Stokes v. Alfa Mutual Insurance Company

Filing 84

OPINION. Signed by Honorable Judge Myron H. Thompson on 11/9/2011. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

CARL W. STOKES,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ALFA MUTUAL INSURANCE
COMPANY,
Defendant.

CIVIL ACTION NO.
2:10cv512-MHT
(WO)

OPINION
Plaintiff

Carl

W.

Stokes

brings

this

federal

employment-discrimination action pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a, 2000e to 2000e–17, and the Civil Rights Act of
1866, as amended, 42 U.S.C. § 1981, against defendant
Alfa Mutual Insurance Company.

Stokes, a white male,

claims that Alfa discriminated against him because of his
race

and

sex

by

giving

him

a

less-than-favorable

performance review and then retaliated against him for
filing

a

charge

of

discrimination

with

Employment Opportunity Commission (“EEOC”).

the

Equal

Stokes has

since voluntarily dismissed his race-discrimination and
sex-discrimination claims.
is

Alfa’s

remaining

motion

for

retaliation

Now pending before the court

summary
claim.

judgment
For

the

on

Stokes’s

reasons

that

follow, that motion will be granted.

I.
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

The court must view the

admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
that party’s favor.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.
Stokes is an accountant.

He has been employed by

Alfa in that capacity since February 26, 2001.

2

His 2008

performance evaluation characterized his overall work as
“meets expectations minus.”1

That review entitled him to

a 2.75 % raise, a somewhat smaller increase than he would
have earned with a better evaluation.

Believing that his

low marks were motivated by animus towards white males,
rather than by his actual performance, Stokes filed a
charge of discrimination with the EEOC.
Alfa received notification of Stokes’s allegations on
April 29, 2009.
that

Alfa

In his retaliation claim, Stokes submits

responded

to

that

charge

by

initiating

a

harassment campaign against him.
Stokes identifies seven behaviors that he considers
unlawful retaliation.2 First, Stokes submits that, on the

1. Stokes has been “satisfied” with his three most
recent evaluations, which took place in January 2009,
January 2010, and January 2011. Stokes Dep. 18:4-19:10,
attachment to Submission in Supp. of Mot. for Summ. J.
(Doc. No. 64).
2. Stokes has characterized his retaliation claim in
slightly different (but substantially overlapping) ways
during the pendency of this action.
The court relies
primarily on the characterization contained in Stokes’s
response to Alfa’s motion for summary judgment, but has
(continued...)
3

morning of April 29, 2009, he was called into Chief
Accounting Officer Ralph Forsythe’s office and berated
for submitting a hundreds-of-pages-long response to his
2008-performance review.
Second,

Stokes

alleges

that

he

lacked

the

same

flexibility in altering his scheduled work hours that
Alfa afforded its other employees.

Instead, he was held

to a 40-hour week and forced to have his vacation time
pre-approved.
Third,

Stokes

purports

to

have

subjected to a “cold” work environment.

been

generally

For example, on

December 7, 2010, his direct supervisor, Mark Blackwell,
was “not happy” that he had requested personal time off
to facilitate the installation of DirectTV at his home.
Stokes Aff. 9-10, attachment to Resp. in Opp’n to Mot.
for Summ. J. (Doc. No. 72).

Stokes also alleges that, in

August 2010, his coworker Donna Delong “raised her voice”

2. (...continued)
also reviewed and considered those allegations contained
elsewhere in the record.
4

and

“screamed”

at

him

in

Blackwell’s

presence,

but

Blackwell “said nothing” in his defense.

Id. at 10.

Similarly,

after

Stokes

an

complaining

about

the

sent

quality

Blackwell
of

Delong’s

e-mail

work,

her

allegedly inappropriate behavior, and what he viewed as
the preferential treatment she was receiving, Delong
“stopped speaking” to him and “would not respond to [his]
Id. at 11.

e-mails.”

Fourth, Stokes alleges that his work product was
unduly scrutinized.
e-mails

relaying

obvious”

and

attention.

