Nalls v. Corizon Health, Inc.
MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: 1. Corizon's Motion for Summary Judgment (Doc. # 14 ) is DENIED as to Count I; 2. Corizon's Motion for Summary Judgment (Doc. # 14 ) is GRANTED as to Counts II, III, and V; and 3. The case will proceed on the Plaintiff's claim of hostile work environment. Signed by Honorable Judge W. Harold Albritton, III on 8/10/2017. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CORIZON HEALTH, INC.,
Civil Action No.: 2:16-cv-391-WHA-SRW
MEMORANDUM OPINION AND ORDER
This cause is before the court on a Motion for Summary Judgment (Doc. # 14) by
Defendant Corizon Health, Inc. (“Corizon”), together with supporting and opposing briefs and
Nalls filed a Complaint on May 31, 2016 (Doc. # 1), alleging race and age discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., respectively. Specifically,
Nalls brings claims of hostile work environment (Count I), disparate treatment (Count II), age
discrimination (Count III); and retaliation (Count V).
On June 5, 2017, Corizon filed a Motion for Summary Judgment (Doc. # 14) on all of
Nalls’s claims. Subsequently, Nalls responded (Doc. # 18), and Corizon replied (Doc. # 22). For
the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED, in part,
and DENIED, in part.
II. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if
“there is no genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be” and the party asserting that a fact “is
genuinely disputed” must support their assertions by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56 (c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include:
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, 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 facts before the court, viewed in the light most favorable to the Plaintiff, are as
Nalls is a 70-year-old, black female. She has been a registered nurse since 1990. (Doc. #
19-1, p. 8:11–8:15; 12:13–12:15). In 2005, Prison Health Services, which later became Corizon,
hired Nalls to work the day shift as a charge nurse. (Doc. 19-1, p. 12:16–12:23). As a charge
nurse, Nalls worked in the infirmary and in the emergency room. Her regular duties included
paperwork, checking charts for audits, prison inspections, making assignments for other nurses,
keeping up with inventory of needles and syringes, and “whatever needed to be done.” (Doc. #
19-1, p. 70:18–71:14); (Doc. # 19-2, p. 6:18–7:4; 21:1–21:14; 41:1–41:10)
Nalls reported to the Director of Nursing (“DON”); and the DON reported to the Health
Services Administrator (“HSA”) (Doc. # 19-1, p. 53:8–54:14). On July 7, 2014, Jessica Duffell
(“Duffell”) was hired at Corizon as the HSA. (Doc. # 19-7, p. 6:9–6:15). In October 2014,
Corizon hired Dorothy Price (“Price”) as DON. (Doc. # 14-3, p. 6:2–6:9).
Just after Duffell was hired, Nalls overheard Duffell on the telephone stating that “there
were more black nurses and only two white nurses, and she was afraid of reverse discrimination,
and there are too many of y’all.” (Doc. # 19-1, p. 54:16–20). When Nalls heard Duffell’s remark,
she responded that she did not like that word ‘y’all.’ “What do you mean y’all?” She told Duffell
that she believed the term was a “racial statement” that was “obviously prejudicial.” (Doc. # 191, p. 61:1–61:14). Nalls further told Duffell that her previous HSA did not have a problem with
there being more black nurses than white nurses, to which she responded “he is not here now.”
(Doc. # 19-4, p. 3).
Then, in 2015, when Duffell was either 68 or 69-years-old, Duffell made other comments
that Nalls found offensive. Duffell testified in her deposition that:
A. “Now, she kept saying stuff like, I just looked at your chart -- I
mean looked at your record, how old are you? I said, well, if
you looked at my record, you already know how old I am. How
do you make so much money? I said I’ve been here ten years, I
get incentive raises every year. And one year the administrator
thought I was really Cracker Jack, and he gave me an extra
over -- across-the-board raise. She said: Hmm, don’t you have
grandchildren? I almost said none of your business, but I
didn’t. I was polite, I said yes, I do. Well, don’t you need to be
at home with your grandchildren? Are you drawing your Social
Security too, Miss Rich? Don’t you need to be at home with
your grandchildren? She just really pushed all kinds of buttons
with me, because she was out of her place. So I –
Q. What do you mean out of her place?
A. Asking me those questions.
Q. Oh, you mean that was none of her business?
A. Thank you. She went right over the cup of tea, right over the
top. You know when you pour so much and the cup runs over?
Now, this was not -- This is not a professional question. We
were not -- I could have a -- I had had a more casual
conversation with Dorothy Price than I had ever had with Ms.
Duffell, and she just went right over the top. Then she said
things like, well, I know what I’m going to call you since you
got grandchildren and you just insist on working, I’m going to
call you Nana Nalls. I said my name is Ms. Nalls; my
grandchildren don’t call me Nana. Well, I’m going to call you
Nana. And that’s what she called me from then on.
(Doc. # 19-1, p. 108:18–110:12). In March 2015, Nalls objected to Duffell for calling her
“Nana,” because she believed it was offensive. She told Duffell, “None of my children,
grandchildren, or anybody called me Nana. That sounds like an old-timey, excuse my French,
white name from when they used to have nannies and mammies to take care of the children, they
called them Nana. I am not that.” (Doc. # 19-1, p. 112:9–112:14). Nevertheless, even after Nalls
objected, Duffell continued calling her “Nana” both to her face and in front of other employees.
(Doc. # 19-1, p. 113:6–113:8; 121:7–121:8). One of her coworkers, Dawn Young, overheard
Duffell calling Nalls “Nana” “[m]aybe about two times.” (Doc. # 19-2, p. 56:3–57:3)
Additionally, after Nalls objected, Duffell responded, “Since you are so smart, why don’t
you stay in the back of the infirmary and don’t come back here until we need you.” (Doc. # 19-1,
p. 121:3–121:8). Nalls was thereafter assigned to work in the Infirmary, where she would work
until she was fired in May 2015.
While working in the Infirmary, Nalls was responsible for feeding and cleaning nine
older, heavier men. (Doc. # 19-1, p. 142:4–142:9). Nalls complained that she needed help with
these responsibilities, but Duffell responded, sarcastically, “You’re so smart and know
everything, I’m sure you can handle it. And walked away.” (Doc. # 19-1, p. 146:6–11). Nalls
also asked for a Hoya lift and a hospital bed, but her request was denied. (Doc. # 19-1, p.
148:20–22). Although other nurses were assigned to work in the Infirmary, (Doc. # 19-7, p.
33:22–34:22), (Doc. # 14-3, p. 14:6–15:1), at that point, Nalls believed Duffell was doing
everything she could to try and make Nalls quit.
On May 8, 2015, Nalls injured her back lifting a patient off of his bed. (Doc. # 19-10);
(Doc. # 19-21)1. Duffell drove Nalls to the hospital. On their way to the hospital, Duffell told
Nalls, “you’re too old for this. You need to draw your Social Security, and stay home with your
The OSHA form Nalls submitted into evidence shows that Nalls injured her back on May 4,
2015. (Doc. # 19-10) However, the Bullock County Hospital Emergency Department records
show a discharge date of May 8, 2015. (Doc. # 19-21). Nalls argues that her injury occurred on
May 8, 2015. Therefore, for purposes of this opinion, construing the evidence in the light most
favorable to the plaintiff, the court understands Nalls’s injury to have occurred on May 8, 2015.
grandchildren.” (Doc. # 19-1, p. 159:1–159:12). Later on, Duffell called Nalls and told her that
she had to be back at work on Monday or else she would be fired. (Doc. # 19-1, p. 164:7–165:8).
Over the weekend, it became clear that she would not be able to make it into work on Monday.
She called and left a message on the answering machine saying that she could not make it to
work on the following Monday because she was still under her doctor’s care. (Doc. # 19-1, p.
Meanwhile, prior to Nalls’s injury, Price and Duffell had begun an investigation into
allegations that Nalls had violated a workplace rule prohibiting inmate runners from performing
skilled nursing tasks. The investigation began when Leo Nunez (“Nunez”), an inmate at Bullock
Correctional Facility and a runner assigned in the Infirmary, under the supervision of Nalls,
reported to Price that he was concerned about another patient’s blood pressure. When Price
asked why he was concerned about another inmate’s vitals, Nunez responded, “well, because
I’ve been taking it, you know, and its been high and it hasn’t been high.” (Doc. # 19-7, p. 107:9–
107:15). This raised Price’s suspicion that Nalls was inappropriately delegating skilled nursing
tasks to untrained inmates. Accordingly, Price began an investigation.
Corizon’s personnel and training manual provides that “Inmates do not provide health
care services.” (Doc. # 14-7, p. 28). It further provides, in relevant part, that “(1) Inmates do not
make treatment decisions or provide patient care. (2) Inmates do not . . . or handle medical
records, medications, or surgical instruments and sharps.” Id. A discussion of the intent of this
work rule is that “the health services are provided by health staff are not substituted with inmates
workers.” Id. Finally, an employer manual provided by the Alabama Department of Corrections
explicitly states that employees shall not “Direct inmates to provide direct patient care. Inmates
are to be used only as custodians in the hospital area.” (Doc. # 14-7, p. 32).
After Nunez reported that he had been taking another inmate’s blood pressure, Price and
Duffell began an investigation, including collecting written statements from other inmates and
nurses, to determine whether it was true—and, ultimately, whether to fire Nalls. First, Duffell
and Price corroborated Nunez’s story with another inmate, Kevin Vines (“Vines”), who was also
assigned as a runner in the Infirmary. (Doc. # 19-7, p. 110:15–111:2). Additionally, Vines
informed them that other nurses in the Infirmary were aware that Nalls was having runners take
vital signs from inmates in the infirmary. (Doc. # 19-7, p. 108:21–108:23).
In response to these allegations, Duffell organized a meeting with her staff to explain
what inmate runners are allowed to do—and what they are not allowed to do. After the meeting,
some of the nurses independently came to Duffell to report that Nalls was having inmate runners
take vital signs of the other inmates. Duffell then instructed them to “write me a statement.”
(Doc. # 19-7, p. 113:11–114:1).
On May 14, 2015, Duffell and Price received written statements from Pauline Perryman,
RN, LPN; and Marty Thomley, LPN, confirming that Nalls had ordered inmates to take vitals
from inmate patients. Additionally, inmates Nunez and Vines did the same. On May 16, 2015,
Edwanna McNeil, LPN wrote a similar statement. After gathering all of those statements, Duffell
and Price wrote a formal recommendation to fire Nalls and Price submitted them to Corizon’s
Human Resources Department. (Doc. # 19-7, p. 114:2–115:20).
The Human Resources Department reviewed all of the documentary evidence. After their
review, Dan Burchfield, the Human Resources Manager, contacted Duffell to request more
information. (Doc. # 14-7, p. 34). Duffell and others continued sending more information to
Corizon’s Human Resources Department. After at least a week of gathering information and in
collaboration with Corizon’s upper management personnel, Corizon concluded that Nalls had
violated official policies and procedures, namely, that she had directed inmates to perform
skilled nursing tasks, and made the decision to fire Nalls. (Doc. # 14-7, p. 6–7, ¶ 23–25).
Subsequently, Nalls was fired.
Nalls brings claims for hostile work environment under Title VII (Count I), disparate
treatment on the basis of race under Title VII (Count II), age discrimination under the Age
Discrimination in Employment Act (“ADEA”) (Count III), and retaliation under Title VII and
the ADEA, respectively, (Count V).2 Corizon has filed a Motion for Summary Judgment (Doc. #
14) as to all of Nalls’s claims, arguing there is no genuine dispute of material fact and that
Corizon is entitled to judgment as a matter of law. The court will address each of Nalls’s claims,
A. Hostile Work Environment (Count I)
Nalls brings a hostile work environment claim under Title VII. Title VII of the Civil
Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1).
To establish a hostile work environment claim under Title VII, a plaintiff must prove 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations
and quotations omitted). In doing so, the plaintiff must show: (1) that she belongs to a protected
There is no Count IV in the Complaint.
group; (2) that she was subject to unwelcome harassment; (3) that the harassment was based on a
protected characteristic of the employee, such as race or 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 employer is responsible for such
environment under either a theory of vicarious or of direct liability. See Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
In this case, Corizon moves for summary judgment on Nalls’s hostile work environment
claim, arguing that Nalls has not produced sufficient evidence to satisfy the third and fourth
elements listed above—that the alleged harassment was based on her race and was sufficiently
severe or pervasive to alter the terms and conditions of employment and create a discriminatorily
abusive working environment. This element has both an objective component and a subjective
component. See Harris, 510 U.S. at 21–22. “Thus, to be actionable, this behavior must result in
both an environment that a reasonable person would find hostile or abusive and an environment
that the victim subjectively perceives to be abusive.” Miller, 277 F.3d at 1276 (internal citations
and quotations omitted; alterations incorporated).
Before determining whether Corizon’s conduct was subjectively or objectively hostile or
abusive, however, the court will addresss which conduct—among all the conduct Nalls found
objectionable—qualifies as racially hostile or abusive for purposes of a hostile work environment
claim.3 First, the court finds that a reasonable juror could determine Duffell’s use of the term
Most of Nalls’s complaints are irrelevant to her hostile work environment claim. The Eleventh
Circuit has made clear that “only conduct that is ‘based on’ a protected category, such as race,
may be considered in a hostile work environment analysis.” Jones v. UPS Ground Freight, 683
F.3d 1283, 1297 (11th Cir. 2012) (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584 (11th
Cir. 2000, abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53 (2006)). Accordingly, Nalls’s complaint that Duffell humiliated her by saying that “since she
was so smart she could go in the back and not come out unless asked;” that Duffell did not
“Nana,” under the circumstances of this case, to be racially derogatory. See (Doc. # 19-1, p.
113:6–115:2). While the term “Nana” may be a race-neutral term in other contexts, because
Duffell continued calling her “Nana” after she objected to Duffell for doing so and explained that
no one called her that and she interpreted “Nana” as an old term used by white children to refer
to their black caregivers, a reasonable juror could find the continued use of the term “Nana” to be
racially offensive. See Ambus v. Autozoners, LLC, 938 F. Supp. 2d 1225, 1237 (M.D. Ala. 2013)
(Albritton, J.) (“Words that do not reference race directly can sometimes constitute racial
harassment if they are shown to have a connection with race.” (citing Rogers v. WesternSouthern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993)).
In addition, the court finds that Duffell’s statement that there were too many black nurses
could be reasonably interpreted as objectively racially hostile or abusive. Even though Nalls has
not presented any evidence that Duffell directed the statement towards Nalls—in fact, she claims
she merely overheard Duffell say it to someone while on the telephone—the Eleventh Circuit has
held that certain derogatory comments in the workplace made about a protected class as a whole
may support a hostile work environment claim, regardless of whether they specifically target the
individual asserting that claim. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 812
(11th Cir. 2010). The critical issue in the Title VII context is whether employees are exposed to
more disadvantageous terms or conditions of employment as a result of their membership in a
provide her assistance when asked; that Nalls was removed from her floating charge nurse
duties; that Duffell watched over Nalls; that other employees were called into Duffell’s office to
report on Nalls; that Duffell failed to get Nalls the equipment she needed when she asked for it;
that Duffell insulted Nalls’s intelligence; that Duffell laughed at Nalls; that Duffell stated “oh,
we’re killing Ms. Nalls, we’re killing Ms. Nalls;” and that Duffell allegedly made up reasons to
fire Nalls; all are irrelevant to her hostile work environment claim because she has not pointed to
any evidence sufficient to allow a reasonable juror to conclude that they are based on Nalls’s
race—or any other protected class.
protected class than those who are not members of that protected class. See generally Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (referring to sex discrimination).
Accordingly, Nalls’s hostile work environment claim is premised on being called “Nana”
by her supervisor after objecting to the term as a racial comment and overhearing her supervisor
remarking that there are too many black nurses. After considering the evidence, the court finds
that a reasonable juror could conclude that Nalls was the victim of a racially hostile work
To begin with, there is no dispute that Nalls subjectively perceived Duffle’s actions and
remarks to be hostile or abusive. Nalls testified that she believed the name “Nana” was racially
“offensive,” told Duffell so, and Duffell continued to call her that. (Doc. # 19-1, p. 112:23). In
addition, Nalls claims that she perceived Duffell’s comment that there were too many black
nurses and only two white nurses to be “a racial statement” that was “[o]bviously prejudice[ial].”
(Doc. # 19-1, p. 61:11–13). Accordingly, because there is no dispute that Nalls believed
Duffell’s remarks were offensive, the court will focus on the objective component: whether,
based on the evidence viewed in a light most favorable to the plaintiff, a reasonable juror could
find that Duffell’s treatment of Nalls was hostile or abusive.
The Eleventh Circuit considers several factors in making this objective determination: (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. Miller, 277 F.3d at 1276 (citing
Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997). Moreover, the Eleventh Circuit
recognizes that, in making this objectiveness determination, the court should consider the totality
of the circumstances, not any one single factor. Miller, 277 F.3d at 1276. Applying that
framework in the present case, the court finds that Nalls has presented sufficient evidence from
which a reasonable juror could find that Duffell’s treatment of Nalls was hostile or abusive.
First, a reasonable juror could find Duffell’s conduct was sufficiently frequent. Nalls
states that she overheard Duffell state there are “too many black nurses” one time. Additionally,
Nalls testified that Duffell called her “Nana” over her objection many times over a six to eight
week period. (Doc. # 19-1, p. 110:10–13; 120:22–122:4; 133:9–20). While it is unclear from the
record exactly how many times Duffell called Nalls “Nana,” Nalls argues that it happened on a
daily basis. Nalls testified in her deposition she was called “Nana” at least twice, initially: once
before and once after she objected to Duffell for doing so; and then that Duffell continued to call
her “Nana” “from then on.” (Doc. # 19-1, p. 110:5–13). While Duffell acknowledges that she
called Nalls “Nana,” she claims that she only did so once. (Doc. # 19-7, p. 36:10–23).
Additionally, Young testified that she only heard Duffell call Nalls “Nana” “[m]aybe about two
times” over the course of “two years.” (Doc. # 19-2, p. 55:16–57:3). However, at this stage,
viewing the evidence in the light most favorable to the plaintiff, a reasonable juror could find
that Duffell’s multiple racially-charged comments were sufficiently frequent for purposes of a
hostile work environment claim. See Reeves, 594 F.3d 798 (11th Cir. 2010) (finding derogatory
comments made “on a daily basis” to be sufficiently frequent); Miller, 277 F.3d 1269 (finding
ethnic slurs hurled at the plaintiff “three to four times a day” over a one month period to be
sufficiently frequent); Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417 (11th Cir.
1999) (finding “almost daily abuse” to be sufficiently frequent).
Second, a reasonable juror could find Duffle’s conduct was severe. While the
determination of the frequency depends upon the number of hostile or abusive incidents over a
given time period, the severity of such conduct depends upon its relative degree. See Harris, 510
U.S. at 21 (“When 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, Title VII is violated.” (internal citations omitted)).
In this case, as previously noted, Nalls has presented evidence that Duffell made multiple—
perhaps daily—racially charged remarks over the course of six to eight weeks. Additionally,
Duffell continued making those remarks over Nalls’s objections. See Miller, 277 F.3d at 1276
(noting that it is ‘repeated incidents of verbal harassment that continue despite the employee’s
objections [that] are indicative of a hostile work environment’ and not simply some ‘magic
number’ of racial or ethnic insults.” (quoting Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d
696, 704 (7th Cir. 2001)). Because Nalls objected to Duffell for calling her “Nana” and
explained to Duffell that she believed that that was “what white children called their black
caretakers,” (Doc. # 19-4, p. 2, ¶ 3), the court cannot conclude that Duffell’s comments
amounted to nothing more than “simple teasing, offhand comments, and isolated incidents,”
which would not support a hostile work environment claim. Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998). Rather, they are indicative of the type of workplace abuse that Title VII is
designed to remedy. Accordingly, a reasonable juror could find Duffell’s comments sufficiently
severe for purposes of her hostile work environment claim.
Third, Nalls’s testimony clearly reveals that Duffell’s comments were humiliating or
degrading. Duffell’s comments were directed at Nalls, specifically. Additionally, these were not
simply comments made between coworkers; Duffell was Nalls’s direct supervisor. And, Duffell
called Nalls “Nana” in front of her coworkers. See Miller, 277 F.3d 1269, 1277 (11th Cir. 2002)
(considering the nature of the utterances, that they were directed at the plaintiff, and were
sometimes used in the course of reprimanding him in front of others sufficient to establish
comments were humiliating or degrading); Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238,
1248 (11th Cir. 2004) (considering the fact that the conduct was attributable to the plaintiff’s
supervisor in determining whether it was humiliating). Furthermore, as mentioned previously,
Nalls was not a willing participant to—or silent about—Duffell’s name-calling. Nalls objected to
Duffell calling her “Nana,” and Duffell continued to do so, over her objections. See Buckhanon
v. Huff & Associates Const. Co., Inc., 506 F. Supp. 2d 958, 967–68 (M.D. Ala. 2007) (Watkins,
J.) (considering the fact that the plaintiff did not complain about a co-worker’s—not a
supervisor’s—use of a racial epithet and that it was not directed at the plaintiff to find a coworker’s conduct insufficiently humiliating). Considering the context of these statements, it is
clear that Duffell’s comments were humiliating and degrading to Nalls.
Fourth, although Duffell’s behavior did not prevent Nalls from performing the duties of
her employment, this factor alone is not fatal to her hostile work environment claim. See Adams
v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th Cir. 2014) (recognizing the viability of several
plaintiffs’ hostile work environment claims without acknowledging proof of each of the Miller
factors as to each plaintiff); Hulsey, 367 F.3d at 1248 (11th Cir. 2004) (“In considering [the
Miller] factors, we employ a totality of the circumstances approach, instead of requiring proof of
each factor individually.”). Therefore, even though Nalls testified in her deposition that she was
still able to do her job after Duffell made the offensive comments, Nalls’s hostile work
environment claim survives summary judgment on the backs of the other three Miller factors.
Accordingly, viewing the evidence in a light most favorable to Nalls and considering the
totality of the circumstances, the court finds that a reasonable juror could determine that Duffle’s
treatment of Nalls was sufficiently severe or pervasive as to alter the terms and conditions of
employment and create a discriminatorily abusive working environment based on race.
Accordingly, Corizon’s Motion for Summary Judgment with respect to Nalls’s hostile work
environment claim is due to be DENIED.
B. Disparate Treatment (Count II)
Nalls brings a disparate treatment on the basis of race claim under Title VII. “Disparatetreatment cases present the most easily understood type of discrimination, and occur where an
employer has treated a particular person less favorably than others because of a protected trait. A
disparate-treatment plaintiff must establish that the defendant had a discriminatory intent or
motive for taking a job-related action.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
A plaintiff may establish a claim of illegal discriminatory intent or motive through either
direct evidence or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257 (11th Cir.
1999). Where, as here, the plaintiff seeks to demonstrate discriminatory intent on the basis of
circumstantial evidence, the court employs the burden shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) and Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248 (1981). Under that framework, the plaintiff must establish a prima facie case of
discrimination. See Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007). If
the plaintiff establishes a prima facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its employment action. See id. “If the
employer articulates a legitimate, nondiscriminatory reason for its actions, ‘the presumption of
discrimination is rebutted, and the burden of production shifts to the plaintiff to offer evidence
that the alleged reason of the employer is a pretext of illegal discrimination.’” Id. (quoting
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
1. Prima Facie Case
“To establish a prima facie case for disparate treatment in a race discrimination case, the
plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to an
adverse employment action; (3) her employer treated similarly situated employees outside of her
protected class more favorably than she was treated; and (4) she was qualified to do the job.”
Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). In this case, there is
no dispute that Nalls meets the first, second,4 and fourth elements of her prima facie case. The
parties do disagree, however, as to whether the third element—whether her employer treated
similarly situated employees outside of her protected class more favorably than she was
When a plaintiff alleges she was treated more unfavorably than similarly-situated
employees in the application of discipline for violation of work rules, she must show “either (a)
Nalls meets the second prong because she was fired. She also complains that she “was placed in
the back by herself, where it is far more strenuous[;] her floating duties were taken away[;] she
was not provided any help[;] and in fact, the LPN assigned to the back, Marty Thomley[,] was
directed not to provide Nalls help[;] she was not provided proper equipment; [Duffell] did not
provide her medical leave[;] . . . [and Duffell] falsified write ups for being unprofessional
towards inmates.” (Doc. # 18, p. 20). These complaints, which fit into one of two general
categories: (1) that she was reassigned to work in the Infirmary; and (2) that she had different job
responsibilities when she worked there; do not amount to adverse employment action. The
Eleventh Circuit in Davis v. Town of Lake Park explained that “not all conduct by an employer
negatively affecting an employee constitutes adverse employment action.” 245 F.3d 1232, 1238
(11th Cir. 2001). Instead, an adverse employment action is one that causes “a significant change
in employment status,” such as “reassignment with significantly different responsibilities.” Id. at
1239 (emphasis original). When a reassignment involves no “serious and material change in the
terms, conditions, or privileges of employment,” however, a court should not act as a “superpersonnel department” by questioning an employer’s business judgment about where it assigns
its employees and which tasks they are required to perform. Id. at 1239, 1244 (emphasis
original). Here, Nalls has failed to present sufficient evidence from which a reasonable juror
could find that her reassignment resulted in a serious or material change in the terms, conditions,
or privileges of her employment. Although her reassignment may have resulted in decreased
responsibility or prestige, those changes were insubstantial and are more typical of the ordinary
incidents of employment employees face when they move from one assignment or area to
another. Accordingly, the court will not consider these actions to be adverse for purposes of her
disparate treatment claim.
that [s]he did not violate the work rule, or (b) that [s]he engaged in misconduct similar to that of
a person outside the protected class, and that the disciplinary measures enforced against him
were more severe than those enforced against the other persons who engaged in similar
conduct.” King v. Butts Cty. Ga., 576 Fed. App’x. 923, 928 (11th Cir. 2014) (quoting Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989)). In this case, Nalls argues that she satisfies both.
First, Nalls argues that she was treated more unfavorably than similarly situated
employees. “In determining whether employees are similarly situated for purposes of
establishing a prima facie case, it is necessary to consider whether the employees are involved in
or accused of the same or similar conduct and are disciplined in different ways.” Jones v.
Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified by 151 F.3d
1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“To make a comparison of the plaintiff’s treatment
to that of [male] employees, the plaintiff must show that [s]he and the employees are similarly
situated in all relevant respects.”). Corizon argues that Nalls has failed to identify a similarlysituated comparator outside of her protected class who was treated more favorably than she was
in the application of work rules. The court agrees.
In cases of alleged official policy violations, the Eleventh Circuit has required
comparators to have committed virtually the same types of violations, the same amount of times.
See Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999). In Maniccia, a female police officer
filed a sexual harassment complaint against a male coworker. Eight months later, the male
coworker filed four formal charges against the female officer, including: (1) unauthorized use of
confidential driver’s license information; (2) lying about using confidential driver’s license
information; (3) unauthorized transportation of a passenger; and (4) lying about the unauthorized
transportation of a passenger. The female officer was subsequently fired. After being fired, the
female officer filed a complaint, alleging disparate treatment against her coworker and
supervisor. To prove her claim, she made the following evidentiary showings: (1) three male
officers had carried unauthorized passengers, but were not fired; (2) four other male officers had
lied about carrying unauthorized passengers, but were not fired; and (3) one male officer had
been convicted of a crime, but had not been fired. Nevertheless, the district court granted
summary judgment in the coworker’s and supervisor’s favor, because the female officer had
failed to prove a prima facie case of disparate treatment; namely, she failed to present evidence
of a similarly situated comparator. The district court concluded that there were “several
magnitudes of difference” between the female officer’s misconduct and the male officer’s
On appeal, the female officer argued that the district court erred in its determination that
she had not presented evidence of a similarly situated comparator. The Eleventh Circuit
disagreed, reasoning that in the employee misconduct context, “[w]e require that the quantity and
quality of the comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” Id. at 1368. The
court went on to distinguish her misconduct from the misconduct of the other officers that she
claimed qualified as comparators. As to the first group, the court explained that, although three
officers had carried unauthorized passengers, as the female officer had done, there was no
evidence that any of them had lied about doing so. As to the second group of officers, the court
found that, although they had lied about carrying unauthorized passengers, there was no evidence
that any of the four had ever lied repeatedly under oath, as the female officer had done. Finally as
to the last officer, the court found that, although he had been convicted of a crime but had not
been fired, there was no evidence that the officer had ever committed any workplace misconduct.
Finally, the female officer did not present any evidence of any other officer who had ever used
confidential driver’s license information or lied about doing so. Therefore, the court found that
the female officer “failed to meet her burden of pointing to a male employee who engaged in the
same or similar misconduct.” Id. at 1369. In other words, she could not prove her disparate
treatment claim, because she could not show that she had been treated less favorably than a
similarly situated employee—a comparator—outside of her protected class.
Likewise, Nalls’s disparate treatment claim fails on that basis because she has failed to
present any evidence of a valid comparator. Corizon claims that it fired Nalls because she
directed inmate runners to perform skilled nursing tasks in the Infirmary in violation of official
Corizon policy. However, Nalls has not shown that, in being fired, she was treated differently
than any other employee. Like the female officer in Maniccia, Nalls has not shown that any other
nurse working for Corizon directed inmate runners to perform skilled nursing tasks, but was
treated differently than she was. In fact, unlike the officer in Maniccia, who at least pointed to
some coworkers who committed some of the same types of violations that she did, Nalls has
failed to present any evidence of any employee, whether in her protected class or not, who
violated any official Corizon policy, but was treated more favorably than she was.
Instead, Nalls’s disparate treatment claim rests on the assertion that she was treated less
favorably overall than her white coworkers. She states, “RN, O’Quinn, and the white RN’s that
were hired after Nalls, were not solely assigned to the back[.] [O’Quinn’s] duties floated as did
all the other RN’s[.] [H]e was provided help[. A]nd he was provided a hospital bed upon request.
Marty Thomley and O’Quinn were both provided medical leave and not terminated. All of the
staff was repeatedly counseled during staff meetings regarding their professionalism toward
inmates, and Nalls was the only employee terminated for this reason.” (Doc. # 18, p. 21). In
essence, Nalls’s disparate treatment claim rests on the notion that it was unfair that her
coworkers had an easier job than she had. Such an argument is insufficient as a matter of law to
state a claim for disparate treatment under Title VII.
In the alternative, Nalls argues that she was the victim of disparate treatment because she
did not violate Corizon’s official policy. She argues that any report claiming she violated
Corizon’s official policy was “clearly false and pretext.” (Doc. # 18, p. 23). She presents her own
testimony to establish that she did not engage in the conduct which Corizon has pointed to as a
violation of the work rule. Therefore, the court assumes for purposes of analysis that she did not
violate the work rule. The burden shifts to the employer to articulate a legitimate
nondiscriminatory reason for her firing. See Jones, 874 F.2d at 1540 (11th Cir. 1989)
(proceeding along the McDonnell Douglas pathway where plaintiff claimed that she did not
violate a work rule, which was the employer’s stated basis for his firing).
2. Legitimate Nondiscriminatory Reason
Corizon contends that it fired Nalls because she violated a work rule; specifically,
Corizon contends that Nalls improperly directed inmates to perform skilled nursing tasks.
Corizon’s personnel and training manual provides that “Inmates do not provide health care
services.” (Doc. # 14-7, p. 28). It further provides, in relevant part, that “(1) Inmates do not make
treatment decisions or provide patient care. (2) Inmates do not . . . handle medical records,
medications, or surgical instruments and sharps.” Id. A discussion of the intent of this work rule
is that “the health services are provided by health staff are not substituted with inmates workers.”
Id. Finally, an employer manual provided by the Alabama Department of Corrections explicitly
states that employees shall not “Direct inmates to provide direct patient care. Inmates are to be
used only as custodians in the hospital area.” (Doc. # 14-7, p. 32). In this case, Duffell and Price
investigated a claim that Nalls was directing inmates to provide skilled nurse tasks, and
ultimately recommended to their superiors at Corizon that she be terminated based on the stated
reason that “Nalls has been allowing inmate ‘runners’ to do patient care to include . . . taking
vital signs on all of the inmates housed in the infirmary at Bullock Correctional Facility. These
inmates were not given any training to do tasks that only a licensed nurse should do. Ms. Nalls
delegated skilled nursing tasks onto unlicensed personnel.” (Doc. # 14-7, p. 41).
Accordingly, because violations of work rules constitute legitimate, nondiscriminatory
reasons to terminate an employee, see Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999), Corizon has presented a sufficient legitimate nondiscriminatory
reason for firing Nalls. See also Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187
(11th Cir. 1984) (holding an employee may be fired “for good reason, bad reason, reason based
on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason”).
Now, the burden shifts back to Nalls to show that the stated reason for her firing was pretext.
In determining whether Corizon’s stated reason for firing her was pretext, the court need
not determine the validity of Nalls’s argument that she did not violate the work rule. “The law is
clear that, even if a Title VII claimant did not in fact commit the violation with which [s]he is
charged, an employer successfully rebuts any prima facie case of disparate treatment by showing
that it honestly believed the employee committed the violation.” Jones, 874 F.2d at 1540; Bush v.
Houston Cty. Comm’n, 414 Fed. App’x. 264, 267 (11th Cir. 2011) (noting when an employee
asserts that she did not violate a work rule, “the ultimate issue is whether the decisionmaker
believed that the employee violated the rule, not whether the employee actually violated the rule”
(citing Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 136 n.3 (11th Cir. 1999) (“An employer who fires an
employee under the mistaken but honest impression that the employee violated a work rule is not
liable for discriminatory conduct.”) In other words, “if an employer fired an employee because it
honestly believed that the employee had violated a company policy, even if it was mistaken in
such belief, the discharge is not ‘because of race.’” Smith v. Papp Clinic, P.A., 808 F.2d 1449,
1452–53 (11th Cir. 1987).
In this case, nothing in the record suggests that Corizon did not reasonably fire Nalls
based on the results of their independent investigation. Stated differently, Nalls has not shown
that Corizon did not have a good faith belief that Nalls violated its official policy when it fired
her. Nalls attempts to rebut the fact that Corizon had a good faith belief that Nalls violated its
official policy by claiming that Corizon’s upper management and Human Resources Department
were merely a “cat’s paw” for Duffell, who recommended her termination. However, even under
this theory, Corizon would be entitled to summary judgment.
Under a cat's paw theory, “an employer could be liable when the decision-maker has no
[retaliatory] animus but is influenced by a subordinate supervisor's action that is the product of
such [retaliatory] animus.” Sims v. MVM, Inc., 704 F.3d 1327, 1335 (11th Cir. 2013). For
example, when “the decisionmaker follow[s] [a] biased recommendation without independently
investigating the complaint against the employee[,] . . . the recommender is using the
decisionmaker as a mere conduit, or ‘cat's paw’ to give effect to the recommender's
discriminatory animus.” See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.
1999). On the other hand, where the decision maker independently investigates the charges of
misconduct against the employee and, based upon that investigation, finds that the employee is
guilty of the misconduct, the “causal link” between the discriminatory animus and the adverse
employment action is “broken” by the decision maker's independent decision. Id. at 1331.
In this case, no evidence suggests that Corizon’s upper management or Human Resources
Department relied solely on Duffell’s and Price’s recommendation to fire Nalls. See Lawson v.
KFH Industries, Inc., 767 F. Supp. 2d 1233, 1246 (M.D. Ala. 2011) (Albritton, J.) (rejecting a
disparate treatment claim because the plaintiff failed to show that his employer relied solely on
witness statements or recommendations from lower level employees who may have harbored
discriminatory animus against him, but instead relied on the findings of its independent
investigation, in its decision to terminate the plaintiff). Rather, the evidence shows that after
inmate Nunez complained to Price, not Duffell, that he believed another inmate’s blood pressure
was too high, Price initiated an investigation. (Doc. # 19-7, p. 107:3–108:7). After investigating
and corroborating Nunez’s complaint from other inmates and obtaining statements from several
other nurses and Nalls’s coworkers, including a recommendation for termination from Duffell,
the information was passed on to Corizon’s upper management and Human Resources
Department. In reliance on those reports of misconduct from multiple inmates, coworkers, and
supervisors, Corizon made the decision to fire Nalls.
Nalls argues that Corizon’s upper management relied on Duffell’s recommendation in its
decision to fire her, and, therefore, that it was a cat’s paw to Duffell’s racial animus. However,
the evidence shows that, while Corizon may have considered Duffell’s recommendation in its
decision to fire Nalls, it only did so in conjunction with upper management’s additional
consideration of Price’s recommendation and review of the extensive investigation of the facts
surrounding Nalls’s official policy violation and statements from inmates and nurses. See Foster
v. Mid State Land & Timber Co., Inc., No. 2:06cv405, 2007 WL 3287345, *17 (M.D. Ala. Nov.
5, 2007) (Dement, J.) (noting “the cat’s paw theory prohibits a decisionmaker from accepting a
racially-biased recommendation only when the decisionmaker fails to independently evaluate the
recommendation” (citing Roberts v. Randstad North Am., Inc., 231 Fed. App’x. 890, 896 (11th
Cir. 2007)). Moreover, as Corizon correctly notes, it began its investigation into Nalls’s alleged
misconduct only after DON Price was informed of her misconduct by a third party, inmate
Nunez—not Duffell—and after it corroborated Nunez’s report with another inmate, Vines. (Doc.
# 19-7, p. 110:15–111:2); (Doc. # 19-7, p. 107:3–108:7). These facts show that it was Corizon’s
independent investigation, and not Duffell’s recommendation, that led to Nalls’s firing.
Accordingly, Corizon’s independent investigation “broke the chain” of causation between
any discriminatory animus Duffell may have harbored against Nalls and its ultimate decision to
fire her. See Caldwell v. Clayton Cty. School Dist., 604 Fed. App’x. 855, 861 (11th Cir. 2015)
(stating “where the ‘decisionmaker conducts his own evaluation and makes an independent
decision, his decision is free of the taint of a biased subordinate employee’” (quoting Pennington
v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001)). In other words, because Corizon’s
upper management and Human Resource Department conducted its own investigation of the
facts underlying Nalls’s alleged official policy violation and found that her termination was
entirely justified, it cannot be said that Duffell’s discriminatory animus in making a
recommendation to fire Nalls—to the extent that there was any—was a motivating factor in
Nalls’s termination. See Brooks v. Hyundai Motor Mfg. Ala., LLC, 444 Fed. App’x. 385, 388
(11th Cir. 2011) (discussing Staub’s reach in a Title VII disparate treatment claim; noting that a
similar independent investigation fell within the following language of Staub: “But the
supervisor’s biased report may remain a causal factor if the independent investigation takes it
into account without determining that the adverse action was, apart from the supervisor’s
recommendation, entirely justified. 131 S.Ct. at 1193 (emphasis added)); see also Stimpson, 186
F.3d at 1331 (“When the biased recommender and the actual decisionmaker are not the same
person or persons, a plaintiff may not benefit from the inference of causation that would arise
from their common identity. Instead, the plaintiff must prove that the discriminatory animus
behind the recommendation, and not the underlying employee misconduct identified in the
recommendation, was an actual cause of the other party’s decision to terminate the employee.”).
Corizon’s Motion for Summary Judgment is, therefore, due to be GRANTED as to
Nalls’s disparate treatment claim.
C. Age Discrimination (Count III)
Next, Nalls brings a claim of age discrimination under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et seq. (Doc. 1, p. 1 ¶2). The ADEA prohibits
employers from discharging an employee who is at least 40 years of age because of that
employee’s age. 29 U.S.C. § 623(a)(1), 631(a). The ADEA provides, in relevant part, that “[i]t
shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In Gross v. FBL
Financial Services, Inc., the Supreme Court found that the language “because of” requires proof
that age was the “but-for” cause of an employee’s discharge. 557 U.S. 167, 176 (2009) (“noting
that age must have “had a determinative influence” on the employer’s decision to fire an
employee). In this case, Nalls’s claim of age discrimination is based upon circumstantial
evidence. Therefore, the court will employ the flexible McDonnell Douglas burden shifting
approach to Nalls’s age discrimination claim. See Trask v. Secretary, Dept. of Veterans Affairs,
822 F.3d 1179, 1192 (11th Cir. 2016).
“Under the McDonnell Douglas framework, a plaintiff must first create an inference of
discrimination through her prima facie case. Once the plaintiff has made a prima facie case, a
rebuttable presumption arises that the employer has acted illegally. The employer can rebut that
presumption by articulating one or more legitimate non-discriminatory reasons for its action. If it
does so, the burden shifts back to the plaintiff to produce evidence that the employer’s proffered
reasons are a pretext for discrimination.” Id. (internal citations and quotations omitted).
1. Prima Facie Case and Legitimate Nondiscriminatory Reason
“To make a prima facie case of age discrimination [under the ADEA], the employee must
show: (1) [she] was a member of the protected group between the age of forty and seventy; (2)
[she] was subject to an adverse employment action; (3) a substantially younger person filled the
position from which [she] was discharged; and (4) [she] was qualified to do the job from which
[she] was discharged. Once an employee has established a prima facie case, the burden shifts to
the employee to rebut the presumption of discrimination with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.” Liebman v. Metro. Life Ins. Co.,
808 F.3d 1294, 1298 (11th Cir. 2015).
In this case, Nalls has satisfied her prima facie case: she was 69 years old (at the time she
was fired); she was fired from her position; she was qualified to do her job; and she was replaced
by a younger individual. Moreover, Corizon has offered a legitimate, nondiscriminatory reason
for her firing: she directed inmates to perform nurse-related tasks. Therefore, the only question is
whether Nalls has presented sufficient evidence from which a reasonable factfinder could
conclude that the reasons offered by Corizon were pretextual.
In her brief, Nalls refers the court to the same argument she made with respect to her
disparate treatment claim for her age discrimination claim: that Corizon’s stated reason for firing
her—that she directed inmates to perform skilled nursing tasks—was pretextual, because
Corizon was a mere cat’s paw for Duffell’s discriminatory animus.
However, as discussed previously, Nalls’s cat’s paw argument fails as a matter of law,
because Nalls has not shown that Duffell’s recommendation was a motivating factor behind
Corizon’s decision to fire her, because Corizon conducted an independent investigation into the
allegations of workplace misconduct charged against Nalls and made the ultimate decision to fire
her based upon its independent findings.
Moreover, Nalls’s argument that Corizon’s reasons for firing her were pretextual is even
more tenuous—indeed, it is totally deficient—as applied to her age discrimination claim, than
they were for her disparate treatment claim, because the Eleventh Circuit applies a “but-for”
cause standard for causation, and not a “motivating factor” standard, in cat’s paw cases involving
age discrimination. See Sims, 704 F.3d at 1336 (11th Cir. 2013) (“Because the ADEA requires a
‘but-for’ link between the discriminatory animus and the adverse employment action as opposed
to showing that the animus was a ‘motivating factor’ in the adverse employment decision, we
hold that Staub’s ‘proximate causation’ standard does not apply to cat’s paw cases involving age
discrimination.” (citing Staub v. Proctor Hosp., 562 U.S. 411 (2011)). That means, Nalls must
show that Duffell’s discriminatory animus was the but-for cause for—or, that it had a
“determinative influence” on—Corizon’s ultimate decision to fire her.
Since, as discussed previously, Nalls cannot even show that Duffell’s discriminatory
animus resulted in Corizon’s decision to fire her under the lower “motivating factor” standard,
Nalls obviously does not meet her burden under the higher “but-for” causation standard.
Moreover, “the but-for cause that a biased individual recommended that the plaintiff’s
employment be terminated does not constitute a ‘determinative cause’ where ‘undisputed
evidence in the record supports the employer’s assertion that it fired the employee for its own
unbiased reasons that were sufficient in themselves to justify termination.’” Godwin v. WellStar
Health System, Inc., 615 Fed. App’x. 518, 529 (11th Cir. 2015) (citing Simmons v. Sykes
Enterprises, Inc., 647 F.3d 943 (10th Cir. 2011)). The undisputed record evidence shows that
Corizon fired Nalls because “Ms. Nalls delegated skilled nursing tasks onto unlicensed
personnel.” (Doc. # 14-7, p. 41). Accordingly, Nalls cannot show that age was a determinative—
but-for—cause of her firing.
Corizon’s Motion for Summary Judgment is, therefore, due to be GRANTED as to
Nalls’s age discrimination claim.
D. Retaliation (Count V)
Finally, Nalls brings a retaliation claim under Title VII and the ADEA. “The Eleventh
Circuit has adapted to issues of age discrimination the principles of law applicable to cases
arising under the very similar provisions of Title VII.” Hairston v. Gainesville Sun Pub. Co., 9
F.3d 913, 919 (11th Cir. 1993). Because Nalls’s retaliation claim is based upon circumstantial
evidence, the court will again employ the McDonnell Douglas framework, modified to the
retaliation context. See Trask, 822 F.3d at 1193–95.
1. Prima Facie Case
To establish a prima facie case of retaliation under either Title VII or the ADEA,
“plaintiffs must prove that: (1) they engaged in statutorily protected conduct; (2) they suffered an
adverse employment action; and (3) the adverse action was causally related to the protected
expression. Id. at 1193–94. In this case, Corizon does not dispute the fact that Nalls engaged in a
statutorily protected activity when she complained to Duffell about calling her “Nana,” or that
she suffered an adverse employment action because she was fired.
Corizon argues, however, that Nalls has not met her burden of establishing a prima facie
case of retaliation because she has not presented any evidence that her complaint to Duffell was
causally related to her firing. “The burden of causation can be met by showing close temporal
proximity between the statutorily protected activity and the adverse employment action. But
mere temporal proximity, without more, must be ‘very close.’” Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1363 (11th Cir. 2007) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct.
2517, 2534 (2013)). The plaintiff must also show that the defendant was aware of the protected
activity when taking the adverse employment action. See Goldsmith v. City of Atmore, 996 F.2d
1155, 1163 (11th Cir. 1993). Corizon argues that Nalls cannot meet either standard because (1)
Nalls’s firing was too remote from her complaint to Duffell and (2) Nalls cannot show that
Corizon’s upper management or Human Resources Department was aware of her complaint to
Duffell when it made the decision to fire her.
First, Corizon argues that Nalls’s claim fails because her complaint was too removed in
time from her firing. Neither Corizon nor Nalls has presented any evidence showing exactly
when Nalls complained to Duffell. Corizon argues that she complained “well before” she was
reassigned to the infirmary—six to eight weeks before she was fired (Doc. # 15, p. 27). Nalls
counters that she was transferred “immediately” after she complained (Doc. # 18, p. 31).
Construing these arguments, as evidence, in the light most favorable to Nalls, the court cannot
conclude that her firing was too remote from her complaint six weeks earlier. See Young v.
Honeywell Tech. Sols., Inc., No. 1:06CV563-SRW, 2008 WL 901441, *10 (M.D. Ala. Mar. 31,
2008) (Walker, J.) (finding an adverse employment action occurring “just over two months” after
the plaintiff’s protected activity sufficient to permit an inference of causation for purposes of
temporal proximity); see also Wideman v. Walmart Stores, Inc., 141 F.3d 1435, 1457 (11th Cir.
1998) (one month period sufficient); but see Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (citing with approval decisions in which a three to four month delay was found to be
Additionally, Corizon argues that Nalls’s complaint was not a but-for cause of her firing
because Corizon’s upper management and Human Resources Department did not know about her
complaint. “Title VII retaliation claims require proof that the protected activity was a but-for
cause of the alleged adverse action by the employer.” Trask, 822 F.3d at 1194 (internal
corrections incorporated); see also Hopkins v. Sam’s West, Inc., 216 F. Supp. 3d 1322, 1337
(N.D. Ala. 2016) (Proctor, J.) (analyzing the causation element under the ADEA consistent with
cases applying the causation element under Title VII). Nalls has not responded to that argument.
Consequently, she has abandoned any argument she may have had to establish the third element
of her prima facie case, and the court finds, likewise, for reasons discussed previously, that she
has not satisfied her burden. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (holding a nonmovant’s silence on an issue after a movant raises the issue in a
summary judgment motion is construed as an abandonment of the claim.)
2. Legitimate Nondiscriminatory Reason and Pretext
Even assuming arguendo that Nalls’s firing was causally related to the complaint she
made to Duffell—and that Nalls had satisfied her prima facie case for retaliation—Nalls
presented no evidence that Corizon’s legitimate nondiscriminatory reason for firing her—that
she directed inmates to perform skilled nursing tasks in violation of a work rule—was pretextual.
Here again, Nalls relies on her argument that Corizon’s stated reason for firing her was
pretextual because it was a cat’s paw of Duffell’s discriminatory animus.
Since Nalls relies on the same argument for pretext for purposes of her retaliation claim
as she made for her disparate treatment and age discrimination claims, the court’s analysis and
ultimate conclusion with respect to her retaliation claim is the same. Nalls has not presented
sufficient evidence to rebut the fact that Corizon acted on a good faith belief—based upon the
results of its independent investigation into Nalls’s alleged work rule violation—that Nalls
violated a work rule. Therefore, a reasonable juror could not conclude that Duffell’s
discriminatory animus—to the extent she harbored any towards Nalls—motivated (for purposes
of Title VII) or was a determinative influence (for the ADEA) for Corizon’s decision to fire her.
Accordingly, Corizon’s Motion for Summary Judgment is due to be GRANTED as to her
For the reasons discussed, it is hereby ORDERED as follows:
1. Corizon’s Motion for Summary Judgment (Doc. # 14) is DENIED as to Count I;
2. Corizon’s Motion for Summary Judgment (Doc. # 14) is GRANTED as to Counts II,
III, and V; and
3. The case will proceed on the Plaintiff’s claim of hostile work environment.
Done this 10th day of August, 2017.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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