Isaacs v. Felder Services, LLC et al

Filing 45

OPINION. Signed by Honorable Judge Myron H. Thompson on 10/29/2015. (wcl, )

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

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
FELDER SERVICES, LLC,
Defendant.

CIVIL ACTION NO.
2:13cv693-MHT
(WO)

OPINION
This

is

an

employment-discrimination

case.

Plaintiff Roger Isaacs alleges that defendant Felder
Services, LLC, his former employer, (1) discriminated
against him (by firing him) on the basis of his sex,
gender

non-conformity,

subjected

him

hostile-work
him

for

to

and

sexual

environment;

complaining

sexual

orientation;

harassment
and

about

(3)

that

which

(2)

created

retaliated
harassment,

a

against
all

in

violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq.
This

lawsuit

is

now

before

the

court

on

the

recommendation of the United States Magistrate Judge

that summary judgment should be granted in favor of
Felder Services on all three claims.

See Report and

Recommendation (doc. no. 41) (hereafter “R&R”).
are

no

objections

to

the

recommendation.

There

After

an

independent and de novo review of the record, the court
concludes
should
reasons.

that

be

the

adopted,

magistrate
albeit

judge’s

for

recommendation

somewhat

See Fed. R. Civ. P. 59(b)(3).

different

These reasons

are set out below.

1.

Facts

Because the facts are set out in detail in the R&R,
they are summarized only briefly here.
Isaacs is a gay man.

For about six months, he was

an employee of Felder Services, which provides services
to

healthcare

dietician).

facilities

(Isaacs

worked

as

a

Felder Services had a contract with Arbor

Springs Health and Rehabilitation Center in Opelika,
Alabama, and Isaacs was assigned to work there.

2

Isaacs
Services

worked
and

supervisor.

Arbor

with

employees

Springs,

of

but

had

to

no

Felder
on-site

Instead, his boss was Debbie McGarvey, a

regional supervisor for Felder Services.
evidence

both

suggest

that

Felder

There is no

Services

exercised

authority over Arbor Springs employees at the facility
or that anyone at Arbor Springs exercised authority
over

Isaacs.

This

court

has

previously

dismissed

Isaacs’s claims against Arbor Springs, ruling that it
was not Isaacs’s employer or co-employer.

See Isaacs

v. Felder Servs., LLC, No. 2:13-CV-693-MEF,

2014 WL

2806128 (M.D. Ala. 2014)(Fuller, J.).
McGarvey asked Isaacs to work at another facility
in Florala, Alabama, once every three weeks.

Because

Isaacs had been injured in a car accident, he asked
for, and was given, permission for a man he identified
as his brother but who was actually his husband to
drive him to Florala, and for the two to stay overnight
there.

(There is a dispute as to whether McGarvey

authorized Isaacs to seek reimbursement for expenses
3

incurred

by

his

husband.)

Isaacs

began

staying

in

Florala, with his husband, the nights before and after
he was to work in the facility there; he submitted the
expenses they both incurred for reimbursement by Felder
Services.
In addition, Isaacs brought his mother along on
some of his trips to Florala, and he submitted multiple
reimbursement requests for meals and lodging for her.
Isaacs offers no evidence--even in the form of his own
deposition

testimony--to

were authorized.
pass

from

an

suggest

that

these

expenses

Finally, Isaacs submitted a visitor
air

handwritten “$ 50.”

force

base,

on

which

he

had

Although he gave no explanation

for the request when it was submitted (visitor passes
are free), he later testified that he had taken his
husband

and

mother

there;

because

they

received

no

receipt for their meal, he estimated that it had cost
$ 50 and wrote that amount on the visitor pass.
On July 23, 2012, Juli Bleicher, an administrative
assistant at Felder Services, began an investigation
4

into

Isaacs’s

reimbursement

requests

after

noticing

that he had submitted requests for three people and
finding the visitor pass suspicious.

The next day,

July 24, McGarvey sent Isaacs an e-mail instructing him
to send her copies of future expenses for approval;
McGarvey also spoke with Bleicher, and informed

her

that Isaacs was not due reimbursement for meals and
lodging for his mother or husband.

On July 26, at 2:00

p.m., Bleicher sent Isaacs an e-mail asking him to call
her to discuss his expense reports.
At exactly the same time on July 26 as Bleicher
e-mailed Isaacs, Isaacs attended a staff meeting at
Arbor Springs, the events of which apparently form the
sole

basis

for

his

allegations

of

discrimination.

Isaacs was the only Felder Services employee present,
and the meeting was run by the associate director of
nursing,

Cheri

Place.

According

to

Isaacs

(and

as

disputed by both Place and the other attendees), after
he

and

Place

began

to

disagree

about

whether

staff

members were correctly completing a form, Place asked
5

someone to put tape over Isaacs’s mouth, approached
Isaacs and made an allegedly masturbatory hand gesture,
and acknowledged that Isaacs’s reading of the form was
correct

by

saying,

“Cupcake

was

right.”

