Akwiwu v. State of Alabama Department of Youth Services

Filing 42

MEMORANDUM OPINION AND ORDER directing that Defendant's motion for summary judgment (Doc. # 19 ) is GRANTED, as further set out. Signed by Chief Judge William Keith Watkins on 10/15/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ELLIS AKWIWU,
Plaintiff,
v.
STATE OF ALABAMA
DEPARTMENT OF YOUTH
SERVICES,
Defendant.

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CASE NO. 2:13-CV-870-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Ellis Akwiwu sues his former employer, Defendant Alabama
Department of Youth Services (“DYS”), for national origin discrimination, hostile
work environment, and retaliation in violation of Title VII of the Civil Rights Act
of 1964 as amended. 42 U.S.C. § 2000e et seq. Before the court is DYS’s motion
for summary judgment (Docs. # 19, 20, 21), which has been fully briefed (Docs.
# 23, 28). Upon consideration of the parties’ arguments, the evidence, and the
relevant law, the court finds that the motion is due to be granted.
I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3). Personal jurisdiction and venue
are uncontested.

II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and [he] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).

2

III. BACKGROUND
A.

Facts
1.

Employment History and Alleged Discriminatory Treatment

DYS is a state agency which operates juvenile correctional facilities and
provides educational services to the youths in its custody. Mr. Akwiwu was hired
as a DYS Child Care Worker in 1990. A native of Nigeria with a “pronounced and
strong” accent (Second Am. Compl., at ¶ 9), Mr. Akwiwu alleges that he was
discriminated against repeatedly during his employment by “fellow staff and
supervisors,” some of the latter of whom are named in his second amended
complaint, (Second Am. Compl., at ¶ 9 (identifying James Tyler, Robert Lee,
Victor Black and Ms. Byrdsong). No fellow staff members (i.e., non-supervisors)
are identified by name as his antagonists in the pleading. Nor did Mr. Akwiwu
name them during his deposition when asked for names. (See Akwiwu Dep. at 85–
88.) He simply testified that “every[ ]day” people “call [him] names” – although
he did not describe or identify those names – and told him, “We cannot understand
your Nigerian accent.” (Akwiwu Dep. at 85–86.) Mr. Akwiwu further claims that
he was subjected to disparate treatment in disciplinary matters during his tenure on
the basis of his race and national origin1 and that DYS authorities subjected him to
unwarranted “write-ups, warnings, reprimands, and a demotion.” (Second Am.
1

The EEOC Charge of Discrimination and Mr. Akwiwu’s Opposition Brief assert
national origin discrimination claims only. (Docs. # 20-4, 23.)
3

Compl., at ¶ 9). Mr. Akwiwu has an extensive disciplinary record, but he does not
believe that he was disciplined justly.
Mr. Akwiwu filed a previous Title VII lawsuit in 2001 in the Middle District
of Alabama against DYS. DYS prevailed at summary judgment on February 18,
2003. (See Doc. # 20-38.) Two of the persons identified in the second amended
complaint (Mr. Tyler and Mr. Lee) were Mr. Akwiwu’s supervisors around or
during the time that the prior civil suit was pending. Two other supervisors (Mr.
Black and Ms. Byrdsong) supervised Mr. Akwiwu in 2010 and 2011, respectively.
Mr. Black allegedly sent troubled students to a dorm that Mr. Akwiwu formerly
managed and undermined Mr. Akwiwu’s authority there.

(See Second Am.

Compl., at ¶ 9). Ms. Byrdsong allegedly wrote up Mr. Akwiwu for an incident that
Mr. Akwiwu claims could not have occurred as reported because Mr. Akwiwu was
off work that day. He further claims that DYS demoted him but allowed an
unnamed comparator to be reassigned to a different facility in lieu of demotion.
(See Second Am. Compl., at ¶ 9).

The person responsible for deciding to

recommend a demotion is not identified by name.
DYS represents that on March 31, 2012, Mr. Akwiwu indeed was demoted
from Counselor I to Child Care Worker because he failed to properly perform the
duties of his job. Mr. Akwiwu contested his demotion before the State Personnel
Board (“the Board”). The Board affirmed the demotion on July 9, 2012. (See Doc.
4

# 20-2.) DYS contends that the Board has authority to consider any charges of
unlawful discrimination in violation of Title VII and that Mr. Akwiwu failed to file
a charge of discrimination with the EEOC “within thirty days after receiving notice
that the [Board] ha[d] terminated [its] proceedings,” 42 U.S.C. § 2000e-5(e)(1).
Mr. Akwiwu submitted a charge of discrimination to the EEOC, which the
EEOC received on December 31, 2012. (See Doc. # 20-4.) In the charge, Mr.
Akwiwu complained that he had been constantly harassed by supervisors, denied
requests to use his leave or lost time earned, given low performance evaluations,
falsely accused of infractions of DYS rules, and demoted. (Doc. # 20-4.) Mr.
Akwiwu checked the box for “national origin” as the basis of the discriminatory
treatment, and identified June 18, 2012, and November 30, 2012, as the earliest
and the latest dates of discriminatory treatment.

He also indicated that the

discriminatory treatment was ongoing because he checked the “continuing action”
box. (See Doc. # 20-4.) Assuming that Mr. Akwiwu was not obligated to lodge a
charge of discrimination with the EEOC within thirty days of the Board’s final
decision to uphold Mr. Akwiwu’s demotion, DYS argues that the charge was still
untimely because it was not “filed within one hundred and eighty days after the
alleged unlawful employment practice[s] occurred.” 42 U.S.C. § 2000e-5(e)(1).

5

2.

Alleged Retaliation

On June 22, 2013, Mr. Akwiwu was caught on camera sleeping on-the-job
while two youths under his supervision attempted to escape from DYS’s Mt. Meigs
Campus.

After the incident, DYS also determined that Mr. Akwiwu falsely

reported that he conducted a head count shortly after awaking. The June incident
occurred within one month of DYS’s issuance to Mr. Akwiwu of a prior written
warning on May 28, 2013, for sleeping on the job on May 24, 2013. Mr. Akwiwu
has maintained that he was not asleep. Mr. Black, as acting campus administrator
at Mt. Meigs, set the June 22, 2013 incident for a fact-finding hearing in late July,
2013. (See Doc. # 20-15 (letter dated July 11, 2013)).
On September 4, 2013, upon a recommendation that Mr. Akwiwu be
suspended or fired, Executive Director J. Walter Wood notified Mr. Akwiwu that a
disciplinary hearing was set for September 17, 2013. (Doc. # 20-16.) DYS issued
Mr. Wood’s letter within days of the EEOC’s issuance of a notice of right to sue
letter on August 28, 2013. (See Doc. # 23-1, at 2.) Without acknowledging that
DYS had already begun investigating the June 22, 2013 incident, Mr. Akwiwu
asserts that DYS set the disciplinary hearing in retaliation for the EEOC’s issuance
of the notice of right to sue letter a few days earlier.
DYS’s administrative hearing was continued, per Mr. Akwiwu’s counsel’s
request, to January 14, 2014.

On February 4, 2014, DYS terminated Mr.
6

Akwiwu’s employment. Mr. Akwiwu filed a second charge of discrimination with
the EEOC on February 20, 2014, alleging retaliatory termination for his
engagement in protected activity. The Board upheld DYS’s decision on April 24,
2014.
B.

Judicial Complaint and Proceedings
On November 27, 2013, Mr. Akwiwu filed this suit.

At that time,

disciplinary action by DYS for sleeping on the job had yet to be completed. After
the termination had become final in February 2014, Mr. Akwiwu filed his second
amended complaint on April 14, 2014. The pleading alleges that DYS subjected
Mr. Akwiwu to discrimination on the basis of national origin, a hostile work
environment,2 and retaliation for engagement in protected activity. DYS seeks
summary judgment on all claims.
Mr. Akwiwu failed to timely respond to the motion for summary judgment
in compliance with the court’s general briefing order and uniform scheduling
order. When he did respond, DYS moved to strike his response, but the court
denied the motion to strike. However, as a sanction, the court awarded DYS its
costs incurred in bringing the matter to the court’s attention (see Doc. # 27), but
DYS has not filed a statement accounting for its costs, as directed by the order.

2

There is no separate count for hostile work environment. The allegation is included in
paragraph nine of the second amended complaint.
7

IV. DISCUSSION
A.

National Origin-Based Discrimination
DYS offers multiple bases for summary judgment in its favor on Mr.

