Griffin v. Neptune Technology Group

Filing 105

OPINION. Signed by Honorable Judge Myron H. Thompson on 4/13/2015. (dmn, )

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

JOSHUA GRIFFIN,
Plaintiff,
v.
NEPTUNE TECHNOLOGY GROUP,
Defendant.

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CIVIL ACTION NO.
2:14cv16-MHT
(WO)

OPINION
Relying on Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 1981a & 2000e through
2000e-17, plaintiff Joshua Griffin has sued his former
employer, defendant Neptune Technology Group,

claiming

that he suffered illegal retaliation for opposition to
discrimination.

Relying on the Consolidated Omnibus

Reconciliation Act of 1986 (“COBRA”), 29 U.S.C. § 1132,
Griffin also claims that Neptune illegally failed to
provide appropriate notice that he could continue his
health-insurance coverage after his termination.

The

court

has

original

jurisdiction

over

these

claims under 28 U.S.C. §§ 1331 (federal question), 29
U.S.C.

§

1132(f)

(COBRA),

and

42

U.S.C.

§ 2000e-5(f)(3) (Title VII).
This cause is before the court on Neptune’s motion
for summary judgment in its favor.

For the following

reasons, the motion will be granted on the Title VII
claim and denied on the COBRA claim.
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 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).
2

II. BACKGROUND
Griffin
claims

makes

that,

two

in

types

violation

of

claims.

of

Title

First,
VII,

he

Neptune

retaliated against him for his complaints to management
about

harassment

Second,

he

and

claims

retaliation

that

Neptune

by

his

failed

supervisor.
to

give

him

proper notice of his right to elect COBRA coverage.
The

court

begins

by

discussing

the

relevant

facts,

which are drawn from the evidence taken in the light
most favorable to Griffin.
Griffin, who is an American of African descent,
started worked for Neptune, a water-meter manufacturer.
His

job

duties

packaging

included

meters.

employees

assembling,

Under

are

the

testing,

company’s

eligible

and

policy,

for

a

merit-based pay increase every four months until they
reach

the

supervisors
supervisees

top

of

complete
every

four

their

position’s

performance
months,
3

reviews

and

pay
of

positive

range;
their
reviews

result in raises.
employment,

For the first nine months of his

Griffin

received

positive

reviews

and

raises every four months.
In August 2011, shortly after Frank Pierce, who is
white,

became

Griffin’s

direct

supervisor,

Griffin

began to feel that Pierce was singling him out for
unfair

treatment.

Pierce

talked

to

Griffin

in

a

negative and harsh tone and frequently criticized him
when Griffin believed he was doing nothing wrong.
one

occasion,

stupid”

for

criticize

Pierce
doing

a

white

told

Griffin

something
employee

that

for

he

was

Pierce

doing.

On

“looking
did

not

Evidentiary

Submission in Support of Motion for Summary Judgment
(Doc. No. 39-1), Deposition of Joshua Griffin, 63:16
through 64:4.

On another occasion, Pierce approached

Griffin and purposefully kicked a large metal cart that
Griffin
fall.

was

leaning

on,

potentially

causing

him

to

Griffin observed that Pierce was also hard on

two of Griffin’s black coworkers and started to be hard
on

a

white

coworker

after

4

Griffin

and

the

coworker

became good friends.

However, Griffin admits Pierce’s

“favorites”

several

included

(Evidentiary

Submission

black

in

female

Support

of

employees.
Motion

for

Summary Judgment, Doc. No. 39-1, Deposition of Joshua
Griffin, 114:19 through 115:2.)

A. November 2011 Complaint
Soon after Pierce became his supervisor, Griffin
began

making

management

complaints

about

to

Pierce’s

various

harassment

members
of

him,

of
in

accordance with the procedure laid out in the employee
handbook.

However, he vocalized concern that Pierce

was motivated by race on only one occasion, in November
2011.

That

time,

Griffin

approached

Pierce’s

direct

supervisor, Ricky Morgan, to complain that Pierce was
harassing
behavior

him
“had

unfairly
something

and
to

do

stated
with”

that

Pierce’s

Griffin’s

race.

Evidentiary Submission in Support of Motion for Summary
Judgment (Doc. No. 39-1), Deposition of Joshua Griffin,
220:4-7.

5

Griffin says that, from that point until August
2012,

Pierce

continued

to

pick

on

him

and

talk

negatively to him, but the evidence contained little in
the way of specifics.

On one occasion, in January

2012, Pierce denied Griffin’s request for vacation pay
for the shift during the National Championship football
game, which Pierce had granted to all other employees
who requested it except one other black male employee.
Griffin complained to Human Resources about Pierce’s
conduct

in

this

incident

but

did

not

say

that

he

believed Pierce’s behavior was motivated by race.
Pierce

gave

Griffin

two

positive

performance

reviews and merit raises during this nine-month period.

B. August 2012 Complaints
Around
first
raise.

August

1,

2012,

negative-performance
That

day,

Pierce
review

Griffin

gave
and

complained

Griffin

denied
to

the

his

him

a

Human

Resources Department about Pierce but did not mention
racial motivation in his complaint.

6

He asked Human

Resources to arrange for a meeting with him, Pierce,
Morgan,

and

Human

Resources

personnel

present

address the problems between Griffin and Pierce.

to

Human

Resources never set up the meeting.
In

the

week

became

the

focus

following
of

a

this

series

complaint,
of

Griffin

troubling

events

documented in a series of emails and other materials.
Essentially,

over

the

following

week

or

so,

Pierce

reported to Human Resources that he suspected Griffin
had been smoking--a terminable offense.

He and a Human

Resources employee spied on Griffin to try to catch him
in

the

act,

Pierce’s

but

saw

suspicions,

Director

nothing.
Morgan

After
and

Jill

evidence,

Samuelson

spoke

and

Samuelson

talked

learning

Human

about
with

of

Resources

ways
the

to
head

find
of

security about training a camera on the courtyard to
try

to

catch

Griffin

smoking.

Shortly

thereafter,

Pierce tried to find an old disciplinary warning he had
issued to Griffin, and, after realizing that he had not
submitted

it

to

Human

Resources,

7

issued

a

new

disciplinary warning to Griffin for allegedly using his
phone on the work floor the prior day.

However, there

was no reason for Pierce to wait a day before writing
up Griffin, and Griffin denies the accusation.
warning,

reduced

Neptune’s

to

four-step

writing,

was

the

disciplinary

first

The
in

leading

policy

step

to

termination.
On August 9, 2012, the day after receiving this
write-up, Griffin made a new complaint of harassment
and

retaliation

against

Pierce

to

Roper

Industries,

Neptune’s parent company, through its ethics complaint
hotline.

During this call, Griffin did not claim that

he was being harassed on the basis of race or that he
was suffering retaliation due to a complaint of racial
discrimination.
The next morning Human Resources Director Samuelson
received an email from Roper Industries, instructing
her

to

investigate

complaint

to

the

and

make

ethics

a

report

hotline,

and

contacting management about the complaint.

8

on

Griffin’s
she

began

Later that day, after being informed of the hotline
complaint,

Morgan

issued

Griffin

a

written

warning

alleging that, on the previous day, he had held up the
production line for 10 minutes.

While admitting that

he was not at his station, Griffin disputes that his
actions had been improper and said he had been trying
to get guidance from a supervisor.

There was no reason

for the delay in issuing the warning.
progressive-discipline

policy,

a

Under Neptune’s

written

warning

was

the second step in the four-step process leading to
termination.
On the following work day, Human Resources Director
Samuelson

wrote

to

a

Roper

Industries

employee

to

update him on the status of her investigation and to
notify him of the disciplinary actions taken against
Griffin by Pierce and Morgan that week.

In the email,

she attempted to head off any potential concern about
the two disciplinary actions coming so close on the
heels of Griffin’s complaint, claiming the discipline

9

was “in no way retaliation.”

Evidentiary Submission in

Response to Summary Judgment (Doc. No. 53-33).
Samuelson never interviewed Griffin or any of his
co-workers

on

the

production

line

about

Pierce’s

alleged harassment and retaliation, and instead spoke
only with the supervisors and managers to whom Griffin
said

he

had

investigation,

complained.
she

Based

decided

there

on
was

this
no

limited
merit

to

Griffin’s complaints.
About a month later, in accordance with company
policy requiring a second performance review one month
after a negative one, Pierce gave Griffin a positive
review, rating him ‘above average’ in several areas and
approving him for a raise.

Two days later, Samuelson

emailed Morgan to notify him of the positive review and
warned: “[B]ased on this, the warnings received a few
weeks ago will not be applicable if we have to move
forward with any type of discipline in the future.”
Evidentiary Submission in Response to Summary Judgment
(Doc.

No.

53-16).

Morgan

10

forwarded

this

email

to

Pierce and reminded him that Griffin had received two
disciplinary
considered

actions,

against

recent review.

which

Griffin

when

Pierce

should

completing

have

his

most

In the future, Morgan warned, Pierce

would have to consider all disciplinary actions during
the entire review period, not just the month prior,
when

doing

such

reviews.

Morgan

stated

he

would

discuss the matter with Pierce in person later that
day.

C. Termination
On November 7, 2012, the night President Obama was
reelected, someone at Neptune played a rap song about
the

President

over

the

intercom,

which

accessed using any telephone at the facility.

could

be

Shortly

afterwards, Pierce saw some employees--who were in a
department

other

than

Griffin’s--gathered

telephone but did not question them.

around

a

That night, two

people told Pierce they were offended by the song that

11

had come over the intercom,1 and Pierce reported the
incident to his superiors.
The

company’s

incident

management

seriously,

although

took
it

the
had

election-night
not

reacted

previously in such a way to non-business uses of the
intercom.
repeatedly

During
had

Griffin’s

used

the

employment,
intercom

employees

system

for

non-business purposes, such as commenting on football
games, wishing others happy birthday, and playing bits
of music.

No reports were made to Human Resources

about the inappropriate use of the intercom in those
circumstances.2
Human Resources Director Samuelson determined that
the phone in the department where Griffin worked had
1. Pierce had previously come in contact with one
of the employees who complained about the song.
On
that occasion, the employee, who is white, used the
‘n-word’ in conversation in the work place.
Pierce
told him not to use that kind of language but did not
write up the man or report his misconduct to anyone.
2. One supervisor admitted
he had heard a
television-show theme song played over the intercom but
did not make a report; no one was disciplined for the
incident.
12

been

used

to

access

the

intercom.

The

phone

was

located on the desk of Griffin’s ‘group leader.’

On

November 8, 2012, Pierce emailed Morgan’s supervisor
the names of six employees, including Griffin and the
group leader, who could have seen who used the phone.
The

supervisor

forwarded

the

email

to

Samuelson

and

wrote that, “because of the employees involved” he was
asking

Human

Resources

to

do

the

investigation.3

Evidentiary Submission in Response to Summary Judgment
(Doc. No. 53-17).
Human Resources Director Samuelson investigated the
incident on a day that Griffin was not at work and did
not interview him or most of his co-workers in the
area.

However,

she

did

interview

Griffin’s

group

leader, who accused him of playing the song over the
intercom.

3. Also, he asked Human Resources to confirm that
the song was “A.P.T. Obama Obama Obama” and to look up
the lyrics.
Evidentiary Submission in Response to
Summary Judgment (Doc. No. 53-17).
13

Without

asking

him

his

version

of

the

events,

Samuelson and Morgan decided to suspend Griffin without
pay for three days as punishment for the offense.
was

the

third

step

in

leading to termination.

Neptune’s

four-step

This

process

When they met with him to tell

him of the suspension, Griffin denied playing the song
and insisted that he was in the bathroom when it was
played.4

The discussion became heated, and Samuelson

told Griffin that they knew he “did it because... [his]
name ha[d] been bringing a lot of mess around here” as
he

had

“called

the

1-800

hotline

telling

them

that

[they] held his raise and [that he was] being harassed
by”

Pierce.

Evidentiary

Submission

in

Support

of

Motion for Summary Judgment (Doc. No. 39-1), Deposition
of Joshua Griffin, 80:15-19.

Griffin pointed out that

he had come to them about the harassment but they had
done nothing about it.

At the end of the conversation,

4. Another coworker had seen Griffin coming out of
the bathroom while the music was being played, but she
was not on the list of employees to interview, and
Samuelson had not talked to her.
14

the

managers

without

pay

said
for

that

three

Griffin
days

would

while

be

they

suspended

investigated

further.
While

he

was

out

on

suspension,

two

colleagues

called Griffin and informed him that Human Resources
had started its investigation and now was interviewing
his coworkers in the area.5

When he got back to work,

Griffin met with Morgan and Samuelson.

According to

Griffin, Samuelson and Morgan reported they were done
with the investigation and that they had decided to
forget about the intercom incident and proceed as if it
had never happened.
of

Motion

for

Evidentiary Submission in Support

Summary

Judgment

(Doc.

No.

39-1),

Deposition of Joshua Griffin, 83:12-25.
On December 7, 2012, Griffin--unsatisfied with the
resolution of the intercom incident--made a complaint
with the EEOC, and Human Resources Director Samuelson

5. A coworker told Griffin she thought he was being
retaliated against for calling the ethics line, which
surprised him, because he did not think anyone other
than management knew about his call.
15

was notified of the charge by letter during the same
month.

The

notice

made

clear

that

Griffin

alleged

race-based harassment and retaliation.
On January 16, 2013, Pierce gave Griffin a positive
performance
However,

review

Griffin

and

recommended

never

received

a
the

pay
pay

increase.
increase

because of the following events that occurred that same
day.
On

that

day,

allowed break.

according

to

Griffin,

he

took

his

Another employee took his place on the

testing machine while he was out.

When he came off

break, he noticed the machine was operating with the
‘pressure tester’ off.

Griffin had not turned off the

pressure tester himself, for there was no advantage to
be gained in terms of speed or workload by doing so.
In

the

past,

Morgan

had

instructed

Griffin

and

his

colleagues to run the machine with the pressure tester
off when the machine was malfunctioning and even had
another employee instruct them on how to do so.

The

machine frequently was run with the tester off when

16

waiting
Griffin

for

maintenance

consulted

with

to

work

colleagues

on
in

the
the

machine.

area

about

whether there was a problem with the machine but was
informed that the machine was fine.

Griffin walked to

another part of the test bench to push a button that
would send parts to his machine and started to walk
back to the pressure tester.

At that point, Pierce and

the head of maintenance walked straight from the back
to Griffin’s machine, hit it, and took a picture of the
screen with Pierce’s cell phone.

Pierce told Griffin,

“We’re not running bypass mode no more,” turned the
pressure tester back on, and walked off.

Evidentiary

Submission in Support of Motion for Summary Judgment
(Doc. No. 39-1), Deposition of Joshua Griffin, 93:1494:3.

Pierce then reported the event to his superiors.

After the picture was taken, Griffin continued to
operate the machine.
now

malfunctioning,

However, because the machine was
he

called

for

repeatedly, but no help ever came.
Morgan

and

Human

Resources

17

maintenance

Two days later,

Director

Samuelson

terminated him.

Samuelson explained in an email to

senior management that Griffin had been terminated for
‘operating’ the machine in ‘bypass mode,’ instead of
for ‘putting’ the machine in bypass mode, because the
company lacked proof that Griffin intentionally had put
the machine in that mode.

In the email, she identified

Griffin as the person who had played the Obama song and
called

the

supervisor

ethics
and

his

line

“complaining

mistreatment.”

about

his

Evidentiary

Submission in Response to Summary Judgment (Doc. No.
53-20).
Human Resources sent Griffin a termination letter,
which listed the intercom incident as a prior incident
justifying

his

termination,

although

Samuelson

and

Morgan previously had stated that the incident would be
treated as if it had not happened.
Griffin did not receive notice of his eligibility
for COBRA benefits.

18

III. TITLE VII CLAIM
Griffin asserts that Neptune retaliated against him
by harassing him and terminating him in response to his
multiple

internal

complaints

to

management

about

harassment and retaliation.

A. Statute of Limitations
Before addressing Griffin’s substantive claim, the
court must address Neptune’s argument that Griffin’s
Title

VII

claim

limitations.

is

Neptune

barred
argues

by
that

the

statute

Griffin

failed

of
to

file his complaint in federal court within 90 days of
receiving from the EEOC a notice of right to sue.6
Title VII of the Civil Rights Act of 1964 requires
that suit be brought within 90 days after receipt of
notice

of

right

to

sue

from

the

EEOC.

42

U.S.C.

6. Neptune also argues that Griffin cannot pursue
his claim based on events that occurred more than 180
days before his EEOC charge. As the court will grant
summary judgment for other reasons as to all events
that occurred prior to that time period, the court need
not reach this argument.
19

§ 2000e-5(f)(1).
commences

upon

“[T]he 90-day statute of limitations
receipt

of

the

right-to-sue

letter.

However, a plaintiff is required to assume some minimal
responsibility to ensure receipt. ... [A] case-by-case
approach

[applies]

in

determining

what

receipt and when the time is triggered.”

constitutes
Stallworth v.

Wells Fargo Armored Services Corp., 936 F.2d 522, 524
(11th Cir. 1991).
The
here.

court

now

applies

the

case-by-case

approach

The relevant facts in this case are as follows.

On September 17, 2013, Griffin and his attorney had a
conversation with an EEOC investigator who told them he
was recommending closure of the case.
the

EEOC

issued

a

right-to-sue

Griffin in care of his attorney.

On September 18,

letter

addressed

to

However, Griffin’s

attorney did not receive this letter.

On September 24,

Neptune received a copy of the letter in the mail.

On

October 7, the EEOC District Director sent a follow-up
letter to Griffin in care of his attorney, attaching a

20

copy of the original September 18 right-to-sue letter.
The October 7 cover letter stated:
“The
Commission
has
now
received
notice
that
the
correspondence
containing the Notice of Right to Sue
was not delivered to the Charging
Party. Delivery to the Charging Party
established
certain
deadlines
associated
with
a
charge
of
discrimination. . . .
The Commission
has now obtained additional address
information
which
will
facilitate
delivery of notice to the Charging
Party.
“The Charging Party has not currently
received the Notice of Right to Sue
from the Commission. The Notice of
Right to Sue attached is being mailed
on the date of this letter.”
Evidentiary Submission in Support of Motion for Summary
Judgment (Doc. No. 39-18) (emphasis added).
filed

his

lawsuit

within

90

days

of

Griffin

receiving

the

October 7 follow-up letter, but 104 days after Neptune
received the September 18 original letter, and 110 days
after the EEOC dated the original letter.
Griffin bears the “burden of establishing that he
filed his Complaint within ninety days of his receipt
21

of the EEOC's right-to-sue letter.”

Green v. Union

Foundry Co., 281 F.3d 1231, 1233-34 (11th Cir. 2002).
In his response to the summary-judgment motion, Griffin
presented an affidavit from the attorney to whom the
September 18 and October 7 letters were addressed, in
which the attorney attested that no one in his office
received
October

the
7,

September

and

that

18

the

original
office

letter

first

prior

received

to
the

September 18 original letter when it came attached to
the October 7 follow-up letter.

As the letter was

mailed on October 7, Griffin could not have received it
before October 8, at the earliest.

Griffin filed suit

on January 6, 2014, within 90 days of October 8.

Thus,

Griffin has established that he filed suit within 90
days of actually receiving the EEOC’s September 18 and
October 7 letters.
Neptune argues, however, that the court should not
use Griffin’s receipt of the October 7 follow-up letter
as the starting point for the 90-day period, and that
the

90

days

should

run

from

22

the

date

when

Neptune

received its copy of the September 18 original letter,
on September 24.

Neptune contends that this case is

controlled by two cases in which the Eleventh Circuit
Court of Appeals considered whether the issuance of a
second right-to-sue notice restarted the 90-day period
for

filing

Nationale

a

Air

complaint.
France,

In

129

Gitlitz

F.3d

554,

v.

557

Compagnie
(11th

Cir.

1997), the EEOC issued a right-to-sue letter to the
plaintiff,

which

contacting

his

plaintiff

the

plaintiff

congressman

for

received

right-to-sue

letter

[over

received.
assistance,
“a

two

After
the

second

months

later],

which

rescinded the first letter and stated that [plaintiff]
had another 90 days within which to file suit.”
556.

The

reliance

appellate

on

the

court

date

of

rejected
the

the

second

Id. at

plaintiff’s
letter

in

calculating the deadline for filing suit because the
EEOC had not reconsidered its first decision on the
merits before issuing the second letter.

Similarly, in

Santini v. Cleveland Clinic Florida, 232 F.3d 823 (11th

23

Cir.

2000),

the

plaintiff’s

law

firm

received

an

undated right-to-sue letter and contacted the EEOC to
request a dated letter.
letter.

The EEOC then sent out a dated

The appellate court held that the plaintiff

received notice on the date of actual receipt of the
first letter and, accordingly, found the plaintiff’s
claim time-barred.

The Eleventh Circuit summarized its

holding in the case as follows: “As a matter of law,
receipt of a second EEOC Notice does not constitute
grounds for equitable tolling where a party has actual
knowledge of the first Notice.”
Neptune’s

reliance

on

Id. at 825.

these

cases

is

misplaced.

In both cases, it was undisputed that the plaintiff
actually

had

received

the

first

letter

in

a

timely

manner; the question was whether, despite that receipt,
the 90-day period did not run until a second letter was
received.
evidence

Here, in contrast, the record contains no
that

Griffin

received

the

September

18

original letter, and the EEOC clearly stated that the
original letter had not been received.

24

This is not a

case where the plaintiff argues that he should get a
second bite at the apple because of the issuance of a
second letter; here, the plaintiff never had a first
bite.
Neptune also argues that the evidence establishes
that the September 18 original letter and the October 7
follow-up letter were sent to the same address, so the
original letter must have been received or should be
assumed to have been received by Griffin when Neptune
received it.
letter

and

Neptune is correct that the September 18
the

October

7

letter

include

the

same

address for Griffin, in care of his attorney’s office.
However, the record before the court does not contain
evidence demonstrating proper mailing, such as an EEOC
mail log showing that proper postage was affixed, a
copy of the envelope in which the notice was first
sent, or other documentation showing that the September
18

letter

however,

was

mailed

include

the

properly.
EEOC’s

clear

The

record

statement

does,
in

the

October 7 letter that the September 18 letter had not

25

been

received

cannot

by

conclude

Griffin.
that

the

Accordingly,
first

letter

properly to the same address as the second.

the
was

court
mailed

The court

will not grant summary judgment on this basis.7

7

Nor does Kerr v. McDonald's Corp., 427 F.3d 947
(11th Cir. 2005), compel a different result. In Kerr,
the plaintiffs claimed they did not actually receive
their right-to-sue letters until a month and a half
after the date on the letters.
The appellate court
characterized the issue before it as whether, “under
the test established in our circuit, actual knowledge
on the part of a complainant that the EEOC has
terminated its investigation of her claim, as evidenced
by her request for [a right-to-sue] letter, may be
sufficient to cause the time for filing to begin
running within a reasonable time after written notice
of complainant's right to sue has been mailed.” Id. at
954. The court concluded that the answer was yes, and
found the plaintiff’s case time-barred.
Kerr is distinguishable from the instant case in a
number of ways. First, Neptune has not alleged, and the
record is not clear as it was in Kerr, that Griffin had
‘actual knowledge’ that the EEOC definitively had
terminated its investigation of his claim. At the time
of the events in Kerr, the charging party could request
a right-to-sue letter without waiting for an official
finding; requesting a letter was tantamount to an
acknowledgement
that
the
EEOC
investigation
was
completed.
Id. at 949 (noting that the EEOC letter
accompanying the form to request a right-to-sue notice
(continued...)
26

explained that “issuance of [a right-to-sue] letter
represents the end of any formal EEOC action in the
matter.”) In Kerr, the plaintiffs had verbally and in
writing requested right-to-sue letters, and the court
took the written requests as clear proof that the
plaintiffs knew the EEOC investigation was over.
See
id. at 951 (“Understanding that issuance of those
letters would represent the end of EEOC involvement,
both Kerr and Green Smith chose to request letters.”)
Here, in contrast, there is no indication that Griffin
knew with certainty that the EEOC investigation was
closed.
There is no evidence that he requested a
right-to-sue letter as had the plaintiff in Kerr. And
because the investigator had only told Griffin he was
recommending closure of the investigation--not that the
investigation definitely was closed--Griffin would not
necessarily have expected to receive a notice within a
certain period of time.
Second, in Kerr, almost a month and a half passed
between
the
plaintiffs’
request
for
right-to-sue
letters and their eventual receipt of the letters as
part of their case files.
The Kerr court noted that
the plaintiffs should have started calling the agency
when they did not receive a letter “after several
weeks” of their request.
See id. at 953.
Here,
Griffin received the right-to-sue letter within several
weeks of last contact with the agency. In other words,
Griffin did not sit on his hands an inordinate amount
of time without inquiring into the status of the
letter.
Finally, in Kerr, the plaintiffs received copies of
their right-to-sue letters which were obviously not the
(continued...)
27

B. Retaliation Claim
“To make out a prima facie case of retaliation, a
plaintiff

must

show:

(1)

that

she

engaged

in

an

activity protected under Title VII; (2) she suffered a
materially adverse action; and (3) there was a causal
connection

between

adverse action.”

the

protected

activity

and

the

Kidd v. Mando Am. Corp., 731 F.3d

1196, 1211 (11th Cir. 2013).
Griffin claims he engaged in statutorily protected
expression

by

making

complaints

to

management

about

harassment and retaliation, including his November 2011
and August 2012 complaints.

Such a claim is referred

originals but were dated a month and a half earlier,
without any explanation from the EEOC, but they did not
call to inquire about the discrepancy.
Id.
In this
case, in contrast, Griffin received a letter from the
EEOC that offered an explanation for the discrepancy in
the dates and made clear that the operative date was
the one on which the October 7 follow-up letter
actually was received.
For these reasons, the court
concludes that Kerr does not support Neptune’s argument
in this case.

28

to commonly as an ‘opposition clause’ claim.
U.S.C.

§

2000e–3(a)

(prohibiting

See 42

retaliation

against

employees who “oppose” unlawful employment practices).
However, not all internal complaints of mistreatment
constitute

protected

activity

anti-retaliation provision.

under

Title

VII’s

To make out a colorable

claim of retaliation under the ‘opposition clause’, a
plaintiff’s complaints must put supervisors on notice
that he is complaining about prohibited discriminatory
conduct;

to

do

so,

discrimination clearly.

the

plaintiff

must

allege

See, e.g., Gerard v. Board of

Regents, 324 F. App’x. 818, 826-27 (11th Cir. 2009)
(letter that did not allege race discrimination could
not

form

basis

for

retaliation

claim).

See

also

Albrechtsen v. Board of Regents of Univ. of Wis. Sys.,
309

F.3d

433,

436-437

(7th

Cir.

2002)

(letter

that

complained of mistreatment of all faculty members but
did not contain words sex or gender could not have been
construed as a complaint against sex discrimination).
A complaint that merely alleges that an employee is

29

being picked on or that management is “out to get” him
does not constitute protected activity under Title VII.
See Fox v. Eagle Distrib. Co., Inc., 510 F.3d 587,
591-92 (6th Cir. 2007).
Griffin mentioned race as a motive for Pierce’s
alleged harassment in only one internal complaint, in
the fall of 2011 when he told Morgan that he thought
Pierce’s harassment of him “had something to do with”
Griffin’s race.
constitute

Therefore, only that complaint could

protected

expression;

the

other

internal

complaints, including the August 1 and 9 complaints,
would not constitute protected expression.
Neptune,
complaint

however,

was

not

argues
specific

protected expression.

that

the

enough

November
to

2011

constitute

At the summary-judgment stage,

the court must make all reasonable inferences in favor
of the plaintiff.

Griffin complained to a supervisor

about being harassed by Pierce and that the harassment
“had

something

something

to

do

to

do

with”

with”

race.

The

essentially

means

30

phrase
“is

“had

related

to”.
the

Thus, Griffin told the supervisor that he felt
harassment

was

related

to

race.

This

was

sufficient to put the supervisor on notice that Griffin
was

complaining

therefore,

is

of

racial

sufficient

discrimination

establish

the

and,

element

of

protected expression under the opposition clause.8
Griffin
materially
action
worker

also

must

show

adverse-employment

that
from

“well

might

making

discrimination.”

or

have

that

he

action,

suffered
that

dissuaded

supporting

a
a

is,

a
an

reasonable
charge

of

Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006). Griffin clearly has met
the element of a materially adverse action with regards
to his termination.

The record also contains evidence

of materially adverse actions that occurred after his
8. Griffin has presented no evidence that Morgan
shared Griffin’s November 2011 race-discrimination
complaint with others at Neptune or that others
construed
his
complaints
as
challenging
race
discrimination.
Accordingly, the court concludes that
Griffin’s only complaint to a supervisor that could
have
constituted
protected
expression
under
the
opposition clause was the fall-2011 complaint to
Morgan.
31

fall-2011 complaint.
tried

to

terminable
formal

have

In August 2011, Pierce and Morgan

Griffin

offense--and,

disciplinary

disciplined
when

action

that

for

failed,

against

smoking--a
undertook

Griffin,

twice

within a week’s time, that could be used as a basis for
termination under the company’s progressive discipline
policy.

This

series

of

actions

certainly

would

be

serious enough to give a reasonable employee hesitation
about making further complaints of discrimination.9

9. Griffin also contends that he suffered the
materially adverse-employment action of a hostile
environment, see Gowski v. Peake, 682 F.3d 1299,
1311-12 (11th Cir. 2012) (recognizing cause of action
for retaliatory hostile-work environment). Griffin has
not put forth sufficient evidence to establish that he
experienced a hostile-work environment. To establish a
hostile work environment claim under Title VII, the
plaintiff must show that “the workplace is permeated
with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment.” Rojas v. Florida, 285
F.3d 1339, 1344 (11th Cir. 2002) (citation omitted).
Griffin was not subjected to conditions severe
enough
to
constitute
a
hostile-work
environment.
Griffin contends that, during the period after his
November 2011 discrimination complaint through July of
2012, Pierce continued to pick on him and continued to
(continued...)
32

However, Griffin cannot prove the required causal
relationship between his protected expression and the
adverse actions.

Evidence that harassment escalated

soon after an employee made a complaint certainly could
provide circumstantial evidence of a causal connection
between the complaint and the mistreatment.

But here,

Griffin has failed to show that Pierce’s treatment of
him

worsened

appreciably

in

the

nine

months

after

Griffin’s 2011 complaint; indeed, he received positive
performance

reviews

during

that

time.

Therefore,

a

deny him the opportunity for overtime work.
The only
specific incident Griffin mentions that occurred during
this time period is that Pierce denied him paid
time-off to watch the National Championship football
game. These actions, while certainly unwelcome, simply
do not constitute the type of severe and pervasive
harassment needed to show a retaliatory hostile-work
environment.
Furthermore, in the midst of this time,
Griffin received two positive performance reviews,
which would have ameliorated the impact of any negative
treatment Griffin experienced. And as discussed below,
Griffin’s conditions did not get appreciably worse
until August 2012, nine months after his racediscrimination complaint. To the extent that Griffin’s
conditions in August 2012 became severe enough to
constitute
a
hostile
environment,
Griffin
lacks
evidence of a causal link between the November 2011
complaint and Neptune’s August 2012 actions.

33

reasonable factfinder could not find Pierce’s conduct
during that period was motivated by retaliatory animus.
Griffin’s work conditions did worsen appreciably in
August

2012,

Resources

after

and

Griffin

made

complaints

Industries.10

Roper

to

However,

Human
the

nine-month lapse between the November 2011 race-based
complaint and the August 2012 events is simply too long
for a reasonable factfinder to infer a causal link.
Webb-Edwards v. Orange Cty. Sheriff’s Office, 525 F.2d
1013, 1029 (11th Cir. 2008) (six-month gap too long to
support causal connection element of prima-facie case).
Moreover,

Griffin

has

failed

to

present

any

other

evidence establishing that the August 2012 actions were
motivated

by

retaliation

for

the

November

2011

discrimination complaint; indeed, the evidence strongly
suggests

they

were

motivated

by

the

August

2012

10. As discussed above, the August 2012 complaints
did not constitute protected expression; accordingly,
Title VII does not prohibit retaliation for those
complaints.
34

non-racial complaints.

Therefore, Griffin has failed

to meet this element of the prima-facie case.
This same time lapse also dooms Griffin’s claim
that he was terminated in January 2013 in retaliation
for the August 2011 complaint.

Accordingly, the court

will grant summary judgment on Griffin’s retaliation
claim based on his internal complaints to management.11

IV. COBRA CLAIM
Griffin contends that Neptune violated his COBRA
right to notice of his eligibility for continuation of
insurance benefits upon termination and seeks statutory
damages for the violation.

COBRA mandates that the

covered employees be given notice of their option to
extend coverage.

See 29 U.S.C. § 1166.

The parties do

11. The
court
recognizes
that
Griffin
has
presented
evidence
of
additional
complaints
to
management other than the November 2011 and August 2012
complaints specifically discussed in the opinion.
However,
because
Griffin
did
not
allege
racial
discrimination in those complaints, and because the
events surrounding those complaints do not raise a
strong specter of retaliation, those complaints do not
help Griffin.
35

not

dispute

that

Griffin

was

a

covered

employee

entitled to COBRA notice.
29 U.S.C. § 1132(c)(1) provides a private cause of
action for former employees who are not provided the
required notice within the time allowed by statute.
an

action

for

benefits

under

COBRA,

the

In
plan

administrator bears the burden of proving that adequate
COBRA notification was given to the employee.

Stanton

v. Larry Fowler Trucking, Inc., 52 F.3d 723, 728-29
(8th Cir. 1995), overruled on other grounds, Martin v.
Arkansas Blue Cross & Blue Shield, 299 F.3d 966 (8th
Cir. 2002) (en banc).
Neptune does not dispute that Griffin was eligible
for continuation of coverage under these provisions.
Because

Neptune

administers

required to provide notice.

its

own

plan,

it

was

Griffin testified in his

deposition that he did not receive a notice of COBRA
benefits from Neptune.
Neptune argues that, regardless of whether Griffin
received

the

notice,

it

36

needed

to

make

only

a

good-faith attempt to provide COBRA notice to Griffin
and that it did so by sending the notice to him by
first-class mail.

In response, Griffin argues that,

regardless of whether Neptune made a good-faith attempt
to

provide

notice,

the

contents

of

the

notice

were

insufficient under the law to allow him to make an
informed

and

intelligent

decision

whether

to

elect

continued coverage.
In support of their arguments, the parties cite a
number

of

cases

that

require

plan

administrators

to

make a ‘good faith’ effort to provide adequate notice.
29

U.S.C.

§

1166,

which

sets

forth

the

notice

requirements under COBRA, states that notice must be
provided, “In accordance with regulations prescribed by
the Secretary.”
had

not

Prior to 2004, the Secretary of Labor

promulgated

regulations

defining

adequate

notice under § 1166; in the absence of any regulations,
courts reasoned that employers need only “operate in
good faith compliance with a reasonable interpretation
of what adequate notice entails."

37

Degruise v. Sprint

Corp.,

279

quotations

F.3d

333,

omitted).

336

(5th

However,

Cir.
now

2002)
that

(internal

regulations

have been promulgated, employers, and the court, must
turn to them for guidance.
29 C.F.R. § 2590.606-4 sets forth the requirements
for notice of the right to continuation coverage.

As

to delivery of notices, the regulation states that any
notices required by the regulation “shall be furnished
in any manner consistent with the requirements of §
2520.104b-1.”
plan

The latter regulation provides that “the

administrator

shall

use

measures

reasonably

calculated to ensure actual receipt of the material by
plan

participants,

individuals.”
of

such

employee,

beneficiaries

methods

include

first-class

notice

requirements
C.F.R.

§

other

29 C.F.R. § 2520.104b-1(b)(1).

for

in-hand

mail,

under certain conditions.
The

and

2590.606-4.

Examples

delivery

electronic

to

the

delivery

Id.

regulation
the

and

specified

also

content
It

38

of

sets

forth

detailed

notices.

provides

that

See
the

29

notice

“shall

be

written

in

a

manner

calculated

to

be

understood by the average plan participant and shall
contain the following information,” and then lists 14
different

categories

included.

of

information

that

must

be

Id.

As stated above, the employer bears the burden of
proving the adequacy of notice under COBRA.

Neptune

submitted a declaration from its benefits coordinator
attesting
notices
their

to

for

her

usual

employees

employment

method

following

with

of
the

Neptune.

preparing

COBRA

termination
The

of

coordinator

attested that she follows the same procedure for each
COBRA notice: she prepares the notice, makes a copy for
Neptune’s

records,

last-known

address

addresses
of

the

an

envelope

employee,

and

using

the

takes

the

letter to the mailroom where staff use a postage meter
to add postage and make a copy of the metered envelope
for

her

followed

records.

She

her

procedure

usual

January 23, 2013.

further
in

attested
Griffin’s

that
case

she
on

Attached to her declaration was a

39

copy, she attested, of both the actual COBRA notice she
prepared
Griffin.12

and

the

metered

envelope

addressed

to

Neptune also submitted a declaration from

another employee describing Neptune’s routine process
for mailing through the United States Postal Service.
Griffin does not argue that the method of delivery
was

insufficient,

submitted

and

sufficient

the
to

court

meet

finds

the

the

evidence

requirements

for

delivery of notice under the applicable regulations and
law.

The

actions

taken

by

Neptune

were

reasonably

calculated to deliver the notice to Griffin.
Next the court must turn to the contents of the
notice.

The

benefits

coordinator

attested

that

attached to her declaration was a copy of the paperwork
actually sent to Griffin.

It tracks the requirements

12. The date of the postmark is unclear to the
court, but the coordinator attests it is dated January
23, 2013.
The documents also contain a second envelope
addressed to Griffin, this one with a handwritten
address. The declaration does not explain the purpose
of the second envelope.
40

of § 2590.606-4 in several respects.

The notice gave

him the deadline for returning the notice, the premium
amounts for himself and his spouse or dependents, and
the

date

by

which

the

premium

needed

to

be

paid.

However, it does not contain most of the items required
by the regulation.

Out of the 14 categories in 29

C.F.R. § 2590.606-4, the notice completely omits nine:
“(vi)
An explanation of the
consequences of failing to elect or
waiving continuation coverage...; and
a description of the plan's procedures
for revoking a waiver of the right to
continuation coverage before the date
by which the election must be made;
“(vii)
A description of the
continuation coverage that will be
made available under the plan, if
elected, including the date on which
such coverage will commence, either by
providing
a
description
of
the
coverage or by reference to the plan's
summary plan description;
“(viii)
An explanation... of any
events that might cause continuation
coverage to be terminated earlier than
the end of the maximum period;
“(ix)
A description of the
circumstances (if any) under which the
maximum
period
of
continuation
coverage may be extended due either to
41

the occurrence of a second qualifying
event or a determination by the Social
Security Administration... that the
qualified beneficiary is disabled, and
the length of any such extension;
“(x) In the case of a notice that
offers continuation coverage with a
maximum duration of less than 36
months, a description of the plan's
requirements
regarding
the
responsibility
of
qualified
beneficiaries to provide notice of a
second qualifying event and notice of
a disability determination under the
SSA, along with a description of the
plan's procedures for providing such
notices, including the times within
which such notices must be provided
and the consequences of failing to
provide such notices. The notice shall
also explain the responsibility of
qualified
beneficiaries
to
provide
notice
that
a
disabled
qualified
beneficiary
has
subsequently
been
determined to no longer be disabled;
“(xi)
A description of the
amount, if any, that each qualified
beneficiary will be required to pay
for continuation coverage;
“(xii) A description of . . . the
qualified beneficiaries' right to pay
on a monthly basis, the grace periods
for payment, the address to which
payments should be sent, and the
consequences of delayed payment and
non-payment;

42

“(xiii)
importance
administrator
addresses
of
beneficiaries
or may become
and

An explanation of the
of
keeping
the
informed of the current
all
participants
or
under the plan who are
qualified beneficiaries;

“(xiv)
A statement that the
notice
does
not
fully
describe
continuation coverage or other rights
under the plan, and that more complete
information regarding such rights is
available in the plan's summary plan
description
or
from
the
plan
administrator.”
29 C.F.R. § 2590.606-4.

In addition, subsection (b)(v)

requires inclusion of “[a]n explanation of the plan’s
procedures
including

for
an

electing

explanation

of

continuation
the

time

coverage,

period

during

which the election must be made, and the date by which
the election must be made.”
4(b)(v).

While

Neptune’s

29 C.F.R. § 2590.606notice

letter

tells

the

reader that the election form must be returned within
60 days of the date of the letter and instructs the
reader to “follow the instructions on the next page to
complete the Enclosed Election form,” the instruction

43

page

was

Support

not
of

39-13).

included.13

Motion

for

Accordingly,

Evidentiary
Summary

the

Submission

Judgment

letter

fails

(Doc.
to

in
No.

explain

adequately the plan’s procedures for electing coverage.
Because

Neptune

has

not

shown

that

it

provided

sufficient notice as defined under § 1166, the court
will deny summary judgment on this claim.

***

For the above reasons, summary judgment will be
entered

in

Griffin’s

favor
Title

of
VII

Neptune

and

retaliation

against
claim,

Griffin
and

on

summary

13. It is also unclear whether the actual form was
included, as the declaration only attaches a cover
sheet
titled
“COBRA
Continuation
of
Coverage
Application.”
Evidentiary Submission in Support of
Motion for Summary Judgment (Doc. No. 39-13).

44

judgment will be denied on Griffin’s COBRA claim.

An

appropriate judgment will be entered.14
DONE, this the 13th day of April, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE

14. The court also has before it Griffin's motion
to amend his complaint to include, among other things,
a Title VII claim that he was terminated because he
filed an EEOC complaint. This opinion does not address
that motion or that claim.