Boyd v. Koch Foods of Alabama, LLC et al

Filing 364

OPINION AND ORDER directing that the defendants Koch Foods of Alabama, LLC, David Birchfield, and Koch Foods, Inc.'s motions for summary judgment (doc. nos. 127 , 130 , 133 , 134 , and 155 ) are granted as to plaintiff Tina Boyd's pay -discrimination claim under § 1981 and plaintiff Tarsha Hunter's retaliation claim under Title VII, and these claims shall not go forward; these motions have now been resolved in all respects; this case is not closed. Signed by Honorable Judge Myron H. Thompson on 9/20/13. (scn, )

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

TINA BOYD and TARSHA HUNTER,)
)
Plaintiffs,
)
)
v.
)
)
KOCH FOODS OF ALABAMA, LLC, )
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv748-MHT
(WO)

OPINION AND ORDER
Plaintiffs Tina Boyd and Tarsha Hunter brought this
lawsuit against defendants Koch Foods of Alabama, LLC.,
David Birchfield (a human resources manager at Koch Foods
of Alabama), and Koch Foods Inc. (the corporation that
licenses the use of the name “Koch Foods” to Koch Foods of
Alabama), charging that they violated federal and state
laws.

When the court refers to all three defendants, it

refers to them as “defendants,” but when it uses “Koch,”
it is referring solely to Koch Foods of Alabama.

Boyd claims that the defendants discriminated against
her in violation of Title VII (Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 1981a, 2000e through
2000e-17), § 1981 (the Civil Rights Act of 1866, as
amended,

42

Influenced

U.S.C.
and

§

1981),

Corrupt

and

RICO

Organizations

(the
Act,

Racketeer
18

U.S.C.

§§ 1961-1968) and that they committed various state torts.
Hunter claims the defendants violated Title VII, RICO, EPA
(the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206),
and state law.
1331

Jurisdiction is proper under 28 U.S.C. §§

(federal

question)

and

1367

(supplemental

jurisdiction), 42 U.S.C. § 2000e-5(f)(3) (Title VII), and
29 U.S.C. § 216(b) (Equal Pay Act).
This cause is now before the court on two outstanding
issues

from

the

defendants’

summary-judgment

motions.

This court held a hearing on these motions on July 5,
2013.
nature

The hearing stemmed from the muddled and confusing
of

Boyd’s

and

Hunter’

submissions

on

summary

judgment, which left the court unsure even as to what

2

claims they were raising and at a loss as to how to comb
through their voluminous filings and poorly organized
evidentiary

submissions.

At

the

hearing,

the

court

granted the defendants’ motions in part and denied them in
part, as is set out in the order the court subsequently
issued.

See Order (Doc. No. 328).

The court reserved

ruling on summary judgment as to two claims: (1) Boyd’s
pay-discrimination claim based on race, brought under
§

1981

and

(2)

Hunter’s

termination

retaliation, brought under Title VII.

claim

based

on

For the reasons

that follow, the court now will grant summary judgment on
both claims.

I. Summary-Judgment Standard
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and

3

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 favor of that
party.

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio

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

II. Boyd’s Pay-Discrimination Claim
Boyd, an African-American woman, was the manager of
human resources at Koch Foods of Alabama’s debone plant in
Montgomery.

She alleges that she was denied equal pay

because of her race,1 contending specifically that she was
paid less than Julio Garcia, a Dominican employee.

Boyd’s

contentions that Garcia received better pay because of his
race cohere with her numerous other allegations that Koch

1. Boyd initially also claimed that she was denied
equal pay because of her sex in violation of Title VII.
However, at the hearing, the court concluded that she had
failed
to
exhaust
her
administrative
remedies.
Therefore, Boyd’s pay-discrimination claim was considered
on the merits only insofar as it was based on race and
brought under § 1981.
4

gave

preferential

treatment

to

Hispanic

workers

in

general.
Claims
analyzed

of

the

race
same

discrimination
way

as

brought under Title VII.

under

§

1981

disparate-treatment

are

claims

See Rice-Lamar v. City of Ft.

Lauderdale, Fla., 232 F.3d 836, 843 n. 11 (11th Cir.
2000).

Here,

where

the

plaintiff’s

case

relies

on

circumstantial evidence, the court applies the burdenshifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).

See Lee v. Mid-State Land

& Timber Co., Inc., 285 F. App’x 601, 605-06 (11th Cir.
2008)

(applying

McDonnell

Douglas

framework

discrimination claim brought under § 1981).

to

pay-

Under that

framework, the initial burden is on the plaintiff to
establish

a

prima-facie

case

preponderance of the evidence.

of

discrimination

by

a

See Mulhall v. Advance

Sec., Inc., 19 F.3d 586, 597 (11th Cir. 1994).

The burden

then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the alleged discrimination.
Id.

If the employer does so, the plaintiff must then
5

demonstrate that the proffered reason is a pretext for
discrimination.

Id.

The plaintiff may establish a prima-facie case of
compensation discrimination based on race by showing that:
“(1)

[s]he

belongs

to

a

racial

minority;

(2)

[she]

received low wages; (3) similarly situated comparators
outside the protected class received higher compensation;
and (4) [s]he was qualified to receive the higher wage.”
Lee, 285 F. App’x at 606.

Here, the dispute between the

parties centers on whether Boyd has a similarly situated
comparator in Garcia.2

A plaintiff need not identify a

comparator with the exact same position who is paid more
than she is; it suffices that the comparator “perform[s]
jobs similar to the plaintiff’s” and that the plaintiff
and the comparator “share[] the same type of tasks.”
Cooper v. Southern Co., 390 F.3d 695, 735 (11th Cir. 2004)
(quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d

2.
In
noted that
however, at
would focus

her summary-judgment submission, Boyd also
Birchfield was paid more than she was;
the hearing, her attorney stated that she
her argument on Garcia.
6

1518, 1529 (11th Cir. 1992)), overruled on other grounds
by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006).
However, Boyd fails to establish that Garcia is a valid
comparator even under this “relaxed standard.”

Miranda,

975 F.2d at 1526.
The parties focus primarily on whether an $ 8000 bump
in pay that Garcia received in December 2008 was due to a
promotion

or

was

instead

based

on

his

race

unassociated with any increase in responsibilities.

and
At

the hearing, Boyd’s counsel argued that Garcia was never
promoted; if he were, Boyd would have known about it
because

of

her

position

in

human

resources.

Boyd’s

summary-judgment submission similarly argues that Koch did
not promote Garcia to justify this raise.

The only

evidence that Boyd’s submission cites for this contention
is Boyd’s own account in her deposition.
The defendants counter that Garcia was indeed promoted
and that this promotion justified the $ 8000 pay increase.
As evidence, the defendants offer a signed and dated
personnel

action

form

marked
7

with

the

company

logo

documenting Garcia’s promotion from shift manager to shift
manager/assistant plant manager.
Ex. A (Doc. No. 131-2) at 18.

See Birchfield Decl.,

In a declaration submitted

by the defendants, Birchfield explained that an assistant
plant manager “generally assists the Plant Manager and
fills in for the Plant Manager in operating the entire
facility

when

the

Plant

Manager

is

not

Birchfield Decl. (Doc. No. 131-2) at 3-4.

available.”

At the hearing,

the attorney for the defendants further elaborated that:
“Garcia report[ed] to a different supervisor.
different job duties.
He[

was]

in

He ha[d]

He[ was] in a different department.

production

while

ha[d]

Ms.

Boyd

administration.

He

different

and

responsibilities.”

[wa]s

in

greater

Tr. (Doc. No. 335) at 73.

Boyd does not contend that the personnel-action form
documenting Garcia’s promotion is in any way invalid.

In

the hearing, her attorney attempted instead to split
hairs, arguing that Garcia was not promoted to assistant
plant manager, but to “shift manager slash assistant plant
manager.”

Id. at 74 (emphasis added).
8

Boyd’s counsel

failed

to

explain

what

significance,

if

any,

this

distinction has for the court’s analysis.
Further, even if Garcia were not promoted (and the
evidence strongly suggests that he was), Boyd does not
provide any evidence to show that, absent the promotion,
Boyd and Garcia performed similar jobs.

At the hearing,

Boyd’s counsel stated that Garcia was “in charge of a
shift,

just

resources.”

like

Ms,

Id.

Boyd

was

at

74-75.

over

all

However,

of

human

this

vague

contention, unsupported by evidence or detail, would not
be enough to establish that Garcia was a comparator for
Boyd,

even

if

Garcia

was

never

promoted

at

all.

Therefore, because Boyd has not identified any similarly
situated comparators, she has failed to establish a primafacie case of compensation discrimination based on race.
It appears that the true motivation behind Boyd’s paydiscrimination claim as it relates to Garcia is tethered
to

her

general

various

claims,

Spanish-speaking

allegation,
that

the

interwoven
defendants

immigrants
9

and

that

throughout
wanted
they

to

her
hire

severely

disadvantaged her in order to do so.
Boyd’s

attorney

asserted

that

the

At the hearing,

real

story

behind

Garcia’s pay raise is that Garcia needed $ 8000 for his
immigrant visa and told Koch that, if he was not given an
increase, he would leave the company.