Akwiwu’s disparate treatment discrimination claims. (See Doc. # 20, at 6–10; 16–
17 (asserting that certain claims are time-barred, not administratively exhausted,
and precluded by res judicata).) Mr. Akwiwu does not responsively engage with
DYS’s arguments, but instead asserts generally that he was repeatedly
discriminated against on the basis of his Nigerian origin.
1.

Claims Not Timely Raised in EEOC Charge of Discrimination

First, DYS argues that all of Mr. Akwiwu’s discrimination claims are timebarred. Title VII provides:
A charge [with the EEOC] . . . shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred
and notice of the charge (including the date, place and circumstances
of the alleged unlawful employment practice) shall be served upon the
person against whom such charge is made within ten days thereafter,
except that in a case of an unlawful employment practice with respect
to which the person aggrieved has initially instituted proceedings with
a State or local agency with authority to grant or seek relief from such
practice or to institute criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be filed by or on behalf of
the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred, or within thirty days after
receiving notice that the State or local agency has terminated the
proceedings under the State or local law, whichever is earlier, and a
copy of such charge shall be filed by the Commission with the State
or local agency.

8

42 U.S.C. § 2000e-5(e)(1) (emphases added). “A plaintiff may not sue under
Title VII . . . unless he first exhausts administrative remedies by filing a timely
charge of discrimination with the EEOC.” Street v. United Parcel Serv., Inc., 822
F. Supp. 2d 1357, 1364 (M.D. Ga. 2011) (citing Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1317 (11th Cir. 2001)). The requirement of timeliness is usually
stringent.

See Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) (“[S]trict

adherence to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.”).
DYS asserts that the discriminatory acts complained of were filed in an
EEOC charge more than thirty days after the Board upheld Mr. Akwiwu’s
demotion, or alternatively, more than 180 days after the alleged unlawful
employment practices occurred. (Doc. # 20, at 7 (citing § 2000e-5(e)(1)).) The
Board had authority to grant relief from discriminatory mistreatment, see Ala.
Admin. Code r. 670-X-4-.03,3 and Mr. Akwiwu instituted proceedings with the
Board when he appealed his demotion and raised allegations of discrimination

3

That rule provides that

[a]ny applicant or employee who has reason to believe that he has been
discriminated against because of religious or political opinions or affiliations or
race, sex, national origin, age, or handicap in any personnel action may appeal to
the State Personnel Board. The appellant and the person responsible for the
alleged discriminatory action shall have the right to be heard by the Board or a
special hearing agent and to present evidence. If the Board finds after hearing
that there was discrimination on any of the above nonmerit factors, it shall order
appropriate corrective action and its decision shall be final.
9

based on national origin, disparate treatment, and a pattern of harassment and
hostility. (See Doc. # 20-3 (Letter to State Personnel Director).) Hence, § 2000e5(e)(1) required Mr. Akwiwu to lodge his complaints of discrimination with the
EEOC within thirty days of the Board’s July 9, 2012 decision upholding the
demotion, and the charge of discrimination received by the EEOC on December
31, 2012 was untimely.
Further, DYS emphasizes that the same enforcement statute calls upon the
complaining party to identify “discrete retaliatory or discriminatory act[s]” and the
dates of such acts in his EEOC charge of discrimination. Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110 (2002).

Neither the second amended

complaint nor Mr. Akwiwu’s testimony and evidence identify any discrete acts of
discrimination occurring within 180 days of December 31, 2012, save the final
Board decision to uphold Mr. Akwiwu’s demotion. Assuming that the previously
cited thirty-day period discussed above is inapplicable, DYS argues that Mr.
Akwiwu’s complaint of discriminatory demotion also falls outside of the 180-day
window for filing a charge because Mr. Akwiwu’s demotion was effective in
March 2012.
Upon consideration of these arguments, the court finds that Mr. Akwiwu
failed to timely file his charges of national origin discrimination with the EEOC.

10

Consequently, his judicial claim of national origin discrimination is due to be
dismissed.4
2.

No Prima Facie Case

Assuming that Mr. Akwiwu could show that his national origin
discrimination claims were timely and properly raised before the EEOC, DYS also
asserts that Mr. Akwiwu fails to make a prima facie case of discrimination. (See
Doc. # 19, at ¶¶ 6–7.) The essence of Mr. Akwiwu’s discrimination claim is that
“he has been subjected to numerous disciplinary actions that are without merit.”
(Second Am. Compl., at ¶ 9.) Although “[t]he methods of presenting a prima facie
case . . . are flexible and depend to a large degree upon the employment situation,”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004), a plaintiff
typically makes a prima facie case of discrimination by showing: (1) he belongs to
DYS contends that some of Mr. Akwiwu’s allegations in the second amended complaint
– e.g., that he was subjected to unwarranted warnings and reprimands, that his work schedule
was changed arbitrarily and unfairly by Mr. Lee, that Mr. Black undermined his authority in a
certain dorm, and that DYS disciplined an unnamed employee more leniently – were not
specifically raised in his EEOC charge and therefore not administratively exhausted. (Doc. # 20,
at 8–9.) In light of the court’s conclusion that no claims of discrimination were timely and
discretely raised before the EEOC, this argument is moot.
4

DYS also raises a limited res judicata defense. Mr. Akwiwu’s prior lawsuit identified
specific complaints of discrimination against Mr. Lee and Mr. Tyler. (See Doc. # 20-37 (Plf.’s
Second Am. Compl. filed Feb. 14, 2002).) DYS represents that Mr. Lee resigned his
employment with DYS in 2003 shortly after final judgment was entered in DYS’s favor.
Similarly, DYS contends that Mr. Tyler was Mr. Akwiwu’s supervisor from 1999–2000. Hence,
DYS asserts that the allegations in the present suit involving Mr. Lee and Mr. Tyler are barred by
res judicata because the claims were – or could have been – litigated in the prior case. (Doc.
# 20, at 17.) Again, because it apparent that no claims of discrimination were timely and
discretely raised before the EEOC prior to the filing of this suit, consideration of the res judicata
defense is moot. But the res judicata defense appears to have merit.
11

a protected class; (2) he was subjected to an adverse employment action; (3) the
employer treated similarly situated employees outside of his class more favorably;
and (4) he was qualified for his position. Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997).
Mr. Akwiwu cites a comparable standard for what constitutes a prima facie
case (see Doc. # 23, at 6), but he does not present any evidence that non-Nigerian
employees of DYS have been treated more favorably than himself. (See Doc.
# 23-1.) Hence, Mr. Akwiwu fails to meet his obligation to cite “particular parts of
materials in the record” showing that there is a genuine dispute whether DYS
disparately applied its disciplinary policies to him.

Fed. R. Civ. P. 56(c)(1).

Assuming arguendo that Mr. Akwiwu properly exhausted his administrative
remedies prior to filing his suit, the court finds DYS’s motion for summary
judgment is nevertheless due to be granted on the merits.
B.

Hostile Work Environment
DYS raises multiple arguments in support of its motion for summary

judgment on Mr. Akwiwu’s hostile work environment claim.
Akwiwu’s brief is basically unresponsive.

12

Again, Mr.

1.

Claims Not Timely Raised in the EEOC Charge of Discrimination
or Otherwise Not Administratively Exhausted

DYS argues that Mr. Akwiwu failed to timely raise his allegations of hostile
work environment pursuant to 42 U.S.C. § 2000e-5(e)(1) because he did not
specify in his EEOC charge which allegations related to the allegedly hostile work
environment. (Doc. # 19, at ¶ 1.) While a plaintiff should be able to identify his
employer’s discrete, discriminatory actions by date (for example, the day he was
reprimanded, suspended, demoted, or discharged), a hostile work environment
claim is often based on ongoing workplace harassment, which Mr. Akwiwu’s
Charge claims was “constant” and “continuing” through November 2012. (Doc.
# 20-4.) DYS does not explain why the hostile environment claim should not be
saved by the continuing violation doctrine, which creates an exception to
Title VII’s timely filing requirement. See Malone v. K-Mart Corp., 51 F. Supp. 2d
1287, 1300–01 (M.D. Ala. 1999) (distinguishing discrete instances of
discriminatory conduct from an ongoing pattern of workplace harassment).
DYS also asserts that Mr. Akwiwu’s judicial complaint includes allegations
that he was harassed by fellow coworkers while the EEOC Charge attributes
harassment only to “supervisors.” (See Doc. # 20-4.) Therefore, DYS claims that
the hostile work environment claim, as it relates to coworker harassment, was not
exhausted with the EEOC. However, DYS’s position fails to acknowledge the
13

well-settled standard that a judicial complaint is bound “by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th
Cir. 2004). Plaintiffs typically file charges of discrimination without the assistance
of counsel. Hence, courts are encouraged to construe charges of discrimination
liberally and to permit Title VII plaintiffs to seek judicial redress when their
judicial allegations are “like or related to the allegations contained in the charge.”
Id. (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970)).
For these reasons, DYS’s arguments are not well taken, and the court will
not dismiss Mr. Akwiwu’s complaint of hostile work environment for failure to
timely file his charge of discrimination or for failure to exhaust his administrative
remedies with the EEOC.
2.

No Prima Facie Case

DYS also argues that Mr. Akwiwu’s hostile work environment claim must
be dismissed because, like his discrimination claim, he cannot make a prima facie
case.
[A] plaintiff wishing to establish a hostile work environment claim
[must] show: (1) that he belongs to a protected group; (2) that he has
been subject to unwelcome harassment; (3) that the harassment must
have been based on a protected characteristic of the employee, such as
national origin; (4) that the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create
a discriminatorily abusive working environment; and (5) that the
14

employer is responsible for such environment under either a theory of
vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). DYS
contests elements (2)–(5), asserting that there was no harassment, that Mr. Akwiwu
lacks evidence that the alleged harassment was based on his national origin, that
the harassment was not severe enough to create a hostile environment, and that
there is no legal basis for holding DYS liable for the harassment. (Doc. # 20,
at 11.)
When asked about his subjection to harassment, Mr. Akwiwu said that
“every[ ]day” unnamed people in the workplace “call[ed] [him] names” – he did
not say what those names were – and told him repeatedly that they could not
understand his “Nigerian accent.” (Akwiwu Dep., at 85.) He also testified that
when speaking to his former supervisors, he always had to repeat himself. Because
he speaks English, he believes people should have no difficulty understanding him.
(Akwiwu Dep., at 86–87.) Mr. Akwiwu says that being told that he could not be
understood and having to repeat himself was embarrassing.5
Other federal courts have allowed hostile work environment claims to
proceed where a plaintiff was ridiculed for having a foreign accent. For example,
5

DYS is baffled that Mr. Akwiwu has admitted in his pleading that he has a heavy accent
but complains that colleagues asked him to repeat himself. (Doc. # 20, at 14.) It does not matter
whether Mr. Akwiwu has contradicted himself concerning the existence or non-existence of his
accent. The relevant question is whether Mr. Akwiwu’s testimony about the response of others
to his manner of speech is adequate to support a finding that he was subjected to unwelcome
harassment on the basis of his national origin.
15

in Costantin v. New York City Fire Dep’t, Case No. 06 CIV. 04631GBDTHK,
2009 WL 3053851 (S.D.N.Y. Sept. 22, 2009), the court considered a plaintiff’s
complaint that her supervisor humiliated, harassed, and ridiculed her by demanding
that she read her written reports aloud in front of coworkers so that they could
laugh at her Brazilian accent and peculiar pronunciation of certain words. Id.
at *19. The court noted that “[t]he EEOC ‘defines national origin discrimination
broadly as including’ unequal treatment ‘because an individual has the physical,
cultural[,] or linguistic characteristics of a national origin group.’” Id. (quoting 29
C.F.R. § 1606.1 (2005)). The court reasoned that the plaintiff’s testimony about
her supervisor’s ridicule could support a finding that the employer created a hostile
work environment on the basis of the plaintiff’s national origin.6
Additionally, in the context of disparate treatment claims, the Eleventh
Circuit has said that “[c]omments about [a plaintiff’s] accent may indicate
discrimination based on one’s national origin.” Albert-Aluya v. Burlington Coat
Factory Warehouse Corp., 470 F. App’x 847, 851 (11th Cir. 2012) (citing Akouri
6

See also Levitant v. City of New York Human Res. Admin., 625 F. Supp. 2d 85, 97
(E.D.N.Y. 2008) (denying summary judgment on hostile work environment claim where plaintiff
complained that supervisors “disparaged his national origin, mocked his Russian accent, [and]
instructed him not to conduct telephone calls in his native Russian”). But see Edmond v. Univ. of
Miami, 441 F. App’x 721, 725 (11th Cir. 2011) (affirming summary judgment on hostile
environment claim where a coworker or supervisor – it is unclear which – reminded the plaintiff
that he had a Haitian accent and embarrassed the plaintiff by asking others to interpret for him);
Prado v. L. Luria & Son, Inc., 975 F. Supp. 1349, 1355–56 (S.D. Fla. 1997) (granting
defendant’s motion for summary judgment in spite of plaintiff’s allegations that defendant’s
supervisors mocked employees who had heavy accents, prohibited employees from speaking
Spanish, and prohibited persons with heavy accents from answering phones or using a public
address system).
16

v. Fla. Dep’t of Transp., 408 F.3d 1338, 1341, 1348 (11th Cir. 2005)). Hence, the
court concludes that disparaging remarks about Mr. Akwiwu’s accent potentially
could constitute harassment on the basis of his national origin.
But the fourth element of a hostile work environment claim is a high hurdle:
Mr. Akwiwu must show that he was subjected to harassment that was severe or
pervasive. The alleged harassment must be both subjectively and objectively
severe. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).
That means that Mr. Akwiwu personally must have perceived the alleged
harassment to have been so severe that it altered the terms or conditions of his
employment,7 and his perception must have been objectively reasonable in view of
“all the circumstances.” Id. Four factors are helpful in determining whether
harassment was objectively severe: “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.” Id.
Mr. Akwiwu has vaguely testified that “[s]ome” – perhaps even “most” – of
the DYS staff called him unidentified “names” and told him that they could not
understand his “Nigerian accent.” (Akwiwu Dep. at 85–86.) He claimed that he
7

DYS contends that the alleged harassment “cannot possib[ly] be perceived as . . .
subjectively abusive” (Doc. # 20, at 14), but it is hard to contend against a plaintiff’s testimony
of his subjective perception unless that testimony is impeachable. DYS’s argument is rejected at
this juncture.
17

could identify some of the perpetrators, but declined to actually offer their names.
(Akwiwu Dep. at 86.) He also complained that his supervisors required him to
repeat himself. (Akwiwu Dep. at 86–87.) Mr. Akwiwu claims that this made him
feel embarrassed and humiliated, but it is not clear from his testimony whether
others were ridiculing him for his accent and national origin or just expressing their
difficulty understanding his speech.8
Applying the four factors, Mr. Akwiwu was confronted about his accent on a
daily basis, so the alleged harassment was frequent. But as for the degree of
severity, it is difficult to determine from the record whether coworkers or
supervisors spoke to Mr. Akwiwu in a demeaning or derogatory manner or whether
they simply expressed their inability to understand him. 9 Even if coworkers or

8

Furthermore, Mr. Akwiwu’s deposition testimony appears to conflate disparate
treatment with hostile work environment. (See, e.g., Akwiwu Dep. at 87–89 (complaining about
being given leave without pay as opposed to being allowed to use sick or annual leave hours, or
being assigned to maintain order among the youths in a certain dormitory without any staff
assistance).) Mr. Akwiwu’s testimony does not associate this alleged disparate treatment with
any person’s indication of hostility about Mr. Akwiwu’s national origin, and therefore, it is not
considered in this hostile work environment analysis.
9

Cf. Yili Tseng v. Florida A & M Univ., 380 F. App’x 908, 909–10 (11th Cir. 2010).
There, the Taiwanese plaintiff attempted to prove direct evidence of discrimination for failure to
promote him by offering “several comments by his supervisors in annual evaluations and in
faculty meetings that ‘language [was] a challenge for him’ and that he needed to ‘work on his
English skills.’” The court rejected these remarks as evidence of direct discrimination because
“an employee’s heavy accent or difficulty with spoken English can be a legitimate basis for
adverse employment action where effective communication skills are reasonably related to job
performance.” Id. at 909. The Eleventh Circuit distinguished these supervisors’ comments from
cases where harassers made “blatant remarks,” “mock[ed] [the plaintiff’s] accent” or “ma[de]
disparaging remarks about” the plaintiff’s nationality. Id. at 909–10. Thus, it is important to
distinguish honest criticism (e.g., “I cannot understand what you are saying”) from national
origin-based hostility.
18

supervisors were rude when they told Mr. Akwiwu that they could not understand
him, “[d]iscourtesy or rudeness should not be confused with [national originbased] harassment.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
Furthermore, without knowing what “names” Mr. Akwiwu was called, it is
impossible to discern the severity of any alleged name-calling. Next, there is no
indication that the harassment involved threats of physical violence, but because
the comments were critical of Mr. Akwiwu’s accent, and by association, his
Nigerian origin, see Albert-Aluya, 470 F. App’x at 851, it was objectively
reasonable for Mr. Akwiwu to feel humiliated.10 Lastly, DYS points out that when
it pressed Mr. Akwiwu to describe an instance of harassment that caused him to be
unable to perform his job well, he responded that “[he] was performing [his] job
. . . like any other person.” (Akwiwu Dep. at 82.) However, a fair reading of the
deposition transcript shows that Mr. Akwiwu may not have understood defense
counsel’s question.

(See Akwiwu Dep. at 82 (“There’s nothing.

There’s no

incident. There’s no sickness that made me not perform my job.”).) Hence, the
record is unclear as to whether Mr. Akwiwu claims that his job performance
suffered as a result of the alleged spoken harassment.

10

Consider a person with a speech impediment. Even if others are kind and respectful to
him about the existence of his impediment, he nevertheless feels some degree of embarrassment.
Hence, whether others were cruel to Mr. Akwiwu or not, it is objectively reasonable that he felt
humiliated about others’ reactions to his accent.
19

Upon consideration of the four factors and the totality of the circumstances,
and viewing Mr. Akwiwu’s testimony in the light most favorable to him, the record
evidence is insufficient to support a finding that Mr. Akwiwu’s coworkers or
supervisors subjected him to harassment that was severe or pervasive as a matter of
law. Mr. Akwiwu’s deposition testimony raises as many questions as it offers
answers, and his opposition brief provides no analysis on how the evidence is
sufficient to demonstrate a prima facie case of hostile work environment. It is Mr.
Akwiwu’s burden to make a prima facie case, see Freeman v. City of Riverdale,
330 F. App’x 863, 865 (11th Cir. 2009), and DYS has properly employed summary
judgment to show that Mr. Akwiwu “cannot produce admissible evidence to
support” a case of hostile work environment, Fed. R. Civ. P. 56(c)(1)(B).
Consequently, DYS’s motion for summary judgment is due to be granted
with respect to Mr. Akwiwu’s hostile work environment claim.11
C.

Retaliation
DYS argues that it is entitled to summary judgment on Mr. Akwiwu’s

complaint of retaliatory discharge because Mr. Akwiwu cannot make a prima facie
case of retaliation, and even if he could, he cannot rebut DYS’s legitimate, nonretaliatory reason for firing him.

11

In the absence of thorough briefing, the court declines to address whether Mr. Akwiwu
can establish the fifth element, i.e., a basis for holding DYS liable for the allegedly hostile work
environment.
20

1.

No Prima Facie Case

“To establish a prima facie case of retaliation under Title VII, the plaintiff
must show (1) that [he] engaged in statutorily protected expression; (2) that [he]
suffered an adverse employment action; and (3) that there is some causal relation
between the two events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363
(11th Cir. 2007) (internal quotation marks omitted). A plaintiff may meet his
burden of showing causation if there is “close temporal proximity between the
statutorily protected activity and the adverse employment action.”

However,

“temporal proximity, without more, must be very close.” Id. at 1364.
Mr. Akwiwu relies on close temporal proximity. (Doc. # 23, at 5, 11.) As
alleged in the second amended complaint, the retaliation claim is partially
premised upon Mr. Akwiwu’s allegation that he engaged in statutorily protected
activity when the EEOC issued its notice of right to sue letter on August 28, 2013,
almost nine months after he filed his charge of discrimination. (See Second Am.
Compl., at ¶ 7.) Mr. Akwiwu posits that Mr. Wood’s issuance of a letter on
September 4, 2013, scheduling a hearing on the recommendation that Mr. Akwiwu
be suspended or dismissed from his job, is causally related to the EEOC’s letter.
DYS protests that Mr. Akwiwu did not engage in protected activity by passively
receiving the EEOC’s issuance of a notice of right to sue letter. (Doc. # 20, at 18
(citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam).)
21

The objection is well taken. In Clark County School District, the Supreme
Court rejected in dicta a litigant’s “utterly implausible suggestion that the EEOC’s
issuance of a right-to-sue letter – an action in which the employee takes no part – is
a protected activity of the employee.”

Id. at 273.

