Walker v. Hyundai Motor Manufacturing of Alabama, LLC
OPINION and ORDER: ORDERED that the Motion for Summary Judgment be and is hereby GRANTED in favor of Defendant. Doc. 31 . A separate judgment shall issue. Signed by Honorable Judge Terry F. Moorer on 9/28/2016. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CIV. ACT. NO. 2:14cv1246-TFM
OPINION and ORDER
On December 23, 2014, Plaintiff Arnesha Walker (“Plaintiff” or “Walker”) filed a
Motor Manufacturing of Alabama, LLC
(“Defendant” or “HMMA”). Doc. 1. Walker asserts two claims: (1) HMMA subjected
her to a hostile work environment, and (2) HMMA terminated her employment in
retaliation for submitting workplace complaints that she had been subjected to sexual
harassment and threats. Id. The parties do not dispute that Count One of the Complaint
is due to be dismissed. See Doc. 33-1, Pl’s Dep., pp. 121-22; Doc. 40, Pl’s Resp., p. 1.
Consequently, the sole claim before the court is that Defendant violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), by
terminating her employment in retaliation for engaging in protected conduct. Doc. 40,
Pl’s Resp., p. 1.
This court has jurisdiction over the Title VII claims pursuant to 42 U.S.C. §
2000e-5. Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have
consented to a United States Magistrate Judge conducting all proceedings in this case and
ordering the entry of final judgment. Now pending before the court is the Motion for
Summary Judgment filed by HMMA on April 28, 2016. Doc. 31. The court has carefully
reviewed the Motion, the supporting and opposing briefs, and evidentiary materials and
concludes that the Motion for Summary Judgment is due to be GRANTED.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is
no genuine [dispute]1 as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258,
1263 (11th Cir. 2007) (per curiam) (citation omitted); FED.R.CIV.P. 56(c) (Summary
judgment “should be rendered if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine [dispute] as to any material fact and
that the movant is entitled to judgment as a matter of law.”). The party moving for
summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the [record, including
Effective December 1, 2010, the language of Rule 56(a) was amended. The word “dispute” replaced
the word “issue” to “better reflect the focus of a summary-judgment determination.” FED.R.CIV.P.
56(a), Advisory Committee Notes, 2010 Amendments.
pleadings, discovery materials and affidavits], which it believes demonstrate the absence
of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
The movant may meet this burden by presenting evidence which would be
admissible at trial indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present evidence in support of some element of his case on
which he bears the ultimate burden of proof. Id. at 322-324.
Once the moving party meets its evidentiary burden and demonstrates the absence
of a genuine dispute of material fact, the burden shifts to the non-moving party to
establish, with appropriate evidence beyond the pleadings, that a genuine dispute material
to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Celotex, 477 U.S. at 324; FED.R.CIV.P. 56(e)(2) (“If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required
by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the
motion.”). A genuine dispute of material fact exists when the non-moving party produces
evidence that would allow a reasonable fact-finder to return a verdict in his favor.
Greenberg, 498 F.3d at 1263.
To survive a properly supported motion for summary judgment, the non-moving is
required to produce “sufficient [favorable] evidence” establishing a violation of his
constitutional rights. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the
evidence [on which the nonmoving party relies] is merely colorable . . . or is not
significantly probative . . . summary judgment may be granted.” Id. at 249-250. “A
mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice;
there must be enough of a showing that the [trier of fact] could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) quoting Anderson,
supra. Hence, when a party fails to set forth specific facts supported by appropriate
evidence sufficient to establish the existence of an element essential to his case and on
which the party will bear the burden of proof at trial, summary judgment is due to be
granted in favor of the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.”); Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609
(11th Cir. 1987) (if on any part of the prima facie case the plaintiff presents insufficient
evidence to require submission of the case to the trier of fact, granting of summary
judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are
relevant. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of
Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual
disputes that are material under the substantive law governing the case will preclude
entry of summary judgment.”). “The mere existence of some factual dispute will not
defeat summary judgment unless that factual dispute is material to an issue affecting the
outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th
Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the party
opposing summary judgment “must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine
[dispute] for trial.’” Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp ., 475 U.S.
574, 587 (1986). In cases where the evidence before the court which is admissible on its
face or which can be reduced to admissible form indicates that there is no genuine dispute
of material fact and that the party moving for summary judgment is entitled to it as a
matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (summary
judgment appropriate where pleadings, evidentiary materials and affidavits before the
court show there is no genuine dispute as to a requisite material fact).
A. The Discriminatory Harassment Policy
Walker was an employee of Aerotek, Inc. (“Aerotek”), a staffing agency which
provides support to various companies, including HMMA. Pl’s Dep., p. 21; Clevenger’s
Dep., pp. 129-30.
Aerotek has an office in the General Assembly Building on the
premises of HMMA, as well as an office on Zelda Road in Montgomery, Alabama. Pl’s
Dep., pp. 24-25. Walker’s employment with Aerotek was “at-will,” and HMMA used
Aerotek’s employees on an “as-needed basis.” Clevenger’s Dep., p. 130; Pl’s Dep., pp.
53-54, Exh. DX-1. For purposes of the Motion for Summary Judgment, HMMA “will
presume that it was a joint employer of Plaintiff.” Doc. 32, Def’s Memorandum, p. 11.
Aerotek assigned Walker to work at HMMA on March 13, 2013. Pl’s Dep., p. 17.
During orientation, Kesha, an Aerotek manager, instructed Walker to report any
incidences she believed to be sexual harassment to Aerotek, or if no one from Aerotek
was available, to her HMMA team leader or supervisor. Pl’s Dep., p. 50. In addition,
Aerotek provided the “Aerotek Contract Employee Handbook” to Walker, which
includes a written policy on reporting harassment. Pl’s Dep., p. 89-90, Exh. DX-2.
Specifically, the policy states:
Aerotek strongly encourages the prompt reporting of all incidents of
discriminatory harassment. If you believe you are being harassed or have
observed harassment, we strongly encourage you to promptly notify your
recruiter, customer support representative, the director of branch operations,
or the manager of administration at your local Aerotek office.
When a report of harassment is made, Aerotek undertakes a prompt
and thorough investigation as appropriate under the circumstances. The
steps taken during the investigation vary depending upon the nature of the
allegations. Confidentiality is maintained throughout the investigative
process to the extent practical and consistent with Aerotek needs. Upon
completion of the investigation, the aggrieved party and the person(s)
accused are notified of the outcome and remedial action is taken, if
Individuals who report harassment or are involved in the
investigation of a harassment complaint will not be subject to reprisal or
retaliation. Retaliation is a very serious violation of this policy and should
be reported immediately.
The managers and supervisors of Aerotek are accountable for
adhering to this policy, for promptly reporting any incident of harassment,
and for maintaining a positive and productive work environment.
Pl’s Exh. DX-2, pp. 5-6.
B. The First Incident
On or around April 25, 2013, Walker reported to an HMMA supervisor, as well as
Aerotek managers Triphenia Guice (“Tri”) and Kesha, that she was harassed by HMMA
team member Chris Wright. Pl’s Dep., pp. 57-58, 123. Walker submitted a written
statement, alleging the following:
We were getting ready to go to break it was 9 o’clock . . . I Arnesha
Walker ask my team member Chris  to call out my number while I [write]
it down and he did but then he started to walk towards me and said “Your
nipples are hard” I said [why] are you looking at me like that and that’s
when he proceeded to walk closer and grab then pinched my nipple!
Nobody that I know of seen it because they were walking on break . . .
When it happen I snatched away from him and said stop. I feel very
violated and uncomfortable around him. I talked to a guy named Terrance
HMMA that work around me about what happen. . . . I didn’t know if I
should go to the office Aerotek or tell Chris HMMA myself that I didn’t
like being touch[ed] like that. I want action taken A/S/A/P I don’t want to
continue to work around him. We do not have a relationship for him to do
that at work. . . . He trained me before when I first started but never has he
came on to me like that I remember him asking me for my phone several
times the last time was while going to lunch last night. Come to find out
when I talked to Terrance and told him all that and he stated that Christ told
him he ask for another girls phone and went [through] her pictures and seen
nude pics. He came to Terrance and told him what he seen. So that’s why
he was asking for my phone but I didn’t find out till last night 4-23-13.
No witnesses except Terrance HMMA when Chris asked for phone
Another girl name unknown
Unknown reason why Chris HMMA is doing this to me never led him
on, he is married Chris invited me to wedding receptions.
Doc. 33-3, Ex. B.
Tri called another Aerotek manager, Lisa Kerley (“Lisa”), to discuss Walker’s
Initially, Lisa indicated that Walker should return to work.
however, told Tri that she “didn’t feel comfortable” returning to the line after
complaining that she “had just been touched.” Id., p. 58. Tri told Walker that Lisa
advised that “her only other option is to go home” and that she would not be paid. Id. Tri
ended the telephone conversation with Lisa, told Walker that Lisa’s information was
incorrect, and gave her the number of Aerotek corporate headquarters. Id., p. 59. Walker
decided to go home.
Upon leaving HMMA, Walker called headquarters and left a
voicemail message. A manager at the Aerotek corporate office returned Walker’s call
and advised her to remain home, that she would be paid until the investigation ended, and
that someone from Aerotek would contact her. Id., pp. 59-60.
On April 25, 2013, Tri emailed a copy of Walker’s statement regarding the
incident to Lisa, and Lisa forwarded the allegations to HMMA Team Relations Member
Robert Clevenger (“Clevenger”). Doc. 33-3, Ex. B. Aerotek continued to pay Walker in
the form of a debit card during the time HMMA conducted the investigation. Pl’s Dep., p.
67. On April 26, 2013, HMMA issued a Team Relations Memo from J. Marie Byrd
(“Byrd”), the HMMA Team Relations Assistant Manager, to Clevenger, in which
HMMA concluded that “[i]t was confirmed by Christopher’s own confession, that he told
her that her nipples were hard.” Id., Ex. C, p. 3. HMMA also entered a “side note” that
“Shane Nice called Marie Byrd on April 26, 2013, and informed her that Aerotek moved
Arnesha [Walker] to Body Shop. They did this on their own accord and not by HMMA’s
recommendation. They stated that she requested to be moved.” Id. On May 3, 2013,
HMMA terminated Wright’s employment on the grounds that Wright violated HMMA’s
policies on harassment and serious misconduct. Attach. to Walker’s Dep., DX-8. The
same day, HMMA produced a Team Relations Memo from HMMA Team Relations
Member Byrd, to Aerotek Management, in which HMMA indicated that the investigation
was complete and that “appropriate action has been taken to stop/prevent the behavior
that was described.” Id., Ex. D.
C. The Second Incident
On July 27, 2013, Walker complained to Tommy, an HMMA supervisor, and
Aerotek Shift Manager Misti Durham (“Misti”) that she was harassed by the HMMA
team leader Josh Davis. Pl’s Dep., p. 64. Misti instructed Walker to go to an office in
the welding department and write a statement. Id., p. 65. An HMMA representative took
the statement and called Misti. At that time, Misti instructed Walker to go home and that
“they had to do another investigation and just wait on her phone call.”
Id., p. 66.
Aerotek continued to pay Walker during the investigation. Pl’s Dep., p. 67.
On July 29, 2013, Lisa Kerley told HMMA Team Relations Assistant Manager
Barry Jackson that “Walker had been sent home by Aerotek pending an investigation of a
complaint of sexual harassment that Walker made against HMMA employee Josh Davis.”
Doc. 33-4, Def’s Ex. 4, Jackson’s Dec., p. 2. Jackson asked when Walker would return
to work and Kerley advised him that “she would look into it.” Id.
On August 5, 2013, HMMA produced a Team Relations Memo from Jackson to
Clevenger summarizing the investigation. Doc. 33-3, Attach. to Clevenger’s Dec., Def’s
Ex. E. Specifically, HMMA found that Walker’s allegations that Josh invited Walker to
watch a boxing match, that he said she had a “little booty,” that he used profanity toward
her on several occasions, and that he would “curse her” in front of other people were
“substantiated”. Id., p. 3.
On the same day, Jackson spoke with Aerotek Manager Eric Booker (“Booker”)
about the status of Walker’s return. Doc. 33-4, Jackson’s Dec., Def’s Ex. 4. Jackson’s
recollection is that Booker told him that “he had spoken with Walker on the phone, and
further stated that Walker informed [him] during their conversation that she was not
going to return to work at HMMA.” Id.
On August 12, 2013, HMMA concluded that Davis “made inappropriate
comments regarding a female contractor, as well as us[ed] inappropriate language while
engaging in conversations with her . . . in violation of HMMA’s Harassment and Conduct
Policies” and placed him in “Phase II of Corrective Action.” Attach. to Pl’s Dep., DX-9.
On August 19, 2013, HMMA Team Relations Assistant Manager sent a letter to Lisa
Kerley, the On-Premise Manager at Aerotek, reporting that the “investigation has been
completed regarding the complaint and the appropriate actions have been taken.” Id.
Lisa Kerley called Walker about returning to work in the General Assembly area.
Walker told her that she “didn’t want to come back” because she did not feel comfortable
working around Josh. Pl’s Dep., pp. 86-88. After Kerley explained that she would be
assigned a job on the other side of the building, Walker agreed to return to work. Id., p.
D. The Third Incident
Walker returned to work on September 23, 2013. Aerotek assigned Walker to
work in the Paint Department at HMMA. Pl’s Dep., pp. 160-161. During the evening
shift, Walker reported to Aerotek Shift Manager Misti, that she saw Davis stare at her in
the cafeteria. Pl’s Dep., pp. 68, 71, 155-56, 161. Misti told Walker to go home. Id., pp.