His supervisors would often send him
questions

therefore

Id. at 2-3.

that

should

not

“should
have

have

been

required

his

Stokes submits that these e-

mails were sent with the intention of “harassing” him or
“trick[ing
procedures.”

him]
Id.

into

doing

something

to

violate

Similarly, Blackwell frequently e-

mailed Stokes to inquire about the status of certain
pending assignments, even when Stokes had previously told
Blackwell that the task in question either had been or

5

soon would be completed.

Stokes explains that these e-

mails often delayed the completion of his assigned work
and hypothesizes that they were motivated by Blackwell’s
desire to “creat[e] a paper trail” for the purpose of
terminating him at some later date.

Id.

Finally, Stokes

recounts an incident where he was unduly criticized for
errors, including “font size shifts[] and ... several
misspelled words,” in charts that he helped create.
Fifth,

Stokes

alleges

that

his

supervisors

Id.
set

unrealistic goals for him and otherwise overburdened him
with assignments. Specifically, he reports ten instances
between July 28, 2009, and June 2, 2011, or less than one
incident every two months, where a supervisor requested
that he, or a member of his team, complete a specific
task that was outside the normal routine.

For example,

on March 3, 2010, Blackwell “e-mailed the group, asking
when the ledgers were open.”

Stokes submits that, as a

supervisor, Blackwell should have known this information.
Nevertheless, by asking the question, Blackwell forced

6

him to “look up the answer and take time to answer [it].”3
Id. at 4.
mailed

Similarly, on September 9, 2010, Blackwell e-

the

investigate

group
a

and

security

requested
issue.

that
Since

one

of

Stokes

them
lacked

security access, he informed Blackwell that he would be
unable to complete that task and one of his colleagues
would therefore have to handle it.

According to Stokes,

responding to Blackwell’s e-mail “took time away from
work on [his other] assigned tasks, thus adding pressure
to meet [his] deadlines.”

Id.

The other instances

Stokes complains of are similar to those described above,
and so there is no need to address them individually.
Sixth, Stokes submits that Blackwell would often
ignore his e-mails, sometimes taking as long as four days
to respond.4

This delayed Stokes’s ability to assist

3. Stokes does not explain how long answering this
question took or why Blackwell should not have asked him
questions, such as this one, that were directly related
to his job responsibilities.
4. Most of the specific instances of delay occurred
between December 2008 and May 2009, well before Alfa
(continued...)
7

others with the problems that they had brought to his
attention, thereby damaging his reputation.
Seventh, Stokes alleges that Blackwell once deleted
information from his task-management program.

Stokes

believes that this was “an attempt to cover up or hide
something,” but does not explain what that “something”
was or how it was connected to his EEOC complaint.5

Id.

at 9.

4. (...continued)
received
notice
of
Stokes’s
EEOC
complaint.
Nevertheless, because this behavior allegedly continued
into the relevant time period, the court has addressed it
as part of Stokes’s complaint.
5. Stokes’s affidavit is riddled with numerous other
accusations that, for one reason or another, do not make
their way into his brief. For example, Stokes alleges
that he was asked to refrain from copying his attorney on
internal
e-mails
and
to
cancel
some
scheduled
appointments that conflicted with his assigned job
responsibilities. Similarly, Stokes complains that his
birthday and ten-year anniversary of service with Alfa
were
insufficiently
celebrated.
None
of
those
allegations, either individually or in the aggregate,
demonstrate a prima-facie case of retaliation.
8

III.
To establish a prima-facie case of retaliation under
either Title VII or § 1981, Stokes must demonstrate that
(1) he engaged in protected activity; (2) he suffered a
materially adverse-employment action; and (3) there was
a causal connection between the protected activity and
the adverse-employment action.

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006); Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
is

“materially

adverse”

if

it

might

An action

dissuade

“a

reasonable worker from making or supporting a charge of
discrimination.”

Burlington, 548 U.S. at 67; see also

Gant v. Kash’n Karry Food Stores, Inc., 390 F. App’x 943,
945 (11th Cir. 2010) (per curiam) (applying “materially
adverse” element to both Title VII and § 1981 retaliation
claims).
The “materially adverse” requirement is designed “to
separate significant from trivial harms,” only the former
of which are actionable.

Burlington, 548 U.S. at 68.

9

In

the

retaliation

report

context,

discriminatory

an

“employee’s

behavior

cannot

decision

immunize

to

that

employee from those petty slights or minor annoyances
that often take place at work and that all employees
experience.”

Id.

While Stokes engaged in protected activity when he
filed the EEOC charge, his retaliation claim fails, as a
matter of law, because, with one exception discussed in
more detail later, he has suffered no materially adverseemployment action.

The vast majority of his grievances

are precisely the type of minor annoyances that fall
outside the purview of federal employment-discrimination
law.

See Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998).

Stokes’s most frequent complaint is

that his supervisors routinely e-mailed him additional
assignments, some of which were outside the traditional
scope of his responsibilities, and others of which his
supervisors could have handled themselves.

10

Stokes also

finds fault in his supervisors’ close scrutiny of his
work and their failure to recognize his accomplishments.
No doubt every reader of this opinion has experienced
similar treatment in the past.
norm.

Hard

work

often

Demanding bosses are the

goes

unnoticed.

Managers

frequently misunderstand the technical details of the
jobs that come naturally to their employees.

These

conditions, whether considered individually or in the
aggregate, are simply not actionable under Title VII or
§ 1981; otherwise, every employee in the United States
would have an arguable claim.
Stokes’s
unavailing.

remaining

allegations

are

similarly

Only actions that might reasonably dissuade

an employee from filing an EEOC complaint, including
termination, demotion, a decrease in wage or salary, a
change

in

significantly

title,

a

material

diminished

loss

of

responsibilities,

benefits,
formal

reprimands, and other actions that might be unique to a
particular situation, are considered materially adverse.

11

See Malladi v. Brown, 987 F. Supp. 898, 915 (M.D. Ala.
1997) (Thompson, C.J.) (citing Rabinovitz v. Pena, 89
F.3d 482, 488 (7th Cir. 1996)).

But Stokes does not

allege any behavior of that sort.

There were no threats

during the relevant time period, no demotions, and no
material changes in his job responsibilities.
throughout

the

pendency

of

this

action,

Indeed,

Stokes

has

continued his employment at Alfa and enjoyed his 2.75 %
raise.
Two of Stokes’s allegations, however, do warrant
special attention because, under other circumstances,
they

might

be

considered

evidence

of

an

employer’s

intention to create an inhospitable work environment
actionable under Title VII and § 1981.
First is Stokes’s allegation that he was berated by
Forsythe for filing a lengthy rebuttal to his 2008performance evaluation.

Even putting aside that all of

the admissible evidence in the record indicates that
Forsythe was unaware of Stokes’s EEOC complaint at the

12

time and that Stokes readily admits that this reprimand
was

motivated

by

his

rebuttal

and

not

by

any

EEOC

complaint, a factfinder would have to conclude that the
reprimand

cannot

be

considered

an

adverse-employment

action.6

The Eleventh Circuit has explained that “the

decision

to

reprimand

or

transfer

an

employee,

if

rescinded before the employee suffers a tangible harm, is
not an adverse employment action.”

Pennington v. City of

Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001).
has

identified

absolutely

resulting from this reprimand.

no

adverse

Stokes

consequence

Absent any consequence,

a reprimand for behavior wholly unrelated to the filing
of

an

EEOC

charge

would

not

reasonably

dissuade

an

6. Forsythe’s unawareness of Stokes’s EEOC complaint
serves as an independent reason to reject any retaliation
claim predicated on this reprimand.
Raney v. Vinson
Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)
(“[W]hile we have held that awareness of protected
expression may be established based on circumstantial
evidence, our cases have required plaintiffs to show a
defendant’s awareness with more evidence than mere
curious timing coupled with speculative theories.”).
13

employee from filing such a charge.

