Wood v. Bailey-Harris Construction Company (LEAD)
MEMORANDUM OPINION AND ORDER that 18 MOTION for Summary Judgment is GRANTED as to both Counts, and judgment will be entered in favor of Bailey-Harris. Signed by Honorable Judge W. Harold Albritton, III on 7/27/2012. (cc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
OCIE WOOD, JR.,
) CIVIL ACTION NO. 2:11-cv-136-WHA
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion for Summary Judgment filed by Defendant,
Bailey-Harris Construction Company, Inc. (“Bailey-Harris”), on March 2, 2012 (Doc. # 18). The
Plaintiff, Ocie Wood, Jr. (“Wood”), filed a Complaint on February 25, 2011 (Doc. # 1), alleging
two counts: Count One – racial discrimination brought pursuant to Title VII and 42 U.S.C. §
1981, and Count Two – retaliation brought pursuant to Title VII and 42 U.S.C. § 1981. Wood
filed a Response to Bailey-Harris’s Motion for Summary Judgment (Doc. # 41) on May 25, 2012,
and Bailey-Harris filed a Reply to Wood’s Response (Doc. # 42) on June 1, 2012.
The court has federal question subject matter jurisdiction over these claims. See 28
U.S.C. § 1331.
For the reasons to be discussed, the Defendant’s Motion for Summary Judgment is due to
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, 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 following is an account of the relevant facts with all justifiable inferences drawn in
favor of the non-moving party:
The Retirement System of Alabama (“RSA”) commissioned a construction project for a
twelve-story office building on Dexter Avenue in Montgomery, Alabama. The Defendant,
Bailey-Harris, entered a successful bid to become the Prime Contractor for the RSA’s Dexter
Avenue building project (“the Project”). RSA also retained JESCO, Inc. (“JESCO”) to serve as
the Construction Manager for the Project. Bailey-Harris subcontracted different aspects of the
Project including most aspects of the concrete work.
In the spring of 2009, Wood, an African-American, sought employment from BaileyHarris. Initially, David Nowling (“Nowling”), who served as Bailey-Harris’s concrete
superintendent, explained to Wood that the concrete finishing work was still being subcontracted
out but that Bailey-Harris would eventually be looking to employ concrete rubbers. Concrete
rubbing is a process generally used to remove superficial defects in the concrete. Concrete
finishing, however, is a more involved and skilled process which is done to smooth, compact,
and level horizontal concrete slabs.
As of February and March 2009, the concrete rubbing work on the Project was behind
schedule and was not of acceptable quality. Bailey-Harris brought in a concrete specialist from
another company in an attempt to fix the problems with the concrete, but the specialist was
unable to remedy the problem. Accordingly, Bailey-Harris determined that a conventional
concrete rubbing technique was going to be insufficient and instead began to experiment off-site
with different concrete rubbing techniques. Bailey-Harris finally decided on a method of
concrete rubbing which involved the use of a cementitious product called Tammscoat. BaileyHarris obtained the approval of the architects employed on the Project to use Tammscoat and
began using the new concrete rubbing process on May 13, 2009. The new process consisted of
two distinct parts. First, from May 13, 2009 until June 24, 2009, the concrete rubbers were to
create a uniform texture on the concrete. Then on June 24, the concrete rubbers would begin to
apply the Tammscoat product to the concrete using rollers.
Wood was hired by Bailey-Harris in early June, and began work on June 3, 2009. Prior to
being hired, Wood was interviewed by Nowling and the Senior Project Superintendant for
Bailey-Harris, Bobby Cumbess. During that interview, Nowling and Bobby Cumbess learned
that Wood had extensive experience in the concrete industry as a finisher, rubber, foreman, and a
supervisor. They also learned that Wood wanted a foreman or finisher position and expected a
pay rate of $18.00 or $20.00 an hour. Instead, Wood was hired by Bailey-Harris as a concrete
rubber at a rate of $12.00 an hour, which was a wage that was equal to or higher than the wage
that all other concrete rubbers were making. Wood complained about this wage to Nowling who
told him that after the economy picked up Wood would be able to get a higher wage.
Wood’s first job assignments were consistent with the first phase of Bailey-Harris’s new
concrete rubbing plan, and accordingly, he spent most of his time working on defects in the
concrete. Wood received no disciplinary action for his work during this time.
In mid-June, Nowling found it increasingly difficult to supervise all of the concrete work
for the Project, so he decided to hire a foreman to help him supervise. Bobby Cumbess’s son, Bo
Cumbess, who is white, was hired for the position. Nowling testified in his deposition that he
hired Bo Cumbess because of Bobby Cumbess’s recommendation and because he had experience
with stucco, dry wall, concrete, and Tammscoat, and had supervisor experience. Bo Cumbess
was hired to be a foreman, although Bailey-Harris’s internal paperwork at the time of the hire
listed Bo Cumbess as a “Carpenter’s Helper” instead of a foreman. Bo Cumbess’s wage was
$13.00 an hour.
The position for which Bo Cumbess was hired was not publically posted, and Wood was
not given an opportunity to apply for the position despite Nowling knowing that Wood was
interested in a foreman or supervisor position and that Wood had served in the concrete industry
longer and had more experience than Bo Cumbess. Wood, despite having never seen Bo
Cumbess’s resume, has testified in his deposition that he did not think that Bo Cumbess had ever
worked in concrete and that Bo Cumbess had no idea what he was doing. He further testified
that he had to train Bo Cumbess because he was not able to perform the work. Bailey-Harris has
put forth undisputed evidence that Bo Cumbess had experience both with rubbing concrete and
applying the Tammscoat product. Wood’s experience was solely with concrete rubbing and
finishing. Moreover, Bo Cumbess was hired just before the second phase of the concrete rubbing
process, the Tammscoat application phase, was to begin.
It is undisputed that Wood and Bo Cumbess filled two different roles at Bailey-Harris,
that Wood was aware that Bo Cumbess was his foreman, and that Bo Cumbess was paid a higher
wage than Wood. Wood testifies that it is his belief that Bo Cumbess’s hiring was due to his
skin color and his being Bobby Cumbess’s son.
On July 6, 2009, Wood complained to Dennis Gillispie (“Gillispie”), who was a
Supervisor of the Project, and Bobby Cumbess that he was being discriminated against by
Bailey-Harris and that he was underpaid because of his race. Wood told Gillispie that BaileyHarris did not pay “Blacks” the same as “Hispanics” and “Whites.” Wood also showed Gillispie
that he had the business card for EEOC investigator Kevan Jackson (“Jackson”), but the evidence
before the court from Wood’s deposition makes it clear that Wood never spoke about or made
any complaint about Bailey-Harris to Jackson.
However, the July 6, 2009 Daily Report written by Nowling states that Wood told
Nowling that the EEOC had contacted him about Bailey-Harris, and Nowling passed this
information on to Wendy Michael at the home office of Bailey-Harris so that she could be
expecting a call from the EEOC. Nowling, Bobby Cumbess, and Gillispie all met with Richard
Lovelace (“Lovelace”), who was the Senior Project Manager, to share Wood’s complaint with
him. Although, all four of the men discussed the complaint, no further action was taken as to
Wood’s complaint, and there is no evidence before the court that Jackson or anyone else with the
EEOC contacted Bailey-Harris about the July 6, 2009 incident.
Wood also testified that he believed that Gillispie and Bobby Cumbess did not take his
complaint seriously because nothing changed.
On August 15, 2009, Nowling was in the vicinity of Wood as he was complaining to
another worker about Bo Cumbess being hired as foreman of the rubbing crew. Nowling heard
the complaint and explained to Wood that he was being paid fairly, that he was not being paid
less than any of his coworkers, and that it was not good for the company to have one person
attempting to stir up controversy among the workers by causing a mutiny. Nowling reported
Wood’s August 15, 2009 complaint to Lovelace, but there is no evidence that any further action
was taken to investigate Wood’s complaints.
On August 20, 2009, after Wood and Rodney Smith (“Smith”), another AfricanAmerican concrete rubber employed with Bailey-Harris, finished their work day, the two workers
went to the RSA building in order to complain to Dr. Bronner, the CEO of RSA, about their
discriminatory pay rates, and also about what they contended was poor quality work being done
by Bailey-Harris. When the two men arrived at the RSA building, they asked the security guard
to let them speak to Dr. Bronner about these complaints, but Dr. Bronner’s office instead
contacted Brian Slaughter (“Slaughter”), Senior Project Manager for JESCO, to come down to
speak with the two men. The two men complained to Slaughter that Bailey-Harris was engaging
in racial discrimination by paying both men too little and also that Bailey-Harris was engaging in
low quality work on the RSA building. Slaughter testified that one of the men was speaking in
an elevated voice and that it was clear that both men were upset; however, Slaughter testified that
the men were not acting hostile. After hearing the two men’s complaints, Slaughter then asked
the two men to leave, and they complied. After the two men had left, Slaughter called Lovelace
to tell him about the incident. Lovelace then contacted Nowling. Nowling, Gillispie, and Tony
Burnham (“Burnham”), Bailey-Harris’s Site Safety Manager, went to the RSA building to see
which two employees had been complaining.
By the time that Nowling, Gillispie, and Burnham arrived at the RSA building, Smith and
Wood had already left. However, the three men asked Slaughter for details about the incident.
Slaughter informed the men about the identity of the two complaining employees, and also about
the content of their complaints: that the men felt that they were underpaid, that the work that
Bailey-Harris was doing was of low quality, and that Bailey-Harris was trying to cover up shoddy
work. Moreover, Slaughter explained that Wood and Smith complained about having to train
“Mexican” employees who were making more money than they were. Nowling documented the
events that took place at the RSA building and noted that Wood and Smith had complained about
their wages and had done so in a loud manner.
The next day, August 21, 2009, Lovelace, Burnham, Nowling, and Gillispie met with
Wood and Smith to discuss the events at the RSA building. Lovelace, Burnham, Nowling, and
Gillispie told Wood and Smith that the two used an improper method to express their complaints
about Bailey-Harris and reprimanded the two for making damaging remarks about BaileyHarris’s work to Slaughter. Ultimately, Lovelace, Burnham, Nowling, and Gillispie decided that
Bailey-Harris would not be able to pay Wood and Smith a wage that would satisfy them, and
decided to terminate Wood and Smith because of that fact and because of Wood and Smith’s
decision to disparage Bailey-Harris to JESCO and Slaughter.
Bailey-Harris did not replace Wood or Smith, opting instead to continue with a smaller
concrete rubbing crew. After his termination, Wood filed a Charge of Discrimination with the
EEOC on November 19, 2009, and, after the EEOC notified Wood that it was going to dismiss
his Charge of Discrimination with a no cause finding, Wood requested his Right to Sue letter
from the EEOC.
Lastly, the court also notes that Bailey-Harris had a written policy prohibiting workplace
discrimination and harassment which Wood signed when he was hired. However, Bailey-Harris
did not appear to have a policy in place for reporting such discrimination in-house. Nor did
Bailey-Harris appear to have any specific anti-retaliation plan in place, and Nowling, despite
being a concrete superintendent, had no training as to retaliation.
A. Count One – Discrimination Claim
Title VII prohibits employers from discriminating “against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Similarly, § 1981 prohibits
racial discrimination by an employer. See, e.g., Sledge v. Goodyear Dunlop Tires N. Am. Ltd.,
275 F.3d 1014, 1015 (11th Cir. 2001). In order for Wood to prove his employment
discrimination case, he must “prov[e] discriminatory treatment by a preponderance of the
evidence.” Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Woods has
alleged that Bailey-Harris has intentionally discriminated against him, but Wood relies on
circumstantial evidence to establish Bailey-Harris’s discriminatory intent. This means that the
court must use the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burdenshifting framework to analyze Wood’s claims.
This framework first requires a plaintiff to make out a prima facie case of discrimination.
Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). Next, the defendant is
given an opportunity to produce a legitimate, nondiscriminatory reason for the challenged
employment action. Id. at 1528. Moreover, “[i]t is important to bear in mind, however, that the
The same analysis and framework applies both to Title VII and § 1981 claims. See
Sledge, 275 F.3d 1014,1015 n. 1 (11th Cir. 2001) (citing Trotter v. Board of Trs. of Univ. of
Alabama, 91 F.3d 1449, 1454 (11th Cir. 1996)).
defendant's burden of rebuttal is exceedingly light.” Perryman v. Johnson Products Co., Inc., 698
F.2d 1138, 1142 (11th Cir. 1983). Once the defendant has met his burden, the plaintiff is given
an opportunity to “come forward with evidence, including the previously produced evidence
establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the
reasons given by the employer were not the real reasons for the adverse employment decision.”
Combs, 106 F.3d at 1528.
Wood cites Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011), for the
proposition that “[a] triable issue of fact exists if the record, viewed in a light most favorable to
the plaintiff, presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.’” Id. at 1328 (quoting Silverman v. Bd. of
Educ., 637 F.3d 729, 734 (7th Cir. 2011)). However, to the extent that Smith stands for an
alternative means of defeating summary judgment in a Title VII case, it is easily distinguishable
from the present case in light of the weight and volume of the evidence before the Smith court
and dearth of evidence before this court. Moreover, there is such limited evidence before this
court that Wood cannot discredit the legitimate, nondiscriminatory reasons that Bailey-Harris has
proffered to explain the reasons for the actions taken against Wood.
The court will now address the three instances of racial discrimination raised by Wood:
discrimination as to his termination, wages paid, and failure to promote.
In order to demonstrate a prima facie case of unlawful termination due to racial
discrimination the plaintiff must show that (1) he is a member of a protected class, (2) he was
qualified for the position, (3) he suffered an adverse employment action, and (4) he was replaced
by a person outside his protected class or was treated less favorably than a similarly-situated
individual outside his protected class. Maynard v. Board of Regents of Div. of Univs. of Fla.
Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003). In this case, it is
clear that Wood was a member of a protected class, was qualified for his position, and that he
suffered an adverse employment action; however, the evidence before the court does not
establish that Wood was replaced by anyone or that a similarly-situated individual outside his
protected class was treated more favorably.
The undisputed evidence is that after terminating Wood and Smith, Bailey-Harris
continued the concrete rubbing job without hiring anyone to replace the two employees.
Moreover, there is no evidence before the court that any similarly-situated individuals were
treated in a more favorable way than Wood. However, even if the court were to assume that this
fact were true so that Wood could establish his prima facie case of discrimination, he still has
failed to rebut Bailey-Harris’s proffered legitimate, nondiscriminatory reason for terminating
Wood’s response brief is devoid of any citations to the record which demonstrate that
Bailey-Harris considered race in regards to his termination. Bailey-Harris has explained, and the
record evidence shows, that Wood was terminated because of his conduct at the RSA building on
August 20, 2009 which damaged Bailey-Harris’s reputation with JESCO and Dr. Bronner. The
only evidence offered by Wood are his complaints to various Bailey-Harris employees, which is
insufficient “to permit a reasonable factfinder to conclude that the reasons given by the employer
were not the real reasons for the adverse employment decision.” Combs, 106 F.3d at 1528.
Accordingly, Wood has failed to meet his burden in this case and cannot, as a matter of law,
demonstrate any racial discrimination as to the decision of Bailey-Harris to terminate him.
Therefore, summary judgment will be entered in favor of Bailey-Harris as to this claim.
ii. Wages Paid
Wood has raised a claim of racial discrimination as to the wages he received for the work
he performed for Bailey-Harris. In order to demonstrate a prima facie case of disparate
treatment, Wood must show “that [he] was a qualified member of a protected class and was
subjected to an adverse employment action in contrast with similarly situated employees outside
the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
While it is true that “[t]he methods of presenting a prima facie case are not fixed,” Wood must
demonstrate that some similarly-situated individual who was not in his protected class received
better treatment than he did. In this case, Wood has not.
The evidence is undisputed that Wood was paid more than or equal to each of his fellow
concrete rubbers. Regardless of his particular subjective view about his worth, Bailey-Harris
paid him as much as any of the other concrete rubbers, and, therefore, Wood has failed to meet
his prima facie case as to racial discrimination as to the wages he received from Bailey-Harris.
However, because it appears that Wood has selected Bo Cumbess as the comparator for his racial
discrimination claim, the court will analyze his claim in light of this assertion to determine if that
has established Wood’s prima facie case of racial discrimination.
The evidence before the court is that Bo Cumbess did receive a higher wage than Wood,
$13.00 per hour instead of $12.00 an hour, and that Bo Cumbess is outside of Wood’s protected
class. Moreover, Wood and Bo Cumbess did have some overlapping duties in their respective
jobs. However, it is also undisputed that Wood and Bo Cumbess had different job titles, job
duties, work backgrounds, and experience with Tammscoat. It is undisputed that Bo Cumbess
was hired to be Wood’s supervisor, and it is also undisputed that Bo Cumbess had experience
with the Tammscoat product and that Wood did not. It appears clear to the court that Bo
Cumbess is not an appropriate comparator for Wood. As explained by the Eleventh Circuit,
“[t]he comparator must be nearly identical to the plaintiff to prevent courts from second-guessing
a reasonable decision by the employer.” Wilson, 376 F.3d at 1091. In this case, a comparison of
Bo Cumbess and Wood, given the significant number of relevant differences between the two,
would lead to this court improperly second guessing the decisions made by Bailey-Harris.
However, even if the court did assume that Wood has proved his prima facie case, he has
failed to demonstrate how Bailey-Harris’s legitimate, nondiscriminatory reason for paying Bo
Cumbess more, i.e., his experience with Tammscoat which was to be used by Bailey-Harris in
the second phase of its concrete project, was somehow pretext for racial discrimination. Again,
the only evidence before the court for this is Wood’s unsupported assertions that Bailey-Harris
engaged in racial discrimination. Again, Wood’s complaints standing alone are not sufficient “to
permit a reasonable factfinder to conclude that the reasons given by the employer were not the
real reasons for the adverse employment decision.” Combs, 106 F.3d at 1528. Accordingly,
Wood has failed to meet his burden in this case and has not demonstrated any racial
discrimination as to Bailey-Harris’s decisions as to the amount to pay him or Bo Cumbess, as a
matter of law. Therefore, summary judgment will be entered in favor of Bailey-Harris as to this
iii. Failure to Promote
In order for Wood to make out a prima facie case of failure to promote, he must
demonstrate that “(i) he belonged to a protected class; (ii) he was qualified for and applied for a
position that the employer was seeking to fill; (iii) despite qualifications, he was rejected; and
(iv) the position was filled with an individual outside the protected class.” Vessels v. Atlanta
Independent School System, 408 F.3d 763, 768 (11th Cir. 2005) (citing McDonnel Douglas
Corp., 411 U.S. at 802). The Eleventh Circuit has also held that “where an employer does not
formally announce a position, but rather uses informal and subjective procedures to identify a
candidate, a plaintiff need not show under the second prong that he applied for the
position—only that the employer had some reason to consider him for the post.” Id. (citing Jones
v. Firestone Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992)). However, the employee
must still show that he was qualified for the position in order to make out his prima facie case for
discrimination. Jones, 977 F.2d at 533.
Given the evidence before the court, Wood is unable to meet the requirements of the
prima facie case for his failure to promote claim. While he is able to demonstrate that he is a
member of a protected class and that Bo Cumbess, who was not part of Wood’s protected class,
got the position instead of Wood, he is unable to demonstrate that he was qualified for the
The testimony from Bailey-Harris’s personnel was that the foreman for the concrete
rubbing team was to have Tammscoat experience because of Bailey-Harris’s impending use of
that particular product in June 2009. It is undisputed that Bo Cumbess had that experience and
Wood did not. Wood has testified that he was capable, indeed more capable, of doing the
concrete rubbing foreman position than Bo Cumbess, but it is clear that Wood was not
responsible for setting the requirements of the foreman position. See Chapman v. AI Transport,
229 F.3d 1012, 1020 (11th Cir. 2000) (explaining that an employee may not substitute his
business judgment for the employer’s, and an employee cannot succeed in rebutting the employer
by “simply quarreling with the wisdom” of the employer). While it is clear that Wood had more
years of experience in the concrete industry than Bo Cumbess, it is equally clear that Wood
lacked two key characteristics that Bo Cumbess possessed: his knowledge of Tammscoat and his
reputation as Bobby Cumbess’s son.
Even if Wood had succeeded in demonstrating that he was qualified for this position, he
still failed to demonstrate that Bailey-Harris’s proffered legitimate, nondiscriminatory reasons for
failing to promote Wood were pretext for racial discrimination. Once again, those reasons are
that Bo Cumbess had experience with the Tammscoat product and was also Bobby Cumbess’s
son. Neither of those reasons applies to race and neither of those reasons is illegal. Essentially
Wood’s only evidence for racial discrimination is that Bo Cumbess was hired, he was white, and
Wood did not think he was qualified. This evidence is insufficient “to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Combs, 106 F.3d at 1528. Accordingly, Wood has failed to meet
his burden in this case and cannot demonstrate any racial discrimination as to Bailey-Harris’s
decision not to promote Wood, as a matter of law. Therefore, summary judgment will be entered
in favor of Bailey-Harris as to this claim.
B. Retaliation Claim
Wood has also raised a claim of retaliation against Bailey-Harris stemming from his
“A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1)
[he] engaged in an activity protected under Title VII; (2) [he] suffered an adverse employment
action; and (3) there was a causal connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Pennington
v. Citiy of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)); see also 42 U.S.C. § 2000e et seq.
(1982). “Once the plaintiff makes out a prima facie case, ‘the burden shifts to the defendant to
rebut the presumption of retaliation by producing legitimate reasons for the adverse employment
action.’” Sullivan v. National R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999)
(quoting Raney v. Vinson Guard Service, 120 F.3d 1192, 1196 (11th Cir. 1997)). If the
Defendant can produce such a reason, then the presumption of retaliation disappears, and the
plaintiff must “show that the employer's proffered reasons for taking the adverse action were
actually a pretext for prohibited retaliatory conduct.” Sullivan, 170 F.3d at 1056.
Even if the court assumes that Wood has established a prima facie case of retaliation,
Bailey-Harris is still due to prevail on its Motion for Summary Judgment because Wood has
failed to even acknowledge Bailey-Harris’s proffered legitimate, nondiscriminatory reason for
Wood’s termination. Bailey-Harris took no adverse action against Wood in response to in-house
complaints of discrimination made by him before August 20, 2009, and Wood did not contact the
EEOC before the August 20 incident. Wood was terminated only after going to the RSA
building after work, telling the security guard that he wanted to talk to Dr. Bronner, the CEO of
the owner of the Project, about his pay and about the quality of the work being done by BaileyHarris, and then voicing those complaints to Slaughter. Bailey-Harris made clear in its
Memorandum of Law in Support of Motion for Summary Judgment (Doc. # 18), with citations to
evidence, its position that Bailey-Harris terminated Wood because of his action of complaining
to Slaughter about the manner in which Bailey-Harris was performing the construction for the
RSA project. In other words, Bailey-Harris terminated Wood because of his disparaging
comments about Bailey-Harris to Slaughter, a Senior Construction Manager for the client of
Wood’s employer, which had the effect of sabotaging the relationship between Bailey-Harris and
its client’s CEO, Dr. Bronner. Bailey-Harris argues that such a reason is sufficient to serve as a
legitimate, nondiscriminatory reason for terminating Wood citing Rayford v. Wexford Health
Sources, Inc., 400 F. App’x 100, 103 (7th Cir. 2010) (even allowing plaintiff’s conduct of
disparaging his employer to the employer’s own Vice President of Human Resources to serve as
a nondiscriminatory, legitimate reason for refusing to rehire the plaintiff) and Williams v.
Anheuser-Busch, Inc., 957 F. Supp. 1246, 1251 (M.D. Fla. 1997) (finding that evidence that the
plaintiff “made disparaging, and potentially damaging, remarks about Defendant’s products to
three (3) individuals” while at a bar was a sufficient “nondiscriminatory justification for its
termination of Plaintiff”). The court agrees. Wood did not respond to this argument, contending
only that all his actions were protected activity, and has pointed to no evidence which would
serve to demonstrate that Bailey-Harris’s proffered reason was merely pretext for illegal conduct.
Because Wood has failed to rebut Bailey-Harris’s proffered legitimate, nondiscriminatory
reasons for his termination–despite it being his burden to do so–Bailey-Harris must prevail.
Therefore, the court will enter summary judgment in favor of Bailey-Harris as to Count Two.
For the foregoing reasons, it is ORDERED as follows:
1. The Motion for Summary Judgment is GRANTED as to both Counts, and judgment
will be entered in favor of Bailey-Harris.
Done this 27th day of July, 2012.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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