56, 71. Aerotek continued to compensate Walker during the time she was away from
work. Id., p. 74.
On October 7, 2013, Misti Durham sent the following email to HMMA:
Dear HMMA TMR,
I was instructed to inform you of another complaint by Aerotek
employee Arnesha Walker.
Arnesha was brought back to work on 9/23/13 at HMMA in the
Paint Department (A Shift Production – Alex Andrew’s Crew); this was her
1st and only day back since the last complaint she made.
She called in absent 9/24/13 and informed myself and my partner,
Erik Booker, that she does not feel comfortable working in her area
(PAINT) on (A shift rotation) because she still sees Josh when she comes in
and out of the gate and she sees him in the cafeteria during lunch. She
mentioned Josh was staring at her.
Since then, she informed our Regional Employee Relations Manager
that Josh was staring at her aggressively the night of 9/23/13 and that Jay –
(she was not sure of the name) the employee in Paint Shop that was training
on Paint Production Process was witness to this situation. Our Employee
Relations Manager is requesting that we get a statement from the TM that
trained Arnesha the one night that she was in Paint 9/23/13.
I was instructed to ask you guys to obtain a statement from
HMMA TM that [was] training Arnesha 9/24/13 as to whether or not he
was witness to such behavior. . . .
Doc. 33-3, Def’s Ex. G. HMMA conducted an investigation.
On October 10, 2013, an HMMA Team Relations Memo from Shymill Ivy to
Barry Jackson and Marie Byrd summarized the investigation as follows:
On July 27, 2013, Aerotek TM Arnesha Walker alleged
inappropriate behavior and possible sexual harassment against Weld TL
Since then, an investigation has been completed and
appropriate actions have been taken.
On Tuesday, October 8, 2013, Aerotek Management informed me
that Arnesha was brought back to work in Paint Shop on 9/23/13 (her first
day back since the previous incident with Josh) and made allegations that
when she went to lunch Josh was staring at her aggressively in the Admin
Cafeteria and made her feel uncomfortable.
On Wednesday, October 9, 2013, TR Rep Mike Finney and I sat
down with Weld TL Josh Davis and he explained to us that he had not seen
Aerotek TM Arnesha Walker since August 10, 2013 in the Weld Shop.
In Arnesha’s complaint to Aerotek Management she stated that an
HMMA TM named “Jay” trained her when she returned to Paint Shop on
9/23/13 and he witnessed the alleged inappropriate behavior/harassment
(staring at her aggressively) from TL Josh Davis. After investigating the
incident, it was concluded that “Jay” was not an HMMA TM but an
Aerotek TM by the name of Jesse Johnson.
On Wednesday, October 9, 2013, Aerotek Manager Misty Durham
spoke with Jesse regarding the incident that allegedly took place between
Josh and Arnesha. Jesse stated that he recall[s] Arnesha (not by name)
working with him for only one night upstairs (Tac-off booth in Top Coat).
Jesse stated that when they went to break, they were outside sitting at the
tables in front of Paint Shop (the smoking tables) when there was a guy
walking from Weld Shop to the cafeteria and she asked him did he know
him. Jesse stated that the guy was so far away he could not see him and he
was sure the guy couldn’t see them. Therefore, he replied “no”. Jesse
stated that the guy was so far away that you would have to actually know
him to know who he was. Jesse stated that he did not see the guy look at
Arnesha nor did he see them converse.
Jesse confirmed that Josh did not stare at Arnesha aggressively
nor did he converse with her during their break on 9/23/13.
Doc. 33-3, Def’s Ex. H.
HMMA did not discipline Davis. Clevenger’s Dep., pp. 121-
E. The Fourth Incident
On or around October 14, 2013, Walker returned to work in General Assembly.
After working a couple of hours, Walker went to the restroom. As she walked out of the
bathroom, an unknown man “randomly came up to [her] and he . . . called [her] a bitch
and he said, ‘You got my cousin fired.’” Pl’s Dep., p. 75. He also threatened to kill her.
Id., p. 78. Walker ran to the line and told the HMMA team leader about the incident. Pl’s
Dep., pp. 76, 79. She then went to the Aerotek office and told Misti that she could not
return to General Assembly because she was “still kind of . . . shooken (sic) up.” Id.
Misti told Walker that “we’re going to send you home and . . . they [were] going to try to
get the cameras and . . . figure out who exactly was that guy.” Id. Afterward, Misti called
Walker and told her that HMMA was unable to determine who threatened her because the
cameras were not directed on the bathroom area. Id., p. 80.
Aerotek continued to
compensate Walker for the days she missed work. Id., p. 67.
On October 14, 2013, HMMA issued a Team Relations Memo from
HMMA Team Relations Representative Sheila King to Jackson and Byrd which
summarized the incident as follows:
On October 14, 2013, Aerotek Representative Eric Booker notified
Team Relation Representative Sheila King that employee Arnesha Walker
is alleging that [an] unknown HMMA Team Member had threatened to kill
her. Eric Booker took the following statement from Arnesha.
I was walking to the bathroom before I could walk in a guy with a
burgundy collard [sic] shirt (Hyundai) with a green back pack stated “bitch
you got my cousin fired”. I asked who was his cousin and he stated “bitch I
will kill you”. I then ran into the bathroom and stayed in there. After using
the bathroom and thinking to myself I do not have a cell phone I came out.
I tried to use the break area phone but I did not know that there is an
extension number to put in. The guy is caramel complexion with low
haircut. I came back to the line and told Jimmy (Team Leader) that I had
an emergency and then I came to Aerotek office.
Eric asked what time did this occur and she replied approximately
11:15 p.m. Eric asked were there any witnesses and she replied no.
Team Relations Representatives Tian Ingram and Sheila King
walked the floor but did not see anyone that fit the description.
At this time we do not know who the Team Member is to take his
TR asked around to see if we could find out who the TM was.
TR checked the terminated TMs file to see if he had any relatives
TR was informed by Aerotek that Arnesha stated she was not
returning to work.
Doc. 33-3, Def’s Ex. I.
On October 15, 2013, HMMA Team Relations Assistant Manager Barry Jackson
sent an email to several other Team Relations members, stating the following:
Let’s make sure Aerotek follows back up with her tonight and let her know
that if she sees the guy anymore to let us know immediately.
Also that if she feels threatened she may want to contact the local
After Booker delivers this message we need to add it to the report and close
We also need to look at asking around to see if we can possibly find out if
Lewis Marshall has a cousin that works here.
Def’s Ex. J.
Later that day, HMMA Team Relations Specialist Sheila King responded to Barry
Jackson’s email, stating “I talked with Erick Booker tonight and Arnesha Walker called
and said she was not coming back to work.” Id. An HMMA Team Relations Weekly
report generated on October 19, 2013, also indicates that “Aerotek employee Arnesha
called in [on or around October 15, 2013] and told Erick Booker that she was not coming
back to work.” Def’s Ex. K. HMMA closed the investigation. Id.
F. The Final Decision
On October 30, 2013, Aerotek Manager Kerley mentioned to HMMA Team
Relations Specialist Ivy that Walker would be returning to work. That same day,
HMMA Team Relations Specialist Shymill Ivy sent an email to other Team
Relations members regarding the “Lisa Kerley Conversation,” stating as follows:
. . . She stated that Aerotek TM Arnesha Walker would be returning on
tomorrow (10/31/13). Lisa stated that Aerotek Legal and HMMA legal had
discussed this and due to possible retaliation claims, she would be
returning. I thought this was rather strange knowing everything surrounding
this TM and the fact that I had personally just conducted an investigation
concerning her and Weld TM Josh Davis with no findings of wrong doing
so I contacted AM Barry Jackson to inform him of what was just told to me
and to ask him why he didn’t give me a courtesy email. When I told Barry
about it he was shocked and stated that he knew nothing about this but was
about to have a 3:30 meeting with Corporate Attorney Chris Whitehead and
would bring this to his attention immediately.
Def’s Ex. L.
The following morning, HMMA Team Relations Assistant Manager Jennifer Byrd
replied to Ivy’s email, stating “We are all shocked by this. She quit Aerotek twice. We
would not allow this with our TMs, period. When Barry told me this, I thought he was
kidding. Our team was completely unaware.” Id.
On or around November 1, 2013, Misti called Walker and told her that there were
no other available departments at HMMA and asked if she would be willing to work for
Sejong in Fort Deposit, Alabama. Id., pp. 81-82. Walker indicated that she would be
unable to do so because the location was too far from her residence.
suggested other departments at HMMA where she believed she could work, such as the
Engine Department. Id., p. 82. Misti told her that they would find another spot for her at
HMMA and to meet her at the Aerotek office at 2:30 p.m. Id., p. 83. HMMA Team
Relations Assistant Manager Barry Jackson called Kerley and advised that “[d]ue to
HMMA’s essential job requirement of prompt, regular, predictable attendance, . . .
HMMA did not wish for [Walker] to be assigned to work at HMMA’s facility any longer
due to Walker’s poor attendance record.” Doc. 33-4, Jackson’s Dec., p. 2. One hour
before the meeting, Misti called Walker and told her that HMMA would not allow her to
return. Pl’s Dep., p. 83. Aerotek subsequently “separated” Walker from employment
with its company. Pl’s Dep., p. 138.
Walker asserts that HMMA refused to reassign her to a job in retaliation for
reporting violations of the anti-harassment policy against its employees.
In Vickers v. Hyundai Motor Manufacturing of Alabama, No. 2:14cv126-WKW
(M.D. Ala., Sept. 30, 2015) (unpublished), this court summarized the general law on
“Retaliation is a separate violation of Title VII.” Gupta v. Florida
Board of Regents, 212 F.3d 571, 586 (11th Cir.2000). Section 704(a) of
Title VII of the Civil Rights Act of 1964 provides protection for employees
who oppose or participate in activities to correct an employer's
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees or applicants for
employment ... because he [the employee] has opposed any
practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e–3(a). Congress thus recognized two predicates for
retaliation claims: one for opposition to discriminatory practices, and
another for participation in protected activity.
Under the opposition clause, an employer may not retaliate
against an employee because the employee “has opposed any
practice made an unlawful employment practice by this
subchapter.” ... And, under the participation clause, an
employer may not retaliate against an employee because the
employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”
Equal Employment Opportunity Commission v. Total System Services, Inc.,
221 F.3d 1171, 1174 (11th Cir.2000) (citations omitted).
Proving that an employer retaliated against an employee is rarely a
straightforward undertaking. Stated differently, a plaintiff's case generally
rests entirely on circumstantial evidence, because direct evidence of an
employer's intent or motivation often is either unavailable or difficult to
acquire. See Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061,
1071 (3rd Cir.1996) (en banc ). Such is the case here as the parties rely
only on circumstantial evidence. Federal courts typically evaluate the
sufficiency of circumstantial evidence using some variant of the wellknown framework articulated by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and elaborated in Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). See also St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). As Justice O'Connor observed
in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), “the entire purpose
of the McDonnell Douglas prima facie case is to compensate for the fact
that direct evidence of intentional discrimination is hard to come by.” 490
U.S. at 271 (O'Connor, J., concurring).
Once a plaintiff establishes a prima facie case, the burden shifts to
the employer to show, through admissible evidence, a legitimate, nonretaliatory reason for the adverse employment action. Burdine, 450 U.S. at
255. If a defendant carries its burden of producing “admissible evidence
which would allow the trier of fact rationally to conclude that the
employment decision had not been motivated by [retaliatory] animus,” id.
at 257, the presumption of retaliation created by the prima facie case “drops
from the case,” and “the factual inquiry proceeds to a new level of
specificity.” Id. at 255 & n.10. The burden then shifts to the plaintiff to
“come forward with evidence, including the previously produced evidence
establishing the prima facie case, sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the
real reasons for the adverse employment decision,” but merely pretext for
retaliation. Combs, 106 F.3d at 1528 (citing Burdine, 450 U.S. at 256;
McDonnell Douglas, 411 U.S. at 804).
The Supreme Court recently clarified a plaintiff's burden and held
that, as to the causation standard for a retaliation claim, a plaintiff must
“show that the [adverse employment action] would not have occurred in the
absence of – that is, but-for – the defendant's conduct.” University of Texas
Southwestern Med. v. Nassar, 570 U.S. __, 133 S.Ct. 2517, 2525 (2013). 7
In other words, a plaintiff has to “establish that his or her protected activity
was a but-for cause [and not just a motivating factor] of the alleged adverse
employment action by the employer.” Nassar, 133 S.Ct. at 2534.
“A prima facie case of retaliation under Title VII requires the
plaintiff to show that: (1) she engaged in an activity protected under Title
VII; (2) she suffered an adverse employment action; and (3) there was a
causal connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir.2008) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266
2015 WL 5736909, at *7-8.
HMMA argues that Walker’s complaint that Davis stared at her is not protected
conduct because a stare by itself is not a discriminatory, harassing, or retaliatory action
and Hyundai did not approve of such conduct. HMMA also argues that Walker’s report
that an unidentified HMMA employee threatened her is not protected conduct because
the employee’s actions were not authorized by Hyundai and “it is clear that he was
motivated by his belief that Plaintiff had cost a family member his job, and not by
Plaintiff’s sex – or her race, religion, or any other protected status for that matter.” Do c.
32, Def’s Resp., p. 17.
There is no argument, however, that the submission of her
remaining harassment claims are considered protected activity under Title VII. The court
questions whether there is a causal connection between the harassment allegations and
any adverse employment action on the part of HMMA.
It is strongly arguable that
HMMA was not Walker’s “employer” and that it did not at any time instruct her to leave
work or otherwise excuse her absences. Nonetheless, for purposes of the Motion for
Summary Judgment, HMMA presumes it is Walker’s “joint employer”. Doc. 32, Def’s
Memorandum, p. 11.
Even assuming the elements of a prima facie case are met, the court concludes that
Walker fails to rebut the nondiscriminatory reasons given by HMMA for ending
Walker’s temporary employment at its facility, i.e. her frequent absences and its
impression that she quit her job on at least two occasions. See Pennington, 261 F.3d at
1268 (assuming without deciding a prima facie case is met in order to proceed to the
salient issues of a pretext analysis); Rawls v. Alabama Dep't of Human Resources, 507
Fed. Appx. 895, 898, 2013 WL 500456, at *3 (11th Cir. Feb. 11, 2013) (affirming district
court that moved ahead to pretext and assumed a prima facie case); Long v. Alabama
Dept. of Human Resources, 2014 WL 8843764, at *27 (M.D.Ala. Nov. 10, 2014),
adopted in relevant part by Long v. Alabama Dept. of Human Resources, 2015 WL
2345240 (M.D.Ala. Jan. 30, 2015) (declining to undergo a prima facie analysis so as to
examine evidence of pretext as to a retaliation claim); Shuford v. Alabama State Bd. of
Educ., 978 F.Supp. 1008, 1017 (M.D.Ala.1997) (Where the “court has sufficient
evidence to determine whether the employee has been a victim of discrimination, the
court need not go through the McDonnell Douglas burden shifting process and should
instead reach the ultimate issue of discrimination.”).
HMMA articulates a non-retaliatory reason for its action. HMMA claims that it
refused to allow Aerotek assign Walker to another position due to her attendance record
and its understanding that she refused to return to work on at least two occasions .
Absenteeism is a legitimate non-discriminatory reason for terminating employment. See,
e.g., Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1148 (M.D. Ala. 2003); Fantroy v.
Publix Super Markets, Inc., No. 8:12cv1940-T-33EAJ, 2013 WL 6768369, *9 (M.D. Fla.,
Dec. 19, 2013); Lewis v. K2 Indus. Services, Inc., No. 06cv0497-WKW, 2007 WL
3442189, *11 (M.D. Ala., Nov. 14, 2007). Thus, HMMA satisfies its “exceedingly light”
burden to proffer a legitimate, non-discriminatory reason for its action. See Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994).
To establish pretext, Walker must show that HMMA’s “proffered reason is not the
true reason for the employment decision.” Jackson v. State of Ala. State Tenure Comm’n,
405 F.3d 1276, 1289 (11th Cir. 2005).
Walker argues that HMMA’s reason is pretext
because (1) HMMA did not express that her absenteeism was a problem at any time
during her employment, (2) an email indicates HMMA’s legal counsel had concerns that
preventing her from working at HMMA could result in “possible retaliation claims,” and
(3) HMMA’s corporate representative indicated that he did not “have any information
from any source that Aerotek ever informed Hyundai that Ms. Walker stated she would
no longer return to work and refused to return to work in August.” Doc. 40, Pl’s Reply,
The problem with Walker’s argument is that the record indicates that Aerotek
repeatedly represented to HMMA representatives that Walker declined to return to work.
For example, the evidence indicates that, on August 5, 2013, Aerotek Manager Eric
Booker told HMMA Assistant Manager Barry Jackson that Plaintiff told him that she
would not return to work. See Doc. 33-4, Jackson’s Dec., Def’s Ex. 4.
In addition, an
October 7, 2013, email from Aerotek Manager Durham to HMMA representatives
indicates Walker did not wish to work in the paint area because of its proximity to one of
her accused harassers. Clevenger’s Dep., pp. 32-34, 36, 96, Exh. PX-14; Pl’s Ex. DX-10.
On October 15, 2013, HMMA Team Relations Specialist King sent an email to HMMA
Team Relations Manager Jackson indicating that Aerotek Manager Booker told her that
that Walker said that she was not returning to work. Clevenger’s Dec., Exhs. J & K.
Walker’s reliance on the corporate representative’s acknowledgement in a
deposition that HMMA did not receive information from anyone from Aerotek about a
refusal to return to work in August is likewise unavailing. Shortly after the deposition,
HMMA Team Relations Manager Clevenger provided a transcript errata sheet with the
October 2013 emails between HMMA team relations members indicating that is was their
impression from conversations with Aerotek representatives that Walker did not intend to
return to work and that she had quit on two prior occasions. Doc. 45-1, Def’s Ex. A.
Walker, however, alleges that she never told anyone at Aerotek or HMMA that
she did not want to work. “The pretext inquiry focuses on the honesty of the employer’s
explanation; raising a question about the correctness of facts underlying that explanation
without impugning the employer’s honest belief, fails to create a triable pretext issue.”
Dawson v. Henry County Police Dep’t, 238 Fed. Appx. 545, 549 (11th Cir. 2007); Lee v.
GTE Fla, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (determining that a mistake in fact
does not demonstrate pretext); DeLeon v. ST Mobile Aerospace Engineering, Inc., 684 F.
Supp.2d 1301 (S.D. Ala. 2010). Furthermore, it is not Plaintiff's subjective opinion that
guides the analysis. See, e.g., Doe v. Dekalb County School Dist., 145 F.3d 1441, 1448–
49 (11th Cir.1998) (holding that courts are not bound to a “subjective standard” when
determining whether an employment decision is adverse and that an “objective” standard
is appropriate). “If the proffered reason is one that might motivate a reasonable employer,
a plaintiff cannot recast the reason but must meet it head on and rebut it. Quarreling with
that reason is not sufficient.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th
Cir.2004) (citations omitted).
There is no evidence that any HMMA decisionmaker
and/or any HMMA Team Relations member who objected to Walker’s return had any
knowledge of the specific reasons for Walker’s prolonged absences from work, with the
exception of one brief investigatory period. In addition, all of the facts indicate that
HMMA Team Relations Members were under the impression that she quit on at least two
prior occasions. There is also no evidence that any HMMA manager instructed Walker
to leave work during the investigatory periods or at any other time.
With one exception, there are no evidentiary materials indicating that any HMMA
employee knew of the reason for Walker’s prolonged absences. The record does clearly
indicate that HMMA Assistant Manager Jackson knew that Walker missed work from
July 27, 2013 through the close of the investigation on or around August 19, 2013;
however, there is nothing indicating the reason for her missing work from the time the
investigation closed on August 19, 2013, until her return to work on September 23, 2013 .
HMMA was also not informed by either Walker or Aerotek of the reasons for her other
If anything, the evidentiary materials demonstrate that HMMA was under the
impression that Walker’s prolonged absences were due to her decision not to return to
work. With the exception of the absences during HMMA’s investigation of Davis, there
are no records indicating HMMA had any knowledge that Walker was instructed by
Aerotek not to return to work. In addition, the evidentiary materials indicate that HMMA
was repeatedly informed by Aerotek that Walker told them that she would not return to
HMMA and that HMMA relied on these representations. Doc. 33-3, Def’s Ex. I, K & L;
Doc. 33-4, Def’s Ex. 4.
The Eleventh Circuit has “repeatedly and emphatically held that a
defendant may terminate an employee for a good or bad reason without
violating federal law. [Courts] are not in the business of adjudging whether
employment decisions are prudent or fair. Instead, our sole concern is
whether unlawful discriminatory animus motivates a challenged
employment decision.” Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d 1354, 1361 (11th Cir.1999).
Title VII does not take away an employer's right to
interpret its rules as it chooses, and to make determinations as
it sees fit under those rules. “Title VII addresses
discrimination.” Ferguson v. Veterans Administration, [723
F.2d 871, 872 (11th Cir.1984) ]. “Title VII is not a shield
against harsh treatment at the workplace.” Jackson v. City of
Kileen, [654 F.2d 1181, 1186 (5th Cir.1981) ]. Nor does the
statute require the employer to have good cause for its
decisions.... “While an employer's judgment or course of
action may seem poor or erroneous to outsiders, the relevant
question is simply whether the given reason was a pretext for
illegal discrimination [or retaliation]. The employer's stated
legitimate reason ... does not have to be a reason that the
judge or jurors would act on or approve.” Loeb v. Textron,
Inc., [600 F.2d 1003, 1012 n. 6 (1st Cir.1979)].
Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th
Vickers v. Hyundai Motor Mfg. of Alabama, LLC, No. 2:14-CV-126-WKW (WO), 2015
WL 5736909, at *7–9 (M.D. Ala. Sept. 30, 2015), aff'd sub nom. Vickers v. Hyundai
Motor Mfg. Alabama, LLC, No. 15-14905, 2016 WL 1459112 (11th Cir. Apr. 14, 2016).
This court therefore concludes that Walker fails to demonstrate a genuine dispute
from which a reasonable factfinder could find that HMMA’s reason for disallowing
Walker’s return to work at its facility is unworthy of credence. Accordingly, HMMA’s
Motion for Summary Judgment as to Plaintiff’s Title VII retaliation claim is due to be
ORDERED that the Motion for Summary Judgment be and is hereby GRANTED
in favor of Defendant. Doc. 31. A separate judgment shall issue.
Done this 28th day of September, 2016.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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