It therefore cannot

constitute an adverse-employment action.
Second, Stokes alleges that certain company policies
were not fairly applied.

For example, he alleges that

Delong was permitted to wear jeans on multiple occasions,
even though doing so violated Alfa’s dress code.

But

Stokes concedes that he never had any problems with the
dress code and was never reprimanded for noncompliance.
That Delong was permitted to wear jeans to work does not,
by itself, show any retaliatory mistreatment of Stokes.
Similarly, Stokes maintains that his hours were more
closely

scrutinized

than

those

of

his

colleagues.

Specifically, he was forced to maintain a 40-hour-work
week and have his vacation time pre-approved.

Even if

these conditions could constitute an adverse-employment
action, Stokes readily admits that Alfa took these steps
only after he began having trouble arriving to work on
time and limiting his lunch break to one hour.

There is

absolutely no evidence anywhere in the record that Alfa’s

14

monitoring of Stokes’s hours was retaliatory or motivated
by anything other than a desire to ensure that Stokes met
the

company’s

expectations

length of the workweek.

regarding

the

appropriate

Without such evidence, Stokes’s

retaliation claim, so far as it is predicated on Alfa’s
monitoring of his hours, must fail.

See Holifield v.

Reno, 115 F.3d 1555, 1567 (11th Cir. 1997).
At the pretrial conference held on November 2, 2011,
Stokes’s

attorney

suggested

that,

even

if

none

of

Stokes’s various allegations, when considered separately,
constitutes

an

adverse-employment

action

within

the

meaning of Title VII or § 1981, their cumulative effect
would dissuade a reasonable employee from filing an EEOC
charge

and

therefore,

together,

adverse-employment action.

they

constitute

an

There are two problems with

this theory.
First,

to

establish

a

prima-facie

case

of

retaliation, a plaintiff must show that “there was a
causal connection between the protected activity and the

15

adverse action.”

Howard v. Walgreen Co., 605 F.3d 1239,

1244 (11th Cir. 2010).
the

cumulative

Therefore, when assessing whether

impact

of

Alfa’s

various

wrongs

constitutes unlawful retaliation, the court can consider
only

those

actions

motivated,

at

least

in

part,

by

retaliatory animus.

Plaintiffs would otherwise be able

to

causation

circumvent

the

requirement

simply

by

alleging multiple, isolated instances of mistreatment
untethered from any protected activity and then asking
the court to consider them in the aggregate.

In this

case, Stokes has failed to draw any causal connection
between the vast majority of the complained of behavior
and his EEOC charge.7

The court is therefore unable to

rely on the aggregated effect of his various allegations
in determining whether Alfa took an adverse-employment
action against him.
Second, while this death-by-a-thousand-cuts approach
might

carry

the

day

when

an

employer,

motivated

by

7. This provides a sufficient, independent reason to
reject Stokes’s retaliation claim.
16

retaliatory animus, actually breaks the skin on one or
two occasions, see Ekokotu v. Fed. Express Corp., 408 F.
App’x 331, 339 (11th Cir. 2011), here none of the alleged
wrongs so much as left a bruise.

Therefore, even if

considered in the aggregate, Stokes’s accusations do not
describe working conditions severe enough to entitle him
to relief under federal law.

* * *
In

order

to

maintain

a

retaliation

claim,

the

plaintiff must demonstrate that his employer took some
adverse-employment action against him.

For the most

part, Stokes has failed to demonstrate any such action.
In the one instance where he may have shown adverse
treatment actionable under Title VII or § 1981, that
treatment

was

indisputably

a

response

to

his

own

misconduct and was in no way retaliation for filing the
EEOC charge.

Thus, for the foregoing reasons, the court

concludes that summary judgment should be granted in

17

favor of Alfa and against Stokes on his retaliation
claim.
An appropriate judgment will be entered.
DONE, this the 9th day of November, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE