Isaacs v. Felder Services, LLC et al
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
FELDER SERVICES, LLC,
CIVIL ACTION NO.
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,
violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq.
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”).
independent and de novo review of the record, the court
See Fed. R. Civ. P. 59(b)(3).
are set out below.
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
Felder Services had a contract with Arbor
Springs Health and Rehabilitation Center in Opelika,
Alabama, and Isaacs was assigned to work there.
Instead, his boss was Debbie McGarvey, a
regional supervisor for Felder Services.
There is no
authority over Arbor Springs employees at the facility
or that anyone at Arbor Springs exercised authority
Isaacs’s claims against Arbor Springs, ruling that it
was not Isaacs’s employer or co-employer.
v. Felder Servs., LLC, No. 2:13-CV-693-MEF,
2806128 (M.D. Ala. 2014)(Fuller, J.).
McGarvey asked Isaacs to work at another facility
in Florala, Alabama, once every three weeks.
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 is a dispute as to whether McGarvey
authorized Isaacs to seek reimbursement for expenses
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
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
Finally, Isaacs submitted a visitor
handwritten “$ 50.”
Although he gave no explanation
for the request when it was submitted (visitor passes
are free), he later testified that he had taken his
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
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
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
Isaacs was the only Felder Services employee present,
and the meeting was run by the associate director of
disputed by both Place and the other attendees), after
members were correctly completing a form, Place asked
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
meeting concluded, Isaacs submitted a letter describing
what had occurred to the associate director of Arbor
At some point
26 and 31,
expenses to the attention of David Perez, the director
of human resources at Felder Services.
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.
letting him know about the incident and told him that,
if he felt uncomfortable at Arbor Springs, he was free
to leave with pay until the issue was resolved.
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
interviews were concluded on August 1.
false charges and sought reimbursement for unauthorized
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
Isaacs claims that Felder Services terminated him
because he is male.
The recommendation concludes that
the court “need not engage in a discussion regarding
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
Hence, the court cannot reject this
claim without considering whether Isaacs has offered
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
employee of--and therefore not subject to discipline
Moreover, her alleged misconduct
reimbursement for unauthorized expenses).
v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“In
for purposes of establishing a prima facie case, it is
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
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
Compare R&R at 23-24 with Complaint (doc.
intentionally discriminated against Isaacs on the basis
that he is effeminate in action [and] tone of voice.”).
reasoning to the extent it concludes that “Plaintiff
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
R&R at 24 (emphasis added).
Finally, Isaacs claims that he was discriminated
against based on his sexual orientation.
included in nor contemplated by Title VII.”
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.)
issue....”); see also Muhammad v. Caterpillar Inc., 767
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
This court agrees instead
with the view
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
necessarily an allegation of sex discrimination under
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
Adverse action on
discrimination because of the employee
or applicant’s sex.
Cf. Parr v.
Woodmen of the World Life Ins. Co.,
791 F.2d 888, 892 (11th Cir. 1986)
interracial marriage or association,
he alleges, by definition, that he has
been discriminated against because of
Discrimination,” 69 N.Y.U. L. Rev. 197, 208 (1994)
(“If a business fires Ricky ... because
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.”).
discrimination occurs not because of the targeted
individual’s romantic or sexual attraction to or
involvement with people of the same sex, but rather
“heterosexually defined gender norms,” this, too,
is sex discrimination, of the gender-stereotyping
Latta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014)
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
expectations of what behavior is appropriate for
See Ruth Bader Ginsburg, ‘Gender and
the Constitution,’ 44 U. Cin. L. Rev. 1, 1 (1975).
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).”).
offered no direct or circumstantial evidence to suggest
that the decision of Felder Services to fire him was
based on his sexual orientation.
reasoning with respect to this claim.
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
demonstrate that retaliation was the but-for cause of
“position that he was terminated because he is male,
stereotypes, and because he is gay, in addition to his
causes of a termination.
See Zann Kwan v. Andalex
(explaining, in an employment-discrimination case, that
causes, each one of which may be sufficient to support
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
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