Kidd v. Mando American Corporation
MEMORANDUM OPINION AND ORDER re 44 Motion for Summary Judgment. It is ORDERED as follows: 1. Summary Judgment is GRANTED as to the Counts One, Two, Three, Four, and Five, and judgment will be entered in favor of MAC as to these Counts. 2. Pursuant to 28 U.S.C. § 1367(c), Counts Six and Seven are DISMISSED without prejudice. Signed by Honorable Judge W. Harold Albritton, III on 4/10/2012. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
LEANNE RENEE KIDD,
MANDO AMERICA CORPORATION,
) CIVIL ACTION NO. 3:10-cv-871-WHA
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion for Summary Judgment filed by Defendant,
Mando America Corporation (“MAC”), on January 27, 2012 (Doc. # 44). The Plaintiff, Leanne
Renee Kidd (“Kidd”), filed a Complaint alleging the following: Count One – hostile work
environment, Count Two – Title VII gender discrimination, Count Three – racial discrimination
and harassment under Title VII and § 1981, Count Four – national origin discrimination, Count
Five – retaliation, Count Six – negligent or wanton hiring, training, supervision, and retention,
and Count Seven – intentional infliction of emotional distress on October 15, 2010 (Doc. # 1).
Kidd filed a Response to MAC’s Motion for Summary Judgment (Doc. # 54) on February 28,
2012, and MAC filed a Reply to Kidd’s Response (Doc. # 55) on March 6, 2012.
The court has federal question subject matter jurisdiction over the federal claims and
supplemental jurisdiction over the state law negligence and intentional infliction of emotional
distress claims. See 28 U.S.C. § 1331, 28 U.S.C. § 1367.
For the reasons to be discussed, the Defendants’ Motion for Summary Judgment is due to
II. SUMMARY JUDGMENT STANDARD
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 a 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 other materials.”
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 non-movant 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 following is an account of the relevant facts with all justifiable inferences drawn in
favor of Kidd1:
MAC is located in Opelika, Alabama, and produces products for different automotive
manufacturers. MAC’s main customers are General Motors, Chrysler, and Ford in Detriot,
Michigan; Hyundai Motors Manufacturing in Montgomery, Alabama; and Kia Motors
Manufacturing in West Point, Georgia.
Leanne Kidd is a Caucasian female from the United States who has a Bachelors Degree
with a double major in accounting and management. Kidd was working on a Masters in Public
Accounting degree in 2009, which she completed in 2010. Kidd worked in the accounting
department of MAC from January 2008 until September 2010 when she resigned. When Kidd
was hired, Tim Anderson was Assistant Accounting Manager, B.J. Cheong was the Accounting
Kidd’s attorney makes the bold assertion that MAC’s “fact citations are negligent at
best, intentionally misleading at worst, and often do not support the propositions for which they
are cited.” The court does not consider this intemperate general allegation of professional
misconduct to be appropriate in a brief. This is particularly troubling considering some of the
fact citations that Kidd makes which will be addressed by the court in this memorandum opinion.
The court makes it clear that it will not accept specific mischaracterizations of fact in its
consideration of MAC’s Motion for Summary Judgment. The court will disregard any
mischaracterizations of fact by anyone, and instead accept the facts from the record drawing all
justifiable inferences in favor of Kidd.
Manager, Henry Lee was Chief Financial Officer for MAC, and Tae Kwak was President of
MAC. Cheong, Lee, and Kwak are Korean males. MAC terminated Anderson in March 2008
for performance reasons.
Upon Anderson’s termination, Kidd believed that she adopted Anderson’s entire set of
job duties. According to Kwak’s undisputed testimony, Anderson’s position included Accounts
Payable, Accounts Receivable, Tax, Financing, all the reporting responsibilities, and closing
responsibilities. Kidd admits that she never handled Accounts Receivable but rather Accounts
Payable, wires, and the general ledger. Some employees of MAC did believe that Kidd was
assisting in managing the accounting department, but Kidd explained that MAC does not take
job titles very seriously. After performing some of Anderson’s duties for awhile, Kidd
complained in July 2008 that she deserved a promotion and raise. Since she believed that she
was performing the entirety of Anderson’s job duties, she thought that she deserved his title.
Cheong recognized that Kidd had taken on more responsibilities since Anderson’s
departure, and he told her that MAC would promote her after she had been with the company for
a year. Kidd does not claim that he promised her the position of Assistant Accounting Manager.
After her one year anniversary, despite still maintaining her increased work load, Kidd was not
given a promotion or raise; however, Kidd was already the highest paid accountant in the
department. Kidd also believes that there were no complaints about her job performance, but
Kidd’s citation to the record to support this claim, Doc. # 49-1, comes from the deposition of the
Senior Human Resources Manager at MAC, Jerry Rolison, who explained that he could not
remember if Kidd had any complaints against her. Id. at 191:21-192:16.
In 2009, a few months after Kidd’s one-year anniversary, MAC began to search for a new
Assistant Accounting Manager to fill the void left by Anderson. Kwak and Lee conducted a
silent search as to this position, and it was their intent to groom the new Assistant Accounting
Manager into the new Accounting Manager. MAC had no women in management positions and
few management positions were filled by non-Koreans. Kidd testified that the ultimately
successful candidate, B.W. Seo, was the only Korean interviewed and that he was selected
through a different channel than anyone else, but Kidd never explains what that channel was.
Kwak’s undisputed testimony is that MAC was facing financial auditing challenges, so MAC
was interested in finding someone with that specialty to take over the Assistant Accounting
Manager role at MAC. Kwak testified that because MAC was searching for an individual with
auditing experience, Lee sought a recommendation from MAC’s external auditing company as to
an individual with both management and auditing experience. That company recommended Seo.
Kidd testified that MAC never posted the Assistant Accounting Position internally or externally,
and she received no notice from MAC that it was trying to fill this position. Kidd testified that
she would have applied for the position if she had known about it.
Kidd testified that MAC usually posts vacancy announcements when it is looking to fill
positions, but Kwak and Lee deviated from this normal procedure and instead had the human
resources department collect resumes of potential applicants for the Assistant Accounting
Manager position. Scott Wren from the human resources department conducted telephone
interviews with these potential applicants. Seo’s resume was not one of the ones collected by the
human resources department, but was instead recommended by the external auditing company.
Accordingly, Seo was not interviewed by Wren. Instead, Kwak and Lee, who are the relevant
decision makers at MAC for this position, interviewed Seo. Seo’s first interview with the
company was via telephone with Kwak and was conducted in English. Ultimately, Seo was
selected to fill the vacant Assistant Accounting Manager spot and was hired by MAC in
September 2009. Kidd testified that some time after MAC had decided to hire Seo, it placed an
ad in the newspaper for a different, non-existent position, and Rolison testified that the other
position that was placed in the newspaper, for a “controller,” was done to fulfill visa purposes for
Seo is a male who was born in Korea, and his job prior to taking the position at MAC
was in Australia for Sun Microsystems. Seo has a Bachelor’s Degree in accounting, and started,
but did not finish, an MBA degree. Kidd’s assessment of Seo’s work experience is that he did
not have the broad base of accounting experience she believed was necessary for the job, and
that Seo had only been an auditor. Her testimony goes on further to explain that she only saw a
one page resume for Seo. However, during her deposition, she was presented with Seo’s actual
six page resume which had other job listings on it that clearly demonstrate that Seo’s previous
work experience included more than simply auditing work. Kidd does testify and Seo’s resume
demonstrates that Seo never held the title of Assistant Accounting Manager at any other
company. It is also undisputed that Kidd did not have a say in what the job requirements were
for the Assistant Accounting Manager position. Instead, Kwak and Lee had the responsibility to
determine the qualifications for the Assistant Accounting Manager. The key requirements
established by Kwak and Lee were that the individual have a broad accounting background and
auditing experience, which was particularly important given the current financial situation at
MAC. Kwak and Lee made no requirement that the Assistant Accounting Manager be able to
Immediately after Seo was hired, Kidd went to Rolison to ask why she was not
considered for the job, and Kidd testified that Rolison told her that MAC refused to even
consider an American candidate. Kidd also testified that someone in the human resources
department had told her that no American would ever be in management at MAC. Kidd testified
that Rolison told her that he thought Seo was not qualified for the Assistant Accounting Manager
position, but her citation to Rolison’s deposition for this fact asserts nothing of the sort. In fact,
her citation, Doc. # 49-1 at 8:5-7, is to a statement by Rolison that he is the most senior person in
the human resources department. Despite this erroneous citation, it is clear that Kidd testified
that Rolison told her that Seo was unqualified. It is undisputed that neither Rolison nor any
other human resources department employee had the power to hire the Assistant Accounting
Manager. Moreover, Kidd believes that Seo misrepresented his background to MAC when he
interviewed with MAC because his resume does not explicitly state management experience
even though he told MAC management that he had been assistant manager for at least two prior
companies. Kidd admits that these may just be typographical errors, but if these were just
typographical errors, then his lack of clarity in resume writing supports her claim that he was not
qualified for the Assistant Accounting Manager job.
Four days after starting at MAC, Seo asked for Kidd’s resume, and, according to Kidd,
degraded her, belittled her, and essentially told her that she was stupid. Kidd also testified that
her resume was the only one collected, but Seo’s testimony as well as Wren’s testimony make it
clear that Seo requested resumes for every member of the accounting department, even if he did
not tell Kidd that he was doing so at that time.
Kidd filed many complaints about how she was being treated by Seo and Cheong. She
filed the following complaints: in September 2009 she complained about Cheong’s policy on
sick days; on October 1, 2009, she complained about being asked for her resume and being
talked down to, which she believes was due to her not being a Korean man; on January 26, 2010,
she complained about the demeaning comments made by Seo about her and the other women in
accounting; on February 16, 2010, she complained about Seo and Cheong flagrantly showing
favoritism towards the Koreans while reprimanding the non-Koreans; on February 18, 2010, she
complained about how she had been made to feel like a horrible employee over the prior 5
months; on February 19, 2010, Kidd filed an EEOC charge; and on August 4, 2010, she
complained about a lack of respect and her constant fear that she was going to be fired by Seo.
Kidd filed her complaints with the human resources department and met mostly with Rolison.
Kidd testified that Rolison told her that the Koreans were off limits and that he was not allowed
to reprimand them in any way, shape, or form for any behavior.
Kidd testified that Seo told her soon after her October 1, 2009 complaint that she had no
right to go to the human resources department, and she was told to not contact anyone other than
him if she had problems with him. She was also called a “school student.” Kidd testified that
after she filed her October 1, 2009 complaint concerning Seo’s request for her resume, some of
her job duties were taken away. Kidd also testified that she was slowly relieved of her job
responsibilities over the next few months. She also testified that Seo yelled at her, told her she
was not doing a good job, closely monitored her hours, and refused to let her take time off. Kidd
explains that she was not invited to department functions and was not given rewards for good
performance. Also, Kidd testified that after she made her first complaint Korean management
cultivated a false perception that she was a difficult employee to work with and a complainer.
Ultimately, Kidd submitted her resignation on September 2, 2010, which was to take
effect on September 16, 2010. In her resignation letter, Kidd stated that she “thoroughly
enjoyed” her time at MAC and wished the company success in the future. Kidd explained that
MAC was not the worst place that she worked. After receiving Kidd’s resignation, Seo
recommended that Sheppard, a white American female, be promoted from her job as the
Accounts Payable Clerk to the Accounts Payable Accountant to replace Kidd. Kidd was upset
by this promotion because she thought Sheppard was not qualified for her position. On
September 15, 2010, Kidd emailed Kwak and Rolison to inform them that promoting Sheppard
was the “last straw” in a series of degrading treatment.
Considering the facts in this case in a light most favorable to Kidd, it appears that the
grounds for Kidd’s claims revolve around the following incidents: Tim Anderson’s firing, Kidd’s
absorption of some of his work, her being promised a promotion, B.W. Seo receiving the
Assitant Accounting Manager position, Kidd not being considered for the position, B.W. Seo’s
request for Kidd’s resume, and MAC management’s limiting Kidd’s job duties. In her
Complaint, Kidd made reference to many other incidents that occurred during her employment
which were to serve as grounds for her claims, but Kidd makes no specific reference to any of
those in her Response Brief. For instance, Kidd makes little or no reference to the following
issues: the holiday 2009 shutdown, leaving without permission, alleged time off issues, the “old
stove” comment, the “Korean only” dinners, corporate housing, and her coworkers’ weddings.
Moreover, Kidd does not allege any adverse employment actions as required in discrimination
and retaliation claims as to those facts. Accordingly, the court must assume that Kidd has
abandoned those as grounds for her various claims, and, as such, those allegations are not part of
the facts considered by the court in ruling on MAC’s Summary Judgment Motion.
A. Demotion Claim
Turning to Kidd’s claims, the court will address a demotion claim argued by Kidd in her
Response (Doc. # 54 at 18, et seq.) to MAC’s Motion for Summary Judgment. Kidd attempts to
raise a demotion claim for the first time in her Response. There is no such claim in her
Complaint. While it is true that the Supreme Court has mandated a liberal pleading standard, the
Eleventh Circuit has explained that “[l]iberal pleading does not require that, at the summary
judgment stage, defendants must infer all possible claims that could arise out of facts set forth in
the complaint. The proper procedure for [Kidd] to assert a new . . . claim was to seek to amend
her complaint.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
Accordingly, in so much as Kidd is attempting to raise this new issue in her Response Brief, that
claim is barred at this time.2
Interestingly, Kidd raises concern about MAC putting her at a disadvantage by making
her speculate as to MAC’s non-discriminatory reasons for demoting her. Moreover, Kidd argues
that MAC “mischaracterizes the summary judgment evidence, . . . and completely ignores that
Kidd was already filling the accounting manager position when Mando hired Seo. This
proffered reason makes almost no sense in the context of a demotion . . .” (Doc. # 54 at 20).
However, Kidd never alleged a demotion claim in her Complaint (Doc. # 1), nor does any form
of the word “demotion” appear anywhere in Kidd’s Complaint or her 455 page deposition.
B. Hostile Work Environment Claim
In her response brief, Kidd advised the court that she is abandoning her Hostile Work
Environment claim. Accordingly, the court will consider Kidd’s Hostile Work Environment,
Count One, as abandoned.
C. Failure to Promote Claims
I. Prima Facie Case
Kidd’s Counts Two, Three, and Four allege claims of discrimination on behalf of MAC
as to her gender, race, and national origin respectively. The main factual ground that Kidd relies
on as to the issue of discrimination is the hiring of B.W. Seo as the Assistant Accounting
Manager. Therefore, pursuant to Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), all of Kidd’s other discrimination claims are considered abandoned by the
court. Accordingly, the court will limit its analysis as to discrimination solely to the B.W. Seo
hiring, which amounts to a failure to promote claim.
In order for Kidd to make out a prima facie case of failure to promote, she must
demonstrate that “(i) [she] belonged to a protected class; (ii) [she] was qualified for and applied
for a position that the employer was seeking to fill; (iii) despite qualifications, [she] was rejected;
and (iv) the position was filled with an individual outside the protected class.” Vessels v. Atlanta
Independent School System, 408 F.3d 763, 768 (11th Cir. 2005) (citing McDonnel Douglas
Therefore, the accurate explanation for MAC’s allegedly putting Kidd to a disadvantage by
making her speculate is actually a failing on the part of Kidd to ever bring this claim before the
Corp. v. Green, 411 U.S. 792, 802 (1973)). The Eleventh Circuit has also held that “where an
employer does not formally announce a position, but rather uses informal and subjective
procedures to identify a candidate, a plaintiff need not show under the second prong that he
applied for the position—only that the employer had some reason to consider him for the post.”
Id. (citing Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992)). However,
the employee must still show that she was qualified for the position in order to make out her
prima facie case for discrimination. Jones, 977 F.2d at 533.
If Kidd is able to demonstrate her prima facie case, she will create an inference of
discrimination which MAC will have the burden to disprove by articulating a non-discriminatory
basis for its employment action. See Vessels, 408 F.3d at 767 (citing Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If MAC is able to meet this burden, the inference
of discrimination evaporates, and Kidd will have the opportunity to demonstrate by a
preponderance of the evidence that MAC’s proffered reasons are pretextual. Id. at 768 (citing St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993)). Only if Kidd succeeds in discrediting
MAC’s reasons can the trier of fact conclude that MAC intentionally discriminated against Kidd
based on her gender, race, or national origin. Id. (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 148 (2000)).
Turning to the facts of the case, it appears that Kidd has not satisfied her prima facie case
for discrimination. Kidd is an American, Caucasian female and is therefore a member of
protected gender, race, and national origin classifications. Kidd never applied for the Assistant
Manager position, and the facts taken in a light most favorable to Kidd illustrate that MAC never
formally announced the position posting. Moreover, Cheong and Kwak both knew that Kidd
wanted a promotion for the work that she was doing after Anderson had left MAC, and therefore,
MAC had reason to consider her for the job. The Vessels case makes it clear that if MAC did not
formally announce a position for which it had reason to consider Kidd, then Kidd does not need
to demonstrate that she applied for the job to meet the second prong of the prima facie case. 408
F.3d at 767.
However, Kidd must still prove that she was qualified for the position in order to meet
the second prong in a failure to promote claim. It is undisputed that Kwak and Lee were the
relevant decision makers as to the hiring of the Assistant Accounting Manager, and as such,
would be responsible for defining the qualifications for that job. Kidd’s assertions about what
she thought the qualifications to be are immaterial, as is her questioning the business judgment
of MAC. See Chapman v. AI Transport, 229 F.3d 1012, 1020 (11th Cir. 2000) (explaining that
an employee may not substitute her business judgment for the employer’s, and an employee
cannot succeed in rebutting the employer by “simply quarreling with the wisdom” of the
employer). As stated above, one of the central aspects that Kwak and Lee were looking for in
an Assistant Accounting Manager was auditing experience because of the increased financial
auditing issues facing MAC. Furthermore, the evidence shows that Lee sought out
recommendations from MAC’s external auditors about who would be able to perform auditing
tasks in the context of accounting management. The other qualifications that MAC was looking
for were a four-year degree, a broad-based accounting background, and managerial or
supervisory experience. Even if the court accepts that Kidd had all the other qualifications for
being the Assistant Accounting Manager, there is no evidence in the record that Kidd had
auditing experience. Accordingly, she was not qualified to perform the duties of the Assistant
Accounting Manager position.
Therefore, Kidd cannot satisfy her initial burden, under McDonnell Douglas, of proving
her prima facie case of discrimination.
Even if the court assumes that Kidd is able to establish a prima facie case for gender,
race, and national origin discrimination as to the hiring of Seo, Kidd still fails to demonstrate that
the legitimate, non-discriminatory reasons articulated by MAC are pretext for discrimination.
The main reason that MAC relies on is that Seo was better qualified than Kidd. Seo’s resume
shows that Seo had broad-based accounting experience, auditing experience, and a four-year
degree. His testimony about his different positions make it clear that he had managerial and
supervisory experience. Kidd attempts to rebut the contention that Seo was more qualified by
showing that she has a Bachelor’s Degree with a double major in accounting and management,
that she completed her Master’s Degree during her time at Mando, that she believes she absorbed
all of Anderson’s duties, that other employees from MAC thought she assisted in managing the
accounting department, and that there were no complaints about her job performance. Kidd also
explained that during the time that she was fulfilling Anderson’s job she never received a raise or
a change in title; however, Kidd also asserts that MAC recognized her superior qualifications by
making Kidd the highest paid accountant.
In order to prove pretext in a failure to promote case, “the employee must come forward
with evidence sufficient to permit a reasonable fact finder to conclude that the legitimate reasons
given by the employer were not its true reasons, but were a pretext for discrimination.” Vessels,
408 F.3d at 771. “This evidence must reveal such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that
a reasonable factfinder could find them unworthy of credence.” Id. Moreover, Kidd “must show
that the disparities between the successful applicant's and h[er] own qualifications were ‘of such
weight and significance that no reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff.’” Springer v. Convergys Customer
Management Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Cooper v. Southern
Co., 390 F.3d 695, 732 (11th Cir. 2004)). Kidd simply has not met this burden.
Even assuming as true everything Kidd believed about her qualifications and her
responsibilities after Anderson’s departure from MAC, she does not establish pretext. None of
the evidence cited by Kidd rebuts the fact that she lacked auditing experience and Seo had
auditing experience. Kidd’s own qualifications, even as she frames them, are not such that no
reasonable person of impartial judgment could have chosen Seo over her. Moreover, Kidd’s
concerns about Seo’s qualifications–that he misrepresented his managerial background and that
he was essentially an auditor–are not enough to demonstrate pretext. The fact that Seo did not
include the title manager or supervisor on his resume does not change the fact that his
uncontroverted deposition testimony explains that he did in fact have such experience and that
this information was given to MAC management during his interview. Kidd’s belief that Seo
allegedly misrepresented his credentials is simply not sufficient to allow a reasonable fact finder
to conclude that the reasons given by MAC were pretext for discrimination.
Kidd also raises an argument that Seo was hired in contravention of federal immigration
law. However, the law cited by Kidd, 8 U.S.C. § 1188(a)(1), applies to the H-2A temporary
agricultural workers visa program. Not only is Seo not a temporary agricultural worker, but
Seo’s undisputed deposition testimony is that he hired an attorney to obtain a permanent resident
visa for work. The law cited by Kidd is wholly irrelevant to the present case, and her assertions
that MAC “openly flouted the spirit of these laws” is meritless. Moreover, Kidd’s citation to
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984), as providing strong language in support of
her position, is not applicable to this case. Sure-Tan dealt with a company which retaliated
against its undocumented alien employees who joined a labor union by reporting them to the
Immigration and Naturalization Service. That case and the result of that case are also irrelevant
to the present case. Therefore, Kidd’s reliance on MAC’s alleged violation of immigration law
does not serve to demonstrate that MAC’s non-discriminatory, legitimate reason for hiring Seo
was pretext for gender, race, or national origin discrimination.
Kidd also suggests statistical evidence to demonstrate how unlikely it would be for MAC
to hire a Korean for this position given the number of Koreans in the world. This fails to be
persuasive, not only because of the flawed basis for determining the available pool for the job,
but also because Kidd provides no citation for the statistical analysis she relies upon, but instead
relies on “the opinions, allegations, and conclusory statements of counsel [which] do not
substitute for evidence.” Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., 124 F. Supp.2d 1228,
1236 (M.D. Ala. 2000) (citing LeChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th
Cir. 1998)). Moreover, Kidd’s statistical assertion does not demonstrate that the requirement for
auditing experience was somehow a pretext for gender, race, or national origin discrimination.
Kidd also relies on being told by Rolison that no Americans were considered for the job,
but MAC supplied the court with documentary evidence of the other resumes it collected during
its hiring process. Kidd even cites one of these in her brief to demonstrate that a more qualified,
in her opinion, non-Korean female applicant had been considered, but rejected by MAC. (Doc. #
54 at 36 n.14). She discounts this evidence by saying that those candidates were considered on a
parallel-illusory track to Seo, and are not proof that MAC considered anyone but Seo. It is
undisputed, however, that Rolison was not the decisionmaker in this case, and therefore, any
comment about his hands being tied is irrelevant because he had no hand in the final decision as
to whom to hire.
Moreover, Kidd points to perceived inconsistencies in Rolison’s deposition testimony
and affidavit in order to show pretext. Specifically, Kidd alleges that Rolison was inconsistent
as to whether anyone was interviewed before Seo, whether Kidd had been assigned to any extra
duties after Anderson’s termination, and whether Rolison lied about to whom he shows EEOC
charges. However, none of these allegations are supported by the record. As to the
inconsistencies concerning the interviews, Rolison’s deposition testimony was that Scott Wren
conducted interviews of three or four different candidates for the job, and that “I’m assuming
Mr. Kwak was probably in those interviews.” (Doc. # 49-1 at 28:4-5). Rolison’s affidavit says
that Scott Wren conducted three to four phone calls with those applicants to gauge interest level
in the job. Mr. Kwak’s deposition testimony was that he did not recognize the three to four
resumes. Given that Rolison said he assumed Kwak was involved, but was incorrect, and that
his affidavit and deposition both explain that Scott Wren conducted the interaction with the three
to four applicants, there is not enough evidence to demonstrate the kind of inconsistency
necessary to show pretext.
As to the alleged inconsistencies concerning Kidd’s added duties after Anderson’s firing,
both Rolison’s deposition and his affidavit use cautionary words about his knowledge
concerning whether Kidd had taken on any more duties. In his affidavit, Rolison says that Kidd
“may” have taken on more work and in his deposition he said that he did not know. It does not
appear then that these two documents are inconsistent with one another. It appears clear that
Rolison could not unequivocally say that Kidd took over any new duties. Lastly, as to the claim
that Rolison was inconsistent about alerting Kwak about Kidd’s EEOC charge, Rolison’s
affidavit says that he shares the charges with those in management that need to know. Kwak
says that Rolison showed it to him as he usually does. The court does not see any inconsistency
in these statements. Accordingly, Kidd’s attempts to find inconsistencies in Rolison’s affidavit
and deposition are not enough to demonstrate that MAC’s non-discriminatory, legitimate reasons
were pretext for gender, race, or national orientation discrimination.
While it is clear that Kidd truly believes that Kwak and Lee favored Korean men because
they are Korean men, Kidd has failed to meet her burden to establish a prima facie case or to put
forth evidence sufficient to show that MAC’s stated reasons for hiring Seo were pretext for
gender, race, or national origin discrimination against her. Accordingly, the court will grant
summary judgment in favor of MAC as to Kidd’s Counts Two, Three, and Four.
D. Retaliation Claim
Kidd’s Count Five alleges retaliation on behalf of MAC against Kidd because she lodged
complaints with the human resource department and the EEOC as to gender, race, and national
origin discrimination by Seo and Cheong. Kidd alleges that she was slowly relieved of her
duties and suffered other adverse treatment after she filed the complaints.
“A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1)
she engaged in an activity protected under Title VII; (2) she suffered an adverse employment
action; and (3) there was a causal connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Pennington
v. Citiy of huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). Even if the court were to find that
Kidd has established the first and second prongs of this test3, it is clear from the record evidence
that Kidd cannot establish the third prong.
“The general rule is that close temporal proximity between the employee's protected
conduct and the adverse employment action is sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection.” Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000). “However, there is this exception:
temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection
where there is unrebutted evidence that the decision maker did not have knowledge that the
employee engaged in protected conduct.” Id. (citing Clover v. Total System Services, Inc., 176
F.3d 1346, 1355-56 (11th Cir. 1999)). The evidence that Kidd has put forward to show
causation relies entirely on the temporal relationship between her complaints and the alleged
The court makes no representation that it does in fact find that Kidd has sufficiently
proven that she engaged in protected activity or suffered an adverse employment action.
retaliatory behavior. The problem with this argument for Kidd is that Seo’s unrebutted
testimony is that he has never heard any complaints about discrimination nor has he ever seen
Kidd’s EEOC charge. Moreover, Kwak testified that he and Rolison talked about the EEOC
charge, and Kwak testified that his only communication to Seo concerned his managerial style.
Kwak testified that his critiques to Seo addressed Seo’s tone of voice and the perceived rudeness
of his style of management, but never anything related to gender, race, or national origin
discrimination. Rolison’s testimony is substantially the same. Rolison instructed Seo about
techniques to be a more effective manager and counseled Seo to work on his overly loud
speaking and mannerisms, but he never informed Seo about complaints of discrimination.
Kidd relies heavily on the fact that an inference could be drawn to demonstrate Seo’s
knowledge, but there is nothing in the record to dispute that Seo simply did not know about
Kidd’s discrimination complaints. The Eleventh Circuit has ruled that “ at the summary
judgment stage, ‘implying’ knowledge from temporal proximity despite the unrefuted testimony
of the decision maker that he knew nothing of the protected conduct means that we should allow
a factfinder to decide, without any basis other than temporal proximity, that the decision maker
is lying. . . . and we know from our Clover decision that we do not do that in Title VII cases.” Id.
at 800. Accordingly, Kidd’s inference and implication that Seo knew about her internal
complaints and EEOC complaints simply do not rise to the level required to prove the causation
element of a prima facie case of retaliation. See Silvera v. Orange County Sch. Bd., 244 F.3d
1253, 1262 (11th Cir.2001) (“Discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.”). Therefore, the court will grant summary
judgment in favor of MAC as to Kidd’s Count V.
E. State Law Claims
“The Court may decline to exercise jurisdiction over state-law claims, where the Court
has dismissed all the federal claims over which it has original jurisdiction.” McCulloch v. PNC
Bank Inc., 289 F.3d 1217, 1227 (11th Cir. 2002) (citing 28 U.S.C. § 1367(c)). Because the court
has found that summary judgment is due to be granted as to all Kidd’s claims for which the court
has original jurisdiction, the court declines to exercise supplemental jurisdiction as to the purely
state law claims. Accordingly, Counts Six and Seven are dismissed without prejudice.
For the foregoing reasons, it is ordered as follows:
1. Summary Judgment is GRANTED as to the Counts One, Two, Three, Four, and Five,
and judgment will be entered in favor of MAC as to these Counts.
2. Pursuant to 28 U.S.C. § 1367(c), Counts Six and Seven are DISMISSED without
Done this 10th day of April, 2012.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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