manufacturing/Support Technicians." (P l's Res. in Opp. to Mot. for Summ. J., Def's Ex. 3 attached to Dep. Janet Adkison). The g e n e ra l requirements of the position included: A high school diploma or GED is required. Mechanical aptitude, basic math s k ills , previous experience in manufacturing, production line, blueprint re a d in g , sheet metal and aircraft manufacturing preferred, but not required for

Adkison testified that she saw advertising on television and heard on the radio that Sikorsky was hiring. (Pl's Dep. at 50 & 53).
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The Career Center is referred to as AIDT in all the records.

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tr a in in g . (Id.) Adkison applied for employment on October 5, 2006. (Pl's Dep. at 61). After an in te rv ie w , she was selected to attend the training program that was scheduled to begin on N o v e m b e r 13, 2006. (Id. at 69-70). The training program required applicants to complete " 6 0 hours of instruction in aircraft manufacturing skills for producing helicopters." (Ex. H, A f f . Kevin Taylor, at 2, ¶ 5, doc. #28). "Among the topics covered in the training program are orientation, basic math, measurements, blueprint reading, plant safety, tool and hardware f a m ilia riz a tio n and hands-on training shooting rivets." (Id.). The eight week-long program held classes on Monday and Wednesday nights for four h o u rs each night. (Def's Ex. 5 attached to Pl's Dep.). Twenty-five students, including A d k iso n , attended the program. (Def's Ex. 8 attached to Pl's Dep.). The first class was held o n November 13, 200, and was a general orientation class. (Pl's Dep. at 74; Def's Mot. for S u m m . J., Ex. J). Josh Downs ("Downs") taught the second class which was math. (Id. at 9 0 & 104; Def's Mot. for Summ. J., Ex. J). During the break that night, Adkison and S is tru n k sat together at a table in the break room. (Pl's Dep. at 107). Although Adkison "didn't really notice him looking" at her, after the break she n o tic e d a change in Downs' attitude. (Id.). "[H]is tone of voice [was] different" and he was s a rc a s tic . (Id. at 105). Adkison concedes, however, that Downs' attitude was "not much" d if f ere n t and it was not "really that big of a deal." (Id. at 107 & 109).

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O n November 16, 2006, Adkison received a letter from Sikorsky conditionally o f f e rin g her employment as a senior aircraft processor. (Def's Ex. 6 attached to Pl's Dep.) Y o u r offer of employment is contingent upon satisfactory completion of our est ab lish ed employment requirements, which include: a personal history v e rif ic a tio n , medical history review, drug screening, Intellectual Property and C o d e of Conduct agreements, proof of your right to work in the United States a n d an Export Compliance Control Verification Form. You will be required to successfully complete the AIDT Training Course with the class you are c u rre n tly enrolled in to maintain your employment with Sikorsky. ( I d .) No classes were held during Thanksgiving week. (Pl's Dep. at 98-99). Class resumed o n November 27, 2006 with shop tools and safety. (Def's Mot. for Summ. J., Ex. J). B lu e p rin t reading was on November 29 and December 6, 2006 with precision measuring too ls being taught on December 4, 2006. (Pl's Dep. at 98-99). D o w n s taught the blueprint reading class on November 29, 2006 ­ the beginning of th e end for Adkison. During a class break, the following transpired. That night when we went to break Keith was out there and I didn't have any m o n e y with me, any cash, and I asked him did he have any change so he gave m e a dollar. When we walked in, Josh was standing at a drink machine talking to a guy. And me and Keith walked in, he looked at us. Keith sat down and h is back was to Josh but I could see him and he was staring like ­ he looked lik e he was just mad. And the guy talking to him, I don't remember who it w a s , it was somebody in the class, and Josh didn't even look at him. He just k e p t his eyes on us and he was just like he was going to look through us like. A n d I got up and went to the drink machine. I got a Coke and sat back down, a n d he kept staring. And he looked ­ the way he was staring was like, you k n o w , just he was mad. (Id . at 110).