After

the

meeting concluded, Isaacs submitted a letter describing
what had occurred to the associate director of Arbor
Springs.
At some point
first

brought

between July

the

issue

of

26 and 31,
Isaacs’s

Bleicher

questionable

expenses to the attention of David Perez, the director
of human resources at Felder Services.
Bleicher

back

on

July

30,

and

they

Isaacs called
discussed

the

disputed expenses.
On July 31, Isaacs forwarded his complaint letter
to McGarvey; the same day, she forwarded the letter to
Perez, and to K. C. Komer, another supervisor.
contacted

Isaacs

that

day:

he

thanked

Isaacs

Komer
for

letting him know about the incident and told him that,
if he felt uncomfortable at Arbor Springs, he was free

6

to leave with pay until the issue was resolved.

Isaacs

left Arbor Springs and never returned.
When Perez received the letter, he contacted Mark
Traylor, the owner-administrator of Arbor Springs, and
asked him to interview the Arbor Springs employees who
were

present

at

the

meeting

with

Place.

interviews were concluded on August 1.
received
Bleicher

the

results

reported

to

of
him

Traylor’s
that

Isaacs

These

Before Perez
investigation,
had

submitted

false charges and sought reimbursement for unauthorized
expenses.

Then, Traylor reported to Felder Services

(directly to its president, Kevin Muscat) his finding
that Isaacs’s allegations were baseless.
On August 7, Perez and Muscat decided to terminate
Isaacs’s employment based on the improper reimbursement
requests.

2.

Discrimination

Isaacs claims that Felder Services terminated him
because he is male.

The recommendation concludes that
7

the court “need not engage in a discussion regarding
whether

or

not

Plaintiff

has

provided

evidence

of

comparators for the purposes of the prima-facie-case
analysis because Plaintiff has offered no evidence of
gender-discrimination by Defendant Felder,” given that
his claim revolves around the harassment he allegedly
suffered at the hands of Place, and Place was not an
employee, or otherwise under the control or authority,
of Felder Services.
with this reasoning.

R&R at 20.

The court takes issue

Had Isaacs identified a relevant

female comparator, the fact that she was not terminated
would have constituted just the sort of circumstantial
evidence of discrimination
claim now lacks.

by his employer

that his

Hence, the court cannot reject this

claim without considering whether Isaacs has offered
comparator evidence.
However, the court agrees with the recommendation
of summary judgment on this claim because Isaacs has
indeed failed to identify a relevant female comparator.
The individual he identifies, Place herself, was not an
8

employee of--and therefore not subject to discipline
by--Felder Services.
(sexual

harassment)

Moreover, her alleged misconduct
was

misconduct

that

Felder

basis

its

decision

of

entirely

different

Services

asserts

to

fire

from

the

formed

the

Isaacs

reimbursement for unauthorized expenses).

(seeking

See Holifeld

v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“In
determining

whether

employees

are

similarly

situated

for purposes of establishing a prima facie case, it is
necessary

to

consider

whether

the

employees

are

involved in or accused of the same or similar conduct
and are disciplined in different ways.”).
With respect to Isaacs’s claim that Felder Services
discriminated against him on the basis of his gender
non-conformity,

the

record

does

not

support

the

recommendation’s finding that Isaacs “does not allege”
that anyone over whom Felder Services had authority or
control discriminated against him based on the tone of
his voice.
no.

1)

Compare R&R at 23-24 with Complaint (doc.
at

5

(“The

Defendant’s
9

[sic]

further

intentionally discriminated against Isaacs on the basis
that he is effeminate in action [and] tone of voice.”).
However,

the

court

adopts

the

recommendation’s

reasoning to the extent it concludes that “Plaintiff
has

identified

suggesting

no

that

direct

one

of

or

circumstantial

Defendant

Felder’s

evidence
employees

ever acted with discriminatory intent towards him, such
that a reasonable factfinder could conclude that his
termination was based on his non-conformity to gender
stereotypes.”

R&R at 24 (emphasis added).

Finally, Isaacs claims that he was discriminated
against based on his sexual orientation.
rejects
“[s]exual

the

magistrate

orientation

judge’s

The court

conclusion

discrimination

included in nor contemplated by Title VII.”

is

that

neither
R&R at 24.

In the Eleventh Circuit, the question is an open one.
See Evans v. Ga. Reg’l Hosp., No. CV415-103, 2015 WL
5316694, at *2 (S.D. Ga. Sept. 10, 2015) (Smith, J.)
(“[T]he

Eleventh

Circuit

has

not

addressed

this

issue....”); see also Muhammad v. Caterpillar Inc., 767
10

F.3d 694 (7th Cir. 2014) (amending a previously issued
opinion to omit language stating that discrimination on
the basis of sexual orientation is not actionable under
Title VII).
This court agrees instead

with the view

of the

Equal Employment Opportunity Commission that claims of
sexual orientation-based discrimination are cognizable
under Title VII.

In EEOC Appeal No. 0120133080, 2015

WL 4397641, at *4-*10 (July 16, 2015), the Commission
explains

persuasively

discrimination

based

why
on

“an

allegation

of

sexual

orientation

is

necessarily an allegation of sex discrimination under
Title VII.”

Id. at *5.

Particularly compelling is its

reliance on Eleventh Circuit precedent, id. at *7:
“Title VII ... prohibits employers
from treating an employee or applicant
differently than other employees or
applicants based on the fact that such
individuals are in a same-sex marriage
or because the employee has [or is
interested
in
having]
a
personal
association
with
someone
of
a
particular sex.
Adverse action on
that
basis
is,
‘by
definition,’
discrimination because of the employee
or applicant’s sex.
Cf. Parr v.
11

Woodmen of the World Life Ins. Co.,
791 F.2d 888, 892 (11th Cir. 1986)
(‘Where
a
plaintiff
claims
discrimination
based
upon
an
interracial marriage or association,
he alleges, by definition, that he has
been discriminated against because of
his
race
[in
violation
of
Title
VII].’).”
See

also

Against

Andrew

Koppelman,

Lesbians

and

“Why

Gay

Discrimination
Men

is

Sex

Discrimination,” 69 N.Y.U. L. Rev. 197, 208 (1994)
(“If a business fires Ricky ... because

of his

sexual activities with Fred, while th[is] action[]
would not have been taken against Lucy if she did
exactly the same things with Fred, then Ricky is
being discriminated against because of his sex.”).
To

the

extent

that

sexual

orientation

discrimination occurs not because of the targeted
individual’s romantic or sexual attraction to or
involvement with people of the same sex, but rather
based

on

her

or

his

perceived

deviations

from

“heterosexually defined gender norms,” this, too,
is sex discrimination, of the gender-stereotyping
12

variety.
4397641,

EEOC
at

Appeal

*7-*8

No.

0120133080,

(citation

omitted);

2015
see

WL

also

Latta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014)
(Berzon,

J.,

concurring)

(“The

notion

underlying

the Supreme Court’s anti-stereotyping doctrine in
both Fourteenth Amendment and Title VII cases is
simple, but compelling: ‘[n]obody should be forced
into a predetermined role on account of sex,’ or
punished

for

failing

to

conform

to

prescriptive

expectations of what behavior is appropriate for
one’s gender.

See Ruth Bader Ginsburg, ‘Gender and

the Constitution,’ 44 U. Cin. L. Rev. 1, 1 (1975).
In

other

that

words,

give

laws

effect

[and

employment

practices]

to

‘pervasive

sex-role

stereotype[s]’ about the behavior appropriate for
men and women are damaging because they restrict
individual choices by punishing those men and women
who do not fit the stereotyped mold.

Nev. Dep’t of

Human Res. v. Hibbs, 538 U.S. 721, 738 (2003).”).

13

However,
Isaacs’s

this

other

claim

fails

discrimination

for

the

claims

same

fail:

reason
He

has

offered no direct or circumstantial evidence to suggest
that the decision of Felder Services to fire him was
based on his sexual orientation.

3.
The

court

Hostile-Work Environment
agrees

with

the

magistrate

judge’s

reasoning with respect to this claim.

4.

Retaliation

The magistrate judge’s reasoning with respect to
this claim is adopted except to the extent that it
suggests that “[s]ummary judgment is also due to be
granted

on

the

basis

that

Plaintiff

has

failed

to

demonstrate that retaliation was the but-for cause of
his

termination”

because

he

has

also

taken

the

“position that he was terminated because he is male,
because

[]

his

voice

does

not

conform

to

gender

stereotypes, and because he is gay, in addition to his
14

retaliation
There

may

claim.”

be

R&R

multiple

LLC,

737

F.

2d

37

wrongful,

causes of a termination.
Group

at

834,

(emphasis

added).

actionable

but-for

See Zann Kwan v. Andalex
846

n.5

(2d

Cir.

2013)

(explaining, in an employment-discrimination case, that
“a

plaintiff’s

injury

can

have

multiple

‘but-for’

causes, each one of which may be sufficient to support
liability”).

Moreover, even if the multiple but-for

causes that Isaacs alleged were in fact inconsistent-again, they are not--“[l]itigants in federal court may
pursue alternative theories of recovery, regardless of
their consistency,” and without the articulation of one
theory prejudicing the litigant’s entitlement to relief
on another. Allstate Ins. Co. v. James, 779 F.2d 1536,
1540 (11th Cir. 1986); see also Fed. R. Civ. P. 8(d)(3)
(“A party may state as many separate claims or defenses
as it has, regardless of consistency.”).
An appropriate judgment will be entered.
DONE, this the 29th day of October, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE