Boyd v. Koch Foods of Alabama, LLC et al
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,)
KOCH FOODS OF ALABAMA, LLC, )
CIVIL ACTION NO.
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
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
§§ 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.
Jurisdiction is proper under 28 U.S.C. §§
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
This court held a hearing on these motions on July 5,
The hearing stemmed from the muddled and confusing
judgment, which left the court unsure even as to what
claims they were raising and at a loss as to how to comb
through their voluminous filings and poorly organized
granted the defendants’ motions in part and denied them in
part, as is set out in the order the court subsequently
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
retaliation, brought under Title VII.
For the reasons
that follow, the court now will grant summary judgment on
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.
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 favor of that
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
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.
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
Therefore, Boyd’s pay-discrimination claim was considered
on the merits only insofar as it was based on race and
brought under § 1981.
brought under Title VII.
See Rice-Lamar v. City of Ft.
Lauderdale, Fla., 232 F.3d 836, 843 n. 11 (11th Cir.
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.
discrimination claim brought under § 1981).
framework, the initial burden is on the plaintiff to
preponderance of the evidence.
See Mulhall v. Advance
Sec., Inc., 19 F.3d 586, 597 (11th Cir. 1994).
then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the alleged discrimination.
If the employer does so, the plaintiff must then
demonstrate that the proffered reason is a pretext for
The plaintiff may establish a prima-facie case of
compensation discrimination based on race by showing that:
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
her summary-judgment submission, Boyd also
Birchfield was paid more than she was;
the hearing, her attorney stated that she
her argument on Garcia.
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.”
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
unassociated with any increase in responsibilities.
the hearing, Boyd’s counsel argued that Garcia was never
promoted; if he were, Boyd would have known about it
summary-judgment submission similarly argues that Koch did
not promote Garcia to justify this raise.
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
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
Birchfield Decl. (Doc. No. 131-2) at 3-4.
At the hearing,
the attorney for the defendants further elaborated that:
“Garcia report[ed] to a different supervisor.
different job duties.
He[ was] in a different department.
Tr. (Doc. No. 335) at 73.
Boyd does not contend that the personnel-action form
documenting Garcia’s promotion is in any way invalid.
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
Id. at 74 (emphasis added).
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
contention, unsupported by evidence or detail, would not
be enough to establish that Garcia was a comparator for
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
disadvantaged her in order to do so.
At the hearing,
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 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.”
Even if Boyd is
correct and Koch did give Garcia a promotion and raise to
Garcia’s needs surrounding his immigration status does not
discrimination against Boyd based on race.
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
and being a person who speaks Spanish, and it is not
altogether clear whether her allegation is that Koch
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
Moreover, even if her factual allegations are true, Boyd
employee’s immigration requirements and a preference for
practices; the court cannot make this leap.
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.
Hunter, an African-American
Hunter alleges that she complained about
disciplined after both.
By her account, Koch then took
the first opportunity it could find to terminate her.
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
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
incident, which Boyd describes as “a heated exchange” in
Birchfield Decl., Ex. H (Doc. No.
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
a male employee, Henry Jenkins, was earning a higher wage
than she was, even though Hunter believed he performed a
job similar to hers.
In November 2009, Hunter complained
supervised Bryant, and Boyd.
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.
Doing this, Koch contends,
information that Hunter provided to Sharpley included the
names and clock numbers of employees who had missing timeclock entries.
information to Sharpley.
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
Sharpley was attempting to file a union grievance about
employees who had not received an attendance bonus due to
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
materially adverse-employment action; and (3) there was a
causal connection between the protected activity and the
See Burlington N. & Santa Fe
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.”
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
protected activity and the adverse action, a plaintiff
3. The defendants also argue that Hunter’s earlier
complaints do not constitute protected activity.
court need not resolve this issue, however, as Hunter has
failed to show causation.
must show both (1) that the decision-makers were aware of
the protected conduct and (2) that “the protected activity
unrelated.” Id. (alterations in original) (quotations and
citations omitted). As these prongs suggest, causation in
a retaliation case “is to be interpreted broadly.”
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.
glaring deficiency in Hunter’s argument is that a year
passed between Hunter’s complaint about the difference
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.
this temporal gap does not preclude her from establishing
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
causation for her termination and that another employee,
Janice Bailey, engaged in the same conduct and was not
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
to Hunter’s and whether Koch’s response differed in a
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.
representative, Koch got its chance.
However, the cases
underscore the weaknesses in her case.
Suffolk, 316 F.3d 368 (2d Cir. 2003), for the argument
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.
However, Mandell is
plaintiff was denied a series of promotions and given a
transfer tantamount to a demotion several years after he
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
durability of their animus.
Id. at 384.
Here, Hunter has
harbored continued rancor after it initially disciplined
distinguished the facts in that case from one in which the
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,
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
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
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.
end, the plaintiff made the unsupported contentions that
the law partner’s conduct was “unrelenting,” that he was
“difficult” and had conflicts with other employees, and
that, as an attorney, he knew better than to immediately
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.
absence of other evidence tending to show causation, if
retaliation fails as a matter of law.”
Gray v. City of
Montgomery, 756 F. Supp. 2d 1339, 1350 (M.D. Ala. 2010)
(alterations in original).
Here, the one-year delay and
the lack of any other evidence of causation are fatal to
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
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).
* * *
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
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