Carpenter v. Regis Corp. Inc.

Filing 30

MEMORANDUM OPINION AND ORDER that Defendant's 11 Motion for Summary Judgment is GRANTED. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 11/13/2008. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A M Y CARPENTER, P l a in tif f , v. R E G IS CORP. INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 3:07-CV-501-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is case is before the court on Defendant's Motion for Summary Judgment (Doc. # 11), which is accompanied by a brief (Doc. # 12) and evidentiary submission (Doc. # 13). P la in tif f filed a response in opposition to summary judgment (Doc. # 21) with a brief (Doc. # 22), to which Defendant replied (Doc. # 25). After careful consideration of the arguments o f counsel, the relevant law and the record as a whole, the court finds that the motion is due to be granted. I. JURISDICTION AND VENUE T h e court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 for all c la im s arising under federal law. The court also has original jurisdiction over claims based u p o n violations of civil rights. See 28 U.S.C. § 1343. The parties do not contest personal ju ris d ic tio n or venue, and the court finds that there are allegations sufficient to support both.

I I . FACTS AND PROCEDURAL HISTORY T h is lawsuit arises out of Defendant Regis Corp. Inc.'s ("Regis") employment actions a g a in s t Plaintiff Amy Carpenter ("Carpenter") when she worked as a hair stylist and manager a t Regis's hair salons in Auburn and Opelika, Alabama.1 Regis hired Carpenter, who is A f ric a n -A m e ric a n , as a stylist at an Auburn salon in November of 2005. (Br. in Supp. of S u m m . J., 2; Resp., 1.) In late June or early July of 2006, the position of Salon Manager o p e n e d up. (Br. in Supp. of Summ. J. Ex B (Burdette Decl. ¶ 3).) The Area Supervisor for R e g is , Delise Burdette ("Burdette"), promoted Katherine Kilgore ("Kilgore"), a Caucasian s tylis t in a different Auburn salon, to the position of Salon Manager instead of Ms. Carpenter a n d another Caucasian candidate. (Burdette Decl. ¶¶ 2-4; Compl. ¶ 9.) Kilgore had worked in te rm itte n tly for Regis for a total of fifteen months and according to Burdette, had " d e m o n s tra te d successful customer service skills," which is "very important" to holding a m a n a g eria l position successfully; Carpenter, on the other hand, had been with the company o n ly seven months and "had failed to demonstrate customer service skills" that matched K ilg o re 's , and had received customer complaints. (Burdette Decl. ¶ 5. & Ex. 2.) When K ilg o re assumed the managerial position, Carpenter testified that Burdette spent three or four

Carpenter has provided little by way of evidentiary citations in her response to Regis's motion for summary judgment. It is not the court's function to weed through the summary judgment submissions in search of evidence to support Carpenter's position. See Freeman v. City of Riverdale, No. 1:06-cv2230, 2007 WL 1129004, at *6 (N.D. Ga. Apr. 16, 2007) (citing Eleventh Circuit cases); (see also Uniform Scheduling Order § 2 (Doc. # 9)). Similarly, "[t]here 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." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).

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d a ys with Kilgore, training her to manage the store. (Br. in Supp. of Summ. J. Ex. A (C a rp e n te r Dep. 204, Jan. 30, 2008).) K ilg o re left after a week, though, and Burdette offered Carpenter the Salon Manager p o s itio n , which she assumed on July 11, 2006. (Burdette Decl. ¶¶ 6-7.) Burdette placed C a rp e n te r on a ninety-day probation period. (Burdette Decl. ¶ 7.) Burdette gave Carpenter re a d in g materials on how to manage a salon (Carpenter Dep. 33-34) and spent two days at th e salon training Carpenter (Burdette Decl. ¶ 8). Soon after the promotion, Burdette d is c o v e re d evidence that Carpenter had violated the time clock and scheduling policies by b rin g in g her children to work, leaving the salon during shifts and while on the clock, s c h e d u lin g stylists for fewer evenings or weekends than expected, and frequenting the salon w i t h o u t authorization after business hours. (Burdette ¶ 9.) Burdette also received several c o m p lain ts about Carpenter, some of which "went through the corporate office." (Burdette D ec l. ¶ 9 & Ex. 2.) Burdette demoted Carpenter on August 10, 2006, and following Regis's p o licy for involuntary demotions, relocated her to a different salon in Opelika. (Burdette ¶¶ 9-10; Carpenter Dep. 26.) Carpenter had a tumultuous start at the Opelika salon. Right away, a male customer c o m p l a i n e d about a sexual conversation that took place in the salon during his service. (C a rp e n ter Dep. 120-22; Burdette Decl. Ex. 3.) The two women engaged with Carpenter in th a t conversation were in the service area but not receiving services (Carpenter Dep. 121-22, 1 3 1 ), and Carpenter understood that the applicable security regulations required keeping non-

