Fuller et al v. Koch Foods, Inc. et al

Filing 225

MEMORANDUM OPINION AND ORDER: It is ORDERED that Defendant McDickinson's Motion for Summary Judgment (Doc. 148 ) is GRANTED IN PART as to Plaintiff's state law claims of Outrage and Invasion of Privacy and DENIED IN PART as to Plaintiff 's claim of Assault and Battery. It is further ORDERED that Defendant Koch Foods of Alabama, LLC's Motion for Summary Judgment (Doc. 158 ) is GRANTED IN PART as to Plaintiff's claim of racial discrimination, and DENIED IN PART as to P laintiff's laims of sexual harassment, retaliation, and gender discrimination. It is further ORDERED that the Motion for Summary Judgment by Koch Foods, Inc., is GRANTED as to all of Plaintiff's claims against it. (Doc. 165 ). It is furth er ORDERED that Defendant Koch Foods, Inc., and Koch Foods of Alabama, LLC's Objections to and Motion to Strike Portions of Plaintiff's Evidentiary Submission in Support of His Opposition to Defendants Motion for Summary Judgment (Doc. [204 ]) are DENIED. The court is capable of reviewing the evidentiary submissions and considering only those portions which comply with Fed. R. Civ. P 56(e) and the Federal Rules of Evidence. To the extent that evidentiary submissions contained information that would be inadmissible under the Rules, the court has not considered that material in resolving the motions for summary judgment. Signed by Honorable Judge Andrew L. Brasher on 7/12/2019. (kh, )

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT HARVEY FULLER,
Plaintiff,
v.
KOCH FOODS, INC., et al.,
Defendants.

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Case No. 2:17-cv-96-ALB

MEMORANDUM OPINION AND ORDER
This is an employment discrimination lawsuit between Robert Fuller
(“Plaintiff”), his former employer, Koch Foods of Alabama, LLC, his former
employer’s related company, Koch Foods, Inc., and his former co-worker, Melissa
McDickinson. This matter comes before the court on the following motions:
Defendant McDickinson’s Motion for Summary Judgment (Doc. 148); Defendant
Koch Foods of Alabama, LLC’s Motion for Summary Judgment (Doc. 158); Motion
for Summary Judgment by Koch Foods, Inc., as to Plaintiff’s Claims (Doc. 165);
and Defendant Koch Foods, Inc., and Koch Foods of Alabama, LLC’s Objections to
and Motion to Strike Portions of Plaintiff’s Evidentiary Submission in Support of
His Opposition to Defendant’s Motion for Summary Judgment (Doc. 204). The
respective motions have been fully briefed and are ripe for decision.
I.

JURISDICTION AND VENUE

Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Plaintiff’s
federal causes of action, and the Court may exercise supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest
personal jurisdiction or venue, and there are adequate allegations to support both.
See 28 U.S.C. § 1391.
II.

STANDARD OF REVIEW
Summary judgment is appropriate when the “movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED.R.CIV.P. 56(a). The Court views the evidence, and all reasonable
inferences drawn therefrom, in the light most favorable to the nonmoving party.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for the motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id. Alternatively, a movant who does not have a trial burden of production can
assert, without citing the record, that the nonmoving party “cannot produce
admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also
Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that
a party need not always point to specific record materials.... [A] party who does not
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have the trial burden of production may rely on a showing that a party who does
have the trial burden cannot produce admissible evidence to carry its burden as to
the fact.”).
If the movant meets its burden, the burden shifts to the nonmoving party to
establish - with evidence beyond the pleadings - that a genuine dispute material to
each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute
of material fact exists when the nonmoving party produces evidence allowing a
reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
III.

BACKGROUND
Defendant Koch Foods of Alabama, LLC ("Ala-Koch") is a chicken

processing facility in Montgomery, Alabama. Koch Foods, Inc. ("Koch Foods")
owns Ala-Koch and several other processing facilities. On behalf of Ala-Koch,
Complex Human Resources (“HR”) Manager David Birchfield hired Defendant
Melissa McDickinson as a HR Supervisor in 2014, and later promoted her to HR
Manager of the debone plant.
On February 9, 2015, a temporary staffing agency assigned Plaintiff to work
at Ala-Koch as a temporary employee in the HR department at the Ala-Koch debone
plant. On March 9, 2015, McDickinson hired Fuller as a full-time Ala-Koch
employee to work under her supervision. During the course of his employment with
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Ala-Koch, Plaintiff alleges that McDickinson sexually harassed him by kissing him,
touching his chest, placing her breasts on him, requesting sexual favors, suggesting
that he leave his family for her, asking him to sit in her lap, calling him at home at
inappropriate times, and making sexual comments to him when she visited a bar that
Plaintiff owned and operated. Plaintiff alleged that he was afraid to report the sexual
harassment to Birchfield because he had heard that Birchfield and McDickinson
were in a sexual relationship. In May 2015, Plaintiff sent an email to Birchfield and
McDickinson reporting a claim of racial discrimination which another employee had
reported to him regarding disproportionate discipline received by African-American
employees. Two days later, McDickinson terminated Plaintiff’s employment on the
basis that he had abandoned his employment while he was attending his son’s
elementary school graduation during his lunch break.
Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) on October 9, 2015, alleging race discrimination, sexual
harassment, and retaliation. The EEOC issued a Notice of Right to Sue letter to
Plaintiff on February 27, 2017. Plaintiff filed a Complaint in this court on February
16, 2017. In the Third Amended Complaint, Plaintiff averred the following counts:

Count I – Invasion of Privacy.
Count II – Assault and Battery.
Count III – Outrage.
Count IV – Negligent/Wanton Supervision, Training and Retention
against Koch Foods and Ala-Koch.
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Count V – Retaliation against Defendants Koch Foods and Ala-Koch
arising under Title VII of the Civil Rights Act of 1964, as amended
(“Title VII”).
Count VI – Retaliation against Defendants Koch Foods and Ala-Koch
arising under 42 U.S.C. §1981 of the Civil Rights Act of 1964, as
amended (“1981”).
Count VII – Sexual Harassment against all Defendants under Title VII.
Count VIII – Race Discrimination against Defendant Koch Foods and
Ala-Koch under Title VII and 1981.
Count IX – Gender Discrimination against Defendant Koch Foods and
Ala-Koch under Title VII.
Each of the Defendants have filed motions seeking summary judgment. The
motions of the respective Defendants will be addressed below.
IV.

DISCUSSION
A. Claims against McDickinson
Only the first three state-law claims for Invasion of Privacy, Assault and

Battery, and Outrage are stated against McDickinson.
As to Invasion of Privacy, Plaintiff argues that “McDickinson’s conduct
invaded Fuller’s personal and emotional sanctum by physically touching him and
subjecting him to overtly sexual comments.” (Doc. 194 at 4). The Eleventh Circuit
has held that:
As to the invasion of privacy and intentional infliction of emotional
distress claims, a plaintiff in Alabama must show that the defendant's
conduct was so outrageous that it caused the plaintiff mental suffering,
shame, or humiliation (for invasion of privacy) or that it cannot be
tolerated in a civilized society (for intentional infliction). McIsaac v.
WZEW–FM Corp., 495 So. 2d 649, 651 (Ala. 1986).

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Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1308–09 (11th Cir.
2007). The Alabama Supreme Court has described the tort of Invasion of Privacy
“as the wrongful intrusion into one's private activities in such a manner as to outrage
or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.
Phillips v. Smalley Maintenance Services, 435 So. 2d 705 (Ala. 1983); Restatement
(Second) of Torts § 652B (1977).” McIsaac, 495 So. 2d at 651. That court further
noted that “‘Even the dire affront of inviting an unwilling woman to illicit
intercourse has been held by most courts to be no such outrage as to lead to liability.’
Logan v. Sears, Roebuck & Co., supra, at 124; W. Prosser, Law of Torts, 54–55 (4th
ed. 1971).” McIsaac, 495 So. 2d at 652.
Here as in McIsaac, even construing the allegations in the light most favorable
to Plaintiff, “the alleged intrusion and examination into [Plaintiff]’s private concerns
fall short of that required to constitute this tort.” Id. When asked if Plaintiff “ever
[felt] physically threatened by any of Ms. McDickinson’s actions towards [him],”
Plaintiff clarified the question by asking, “Physically threatened as in physical
danger or harm to myself?” and responded, “no.” (Doc. 149-5 at 114). Accordingly,
McDickinson’s motion for summary judgment is due to be granted on Plaintiff’s
claim for Invasion of Privacy.
Plaintiff’s claim of the tort of Outrage falls similarly short. The Alabama
Supreme Court has held:
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To be actionable under the tort of outrage, the conduct involved must
be “so outrageous in character and so extreme in degree as to go beyond
all possible bounds of decency, and ... be regarded as atrocious and
utterly intolerable in a civilized society.” American Road Service Co.
v. Inmon, 394 So. 2d 361, 365 (Ala. 1980) (citing Restatement (Second)
of Torts § 46, Comment d., at 73 [1965] ).
McIsaac, 495 So. 2d at 652. Even viewing the allegations in this case in the light
most favorable to the Plaintiff, McDickinson’s “behavior extended to ‘mere insults,
indignities, threats [or] annoyances,’ for which the law will not hold one liable in
tort. Restatement (Second) of Torts § 46, Comment d., (1965); Logan v. Sears,
Roebuck & Co., 466 So. 2d 121 (Ala. 1985).” McIsaac, 495 So. 2d at 651. Sexual
harassment is not a tort under Alabama state law. Accordingly, McDickinson’s
motion for summary judgment is due to be granted as to the claim of Outrage.
Finally, Plaintiff asserts a claim of assault and battery against McDickinson.
“The plaintiff in an action alleging assault and battery must prove ‘(1) that the
defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff;
and (3) that the touching was conducted in a harmful or offensive manner.’” Harper
v. Winston County, 892 So. 2d 346, 353 (Ala. 2004) (citation omitted). It is wellestablished that “[a]n actual injury to the body is not a necessary element of a civil
assault and battery.” Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986).
McDickinson does not, and cannot, argue that Plaintiff has failed to adduce
substantial evidence that McDickinson intentionally touched his person. Fuller
testified that McDickinson grabbed his face, touched his chest, rubbed her breasts
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against him, and attempted to kiss him. Instead, McDickinson apparently contends
that Plaintiff has failed to present evidence that the alleged touchings were
sufficiently “harmful” or “offensive.” Alabama caselaw, however, supports a
contrary conclusion.
In Ex parte Atmore Community Hosp., 719 So. 2d 1190, 1194 (Ala. 1998), the
plaintiff “presented evidence indicating that [defendant] touched her waist, rubbed
against her when passing her in the hall, poked her in the armpits near the breast
area, and touched her leg.” The plaintiff “also presented evidence indicating that
each of these touchings was intentional, was conducted with sexual overtones, and
was unwelcome.” Id. The court concluded that “[t]hese factual assertions constituted
substantial evidence that [defendant] committed a battery.” Id. The evidence
presented against McDickinson is sufficiently similar. Summary judgment will be
denied with respect to this claim.
B. Claims against Koch Foods
Koch Foods moved for summary judgment as to all claims against it. (Doc.
165). Specially, Koch Foods argued that there was no evidence that Koch Foods
was Plaintiff’s employer, that any Koch Foods employee was in any way involved
in his employment or termination, or that Koch Foods was an alter ego of Ala-Koch.
Plaintiff has filed to produce any evidence that Koch Foods or any of its employees
harassed, discriminated against, or otherwise controlled, had knowledge of, or
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ratified such conduct against Plaintiff. Other than the general and undisputed
evidence that Koch Foods is the parent company of Ala-Koch, Plaintiff offered no
other evidence to support any of his claims against Koch Foods, and Plaintiff failed
to respond to any of the arguments presented by Koch Foods in its motion for
summary judgment. In the absence of any evidence to support Plaintiff’s claims
against Koch Foods, its motion for summary judgment is due to be granted.
C. Claims against Ala-Koch
1. Race Discrimination under Title VII and Section 1981.
Ala-Koch argues that “[n]o evidence demonstrates that Fuller’s termination
was a result of intentional race discrimination.” (Doc. 164 at 32). Specifically, AlaKoch argues that Plaintiff “cannot show he was treated differently that a similarlysituated comparator” and that “no reasonable inference can be drawn that the same
individuals who hired Fuller also intended to terminate him because of his race.” Id.
at 31-32. Plaintiff’s response in opposition to Defendants’ motion for summary
judgment does not address this argument. (Doc. 196). This Court is not under a duty
to exercise imagination or conjure what a party might have argued. Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden
upon the district court to distill every potential argument that could be made based
upon the materials before it on summary judgment. Blue Cross & Blue Shield v.
Weitz, 913 F.2d 1544, 1550 (11th Cir.1990).”). Plaintiff’s Complaint stated a bare
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allegation that “Ala-Koch gave lesser discipline than termination to white and/or
Hispanic employees for ‘job abandonment.’” (Doc. 70 ¶145). However, Plaintiff
failed to respond in his Response to the motion for summary judgment that he was
subject to any discipline greater than any other employee based on race. There is no
evidence before this Court to support the Plaintiff’s allegation that he was terminated
or received any other disparate treatment on the basis of his race. Ala-Koch’s motion
for summary judgment is due to be granted on this issue.
2. Sexual Harassment Claims
Ala-Koch argues that Plaintiff “cannot establish the alleged conduct was
severe or pervasive and, thus, his Title VII sexual harassment claim fails.” (Doc. 164
at 22). To establish a sexual-harassment claim under Title VII where the plaintiff
alleges that the harassment itself changed his or her conditions of employment, the
plaintiff must show: “(1) that he or she belongs to a protected group; (2) that the
employee has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual nature; (3) that
the harassment must have been based on the sex of the employee; (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) a
basis for holding the employer liable.” Mendoza v. Borden, Inc., 195 F.3d 1238,
1245 (11th Cir. 1999)(citation omitted). In this case, however, Plaintiff is not
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arguing that the harassment itself was so severe and pervasive that it constituted a
change in employment conditions.

Rather, Plaintiff is arguing that Ala-Koch

permitted McDickinson to take employment action against him, i.e. to terminate his
employment, because he declined her advances. (Doc. 196 at 54-55). The Eleventh
Circuit has approved this theory of liability in a sexual harassment case like this one.
See Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1247 (11th Cir. 2004)
(reversing district court's grant of summary judgment and remanding for a trial on
plaintiff's theory that employer is vicariously liable to her for a Title VII violation
she suffered because her supervisor “fired her for refusing to give in to his sexual
advances.”).
Ala-Koch also argues that Birchfield, not McDickinson, made the decision to
terminate Plaintiff’s employment. However, that is a genuine issue of fact because
(a) McDickinson was Fuller’s immediate supervisor, (b) evidence suggests that she
and Birchfield were having an affair,1 (c) an email shows that she and Birchfield
communicated about the termination, and (d) Ala-Koch concedes that evidence
shows “McDickinson relayed to Birchfield that Fuller had left work without
permission,” which is the act that ostensibly led to his termination. This is enough

1
While the Defendants have raised certain objections to the fact issue whether Birchfield and McDickinson were
involved in a sexual relationship during the periods relevant to this litigation, there is sufficient evidence before this
court for the purposes of review on a motion for summary judgment. See (Doc. 195-10 at 6); (Doc. 195-12 at 30-31);
(Doc. 195-13 at 9); and (Doc. 195-16 at 5-11).

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evidence for a jury to disbelieve Birchfield’s assertion that he alone made decision
to terminate Fuller.
Ala-Koch also argues that Plaintiff’s complaint of his adverse employment
action was untimely. However, there is no dispute that this action was filed within
the statute of limitations from the date of Fuller’s termination. “[A] person seeking
to file a Title VII lawsuit must first file a timely charge with the EEOC alleging a
Title VII violation and exhaust all remedies provided by the EEOC. 42 U.S.C. §
2000e–5; Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001).
Charges must be in writing, be under oath or affirmation, and contain the information
and be in the form the EEOC requires. Id. § 2000e–5(b); 29 C.F.R. § 1601.3(a)
(2000).” Shi v. Montgomery, 679 F. App'x 828, 831 (11th Cir.), cert. denied sub nom.
Xingzhong Shi v. Montgomery, 138 S. Ct. 121, 199 L. Ed. 2d 32 (2017). “The
applicable period for filing an EEOC charge of discrimination does not begin to run
until the employee receives unequivocal notice of an adverse employment decision.
Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000). Shi, 679
F. App'x at 831. In this case, Plaintiff did not receive an unequivocal notice of
adverse employment action until his termination on May 29, 2015, and he filed a
complaint with the EEOC 133 days later on October 9, 2015. That termination, not
the allegedly harassing conduct itself, is what Fuller argues wrongfully changed the

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conditions of his employment. Accordingly, Ala-Koch’s motion for summary
judgment on Plaintiff’s claim of sexual harassment is due to be denied.
3. Retaliation Claims
Ala-Koch argues that Plaintiff cannot establish a prima facie case of
retaliation. The Eleventh Circuit has explained that federal law prohibits employers
from taking adverse action against employees for opposing racial discrimination:
Title VII and § 1981 prohibit employers from taking adverse actions
against employees in retaliation for their opposition to statutorily
prohibited racial discrimination. See 42 U.S.C. § 2000e–3(a); CBOCS
West, Inc. v. Humphries, 553 U.S. 442, 446, 128 S.Ct. 1951, 1954–55,
170 L.Ed.2d 864 (2008). In the employment context, the same
substantive analysis applies to claims of discrimination under § 1981
and Title VII. Turnes v. AmSouth Bank, 36 F.3d 1057, 1060 (11th
Cir.1994).
McQueen v. Wells Fargo, 573 F. App'x 836, 839 (11th Cir. 2014).
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. Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir.2001).
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). “To meet the causal link
requirement, the plaintiff ‘merely has to prove that the protected activity and the
negative employment action are not completely unrelated.’ E.E.O.C. v. Reichhold
Chemicals, Inc., 988 F.2d 1564, 1571–72 (11th Cir.1993).” Hawkins v. Potter, 316
F. App'x 957, 961 (11th Cir. 2009).
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In this case, Plaintiff alleged that Ala-Koch, through the actions of
McDickinson, retaliated against him for reporting a claim of racial discrimination
that another employee had reported to him regarding disproportionate discipline
received by African-American employees. Ala-Koch argues that this allegation
cannot serve as the basis for a retaliation claim. However, the question whether HR
employees are covered by retaliation protection when they raise claims on behalf of
other employees and whether they can still be fired for the manner in which they
raise those claims is currently pending before the en banc Eleventh Circuit. See
Gogel v. Kia Motors Mfg. of Georgia, Inc., 904 F.3d 1226, 1237 (11th Cir. 2018),
reh'g en banc granted, opinion vacated, No. 16-16850, 2019 WL 2498915 (11th Cir.
June 17, 2019). Gogel suggests at least the possibility that a viable claim of
retaliation exists when substantial evidence supports that the manner in which an HR
employee plaintiff raised race claims on behalf of other employees could have served
as the basis for an adverse employment action. Further, given the timing and
circumstances of Plaintiff’s dismissal two days after he made the complaint, there is
substantial evidence that the reasons claimed by Ala-Koch for his dismissal were
pretextual. Accordingly, Ala-Koch’s motion to dismiss on this issue is due to be
denied without prejudice. This issue may be addressed again, if appropriate, after
the Eleventh Circuit decides Gogel.
4. Gender Discrimination Claims
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Ala-Koch argues that Plaintiff has failed to support his claims of gender
discrimination. Gender discrimination claims involving circumstantial evidence are
analyzed under the framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Jefferson v. Sewon
Am. Inc., 891 F.3d 911, 921-22 (11th Cir. 2018). Under this framework, the plaintiff
is first required to establish a prima facie case of discrimination. Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). To establish a prima
facie discrimination claim, the plaintiff must show, among other things, that he
suffered an adverse employment action and that he was treated less favorably than a
similarly-situated individual outside his protected class. Maynard v. Bd. of Regents
of the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
Under McDonnell Douglas, if Plaintiff establishes a prima facie case, the burden
then shifts to the employer to provide “legitimate, nondiscriminatory reasons for the
challenged employment action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir.1997). Defendant’s burden is “exceedingly light,” and Defendant must
merely proffer a non-discriminatory reason for the adverse employment action, not
prove it. Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir.1994)
(quoting Perryman v. Johnson Prods. Co., Inc., 698 F.2d 1138, 1142 (11th
Cir.1983)). “If the employer satisfies its burden by articulating one or more reasons,
then the presumption of discrimination is rebutted, and the burden of production
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shifts to the plaintiff to offer evidence that the alleged reason of the employer is a
pretext for illegal discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1087 (11th Cir. 2004)(citation omitted).
In this case, Plaintiff argues that Ala-Koch engaged in gender discrimination
against him because it “gave lesser discipline than termination to female employees
for “‘job abandonment’ and/or leaving work without permission.” (Doc. 70 ¶ 151).
Ala-Koch does not dispute that their proffered reason for terminating his
employment was “for abandoning his job.” (Doc. 164 at 16). Ala-Koch does not
dispute that Plaintiff attempted to alert McDickinson before he clocked out from
work to attend a school function for his child. Rather, Ala-Koch relies on
McDickinon’s testimony that she “did not hear [Plaintiff] tell her that he was
leaving.” Id. at 13. Ala-Koch further acknowledges that McDickinson was mad at
Plaintiff for leaving, that he was denied re-entry to the work site, and that he called
McDickinson and Birchfield after he was refused entry.
As to Plaintiff’s replacement, the parties dispute whether he was replaced by
an Asian man or a white woman. Further, the parties dispute the number of HR
employees who left their jobs without permission without their employment being
terminated. As to two comparators, Cortes and McDickinson, Ala-Koch suggests
that “there is no evidence that McDickinson and Cortes did not have permission to
leave work or left without finishing their duties.” (Doc. 164 at 29-30). However,
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there is a material dispute as to whether Plaintiff had permission to leave work. AlaKoch argues that McDickinson is not a suitable comparator because she was a
salaried employee and Plaintiff’s supervisor but offers no such distinction for Cortes.
At best, Ala-Koch has attempted to distinguish these two comparators because, it
argues “there is no evidence that either McDickinson or Cortes failed to report to
work without calling off for five consecutive days.” Id. at 30. However, construing
the evidence in the light most favorable to Plaintiff as the non-moving party, he at
least attempted to obtain permission to leave, was refused re-entry upon return, and
called both McDickinson and Birchfield without being given any instruction as to
the status of his employment. There is no evidence that Ala-Koch attempted to make
contact with Plaintiff during the same five-day period for which Ala-Koch would
claim Plaintiff failed to make contact with it. As such, there are genuine issues of
material fact as to Plaintiff’s claim of gender discrimination, and Ala-Koch’s motion
for summary judgment is due to be denied on this issue.
V.

Conclusion
Based on the foregoing, it is
ORDERED that Defendant McDickinson’s Motion for Summary Judgment

(Doc. 148) is GRANTED IN PART as to Plaintiff’s state law claims of Outrage
and Invasion of Privacy and DENIED IN PART as to Plaintiff’s claim of Assault
and Battery. It is further
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ORDERED that Defendant Koch Foods of Alabama, LLC’s Motion for
Summary Judgment (Doc. 158) is GRANTED IN PART as to Plaintiff’s claim of
racial discrimination, and DENIED IN PART as to Plaintiff’s claims of sexual
harassment, retaliation, and gender discrimination. It is further
ORDERED that the Motion for Summary Judgment by Koch Foods, Inc., is
GRANTED as to all of Plaintiff’s claims against it. (Doc. 165). It is further
ORDERED that Defendant Koch Foods, Inc., and Koch Foods of Alabama,
LLC’s Objections to and Motion to Strike Portions of Plaintiff’s Evidentiary
Submission in Support of His Opposition to Defendant’s Motion for Summary
Judgment (Doc. 204) are DENIED. The court is capable of reviewing the
evidentiary submissions and considering only those portions which comply with
Fed. R. Civ. P 56(e) and the Federal Rules of Evidence. To the extent that evidentiary
submissions contained information that would be inadmissible under the Rules, the
court has not considered that material in resolving the motions for summary
judgment.
DONE and ORDERED this 12th day of July 2019.

/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE

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