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A c c o rd in g to Adkison, after the staring incident in the break room, Downs treated her d if f e re n tly in class. (Id. at 133). "[E]very time I opened my mouth then to ask him s o m e th in g he would be smart. I finally just quit asking him anything." (Id.). He questioned w h e t h e r she was taking notes and he suggested that she move to the front of the class.5 (Id. a t 133-34). She concedes that Downs did not single her out but when she asked a question, " h e would be really smart." (Id. at 143). On December 11 and 13, 2006, the class was on shooting and drilling rivets. (Def's M o t. for Summ. J., Ex. J). Adkison was at a table with three other women, Linda Loeffler (" L o e f f le r" ), Mearlean Pritchett ("Pritchett") and Charlotte Carter ("Carter"). (Pl's Dep. at 1 6 2 -6 3 ). Adkison was paired with Loeffler while Pritchett and Carter worked together. (Id.) T h e instructor, Benny Bagwell ("Bagwell"), spent more time at Adkison's table that night. (Id . at 171). Loeffler complained that Adkison was "pushing" too hard for her and "one time th e little metal was kind of bowed instead of straight but nothing major." (Id. at 172). A d k iso n also asked whether they were "going to have to do [drill] our own holes or would th e y be predrilled." (Id. at 173). Nonetheless, Bagwell told Loeffler and Adkison that they w e re "doing real good." (Id. at 181). After the second riveting class, on December 14, 2006, Adkison was terminated from th e training program. She received a call from the Career Center informing her that the C e n te r had been informed that Sikorsky would not consider Adkison for employment. (Id.

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Adkison did not move her seat because she was "fine" where she was. (Id. at 134).

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a t 182). According to Sikorsky, Adkison was terminated from the program because of "her te c h n ic a l skills." (Ex. H, Aff. Kevin Taylor, at 2, ¶ 6, doc. #28; Def's Mot. for Summ. J., Ex. T ). [I]t became clear to her instructors that [Adkison] did not demonstrate an a c ce p ta b le understanding of blue prints or of rivet installation, both key c o m p o n e n ts of the newly offered job. The overall evaluation of the instructor w a s that she did not possess the skills essential to the position, and therefore, sh e should not be considered for employment. (D ef 's Mot. for Summ. J., Ex. E at 12). A d k is o n filed this action on February 11, 2008. B. RACE DISCRIMINATION CLAIM T h is action is brought pursuant to 42 U.S.C. § 1981. Section 1981 provides, in p e rtin e n t part: (a ) All persons within the jurisdiction of the United States shall have the same rig h t in every State . . . to make and enforce contracts, . . . and to the full and e q u a l benefit of all laws and proceedings for the security of persons and p ro p e rty as is enjoyed by white citizens, . . . (b) For purposes of this section, the term "make and enforce contracts" in c l u d e s the making, performance, modification, and termination of contracts, a n d the enjoyment of all benefits, privileges, terms, and conditions of the c o n tra c tu a l relationship. 4 2 U.S.C. § 1981. Section 1981 "prohibits intentional race discrimination in the making and e n f o rc e m e n t of public and private contracts, including employment contracts." Ferrill v. P a r k e r Group, 168 F.3d 468, 472 (11 th Cir. 1999). Thus, section 1981 provides a cause of ac tio n for race-based employment discrimination, and the same prima facie elements are

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req u ired to prove a 42 U.S.C. § 1981 discrimination claim as are required to prove a Title VII d is c rim in a tio n claim. Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Brown v. A m e r ic a n Honda Motor Co., 939 F.2d 946 (11 th Cir. 1991). The allocation of burdens and elem en ts of a prima facie case are the same for employment claims stemming from Title VII a n d section 1981. See Richardson v. Leeds Police Dep't., 71 F.3d 801, 805 (11 th Cir. 1995); T u r n e s v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11 th Cir. 1994); Howard v. BP Oil Co., In c ., 32 F.3d 520 (11 th Cir. 1994). In an employment discrimination case, the plaintiff bears the ultimate burden of p ro v in g that the defendant intentionally discriminated against her. Texas Dep't. of Cmty. A ffa ir s v. Burdine, 450 U.S. 248, 253 (1981). This Circuit has consistently held that federal c o u rts , in resolving employment discrimination claims, do not review the accuracy of an e m p lo ye r' s decision to terminate a plaintiff's employment. See e.g., Jones v. Bessemer C a r r a w a y Med. Ctr., 151 F.3d 1321, 1321 n.16 (11 th Cir. 1998) (citing Nix v. WLCY R a d io /R a h a ll Commc'ns, 738 F.2d 1181, 1187 (11 th Cir. 1984) ("Title VII is not a shield a g a in s t harsh treatment at the workplace.")). Adkison contends that Downs recommended that she be terminated from the m a n d a to ry pre-employment training program because of her relationship with Sistrunk, an A f ric a n -A m e ric a n male. It has long been recognized in this circuit that section 1981and Title V II prohibit discrimination based upon interracial marriage or association. See Parr v. W o o d m e n of the World Life Ins. Co., 791 F.2d 888, 890 (11 th Cir. 1986); Kelser v. Alcazar

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S h r in e r s , 2007 WL 484551 (M.D. Ala. Feb. 9, 2007) (No. 2:06-cv-818). To defeat the d e f e n d a n t 's motion for summary judgment, Adkison must first establish a prima facie case o f discrimination by one of three generally accepted methods: (1) presenting direct evidence o f discriminatory intent; (2) presenting evidence to satisfy the four-part circumstantial e v id e n c e test set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); or (3) p re s e n t i n g statistical proof. Carter v. City of Miami, 870 F.2d 578, 581 (11 th Cir. 1989).6 B e c au s e Adkison has not presented any direct or statistical evidence supporting her claim of inten tio n al discrimination, the court proceeds to examine the plaintiff's claim under the fourp a rt circumstantial evidence test. See Nix, 738 F.2d at 1184 (noting that the McDonnell D o u g la s framework is a valuable tool for analyzing disparate treatment cases); Edwards v. W a lla c e Cmty Coll., 49 F.3d 1517, 1521 (11 th Cir. 1995). Adkison argues that she has subjected to disparate treatment because she was d is m is s e d from the training program while African-American applicants who were doing

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). Adkison does not argue that there exists direct evidence of intentional discrimination in this case, nor has she presented any statistical evidence supporting her claims of intentional discrimination.

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w o rse than her in class, were not removed.7 To establish a prima facie case of disparate tre a tm e n t, Adkison must show that there were applicants who were similarly situated to her b u t were treated more favorably than her.8 See Walker v. Mortham, 158 F.3d 1177, 1193 (1 1 th Cir. 1998); Holifield v. Reno, 115 F.3d 1555, 1561 (11 th Cir. 1997). The parties do not d is p u te that Adkison was dismissed from the mandatory preemployment training program w h ile African-American applicants were not. Consequently, the dispositive issue for the c o u r t is whether there were similarly situated applicants who were equally lacking or worse in skills and ability than Adkison but received better or more favorable treatment than her. S e e Maniccia v. Brown, 171 F.3d 1364, 1368 (11 th Cir. 1999) (citing Jones v. Bessemer C a r r a w a y Med. Ctr., 137 F.3d 1306, 1311 (11 th Cir. 1998) modified by, 151 F.3d 1321 (11 th C ir. 1998)).9 The question of whether the plaintiff is similarly situated with other employees

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As stated by the plaintiff, her claim is as follows:

Thirdly, Plaintiff was treated differently than similarly-situated employees (or in the instant case, similarly-situated trainees). The Defendant's brief points out that there were two other females who were doing worse than Plaintiff in the case, and those females were AfricanAmerican. Defendant further states that not only did Mr. Downs not dismiss them from the class, but Defendant subsequently hired them after they completed the training class. (Pl's Br. in Opp. to Def's Mot. for Summ. J. at 17). It is not necessary for Adkison to demonstrate that she is a member of a protected class because this general prima facie requirement is inapplicable to a discrimination claim based on interracial association. "Where a plaintiff claims discrimination based upon an interracial marriage or association, [s]he alleges, by definition, that [s]he has been discriminated against because of [her] race. It makes no difference whether the plaintiff specifically alleges in [her] complaint that [s]he has been discriminated against because of [her] race." Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986). The part of this opinion dealing with the establishment of a prima facie case by circumstantial evidence was not superceded by Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321 (11th Cir. 1998). Only the part of the Court's opinion regarding direct evidence was superceded.
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is critical. See Marshall v. Western Grain Co., Inc., 838 F.2d 1165, 1168 (11 th Cir. 1988) (c itin g Kendall v. Block, 821 F.2d 1142 (5 th Cir. 1987)).1 0 It is Adkison's burden to prove that a similarly situated person received better or more f a v o ra b le treatment. See e.g., Holifield, 115 F.3d at 1565. In applying this standard, an a lle g a tio n of a similarly-situated comparator, without an adequate showing that the plaintiff is similarly situated, fails to establish a prima facie case of employment discrimination. M a lla d i v. Brown, 987 F. Supp. 893, 909-910 (M.D. Ala. 1997) aff'd by United States v P o n d e r, 150 F.3d 1197 (11 th Cir. 1998). Adkison alleges that she is similarly situated to the two African-American applicants in the training program ­ Mearlean Pritchett and Charlotte Carter.1 1 Adkison complains that s h e was dismissed from the training program while Pritchett and Carter, who were "as bad" as her, were not. After careful review, the court concludes that Adkison's evidentiary su b m iss io n does not create a genuine issue of material fact about whether she was similarly s itu a te d to either Pritchett or Carter. Although Adkison alleges that Pritchett and Carter performed "worse" than her in riv e tin g class, she offers no facts from which the court could conclude that her performance w a s the same or better than Pritchett or Carter's. Her own unsubstantiated opinion she was

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Although Adkison does not name these two applicants, the court culled their identities from the evidentiary submissions in support of and in opposition to the motion for summary judgment.
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a better student than either Pritchett and Carter is not an appropriate proxy for evidence. The m e re fact that Bagwell told Sistruck that Adkison "had some trouble like others but that she w a s decent and fair" in his classes is insufficient to create a genuine issue of material fact. B a g w e ll conceded that Adkison was near the bottom of the class and that there was only one o th e r employee worse than her. (Id. 23-24). The only evidence that tends to demonstrate that Adkison was similarly situated to P ritch e tt and Carter is Bagwell's testimony that the three applicants had more difficulty with th e "hands-on" portion of the classes than other applicants, and that they all struggled with riv e tin g . (Def's Mot. for Summ. J., Ex. K, Dep. Bagwell at 11 & 33-34). It is undisputed th a t the ability to shoot rivets was "very important" to Sikorsky. (Id. at 34). That's really the main ­ Every job on the floor, you know, will have that into it. You have to be able to do that and take them out, you know, drill them out. Y o u have to be able to operate a drill pretty efficiently. ( I d .) H o w e v e r, this evidence is insufficient to defeat summary judgment. Other undisputed e v id e n c e in the record demonstrates that Adkison had deficiencies beyond riveting. Adkison h a d difficulty with basic math and grasping general concepts. (Def's Mot. for Summ. J., Ex. N at 1, ¶ 3). She also had "little experience with power tools." (Id.). There is no evidence b e f o re the court that Pritchett or Carter had difficulty with basic concepts or math. M o re o v e r, the record is absolutely silent as to whether Pritchett and Carter had experience u s in g power tools.

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A d k is o n 's interactions with Downs in different classes militates against a finding that s h e was similarly situated to Pritchett or Carter. For example, prior to being dismissed, D o w n s advised Adkison to cut her fingernails. (Id.). Adkison flatly rejected that suggestion. S h e refused to cut her nails even after Downs told her that her artificial nails would make it d if f ic u lt for her to work with the requisite power tools of the job. (Def's Mot. for Summ. J., E x . K at 12). "[I]t was mentioned, you know, that nails would be a hindrance and it's not the p la c e, you know, for that." (Id.). Downs told Adkison that her nails "would be in the way," b u t Adkison replied that "they were staying." (Id. at 30-32). According to Loeffler, Adkison s a id "oh, no, I don't cut my fingernails. I've always had these." (Def's Mot. for Summ. J., E x . M at 12). Adkison does not suggest, and there is no evidence before the court, that either P ritche tt or Carter had fingernails that matched Adkison's in length or that their nails were a n issue during any of the training classes, particularly the riveting class. Downs also taught the blueprint reading class which was "pretty important, too, b e c au s e you have to be able to tell what you're looking at and what to do, how many f a s te n e rs go in, what type of fasteners. It's something that you have to be able to do, too." (D e f 's Mot. for Summ. J., Ex. K, Dep. Bagwell at 35). In one of Downs' classes, Adkison a sk e d at least one question that Downs thought "was sort of not a smart question." (Id. at 35). It is undisputed that Downs recommended Adkison not be hired because "he didn't feel like s h e was going to cut it." (Id. at 27). There is no evidence before the court that either P r itc h e tt or Carter asked questions that led Downs to question their ability to perform the job.

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In sum, the evidence shows that Adkison had difficulty with general concepts and m a th , struggled with riveting and operating power tools, asked questions that led an in s tru c to r to question her abilities and rejected suggestions by the same instructor designed to help her succeed in the class, i.e., to move to the front of the class or cut her nails. By c o m p a riso n , there is no evidence before the court that Pritchett or Carter had difficulty with m a th or other general concepts or that their experience with power tools was similarly la c k in g . The evidence does not demonstrate that either Pritchett or Carter asked questions o r rejected suggestions from an instructor. Consequently, the court concludes that Adkison h a s failed to demonstrate that she was similarly situated to either Pritchett or Carter, and th u s , they are not proper comparators to her. The court further concludes that Adkison has f a ile d to demonstrate a prima facie case of discrimination under the disparate treatment th e o ry because she has failed to demonstrate that she is similarly situated to comparators who w ere treated more favorably than her. M o r e importantly, however, Adkison has come forward with no evidence to suggest th a t she was removed from the training program because she was involved in an interracial re la tio n s h i p with Sistrunk. Her reason for believing that her removal from the training p ro g ra m was based on racial animus rests on rank speculation. Q: W o u ld I be correct that the only reason that you believe [Downs] tre a te d you the way he did is because you were in a relationship with an A f r ic a n - A m e r ic a n employee, the only reason you think that is because o f him looking at the two of you that night in the breakroom? B a s ic a lly, that's what I think because I saw the way he looked at us. 15

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(P l's Dep. at 138-39). By her own admission, the break room was crowded that night. (Id. at 121). She o f f ers no admissible evidence that Downs knew that she and Sistrunk were dating.1 2 Her o w n unsubstantiated opinion that Downs' decision to recommend her removal was somehow m o tiv ated by her relationship with Sistrunk is simply insufficient to defeat summary ju d g m e n t. A d k is o n presents no facts from which the court could conclude that her dismissal from th e training program was due to her relationship with Sistrunk or that Downs' re c o m m e n d a tio n was motivated by racial animus. Adkison asserts that Downs more likely than not thought the two [African American] women were la z y but that apparently is not enough to incite him to discriminate against h i rin g them. But the interracial relationship was a step too far for Mr. Downs, a s evidenced by his glaring stare toward Plaintiff and her boyfriend as they sat i n the break room. It was evidenced by his snide and curt attitude that he d is p la ye d towards Plaintiff in the classroom in front of all the trainees afer he d isc o v e re d the interracial relationship. It was evidenced by the fact that he did n o t even bother to discuss Plaintiff's dismissal with the other instructors ­ he m a d e this decision on his own ­ even though Plaintiff was not the worst tra in e e in the class. It is true he did not dismiss the African American women w h o were not doing as well as the Plaintiff, but Plaintiff was dismissed b e c au s e she dared to have an interracial relationship with an African American m a n and that was the reason that Plaintiff was treated differently than anyone e ls e similarly-situated in the class.

Adkison seeks to rely on Sanders' deposition testimony to establish that Downs knew that Adkison and Sistrunk were dating. Her reliance is misplaced. Sanders testified that Downs asked him to identify Sistrunk and then Downs asked if Adkison and Sistrunk dated. Sanders replied that he thought Adkison was Sistrunk's girlfriend. This hearsay evidence is simply inconsistent with the requirements of FE D . R. CIV. P. 56(e). Thus, Adkison's reliance on this inadmissible hearsay evidence does not create a factual issue regarding Downs' knowledge about her relationship with Sistrunk.

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(P l's Br. in Opp. to Def's Mot. for Summ. J. at 18) (emphasis in the original).1 3 A d k is o n 's self-serving rhetoric, with no attendant facts, is simply insufficient to defeat s u m m a ry judgment. Adkison offers no evidence, other than her own speculative opinion, th a t her removal are motivated by race discrimination. She cannot rely on her own

u n s u b s ta n tia te d opinion that the decision was somehow motivated by an improper motive. "[ U ]nsu b stan tiated assertions alone are not enough to withstand a motion for summary j u d g m e n t." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11 th Cir. 1987). See e.g., C a r te r v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11 th Cir. 1998) (c o n c lu s o r y 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 interracial relationship or that her removal from the training p r o g r a m was based on improper motives. The law does not require, nor could it ever realistically require, employers to tre a t all of their employees all of the time in all matters with absolute, a n tis e p tic , hindsight equality. What the law does require is that an employer n o t discriminate against an employee on the basis of the employee's protected c la s s characteristics. E .E .O .C . v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10 th Cir. 1992).

Adkison cannot rely on Sanders' deposition testimony that Downs made statements that African Americans were lazy and lacked work ethics as this hearsay evidence is again inconsistent with the requirements of FED. R. CIV. P. 56(e), and inadmissible.

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W h i le the plaintiff may disagree that her performance 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 th e level of the Plaintiff's offense, the reasonableness of [the defendant's] disciplinary p o licie s are not a consideration."). Regardless of whether Adkison believes that she should h a v e been given more opportunity to master the necessary skills, she has presented no e v id e n c e that the decision to remove her from the training program was racially motivated. I n fact, Adkison points the court to no evidence that suggests that Downs was biased against A f ric a n -A m e ric a n employees in general, or Adkison in particular, because she was involved in a relationship with Sistrunk. (Def's Mot. for Summ. J., Ex. K at 36-37). While section § 1981 prohibits discrimination, it is not a shield against harsh treatment a t the work place. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5 th Cir. 1981). For th e reasons stated, the court concludes that the plaintiff has failed to demonstrate a prima f a c ie case of discrimination under the disparate treatment theory because she has failed to d e m o n s tra te that she was similarly situated to others who were treated more favorably than s h e . See Holifield, 115 F.3d at 1562 (holding that, if a plaintiff cannot show there was a s im ila rly situated employee, "summary judgment is appropriate where no other evidence of d is c rim in a tio n is present"). Consequently, the defendant is entitled to summary judgment o n her claim of racial discrimination.

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I V . CONCLUSION A c c o rd in g ly, it is O R D E R E D and ADJUDGED as follows: 1. GRANTED; 2. 3. T h a t the plaintiff's claims be and are hereby DISMISSED with prejudice; T h a t all pending deadlines are terminated and all pending motions are hereby T h a t the defendant's motion for summary judgment be and is hereby

D E N IE D as moot; and 4. T h a t costs of this proceeding be and are hereby taxed against the plaintiff.

A separate judgement will issue. Done this 24 th day of April, 2009.

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

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