The Supreme Court also

explained that “[e]mployers need not suspend previously planned [actions] upon
discovering that a Title VII suit has been filed, and their proceeding along lines
previously contemplated, though not yet definitively determined, is no evidence
whatever of causality.” Id. Here, as DYS points out, disciplinary action against
Mr. Akwiwu was ongoing and did not begin or end with Mr. Wood’s letter on
September 4, 2013. (See Doc. # 20-15; see also Doc. # 20, at 20 (asserting that
Mr. Wood’s letter merely set a hearing and did not mete out final discipline).)
Eliminating from consideration the EEOC’s issuance of the notice of right to sue
letter, Mr. Akwiwu most recently had engaged in protected activity upon filing his
EEOC charge on December 31, 2012, and there is insufficiently close temporal
proximity between that date and any allegedly retaliatory employment action,
particularly his termination in February 2014.12

12

Additionally, DYS asserts that, pursuant to the Supreme Court’s holding in University
of Texas Southwest Medical Center v. Nassar, 133 S. Ct. 2517 (2013), “Title VII retaliation
claims must be proved according to traditional principles of but-for causation.” Id. at 2533.
“This requires proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Id. DYS argues that because Mr. Akwiwu
continued to commit disciplinable infractions, he cannot show that but for his filing of his charge
of discrimination, he would have kept his job. While this argument is sound, it anticipates and
22

Mr. Akwiwu thus fails to make the requisite causal connection on the basis
of close temporal proximity. Because there is no evidence causally connecting Mr.
Akwiwu’s engagement in protected activity with an adverse employment action,
Mr. Akwiwu fails to make a prima facie case of retaliation.
2.

Legitimate, Nonretaliatory Reason Not Rebutted

Even if Mr. Akwiwu could make a prima facie case of retaliation, he does
not rebut DYS’s reason for the termination as pretext. After a plaintiff makes his
prima facie case, the employer may “articulate a legitimate, nonretaliatory reason
for the challenged employment action as an affirmative defense to liability. The
plaintiff bears the ultimate burden of proving retaliation by a preponderance of the
evidence and that the reason provided by the employer is a pretext for prohibited
retaliatory conduct.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th
Cir. 2008). In this case, DYS asserts that Mr. Akwiwu lost his job because he slept
on the job while youths attempted to escape and falsely reported conducting a head
count upon awaking.
In response, Mr. Akwiwu contends that DYS’s reason for terminating
employment is “subjective.” (Doc. # 23, at 8.) By calling the reason subjective,
Mr. Akwiwu continues to advance his narrative that he never slept on the job, and
he proposes that DYS’s proffered reason cannot be conclusively proven and
essentially duplicates DYS’s proffered legitimate nonretaliatory reason for terminating Mr.
Akwiwu’s employment, which is addressed separately infra.
23

therefore is illegitimate.

DYS’s video evidence supports its belief that Mr.

Akwiwu slept while youths fled his supervision, but even if it that evidence did not
exist, Mr. Akwiwu has not contested DYS’s ancillary conclusion that he failed to
actually conduct a head count upon awaking. Moreover, “subjective reasons are
not the red-headed stepchildren of proffered nondiscriminatory explanations for
employment decisions.

Subjective reasons can be just as valid as objective

reasons,” so long as they are “clear and reasonably specific.” Chapman v. AI
Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc). Here, DYS’s reason for
terminating Mr. Akwiwu has been clearly articulated with a “specific factual
basis,” and this court must not second-guess an honest reason that would motivate
a reasonable employer. Id. at 1030, 1034.
Mr. Akwiwu also suggests that DYS’s reason should be disbelieved because
Mr. Akwiwu “has a history of complaint[s] against DYS, including [an] EEOC
charge and civil rights litigation.” (Doc. # 23, at 8.) In other words, he claims that
DYS should be suspected of looking for a reason to fire him. But to successfully
rebut the reason as pretextual, Mr. Akwiwu is required to confront DYS’s reason
“head on.” Chapman, 229 F.3d at 1030. This argument evades the requisite head
on rebuttal.

Hence, even if Mr. Akwiwu could make a prima facie case of

retaliation, he has not shown that DYS’s stated reason for terminating his
employment is a pretext for retaliation.
24

For these reasons, DYS’s motion for summary judgment is due to be granted
as to Mr. Akwiwu’s claim of retaliation.
V. CONCLUSION
In sum, no Title VII claim survives.

In accordance with the foregoing

analysis, it is ORDERED that Defendant’s motion for summary judgment (Doc.
# 19) is GRANTED.
A separate final judgment will be entered.
DONE this 15th day of October, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

25