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e m p lo ye e s out of the service area unless they were being served. (Carpenter Dep. 104; B u rd e tte Decl. Ex. 3.) Amy Grace ("Grace"), the Store Manager, placed Carpenter on a s ix ty-d a y probation period and issued a warning to Carpenter detailing the complaint, which C a rp e n te r opposed, claiming that the conversation was not sexual. (Burdette Decl. Ex. 4; C a r p e n te r Dep. 131.) Another customer complained about Carpenter's cancelling her

a p p o i n t m e n t.2 Carpenter had told the customer the salon could not provide her service b e c au s e the products and tools needed for the service were not available. (Carpenter Dep. 7 2 .) Carpenter testified that the needed relaxer and rinses were not in the salon and that she h a d been told there was no room for her Marcel irons, which she would have used on the c u s t o m e r 's hair. (Carpenter Dep. 72.) Carpenter had assumed that the manager would p ro v id e these necessities and did not check in advance of the appointment to see whether the p rod u cts and tools were available. (Carpenter Dep. 77.) According to Burdette, however, it was Carpenter's responsibility to ask Grace to order the products Carpenter preferred to u s e , and to transport her own tools. (Burdette Decl. ¶ 15.) When made aware of the p ro b lem , Burdette offered to bring Marcel irons from the Auburn salon right away (Burdette D e c l. ¶ 16), an offer Carpenter claims she never personally received (Carpenter Dep. 76). Aware of the two customer complaints, Carpenter then called the Regis corporate o f f ic e , and spoke with Amy Edwards ("Edwards") to make a complaint that she was being tre a te d unfairly (Carpenter Dep. 144), that she did not have what she needed for her job, that

Apparently, yet another customer complained about the layering job done on her hair. (See Burdette Decl. Ex. 2.)

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e m p lo ye e s were not making those necessities available, and that she was not making money. (C a rp e n te r Dep. 147-48.) Carpenter does not recall whether she told Edwards that she was b e in g discriminated against. (Carpenter Dep. 149.) Carpenter did tell Edwards that "she was n o t made available to use [her] ethnic products." (Carpenter Dep. 152.) Carpenter also sent E d w a rd s, without Grace's permission, a supportive letter Grace had written in June to help C arp en ter seek other employment. (Carpenter Dep. 169, 188, 196.) In response to Carpenter's complaint, Regional Manager Toni Alvarez ("Alvarez") c o n d u c te d an investigation at Carpenter's salon on August 17 and 18, 2006. (Br. in Supp. o f Summ. J. Ex. C. (Alvarez Decl. ¶ 4).) In her declaration, Alvarez stated that Carpenter at n o point complained that she was treated differently because of her race or felt that she was b e in g discriminated against but Carpenter did complain of Burdette's allegedly telling C a rp e n te r she could not "do ethnic hair or have ethnic hair products in the store." 3 (Alvarez D ec l. ¶ 5.) Alvarez also noted Carpenter's complaint that Burdette told two co-workers C a rp e n ter was "`low class and not management material'" (Alvarez Decl. ¶ 6), a claim A lv a re z followed up on; the two co-workers told her that Burdette never referred to C a rp e n te r as low class and one of them stated that Carpenter was pressuring her to say o th e rw is e (Alvarez Decl. ¶¶ 13-14). Alvarez also heard from her discussions with cow o rk e rs that people Carpenter knew personally were spending time on the service floor, in

Carpenter testified that she told Alvarez that she had called the EEOC, but she could give no reason why she had not written it down in notes she allegedly took of the conversation. (Carpenter Dep. 150.) Moreover, Carpenter's testimony is unclear about whether she complained to Alvarez about racial discrimination. (See Carpenter Dep. 150-152.)

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v i o la tio n of company policy (Alvarez Decl. ¶ 7), that Carpenter called Grace with problems, th a t Carpenter was a constant disruption at work, that she told lies about other employees (A lv a re z Decl. ¶ 10), that Carpenter's recounting of one of the customer complaints was not tru e (Alvarez Decl. ¶ 11), that Carpenter was "always creating a negative environment," (A lv a re z Decl. ¶ 14), and that Carpenter had doctored the letter Grace had written and had lie d about that letter more generally (Alvarez Decl. ¶ 16). Alvarez also followed up on a c u sto m e r complaint about being overcharged and determined that Carpenter had overcharged a customer. (Alvarez Decl. ¶ 17.) Based on the misconduct that Alvarez had heard about, the customer complaints that A lv a re z had substantiated, and the misconduct Alvarez had confirmed occurred, she decided to terminate Carpenter's employment. (Alvarez Decl. ¶ 18.) The termination form Alvarez c o m p le te d cited violations of four company regulations for Carpenter's discharge ­ (1) for a llo w in g persons other than employees behind the reception desk and in the service area; (2) f o r charging customers prices other than those on the salon's price list or as ticketed, unless a u th o riz e d ; (3) for using products other than "approved `back-bar' items"; and (4) for other m isco n d u ct that adversely affects the company.4 (Alvarez Decl. ¶ 18 & Ex. 4.)

Alvarez cited the following conduct in support of her finding of misconduct otherwise adversely affecting the company: "lying during the investigation, misrepresenting what [Carpenter's] coworkers had allegedly said, altering and misrepresenting the nature of Grace's reference letter, attempting to pressure [Carpenter's] co-workers to lie, and creating an unpleasant working environment for her coworkers." (Alvarez Decl. ¶ 18.)

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T h e EEOC sent Carpenter a right to sue letter in March 2007. (Compl. Ex. A.) C a rp e n ter sued Regis on June 7, 2007, alleging violations of 42 U.S.C. § 1981 for disparate tre a tm e n t and unlawful discrimination, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000(e)-2000e-17 ("Title VII") for disparate treatment and unlawful discrimination, and T itle VII for retaliation. (Compl.) Carpenter claims that because of her race, she was subject to four adverse employment actions: (1) a denied promotion; (2) disparate training; (3) a d e m o tio n from Salon Manager to stylist; and (4) termination that was both discriminatory and re ta lia to ry. (Resp., 2; Br. in Supp. of Summ. J., 17-18.) She is requesting declaratory and in ju n c tiv e relief, back pay and benefits from the date of termination to reinstatement, c o m p e n s a to ry damages, punitive damages, costs and attorney's fees, and equitable relief the co u rt deems appropriate. (Compl. 4-5.) III. STANDARD OF REVIEW T h is case is before the court on a summary judgment motion. "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show there is no genuine issue as to any material fact an d that the moving party is entitled to judgment as a matter of law.'" Greenberg v. B e llS o u th Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to fo rm er rule omitted); Fed. R. Civ. P. Rule 56(c), as amended December 1, 2007 (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the

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m o v an t is entitled to judgment as a matter of law.").5 The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of [the record, including pleadings, discovery m a t e r i als and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c l a i m s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x , 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or d e n ia ls in its own pleading; rather, its response must . . . set out specific facts showing a g e n u in e issue for trial."). What is material is determined by the substantive law applicable to the case. Celotex, 477 U.S. at 248; Lofton v. Sec'y of the Dep't of Children & Family

Effective December 1, 2007, "[t]he language of Rule 56[was] amended . . . to make the rule[ ] more easily understood and to make style and terminology consistent throughout the rules. These changes . . . are stylistic only." Fed. R. Civ. P. 56 advisory committee notes. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and therefore, all cases citing the prior rule remain equally applicable to the current rule.

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S e r v s ., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the su b stan tiv e law governing the case will preclude entry of summary judgment."). F u rth erm o r e , "[t]he mere existence of some factual dispute will not defeat summary ju d g m e n t unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (internal q u o ta tio n marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence t h a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (to establish a genuine issue of material fact, the nonmoving party must produce evidence s u c h that a reasonable trier of fact could return a verdict in his favor). If the evidence on w h ich the nonmoving party relies, however, "is merely colorable . . . or is not significantly p ro b a tiv e . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986). "A mere `scintilla' of evidence supporting the [nonmovant's] position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation o m it t e d ) , and the nonmoving party "must do more than simply show that there is some m e ta p h ys ic a l doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio C o r p ., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs are lik e w is e insufficient to create a genuine issue of material fact and do not suffice to oppose

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a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (p e r curiam) (Plaintiff's "conclusory assertions . . . in the absence of supporting evidence, a re insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11th C ir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond " h is own conclusory allegations" challenging actions of the defendants); Fullman v. G r a d d ic k , 739 F.2d 553, 557 (11th Cir. 1984) ("[M]ere verification of a party's own co n clus o ry allegations is not sufficient to oppose a motion for summary judgment . . . ."). H e n c e , when a nonmoving party fails to set forth specific facts supported by appropriate e v id e n c e sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment is due to be granted in favor of th e moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an essential elem en t of the nonmoving party's case necessarily renders all other facts immaterial."); B a r n e s v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the p r im a facie case the plaintiff presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate.). Thus, in cases where the evidence before the court is admissible on its face or can be red u ce d to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex, 477 U.S. at 323-24 (summary judgment appropriate where

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p le a d in g s , evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact). I V . DISCUSSION A. L e g a l Framework for Carpenter's § 1981 and Title VII Claims C a rp e n te r is alleging that because of her race, Regis denied her a promotion, offered h e r disparate training as a manager, demoted her from a manager to a stylist, and finally, te rm in a te d her employment, in violation of § 1981 and Title VII.6 Title VII and § 1981 "have th e same requirements of proof and use the same analytical framework"; the analysis of one a p p lie s to the analysis of the other. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (1 1 th Cir. 1998); see also Sledge v. Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1 0 1 5 n.1 (11th Cir. 2001) (per curiam) (noting that the prima facie framework for proof by c irc u m s ta n tia l evidence is the same for both). A Title VII discrimination action brought for d is p a ra te treatment on the basis of race requires proof of intentional discrimination. Cooper v . Southern Co., 390 F.3d 695, 723 (11th Cir. 2004), overrruled on other grounds, Ash v. T y s o n Foods, Inc., 546 U.S. 454, 457 (2006) (per curiam). The framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 9 7 3 ), applies to claims proving discrimination by circumstantial evidence. Cooper, 390

The court assumes, as the parties do, that § 1981 applies to Carpenter's employment relationship. Section 1981 provides for all persons to have the same right to "make and enforce contracts," § 1981(a), which covers the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship," § 1981(b).

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F .3 d at 723-24. The plaintiff first must establish a prima facie case of discrimination. Id. at 7 2 4 -2 5 . To make out a prima facie case, a plaintiff must demonstrate that "(1) she belongs t o a protected class; (2) she was qualified to do the job; (3) she was subjected to adverse e m p lo ym e n t action; and (4) her employer treated similarly situated employees outside her c la ss more favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The

d e f e n d a n t's showing of a "legitimate, non-discriminatory reason for the allegedly d is c rim in a to ry act," however, can eliminate the presumption created by establishing a prima f a c ie case. Cooper, 390 F.3d at 725. "To satisfy that burden of production, `[t]he defendant n e e d not persuade the court that it was actually motivated by the proffered reasons.'" Combs v . Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (quoting Tex. Dep't of Cmty. A ffa ir s v. Burdine, 450 U.S. 248, 254 (1981)). "`[T]he employer need only produce a d m is s ib le evidence which would allow the trier of fact rationally to conclude that the e m p lo ym e n t decision had not been motivated by discriminatory animus.'" Id. (quoting B u r d in e , 450 U.S. at 257). Even a "subjective" reason for the employment decision will s u f f ic e as long as the employer "articulates a clear and reasonably specific factual basis upon w h ic h it based its subjective opinion." Chapman v. Al Transp., 229 F.3d 1012, 1034 (11th C i r . 2000) (listing examples of traits like "good judgment" and "tact" that "often must be a ss e ss e d primarily in a subjective fashion"). "Personal qualities . . . factor heavily into em p loym en t decisions concerning supervisory positions," id. at 1033, and those criteria "only c a p ab le of subjective evaluation . . . . can be just as valid as objective reasons," id. at 1034.

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O n c e the prima facie presumption is eliminated, to survive summary judgment, a p lain tiff must come forward with evidence sufficient to permit a reasonable factfinder to c o n c lu d e that the reasons for the adverse employment decision were pretextual.7 Cooper, 3 9 0 F.3d at 725. A plaintiff cannot "`establish pretext simply by showing that [he] is more q u a lif ie d '" than the candidate who was hired. Id. at 732 (quoting Cofield v. Goldkist, Inc., 2 6 7 F.3d 1264, 1268 (11th Cir. 2001)). "[F]ederal courts do not sit to second-guess the b u sine ss judgment of employers. . . . [A] plaintiff may not establish that an employer's p ro f f ere d reason is pretextual merely by questioning the wisdom of the employer's reason, a t least not where . . . the reason is one that might motivate a reasonable employer." Combs, 1 0 6 F.3d at 1543; see also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1 3 6 1 (11th Cir. 1999) ("We are not in the business of adjudging whether employment d e c is io n s are prudent or fair."). The plaintiff must meet the employer's legitimate reason " h e ad on" and not by "simply quarreling with the wisdom of that reason." Chapman, 229 F .3 d at 1030. Thus, to meet the evidentiary burden on pretext, the plaintiff must demonstrate " `s u c h weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the e m p lo ye r's proffered legitimate reasons for its action that a reasonable factfinder could find th e m unworthy of credence.'" Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont d e Nemours & Co., 100 F.3d 1061, 1071 (3d Cir. 1996) (en banc)).

The plaintiff must produce evidence sufficient to show pretext as to each legitimate reason the defendant offers in rebuttal. See Chapman, 229 F.3d at 1037 n.30 (recognizing Eleventh Circuit case law on this point and declining to rule on whether exceptions exist).

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P r e te x t can be established, however, by demonstrating a vast enough disparity in q u a lif ic a tio n s . To establish pretext by comparing qualifications, the disparities "`must be of s u c h weight and significance that no reasonable person, in the exercise of impartial ju d g m e n t, could have chosen the candidate selected over the plaintiff for the job in q u estio n .'" Ash, 546 U.S. at 457 (quoting Cooper, 390 F.3d at 732); accord Brooks v. C o u n ty Comm'n of Jefferson County, Ala., 446 F.3d 1160 (11th Cir. 2006).8 Pretext also can b e shown by producing evidence of an employer's inconsistent statements.9 Tidwell v. C a r te r Prods., 135 F.3d 1422, 1428 (11th Cir. 1998); see also Combs, 106 F.3d at 1538. T h e McDonnell Douglas framework also applies to establishing by circumstantial ev iden c e a claim of retaliation under the opposition or participation clause of Title VII. G o ld s m ith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Title VII prohibits d is c rim in a tio n against any employee who (1) "has opposed any practice made an unlawful e m p lo ym e n t practice by this [title]" (opposition clause), or (2) "has made a charge, testified, a ss iste d , or participated in any manner in an investigation, proceeding, or hearing under this [ title ]" (participation clause). 42 U.S.C. § 2000e-3(a). To succeed under the opposition

In 2006, the Supreme Court noted with approval this standard from Cooper. See Ash, 546 U.S. at 457-58; Drakeford v. Ala. Coop. Extension Sys., 425 F. Supp. 2d 1274, 1276 (M.D. Ala. 2006) (Albritton, J.). The Court declined to expressly articulate a more specific standard in resolving that case, Ash, 546 U.S. at 458, but the Eleventh Circuit has applied this standard since Ash, explicitly noting that Ash approved it, see Brooks, 446 F.3d at 1163. In a recent unpublished opinion, the Eleventh Circuit required employers' reasons to be "fundamentally inconsistent in order to constitute evidence of pretext." Phillips v. Aaron Rents, Inc., 262 F. App'x 202, 210 (11th Cir. 2008) (per curiam) (citing Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453 (11th Cir. 1997) (per curiam)).
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c la u se , the plaintiff is not required to prove that the underlying discriminatory conduct she o p p o s e d was unlawful but only that she had a "reasonable belief that the employer was e n g a g ed in unlawful employment practices." Little v. United Techs., Carrier Transicold D iv ., 103 F.3d 956, 960 (11th Cir. 1997). To succeed under the "participation" clause, "at a minimum, [the] employee must file a charge with the EEOC (or its designated re p re s e n ta tiv e ) or otherwise instigate proceedings under the statute." EEOC v. Total Sys. S e rv s., Inc., 221 F.3d 1171, 1174 n.2 (11th Cir. 2000). A prima facie case of retaliation u n d e r both clauses requires proof "(1) that [the plaintiff] engaged in statutorily protected e x p re s s io n ; (2) that she suffered an adverse employment action; and (3) that there is some c a u s a l relation between the two events." Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1 0 2 1 (11th Cir. 1994). If the defendant comes forward with legitimate reasons for its action, th e plaintiff must provide sufficient evidence that, if reasonably believed by the trier of fact, w o u ld prove by a preponderance of the evidence that those reasons are pretextual. See G o ld sm ith , 996 F.2d at 1163. B. (1 ) A p p lic a tio n to Regis's Employment Decisions P r o m o tio n C a rp e n ter charges Regis with unlawful discrimination based on race because it p ro m o te d Kilgore over Carpenter for the position of Salon Manager. In its motion for s u m m a ry judgment, Regis argues that Carpenter has "failed to dispute" its proffered reason f o r not promoting Carpenter, "that Kilgore was better qualified because of her superior

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cu stom er service skills." 1 0

(Br. in Supp. of Mot. for Summ. J., 19.)

Regis offers

u n c h a lle n g e d evidence of Kilgore's qualifications ­ that she had been with the company f if te e n months intermittently and that Burdette had personally observed Kilgore's work and s h e had shown she had better customer services skills. (Br. in Supp. of Mot. for Summ. J., 1 9 -2 0 .) Furthermore, Regis offers evidence of at least one documented customer complaint a g a in s t Carpenter prior to the promotion decision (Burdette Decl. Ex. 2). Thus, a trier of fact c o u ld rationally conclude that discriminatory animus did not motivate Regis's decision. That K ilg o re had worked for the company longer than Carpenter, that Kilgore was more skilled b a s e d upon personal observations, and that there was a record of customer complaints against C a rp e n te r are sufficient legitimate, non-discriminatory reasons for promoting Kilgore over C a rp e n te r. Carpenter has offered no evidence that disputes Kilgore's qualifications or that reveals R e g is has been disingenuous about its reasons. For example, Carpenter has offered no e v id e n c e of a complaint against Kilgore. Carpenter is left to prove pretext by demonstrating a vast disparity between the parties' qualifications. Carpenter's qualifications, however ­ t h a t she has been with Regis seven months and that the customer complaints were not fre q u en t or improperly handled by her (see Resp., 4) ­ fall far short of showing that she is b e tte r qualified than Kilgore, let alone that she is vastly more qualified. Carpenter has failed

For purposes of its summary judgment motion, Regis assumes Carpenter has satisfied the prima facie elements for her discrimination claim (Br. in Supp. of Mot. for Summ. J., 19); thus, the court will make the same assumption.

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to proffer evidence that creates a genuine issue of material fact as to whether Regis's reasons f o r not promoting Carpenter were pretextual for a discriminatory animus. (2) T r a in in g C a rp e n te r charges Regis with unlawful discrimination based on race because Burdette o f f ere d Kilgore, a Caucasian, better training for the Salon Manager position than she offered C a rp e n ter . In its summary judgment motion, Regis argues that Carpenter's complaint is b e sid e the point because she has produced no evidence that the "deficient training altered the te rm s or conditions of her employment or that it adversely affected her status as an employee in any way." (Br. in Supp. of Mot. for Summ. J., 21.) Though the Eleventh Circuit has never a d o p te d a bright-line test for what effect discrimination must have on employment conditions in order to have to be actionable, "[n]ot all conduct by an employer negatively affecting an e m p lo ye e constitutes adverse employment action." Davis v. Town of Lake Park, Fla., 245 F .3 d 1232, 1238 (11th Cir. 2001). When the plaintiff has failed to show that the training "`w o u ld [have] affect[ed] his salary, chances of promotion, ability to perform his job, etc.,'" th e prima facie case fails for lack of an adverse employment action. Merriweather v. Ala. D e p ' t of Pub. Safety, 17 F. Supp. 2d 1260, 1271 (M.D. Ala. 1998) (quoting Bullock v. W id n a ll, 953 F. Supp. 1461, 1473 (M.D. Ala. 1996), aff'd, 149 F.3d 1196 (11th Cir. 1998)), a ff'd , 199 F.3d 443 (11th Cir. 1999). For support that the training contributed to her d e m o tio n , Carpenter points to her deposition (Resp., 5), but it fails to support the point. The q u o te d passage only states that Carpenter believes "race had a lot to do with me not being

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g iv e n the position in the beginning and not being trained properly and then being demoted"; it says nothing about if or how the training affected the demotion, noting only that all three e m p l o ym e n t actions had a common source in discrimination. (Carpenter Dep. 205; see R e p l y, 7.) Carpenter has failed to allege an adverse employment action from her training, a prima facie element of her case. (3 ) D e m o tio n Carpenter charges Regis with unlawful discrimination based on race because Burdette d e m o te d Carpenter from Salon Manager to stylist about a month into her managerial p ro m o tio n . Carpenter has not challenged Burdette's reasons for demoting her aside from a rg u in g that Burdette hired Carpenter because "her hand was forced" and that Burdette then e f f e c tiv e ly sabotaged her. (Resp., 6.) This accusation would be more credible if Carpenter h a d rebutted Burdette's reasons for demoting her ­ that Carpenter violated time clock and s c h e d u lin g policies, that she scheduled fewer evening or weekends for stylists, and that she f re q u e n te d the salon without authorization. Regis also offered a documented customer c o m p lain t against Carpenter. Carpenter completely failed to rebut this evidence. She admits to allowing non-employees in the service area; she presents no evidence in defense of her tim e -k e e p in g . Her insistence that the demotion can be understood only as compounding the p rio r discriminatory acts of failing to promote and deficient training only obfuscates the holes in her argument for each adverse employment action. She has offered no evidence, even in h e r deposition, rebutting Regis's legitimate reasons for demoting her for customer complaints

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a n d other misconduct. The nonmovant has a favorable burden on summary judgment, but C a rp e n te r has directed the court to no evidence contradicting Burdette's declaration and e x h ib its. For that reason, Carpenter's demotion claim fails as well. (4 ) Termination as Discrimination C a rp e n ter charges Regis with unlawful discrimination based on race because Regis te rm in a te d her. Regis argues that Carpenter has failed to point to any similarly-situated e m p lo ye e s outside her class treated more favorably than Carpenter. (Br. in Supp. of Mot. for S u m m . J., 24.) Regis also argues that Carpenter has failed to dispute its proffered nond iscrim inato ry reason for discharge. (Br. in Supp. of Mot. for Summ. J., 25.) Regis offers b o t h Alvarez's declaration describing the information that prompted Alvarez to terminate C a rp e n te r and documented customer complaints in support of its production burden on le g itim a te , non-discriminatory reasons for the employment action. The record provides sufficient reasons to justify a factfinder's conclusion that Regis w a s not motivated by discriminatory animus when it fired her. See supra pp. 5-6. Based on th e evidence before her at the time of termination, Alvarez decided that she could rely on c e rta in employees and not on Carpenter's statements during the internal investigation of her c la im s . When an employer is told of improper conduct at its workplace, the e m p lo ye r can lawfully ask: is the accusation true? . . . . . . [A]n employer is entitled to expect and to require truthfulness and a c cu ra c y from its employees in an internal investigation that is exploring p o ss ib ly improper conduct in the business's own workplace. . . . And, in 19

c a rryin g out its business and in making business decisions (including personnel d e c is io n s ), the employer can lawfully act on a level of certainty that might not b e enough in a court of law. . . . Therefore, an employer, in these situations, is e n title d to rely on its good faith belief about falsity, concealment, and so forth. ... [The plaintiff] could properly be discharged based on [the defendant's] g o o d faith belief that [the plaintiff] lied in an internal investigation. T o ta l Sys. Servs., Inc., 221 F.3d at 1176 (footnote and citations omitted). Furthermore, upon in v e stig a tin g Carpenter's claim of unfair treatment, Alvarez was entitled to rely on the v o lu m in o u s evidence of accumulated problems with Carpenter. Each complaint on the la u n d ry list of complaints against Carpenter reinforced her misconduct. See supra pp. 5-6. A lv a re z concluded that Carpenter had lied, that she had violated Regis policy, and that her c o n d u c t was adversely affecting the company. Carpenter contends that basing a decision on the sexual conversation complaint, h o w e v e r, is pretextual because Regis already had reprimanded her for the action. (Resp., 6.) B u t this claim belies the reality that Alvarez had unearthed a plethora of complaints and in s ta n c es of misconduct in addition to that complaint. It is not inconsistent to terminate an e m p lo ye e for an action that the company previously punished more lightly if that action is s ym p to m a tic of a later-discovered pattern of misconduct. Carpenter also points to the e v id e n c e of how she responded to the customer's complaint about the cancelled appointment. (R e sp ., 6.) Carpenter complained that she could not bring to the salon the required products a n d that she felt like she was being set up for an harassment case. (Carpenter Dep. Ex. 7.) T h e court finds, however, that Carpenter's response to the cancelled appointment does not 20

u n d e rm in e Alvarez's good faith belief, based on the totality of the evidence before her, that it was in Regis's best interest to sever Carpenter's employment. (5 ) Termination as Retaliation Carpenter charges Regis with unlawful retaliation because Regis terminated her after C a r p en te r communicated to Edwards and Alvarez that she had called the EEOC about R e g is's racial discrimination. (Resp., 9.) Regis argues that Carpenter did not engage in p ro te c te d activity under either the participation or opposition clauses and that Carpenter has n o t proven a causal connection between the protected activity and her termination, both p rim a facie elements of her retaliation claim. (Br. in Supp. of Mot. for Summ. J., 27-30.) R eg is further argues that Carpenter failed to rebut Regis's legitimate, non-discriminatory re a so n s for her discharge. (Br. in Supp. of Mot. for Summ. J., 31.) Assuming arguendo that C a rp e n te r properly advanced a prima facie retaliation claim, it clearly fails for insufficient e v id e n c e supporting pretext. As discussed in the resolution of her termination claim, C a rp e n te r has presented only a scintilla of evidence ­ that there was no reason to further p u n is h her for the sexual conversation complaint, that she had some excuses for the cancelled a p p o in tm e n t complaint, and that she told Alvarez of contacting the EEOC, though whether s h e even discussed racial discrimination with Alvarez is unclear ­ to rebut the fact that, b a se d on the totality of the evidence before her at the time, Alvarez had legitimate reasons to terminate Carpenter. See supra pp. 19-21. Thus, regardless of the prima facie challenge,

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C a rp e n te r has not met her burden to rebut Regis's legitimate non-discriminatory reasons for ter m in a tin g her employment. V . CONCLUSION F o r the foregoing reasons, it is ORDERED that Defendant's Motion for Summary J u d g m e n t (Doc. # 11) is GRANTED. An appropriate judgment will be entered. D O N E this 13th day of November, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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