In her deposition,

Boyd said that she had heard Garcia mention needing “some
sort of visa or needing ... help[] with a visa.”
Dep. (Doc. No. 131-4) at 49.

Boyd

Boyd also attested that she

believed Garcia was granted more pay because “he was a
Spanish-speaking individual” and “Hispanic or Spanishspeaking people were sought after.”

Id.

Even if Boyd is

correct and Koch did give Garcia a promotion and raise to
facilitate

his

immigrant

visa,

this

attentiveness

to

Garcia’s needs surrounding his immigration status does not
amount

to

preferential

treatment

for

discrimination against Boyd based on race.

Garcia

or

Indeed, there

are many people of Caucasian ethnicity who immigrate to
the United States and require flexibility and assistance
from their employers as they navigate the immigration
process. Moreover, Boyd conflates being racially Hispanic
10

and being a person who speaks Spanish, and it is not
altogether clear whether her allegation is that Koch
actually

had

a

racial

preference

or

simply

that

it

preferred its employees to be able to speak Spanish, which
many people who are not racially Hispanic can do fluently.

To summarize, Boyd fails to establish a prima-facie
case

for

compensation

discrimination

under

§

1981.

Moreover, even if her factual allegations are true, Boyd
appears

to

conflate

a

willingness

to

accommodate

an

employee’s immigration requirements and a preference for
Spanish-speaking

employees

with

race-based

practices; the court cannot make this leap.

employment

Accordingly,

summary judgment will be granted on this claim.

III. Hunter’s Retaliation Claim
The court now turns to Hunter’s claim of retaliation,
brought under Title VII.
woman,

was

assistant.

employed

at

Hunter, an African-American
Koch

as

an

administrative

Hunter alleges that she complained about
11

discrimination

in

two

different

disciplined after both.

instances

and

was

By her account, Koch then took

the first opportunity it could find to terminate her.
Hunter

says

that

she

first

complained

about

discrimination in the workplace in the spring of 2009
after a coworker directed racially charged remarks at her.
In response, both she and the employee who had made the
remarks were disciplined, even though Hunter denied any
wrongdoing.

The defendants describe this incident as a

“conflict” between Hunter and “another employee,” Defs.’
Br. (Doc. No. 129) at 12, and submit as an exhibit a copy
of

a

memorandum

sent

from

Boyd

to

Hunter

about

the

incident, which Boyd describes as “a heated exchange” in
which

Hunter

responded

“unacceptable” manner.
131-2)

at

55.

The

to

her

co-worker

in

an

Birchfield Decl., Ex. H (Doc. No.
memorandum

also

stated

that

it

constituted a formal, written warning and that future
incidents would result in further disciplinary action.
The second incident occurred when Hunter, through her
job responsibilities related to payroll, discovered that
12

a male employee, Henry Jenkins, was earning a higher wage
than she was, even though Hunter believed he performed a
job similar to hers.
about

the

Bryant,

pay

the

In November 2009, Hunter complained

disparity
payroll

to

three

manager,

supervised Bryant, and Boyd.

supervisors:

Lyman

Erica

Campbell,

who

Hunter says that Koch then

disciplined her for questioning the pay disparity and
limited her access to payroll information. The defendants
argue that Hunter did not receive a raise due to issues
with her performance and submit as evidence an email from
Boyd to Hunter stating that Hunter had not been given a
raise because of deficiencies in her job performance, a
high number of tardies (about which she had previously
been admonished), and her “confrontational approach” to
interpersonal interactions. Birchfield Decl., Ex. I (Doc.
No. 131-2) at 60.
In November 2010, Hunter was terminated “for providing
confidential payroll information to another employee[,]
Randy Sharpley,” who was a union representative.
Br. (Doc. No. 129) at 16.

Defs.’

Doing this, Koch contends,
13

violated

the

company’s

confidentiality

policy.

The

information that Hunter provided to Sharpley included the
names and clock numbers of employees who had missing timeclock entries.
Hunter

does

not

information to Sharpley.

deny

that

she

provided

this

However, she alleges that Boyd

had instructed her to provide this information to Sharpley
and that part of her job was to help him in his role as a
union

representative.

In

the

instance

in

question,

Sharpley was attempting to file a union grievance about
employees who had not received an attendance bonus due to
time-clock issues.

Hunter says that she shared the list

only “to help employees get their attendance bonus.”
Hunter Resp. (Doc. No. 245) at 108.

Hunter argues that

this incident was merely an excuse for Koch to fire her
because of her earlier complaints about discrimination.

To establish a prima-facie case of retaliation under
Title VII, a plaintiff must demonstrate that (1) she
engaged

in

protected

activity;
14

(2)

she

suffered

a

materially adverse-employment action; and (3) there was a
causal connection between the protected activity and the
adverse-employment action.
Ry.

Co.

v.

White,

548

See Burlington N. & Santa Fe

U.S.

53,

68

(2006).

If

the

plaintiff makes a prima-facie showing of retaliation, the
defendant then must offer a legitimate, non-discriminatory
reason for the employment action; if it does so, “the
plaintiff must then come forward with evidence sufficient
to permit a reasonable fact finder to conclude that the
reasons given by the employer were pretextual.”

Gerard v.

Bd. of Regents of State of Ga., 324 F. App’x 818, 826
(11th Cir. 2009).
Hunter fails to establish a prima-facie case because
she does not show that there was any causal connection
between the protected activity and her termination.3
order

to

establish

a

causal

connection

between

In
the

protected activity and the adverse action, a plaintiff

3. The defendants also argue that Hunter’s earlier
complaints do not constitute protected activity.
The
court need not resolve this issue, however, as Hunter has
failed to show causation.
15

must show both (1) that the decision-makers were aware of
the protected conduct and (2) that “the protected activity
and

the

adverse

[employment]

action

were

not

wholly

unrelated.” Id. (alterations in original) (quotations and
citations omitted). As these prongs suggest, causation in
a retaliation case “is to be interpreted broadly.”

Gray

v. City of Montgomery, 756 F. Supp. 2d 1339, 1350 (M.D.
Ala. 2010) (Thompson, J.).
Here, Hunter has failed to show any relationship
between her complaints and her termination.

The most

glaring deficiency in Hunter’s argument is that a year
passed between Hunter’s complaint about the difference
between

her

pay

and

Jenkins’s

and

her

termination.4

Hunter’s complaint about racially charged remarks occurred
even further back in time.

Hunter correctly notes that

4. At the hearing, Hunter’s attorney said that, “At
least six months” passed between Hunter’s last complaint
and her termination.
Tr. (Doc. No. 335) at 101.
However, she confessed she could not actually remember
the exact timeline of events. Upon reviewing the record,
the court found that Hunter was terminated in November
2010 and that her latest complaint was made in November
2009, a full year earlier.
16

this temporal gap does not preclude her from establishing
causation.

However, Hunter offers little else from which

the court can infer that her termination was related in
any way to her earlier complaints.

In her submission on

summary judgment, Hunter contends that the disciplinaries
she

received

after

her

earlier

complaints

establish

causation for her termination and that another employee,
Janice Bailey, engaged in the same conduct and was not
fired.

It is possible that Hunter’s first argument about

the disciplinaries she received could show that Koch has
a propensity for retaliation.

However, since Hunter

neither presents any evidence that Koch retained any
animus about her earlier complaints nor suggests that she
made any additional complaints that could have spurred the
decision to fire her, Hunter fails to connect these two
incidents to her termination.

As for her second argument,

Hunter cites as evidence only her own deposition and
provides no additional evidence or detail about Bailey’s
actions and their aftermath.

As a result, the court has

no way to determine whether Bailey’s actions were similar
17

to Hunter’s and whether Koch’s response differed in a
meaningful way.
The theory that Hunter emphasized in both her summary
judgment submission and at the hearing is that Koch was
too clever to fire her immediately after she made her two
complaints and instead waited for the first available
pretext to fire her so that it could avoid liability.
When

Hunter

provided

information

representative, Koch got its chance.
that

Hunter

cites

to

support

to

the

union

However, the cases

this

theory

instead

underscore the weaknesses in her case.
For

instance,

Hunter

cites

Mandell

v.

County

of

Suffolk, 316 F.3d 368 (2d Cir. 2003), for the argument
that

“opportunities

for

retaliation

do

not

always

immediately present themselves” and that the passage of
time therefore does not mean that there is no causation.
Hunter Resp. (Doc. No. 245) at 104.
easily

distinguishable

from

this

However, Mandell is
case.

There,

the

plaintiff was denied a series of promotions and given a
transfer tantamount to a demotion several years after he
18

had

twice

publicly

discriminatory

criticized

attitudes

and

his

employer

practices.

The

for

Second

Circuit rejected the argument that the “substantial time
lapse between [the] plaintiff’s speech and the adverse
employment actions” negated causation, explaining that
ample evidence revealed “negative attitudes” against the
plaintiff had persisted for years after he engaged in
protected speech; indeed, two individuals responsible for
awarding the promotions for which the plaintiff was passed
over had made negative comments about the first incident
five

years

after

it

occurred,

durability of their animus.
not

produced

a

shred

of

which

Id. at 384.
evidence

to

evidenced

the

Here, Hunter has
show

that

Koch

harbored continued rancor after it initially disciplined
her.

Moreover,

the

court

in

Mandell

specifically

distinguished the facts in that case from one in which the
adverse

action

at

issue

was

termination.

The

court

reasoned: “It makes logical sense that if an employer
wishes to retaliate by firing an employee, he is likely to
do so soon after the event.

In a failure to promote case,
19

however,

the

necessarily

opportunities
immediately

for

present

retaliation

do

themselves.”

not
Id.

(emphasis added).
Hunter also cites Swisher v. Hinshaw & Culberston, No.
05-1174, 2007 WL 1655242 (C.D. Ill. June 6, 2007) (McDade,
J.), to argue that waiting to retaliate is a tactic a savy
employer might use to avoid liability; but again, this case
only

highlights

causation.

Hunter’s

lack

of

evidence

to

support

In Swisher, the plaintiff made a sexual-

harassment complaint against one of the partners in the law
firm where she worked as an office coordinator. Four years
later, she was fired.

The court reasoned that a lengthy

gap in time between protected activity and an adverseemployment

action

showing causation.

does

not

preclude

a

plaintiff

from

However, it nevertheless admonished

that the plaintiff would have to “bring forward enough
circumstantial evidence to overcome the weakness in her
claim created by the four year gap.”

Id. at *7.

To that

end, the plaintiff made the unsupported contentions that
the law partner’s conduct was “unrelenting,” that he was
20

“difficult” and had conflicts with other employees, and
that, as an attorney, he knew better than to immediately
retaliate.

Id.

She argued that, taken together, this

evidence revealed that the partner was “waiting in the
weeds, lingering for an opportunity to get [her] fired.”
Id. (quotations and citations omitted).

The court found

this thin evidence insufficient to support causation.
Here, Hunter’s evidence is even more minimal than what
the plaintiff presented in Swisher.

Indeed, she does not

allege any facts, much less offer evidence, to show that,
during the year between her latest complaint and her
termination, Koch harbored any continuing animosity toward
her and was waiting for a reason to let her go.

“[I]n the

absence of other evidence tending to show causation, if
there

is

expression

a

substantial

and

the

delay

adverse

between

action,

retaliation fails as a matter of law.”

the

the

protected

complaint

of

Gray v. City of

Montgomery, 756 F. Supp. 2d 1339, 1350 (M.D. Ala. 2010)
(Thompson,

J.)

(quotations

(alterations in original).

and

citations

omitted)

Here, the one-year delay and
21

the lack of any other evidence of causation are fatal to
Hunter’s claim.
Even if Hunter had succeeded in establishing a primafacie case, however, summary judgment would still be due
on this claim because Koch has provided a legitimate, nondiscriminatory reason for terminating Hunter, and Hunter
has failed to show that this was a pretext for retaliation.
Hunter’s only evidence of pretext is her own statement in
her deposition that she was instructed to give Sharpley
employee

information.

She

also

reiterates,

without

providing any evidence, that an employee named Janice
Bailey had done the same thing and was not terminated.
Such “naked assertions [are] not evidence of pretext.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332
(11th Cir. 1998); see also Gerard v. Bd. of Regents of
State of Ga., 324 F. App’x 818, 826 (11th Cir. 2009)
(“Unsupported assertions are not evidence of pretext.”)
(citing Standard, 161 F.3d at 1332).

22

* * *

Accordingly, it is ORDERED that the defendants Koch
Foods of Alabama, LLC, David Birchfield, and Koch Foods,
Inc.’s motions for summary judgment (doc. nos. 127, 130,
133, 134, and 155) are granted as to plaintiff Tina Boyd’s
pay-discrimination claim under § 1981 and plaintiff Tarsha
Hunter’s retaliation claim under Title VII, and these
claims shall not go forward.
resolved in all respects.

These motions have now been

This case is not closed.

DONE, this the 20th day of September, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE