Fuller v. SL Alabama, LLC

Filing 45

MEMORANDUM OPINION AND ORDER directing that Defendant's motion for summary judgment (Doc. # 27 ) is GRANTED IN PART and DENIED in PART as set out in this opinion, as further set out. Signed by Chief Judge William Keith Watkins on 9/26/14. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KRISTIN FULLER,
Plaintiff,
v.
SL ALABAMA, LLC,
Defendant.

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CASE NO. 3:13-CV-520-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Kristin Fuller alleges that Defendant SL Alabama, LLC, also
known as Samlip Alabama, should be held liable for condoning a sexually and
racially hostile work environment and for discriminating and retaliating against her
in violation of federal law. Before the court is Defendant’s motion for summary
judgment (Doc. # 27), which has been fully briefed (Docs. # 28, 29, 32, 33, 35).
Upon consideration of the parties’ arguments, the record evidence, and the relevant
law, the court concludes that Defendant’s motion is due to be granted in part and
denied in part.
I. JURISDICTION AND VENUE
The court has subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1343 and 42 U.S.C. § 2000e-5(f)(3).
uncontested.

Personal jurisdiction and venue are

II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “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 must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
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 its 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. Or 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 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, 477 U.S. at
2

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. BACKGROUND1 2
A.

Setting the Stage
Defendant manufactures headlights and light components for Hyundai

Motor Manufacturing Alabama, among other customers. Defendant’s Alexander
City plant is open as many as seven days a week, and employees work one of two
twelve-hour shifts. Defendant operates about nineteen production assembly lines
with five to seven employees working on each line. At the end of each line is a
quality inspector who must determine if Defendant’s products meet Defendant’s
customers’ specifications. If a headlight is not compliant with all specifications,
then the quality inspector segregates it from acceptable products and tags it with a
written note identifying the defect. Ms. Fuller, who worked as a quality inspector,
describes this as “throwing out” the parts.
1

The parties present competing versions of the facts in their briefs. Defendant asserts in
its reply brief that Ms. Fuller “is deemed to have admitted all” of Defendant’s proposed facts in
the summary judgment brief because she did not respond directly to those facts. (Doc. # 35,
at 3.) The court disagrees and concludes that Ms. Fuller’s account of the facts in her brief is
responsive and is mostly, if not completely, supported by materials in the record. See Fed. R.
Civ. P. 56(c)(1). It is customary for parties responding to a motion for summary judgment to set
out their own version of the facts without stipulating to or rebutting the moving party’s version
of the facts sentence by sentence. The court has considered, however, Defendant’s objections
that certain facts in Ms. Fuller’s account of events are unsupported by admissible evidence.
2

Unless indicated otherwise, page number references within this opinion are to the pages
numbers created by CM/ECF.
3

For several years, roughly a quarter of Defendant’s workforce has been hired
on a temporary basis by outside staffing agencies. Allegiance Staffing, one of
those “temp” agencies, placed Ms. Fuller, who is white, as a temporary employee
at Defendant’s plant as a quality inspector working from 5:00 a.m. to 5:30 p.m.
Gary Taunton was the onsite supervisor for Allegiance at that time, and Ms. Fuller
answered to him. However, she was also supervised by Defendant’s supervisory
employees, including Marion Wilson, Defendant’s Quality Supervisor.

Ms.

Wilson and Candice Britton, one of Defendant’s Quality Team Leaders, roved the
assembly floor, overseeing the work of each line and of the quality inspectors like
Ms. Fuller. Both Ms. Wilson and Ms. Britton are black. Ms. Fuller was also
accountable to Defendant’s HR Manager, Debbie Meeks, who enforces
Defendant’s attendance policy, but there is no evidence that Ms. Fuller ever dealt
directly with Ms. Meeks. Allegiance maintained its employees’ time records, but
Defendant’s attendance policy, described infra, governed temp employees like Ms.
Fuller.
B.

Alleged Sex- and Race-Based Harassment and Discrimination
Ms. Fuller claims that she endured sexually and racially abusive treatment

while working in Defendant’s plant. While she admits that she is not certain about
the precise dates of the events described below, she was only employed for about

4

three weeks on the production lime where she alleges the actual harassment
occurred.
Ms. Fuller’s primary complaints relate to her interactions with Xavious
O’Neal, a black male coworker who was permanently employed by Defendant.
Mr. O’Neal allegedly harassed Plaintiff from the first day she reported to work on
July 20, 2012.3 Mr. O’Neal worked in close proximity to Ms. Fuller at the end of
an assembly line. According to Ms. Fuller, machinery that is approximately six- or
seven-feet tall separated her and Mr. O’Neal from other employees on the line, and
other employees usually worked with their backs to the end of the line.
Mr. O’Neal allegedly was interested in having sexual intercourse with and
performing other sexual acts upon Ms. Fuller and made his intentions known. Ms.
Fuller claims that Mr. O’Neal first asked her if she was married to a black man or a
white man, inquired if she had ever been the sexual partner of a black man, and
told her she was a “fine ass white girl.” Ms. Fuller rebuffed Mr. O’Neal and told
him that she was married, but Mr. O’Neal suggested that what her husband did not
know would not hurt him. He continued to make sexual advances, allegedly by
touching Ms. Fuller’s breasts and buttocks repeatedly, asking her questions about
how she groomed her vagina, asking to photograph and to lick her vagina, and
proposing that they have sex. Ms. Fuller says that Mr. O’Neal engaged in this
3

However, Defendant has presented time and attendance records showing that Mr.
O’Neal was not at work for the first two days of Ms. Fuller’s tenure. (Doc. # 29-1, at 37.)
5

abusive speech and behavior in the open sight and hearing of other workers on the
assembly line, and that he persisted almost every day that he was at work for about
two weeks. However, there are no other witnesses who have corroborated her
narrative.
Ms. Fuller says that she was subjected to racial harassment as well, which
apparently came from Mr. O’Neal and other black female employees on the line.
They criticized and verbally confronted Ms. Fuller more than once because they
believed she was arbitrarily rejecting and tagging their products as defective.
Some of the employees took the parts that Ms. Fuller had tagged as defective,
untagged them, and placed them on a cart to be shipped out of Defendant’s facility
to customers.
When Ms. Fuller first reported to Ms. Britton that her coworkers were
untagging defective parts, Ms. Britton told her that she was being a “drama queen.”
Ms. Britton told the line employees not to talk to Ms. Fuller, and told Ms. Fuller
not to talk to the line employees. Ms. Fuller claims that she also told Ms. Britton
that Mr. O’Neal was touching her buttocks, but that Ms. Britton did not address her
complaint. Ms. Britton denies that Ms. Fuller ever complained about Mr. O’Neal’s
alleged sexual harassment.
A couple of days after seeking out Ms. Britton, Ms. Fuller claims that she
told Mr. Taunton, her onsite Allegiance supervisor, that Mr. O’Neal was groping
6

her breasts and buttocks, asking her when she would “put that pussy on a real
nigger,” and calling her a “white bitch.” (Fuller Dep. at 93–96.) According to Ms.
Fuller, Mr. Taunton told her that she should stay away from Mr. O’Neal and to tell
him to stop making advances. There is no evidence in the record that Mr. Taunton
conveyed Ms. Fuller’s report to Defendant’s management or human resources
(“HR”) department.
Ms. Fuller claims that a few days after talking to Mr. Taunton, she told Ms.
Wilson in detail about Mr. O’Neal’s sexual comments and offensive touching. Ms.
Fuller says that Ms. Wilson “kind of snapped,” suggested that Ms. Fuller was
creating trouble, and told Ms. Fuller to stop tattling on others. (Fuller Dep. at 107–
09.) Ms. Wilson allegedly dismissed the complaints and sent Ms. Fuller back to
work.

Ms. Wilson denies that Ms. Fuller ever complained to her about Mr.

O’Neal.
Not long thereafter, Ms. Fuller says she became fed up with Mr. O’Neal’s
offensive remarks, so she yelled at him to stop speaking to her like she was a dog.
Then, the “whole line got involved,” creating a scene that required Ms. Wilson to
intervene. (Fuller Dep. at 104.) Other black females on the line accused Ms.
Fuller of lying about Mr. O’Neal’s offensive behavior. They and Mr. O’Neal
confronted Ms. Fuller, calling her “stupid ass white girl” and “white bitch.”
(Fuller Dep. at 57.) Mr. O’Neal complained that Ms. Fuller did not know what she
7

was doing and needed to be fired. One of the women announced that Ms. Fuller’s
rejection of the line’s good parts was one reason that she “d[id not] like white
folks.” (Fuller Dep. at 119.) Ms. Fuller claims that Ms. Wilson did not correct the
employees for their language or racial animus and simply directed everyone to get
back to work.
Ms. Wilson says she was called upon to address the incident, but denies that
anyone cursed at Ms. Fuller or said anything that was racially offensive. Ms.
Wilson says that the argument arose from Ms. Fuller’s rejection of the line’s parts
as defective – not from any complaints about Mr. O’Neal’s behavior.
Ms. Fuller claims that when she complained to Ms. Wilson on the day of the
incident involving the whole line, Ms. Wilson accused her of being a tattletale,
suggested that Defendant’s management would believe its permanent employees
over her, and threatened to “get rid of” Ms. Fuller “if [she] kept causing all the
problems amongst employees.” (Fuller Dep. at 116–117.)
C.

Harassment Policies for Defendant and Allegiance
Defendant maintains an Associate Handbook which prohibits workplace

harassment on the basis of sex or race and requires employees to bring issues to the
company’s attention, whether the employees are themselves the victims of
harassment or witnesses to it. (See Doc. # 29-1, Attachment 12.) Per the Associate

8

Handbook, associates should bring matters to the attention of their supervisors, or
alternatively, to Defendant’s HR manager or Assistant HR Manager.
When Ms. Fuller began her assignment with Defendant through Allegiance,
she did not receive a copy of the Associate Handbook. Ms. Meeks testified that
Defendant does not provide temp employees with its Associate Handbook because
temp employees “are governed by their employer,” i.e., the temp agency. (Meeks
Dep. at 28–29.) Ms. Fuller she says that she understood from her orientation that if
she or others experienced harassment, they were to report it to “our supervisors.”
(Fuller Dep. at 34–35.) It is not clear from her testimony whether her orientation
was led by Allegiance or by Defendant or whether “supervisors” included
Defendant’s supervisors in addition to Mr. Taunton.

Presumably, Ms. Fuller

believed she should report could report misconduct to Defendant’s supervisors,
because she says that she complained about racial and sexual harassment to both
Ms. Britton and Ms. Wilson.
Allegiance also maintained a harassment policy. On July 17, 2012, Ms.
Fuller signed a notice of receipt of the policy which was entitled “Drug Free,
Alcohol Free, Harassment Free Workplace Policy Notification.” (Doc. # 29-4
at 53–54.) The policy statement explains that Allegiance has “partnered” with its
clients like Defendant “to provide and enforce the same policy.” (Doc. # 29-4,
at 53.)

It defines unacceptable workplace behavior and includes a provision
9

defining a victim’s responsibility to “tell[ ] the offender to stop the unwelcome
conduct” and to “report the conduct to the supervisor and to any of” several
Allegiance offices “in order that corrective action may be taken.” (Doc. # 29-4
at 54.) “Supervisor” is not otherwise defined as to Allegiance or Defendant’s
supervisors. Ms. Fuller claims that she reported harassment to Mr. Taunton, her
Allegiance supervisor, but admits that she did not report the misconduct to an
Allegiance office until after her assignment was terminated. (See Fuller Dep.
at 143–45.) There is no record evidence of Mr. Taunton’s testimony about whether
Ms. Fuller complained to him or about what she had experienced.
D.

Ms. Fuller’s Reassignment
On August 15, 2012, which was within a week of when Ms. Fuller says she

had most recently complained to Ms. Britton and Ms. Wilson about being harassed,
Mr. Taunton called Ms. Fuller to tell her not to report to the plant for work. She
claims that Mr. Taunton told her that Defendant chose to end the assignment and
that she was not given a reason.
Defendant, through HR Manager Debbie Meeks, says that Ms. Fuller was
reassigned for absenteeism.

The attendance policy for temps as opposed to

permanent employees is strict: They are allowed to incur only three points for
absences of any kind. If a temp calls-in prior to her absence, she incurs one point.
If she neglects to call in prior to her absence, she incurs two-and-a-half points. If
10

she is tardy or leaves work early, missing over four hours of her shift, she incurs
one point, and if tardiness or an early departure results in missing less than four
hours of work, earns a half point. If the employee exceeds two points in her first
month of assignment, the temp is reassigned – i.e., released from employment at
Defendant’s plant.

Ms. Fuller claims that she was advised that Defendant’s

attendance policy was applicable to her, but that she was not provided with an
Associate’s Handbook.
Defendant explains that on August 13, 2012, Ms. Meeks was informed – she
cannot remember by whom – that Ms. Fuller was absent from work. Ms. Meeks
checked her records and determined that Ms. Fuller accumulated two-and-a-half
points – one half point for leaving early on August 7, 2012, one full point on
August 10, 2012 for a call-in absence, and another point on that day, August 13,
for leaving over four hours early. Because the points had accrued in less than one
month’s time, Ms. Meeks decided to reassign Ms. Fuller effective August 15,
2012. Ms. Meeks says that she has made the same decision to terminate other
temp employees prior to three points for frequent absenteeism, regardless of their
race, gender, or whether they had complained. (See Meeks Dec. at ¶ 8.d. (citing

11

Doc. #29-1, at 16).) Per Defendant’s policy, Ms. Fuller believed that she could
accrue three points before her assignment would be terminated.4
Ms. Fuller also contests Defendant’s representations that Ms. Meeks decided
to reassign Ms. Fuller and asserts that Ms. Wilson was the decision-maker. Ms.
Wilson believed that Ms. Fuller was absent without calling in for several days
starting August 15, 2012. (See Wilson Dec. at ¶ 6.b.) Ms. Wilson did not know
that Ms. Meeks had told Ms. Fuller on August 15, 2012, through Mr. Taunton, not
to come back to work. Ms. Wilson reported the absences to Mr. Taunton, who,
according to Ms. Wilson, did not convey that Ms. Meeks had reassigned Ms.
Fuller. Ms. Wilson says that she tried to show Ms. Fuller leniency, but by the
following Monday, presumably August 20, 2012, she told Mr. Taunton that she
could no longer hold the job for Ms. Fuller, and that she would no longer have a
position at Defendant’s plant. (Wilson Dep. at 19–20.) Ms. Wilson says she was
not motivated by Ms. Fuller’s race or because Ms. Fuller had complained in the
past.

4

Ms. Fuller asserts that she was terminated “before she received her second point.”
(Doc. # 32, at 6, ¶ 16.) It is not clear whether this is a typographical or mathematical error on her
part, but she does not dispute that she was absent on the days and times that Ms. Meeks asserts
she was absent. Elsewhere in her brief, she asserts that the attendance records “do not show that
[she] had more than 2.5 points.” (Doc. # 32, at 48.) The court deduces, therefore, that there is
no dispute that by the time Ms. Meeks made her decision to terminate Ms. Fuller’s assignment,
Ms. Fuller had acquired two-and-a half points.
12

E.

Ms. Fuller’s Assignment with EHD
Mr. Taunton found another placement for Ms. Fuller with a different

employer, EHD Quality, which was a third-party inspection contractor hired by
Defendant’s customers to work at Defendant’s plant. EHD, like Defendant, used
Allegiance temp employees. EHD placed Ms. Fuller in a “lead” position, and she
was responsible for inspecting parts in Defendant’s warehouse, which is a separate
area from where Ms. Fuller worked previously. When Ms. Wilson and Ms. Britton
saw Ms. Fuller back at work, Ms. Fuller says they cursed and yelled at her and
accused her of throwing out good parts out of spite for being reassigned by
Defendant. Ms. Fuller says she continued to have conflict with Ms. Wilson and
Ms. Britton during her second assignment, and she says that the women
complained to Ms. Fuller’s EHD supervisor, Todd. Ms. Fuller says that Todd
asked her to step down from her lead position, allegedly because EHD was fearful
that the interpersonal conflict was jeopardizing its contract. (Fuller Dep. at 52–53.)
Ms. Wilson denies any involvement in recommending that Ms. Fuller be demoted
or terminated as an employee with EHD. Ms. Britton likewise denies asking
anyone with EHD to end Ms. Fuller’s assignment, but both she and Ms. Wilson
acknowledge reporting to Todd their belief that Ms. Fuller routinely rejected good
products in the course of her inspection duties.

13

EHD’s inspection contract was canceled by Defendant’s Quality Manager,
Jack Coltrain, pursuant to Hyundai’s instruction to Defendant that EHD’s services
were no longer needed.

(Coltrain Dec. at ¶ 4.)

Mr. Coltrain says EHD’s

employees were released on September 17, 2012. Defendant says Ms. Fuller lost
her placement with EHD at that time, and that Ms. Fuller’s race, gender, and prior
complaints had nothing to do with the decision to terminate EHD’s contract.5 6
F.

Judicial Complaint and Proceedings
Following the loss of her second assignment through Allegiance with EHD,

Ms. Fuller filed a charge against Defendant with the EEOC. When Defendant
responded to the charge, it represented that Ms. Wilson and Mr. Taunton had
warned her about her absenteeism prior to her reassignment and that Ms. Fuller
was reassigned because she accumulated three points in violation of the attendance
policy. (Doc. # 33-1, at 4.)
After receiving her right-to-sue letter from the EEOC, Ms. Fuller timely
filed this case on July 22, 2013. She brings four causes of action for alleged
violations of Title VII and 42 U.S.C. § 1981: (1) sexual harassment; (2) racially
5

In Ms. Fuller’s brief, she contends that she was released from her assignment with EHD
prior to the termination of EHD’s contract. But her testimony does not support her argument.
Ms. Fuller testified that the reason she left EHD was that “[t]hey ended all of [EHD’s]
assignment.” (Fuller Dep. at 52.) She did testify, however, that she was demoted from her lead
position prior to the termination of the EHD contract.
6

Defendant’s motion further addresses Ms. Fuller’s subsequent employment with C&J
Tech, but Ms. Fuller does not assert that Defendant had anything to do with her discharge from
that position.
14

hostile work environment; (3) race discrimination, insofar as she was not offered a
permanent position with Defendant and was released from her temporary
assignments in Defendant’s plant; and (4) retaliation on the same grounds.7
On October 28, 2013, Defendant says it learned that Ms. Fuller
misrepresented information on her job application about why she left previous jobs
(for absenteeism and attendance problems), what period of time she worked for
one former employer, and whether she had previously worked for Defendant. She
allegedly also failed altogether to disclose employment with one former employer.
Defendant, through Ms. Meeks, asserts that, if it had learned of even one
misrepresentation, it would not have allowed Allegiance to place her in
Defendant’s plant as a temp employee.
IV. DISCUSSION
Defendant argues that it is entitled to summary judgment on all of Ms.
Fuller’s claims for various reasons, and that after-acquired evidence of her falsified
employment application bars recovery on her discrimination and retaliation claims.
The discussion will proceed by addressing the requirements for each of Ms.
Fuller’s four claims before assessing the merits of Defendant’s arguments.
7

Section 1981 prohibits unlawful race-based employment discrimination and retaliation
and racially hostile work environments. “Both [Title VII and § 1981] have the same
requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998); see also Moore v. Jimmy Dean/Sara Lee Foods, Inc., 520
F. Supp. 2d 1359, 1369 (N.D. Ala. 2007). Hence, this court “need not discuss [Ms. Fuller’s]
Title VII claims separately from h[er] section 1981 . . . claims” because both claims “are based
on the same set of facts.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
15

A.

Sexual Harassment – Hostile Environment
Title VII prohibits employment discrimination on the basis of sex.

42

U.S.C. § 2000e-2(a)(1). It does not mention sexual harassment expressly, but
federal courts have applied the statute as reaching “the entire spectrum of disparate
treatment of men and women in employment, which includes requiring people to
work in a discriminatorily hostile or abusive environment.” Mendoza v. Borden,
Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (internal quotation marks omitted).
Defendant does not contest that Ms. Fuller can show the first three elements of a
claim for sexual harassment: i.e., (1) she belongs to a protected group; (2) she has
been subjected to unwelcome sexual harassment such as sexual advances, requests
for sexual favors, and other conduct that is sexual in nature; (3) the harassment was
based on her sex. See id. at 1245. Defendant contests the fourth and fifth elements
of the claim.
1.

Fourth Element

“[I]n the cases traditionally described as hostile-environment cases, an
employer’s harassing actions toward an employee do not constitute employment
discrimination under Title VII unless the conduct is sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.” Id. (internal quotation marks omitted). This requirement “tests the
mettle of most sexual harassment claims.” Gupta v. Fla. Bd. of Regents, 212 F.3d
16

571, 583 (11th Cir. 2000) abrogated on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006). Whether the plaintiff has endured
harassment that is sufficiently severe or pervasive requires her to make a subjective
and objective showing. Mendoza, 195 F.3d at 1246. In Ms. Fuller’s case, there is
no challenge to her subjective complaint that the harassment was severe.
Defendant suggests instead that the alleged mistreatment is not objectively severe.
The objective severity of harassment is judged from the perspective of a reasonable
person in the victim’s position. Id. The following four factors must be considered:
“(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Id. The four-factor list is not exhaustive. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 647 (11th Cir. 1997). The court should consider these factors
in arriving at a view of the “totality of the circumstances,” viewing the
complained-of conduct in its broader context – not narrowly or incident by
incident. Mendoza, 195 F.3d at 1246.
Defendant argues that Ms. Fuller lacks evidence to prove that her job
performance was adversely impacted by the alleged sexual harassment. Defendant
asserts that Ms. Fuller’s work performance was apparently unaffected because she
continued to perform her job well – so well that she assumed a second assignment
17

doing similar work for EHD in the warehouse area of Defendant’s plant. Thus,
Defendant argues that the alleged mistreatment was insufficiently severe or
pervasive so as to alter the conditions of her employment and to create an abusive
working environment. (See Doc. # 28, at 14, n.14 (citing Brooks v. Hyundai Motor
Mfg. Ala., LLC, 444 F. App’x 385, 386 (11th Cir. 2011) (summarily rejecting
racially hostile work environment claim where plaintiff testified that racial slurs
did not adversely affect her job performance); Conner-Goodgame v. Wells Fargo
Bank, N.A., No. 2:12-cv-3426-IPJ, 2013 WL 5428448, at *7 (N.D. Ala. Sept. 26,
2013 (reasoning that the plaintiff’s statement “that her performance at [work] never
faltered” demonstrated that the alleged harassment “did not unreasonably interfere
with [plaintiff]’s work performance”); McCann v. Tillman, 526 F.3d 1370, 1379
(11th Cir. 2008) (noting that the plaintiff testified that racially derogatory language
upset her but did not affect her work).)
Plaintiff responds that the facts in the cited cases involved isolated incidents
of harassment, and thus, the cases are distinguishable. She argues that the “severe
or pervasive element [of her claim] does not require a finding that [her] job
performance declined as a result of the harassment.” (Doc. # 32, at 32.) She is

18

right.8 In Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir.
2002), the Circuit, explained:
[t]he Supreme Court has cautioned that harassment need not be shown
to be so extreme that it produces tangible effects on job performance
in order to be actionable. Thus, having established the frequency,
severity, and humiliating nature of the conduct, [the plaintiff]’s failure
to establish convincingly how [the harasser’s] conduct interfered with
his duties is not fatal to his hostile environment claim, given the
totality of the circumstances.
(internal citation omitted). While there may be no evidence that Ms. Fuller’s job
performance suffered, a reasonable person in Ms. Fuller’s position could find that
the other factors comprising the totality of the circumstances (i.e., the frequency,
severity, repeated physical touching, and humiliating nature of Mr. O’Neal’s
alleged misconduct) created a sexually hostile or abusive workplace. Thus, Ms.
Fuller has presented adequate evidence to support the fourth element of a sexual
harassment claim.9
Defendant also asserts that, because Ms. Fuller cannot account for what Mr.
O’Neal said or did on specific dates, her testimony is vague and therefore

8

In the reply brief, Defendant suggests that Ms. Fuller relies on outdated law.
Authorities in the field of employment law disagree. See Barbara T. Lindemann, et al.,
Employment Discrimination Law 20-41 (5th ed. 2012) (“A hostile environment claimant need
not necessarily prove that the harassment actually interfered with his or her work performance.”).
9

Defendant emphasizes that, because no one else witnessed Ms. Fuller being subjected to
Mr. O’Neal’s alleged harassment, it is entitled to summary judgment on her claim. (Doc. # 28,
at 16 n.15.) Defendant cites no authority to support its position because no such authority exists.
As Defendant well knows, Ms. Fuller’s testimony is evidence creating a genuine dispute as to
whether the harassment occurred as she has described it.
19

inadequate to support a finding that the harassment was frequent. (See Doc. # 28,
at 20 n.24.) Ms. Fuller acknowledges that she did not journal what happened on
specific dates, but testifies that Mr. O’Neal touched her breasts and buttocks
“almost every day.” (Fuller Dep. at 78, 81.) She also testifies that Mr. O’Neal
propositioned her and made lewd sexual remarks on a regular basis. Considering
the short duration of her first assignment at Defendant’s plant, her testimony is
sufficient to support a finding that the harassment was frequent.10
Additionally, Ms. Fuller’s testimony supports the second and third of the
four factors. Mr. O’Neal’s actions far exceeded mere sophomoric forays into the
mysteries of romantic liaisons.

His alleged comments were the sort that a

reasonable person would find calculated, offensive and humiliating. Likewise, his
alleged misconduct was physical in nature and more than a “mere offensive
utterance.” Ms. Fuller claims that Mr. O’Neal violated her person by repeatedly
touching her breasts and buttocks.
For these reasons, when the evidence is viewed in the light most favorable to
Ms. Fuller, a genuine dispute of material fact exists as to whether Mr. O’Neal’s

10

Defendant insinuates throughout its briefing that Ms. Fuller’s claims should be
disregarded because she worked as a temp employee for approximately three weeks. (See, e.g.,
Doc. # 28, at 26 (“[Defendant] respectfully seeks summary judgment and taxed costs against a
three[-]week temp’s groundless harassment and reassignment claims.”).) Ms. Fuller is entitled to
the protection of federal workplace laws and the benefit of this judicial process regardless of the
short duration of her tenure.
20

conduct was sufficiently severe or pervasive to alter the conditions of Ms. Fuller’s
employment.
2.

Fifth Element

An employee who alleges harassment must show that there is a basis for
holding the employer liable for the mistreatment. Where, as here, the plaintiff is
harassed by a coworker as opposed to a supervisor, the plaintiff must show that the
employer had either constructive or actual notice of the offensive conduct, and that
the employer failed to take remedial action when notified. Terrell v. Paulding
Cnty., 539 F. App’x 929, 932 (11th Cir. 2013) (citing Breda v. Wolf Camera &
Video, 222 F.3d 886, 889 (11th Cir. 2000)). Thus, Defendant is accountable to a
negligence standard. Vance v. Ball State Univ., ___ U.S. ____, 133 S. Ct. 2434,
2441 (2013) (“[A]n employer is directly liable for an employee’s unlawful
harassment [of his coworker] if the employer was negligent with respect to the
offensive behavior.”).
Defendant argues that Ms. Fuller cannot establish this fifth element of her
claim because she cannot prove that Defendant’s management was actually or
constructively aware of the sexual harassment, and she cannot demonstrate that she
reported the harassment to her supervisor, Mr. Taunton, or to one of Allegiance’s
offices, as required by Allegiance’s policy for confronting an offender and

21

reporting offensive conduct.11

(See Doc. # 29-4, at 53–54 (Allegiance’s

Notification Policy).)
Ms. Fuller, of course, responds that she informed Mr. Taunton, as well as
Ms. Britton and Ms. Wilson, about Mr. O’Neal’s offensive conduct. (Fuller Dep.
at 93–98; 103–124.) Because the evidence suggests that there were two different
channels for reporting the alleged harassment (i.e., through Defendant or through
Allegiance), the court will consider each channel separately.
a.

Notice through Mr. Taunton or an Allegiance Office

Defendant asserts that Ms. Fuller should have taken her grievances to Mr.
Taunton or an Allegiance office, per the Allegiance policy that Ms. Fuller signed
when she began her assignment. (See Doc. # 29-4, at 53–54.)12 Ms. Fuller is
adamant that she told Mr. Taunton what she had suffered, and a jury could credit
her testimony.

But Ms. Fuller does not deny that she never reported the

harassment to Allegiance’s office while she was assigned to work for Defendant,
(see Fuller Dep. at 134–35), and Allegiance’s policy requires that the victim of

11

Ms. Meeks says that Mr. Taunton denied that Ms. Fuller reported sexual harassment to
him, but that is hearsay, (see Doc. # 28, at 12 n.5 (citing Meeks Dec at ¶ 12)), and Mr. Taunton’s
personal testimony on the matter is not in the record.
12

If Ms. Fuller had not reported her complaints through Allegiance, Ms. Meeks suggests
that Ms. Fuller could have alternatively reported harassment directly to her. (See Meeks Dec.,
Doc. # 29-1, at ¶12.) This concession suggests that Defendant’s reporting channels were open to
temporary employees of Defendant.
22

harassment communicate with both the Allegiance supervisor and one of
Allegiance’s offices.
Even if complaining to Mr. Taunton alone was enough, Ms. Fuller has not
offered any evidence that Mr. Taunton, in turn, fulfilled his obligation to report the
harassment to Defendant. As the plaintiff, Ms. Fuller is the party who must prove
a basis for Defendant’s liability. Her case is unusual because there are two entities
requiring notification of the alleged harassment. Her temporary placement agency
worked in partnership with its client (Defendant) to enforce a policy, and the
plaintiff is suing not her temp agency, but Defendant, which consistently refers to
her as a temporary employee. Assuming that Mr. Taunton was informed of the
harassment, it should not be Defendant’s burden to prove that Mr. Taunton failed
to bring the matter to Defendant’s attention. Ms. Fuller must be the party to offer
direct or circumstantial evidence that Mr. Taunton in fact advised Ms. Meeks (or
some other appropriate member of management) of the alleged misconduct.
Perhaps such evidence exists, but Ms. Fuller has not presented it. Hence, she
cannot rely solely upon testimony that she complained to Mr. Taunton. That
evidence is insufficient to show that Defendant knew or should have known about
Ms. Fuller’s mistreatment through Mr. Taunton and Allegiance.

23

b.

Notice through Ms. Britton or Ms. Wilson

Defendant disowns Ms. Britton and Ms. Wilson as proper authorities to
receive complaints from temporary employees like Ms. Fuller and maintains that
Ms. Fuller should have reported harassment through her employer, Allegiance.
(See Doc. # 28, at 18–19 n.21; see also Doc. # 35, at 31 n.11.) Defendant cites
Eleventh Circuit authority holding that, when employees do not follow established
complaint procedures – for example, by complaining to mid-level managers
instead of higher authorities identified by a harassment policy – those employees
cannot show that there is a basis for holding their employers liable. See Kilgore v.
Thompson & Brock Mgmt., Inc., 93 F.3d 752, 753 (11th Cir. 1996) (reasoning that
local store manager was not “higher management”); Terrell v. Paulding Cnty., 539
F. App’x 929, 932 (11th Cir. 2013) (finding no legal basis for holding the
employer liable where the plaintiff failed to bring the complaint to the individuals
identified in the county’s harassment policy); cf. Madray v. Publix Supermarkets,
Inc., 208 F.3d 1290, 1301 (11th Cir. 2000) (holding that the employer-defendant
satisfied the second prong of the Farragher/Ellerth defense when employees did
not complain to the proper authority).13 Because Ms. Fuller was an Allegiance
13

The Faragher/Ellerth affirmative defense requires the employer to show both (1) that it
exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. 775,
807 (1998). The defense applies in situations where the alleged harasser is a supervisor of the
victim. Because Mr. O’Neal was not a supervisor, Defendant does not seek summary judgment
24

employee subject to Allegiance’s reporting protocol, Defendants posit that any
alleged complaints to Ms. Britton and Ms. Wilson are legally irrelevant for
purposes of establishing Defendant’s awareness, and therefore, liability. (See Doc.
# 35, at 31.)
Yet according to Defendant’s Associate Handbook, a permanent employee
in Ms. Fuller’s shoes could have reported harassment to a supervisor like Ms.
Wilson. (Doc. # 29-4, at 64 (paragraphs under heading “Reporting Harassment”.)
It is undisputed that Ms. Fuller did not get a copy of the Associate Handbook
because Defendant does not furnish it to temporary employees. (Meeks Dep.
at 28–29.) It makes no sense that the notice that Defendant requires and deems
adequate from its own employees would not be adequate notice from a temporary
employee, especially when the temporary employees interact with and are
managed by Defendant’s supervisors, just as Ms. Fuller was supervised by Ms.
Wilson and Ms. Britton during her tenure as a quality inspector. Moreover, Ms.
Fuller claims that she was told during her orientation that Defendant requires
victims of harassment to tell the offender to stop and then to report any continued
harassment to a supervisor, (Fuller Dep. at 35), which she says she did. Ms. Fuller

on the basis of this affirmative defense. To be clear, Defendant asserts that Ms. Fuller cannot
complete her prima facie case by giving a legal basis for holding Defendant responsible for the
alleged sexual harassment. (See Doc. # 35, at 31 (“Contrary to [Ms. Fuller’s] misstatement, she
ha[s] this burden . . . .”) (citation omitted).)
25

testifies that Ms. Wilson and Ms. Britton knew about the sexual harassment
because she told them about it.
Whether Ms. Fuller actually reported to Defendant’s supervisors, and
whether such a report was adequate to place Defendant on notice, thereby
establishing a basis for Defendant’s liability, are “genuine issue[s] for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Hence, Defendant’s
motion for summary judgment on Ms. Fuller’s sexual harassment claim is due to
be denied.14
B.

Racially Hostile Work Environment
A plaintiff establishes a racially hostile work environment under Title VII by

showing similar facts to those required to support a sexually hostile work
environment. That is, her “workplace [must be] permeated with discriminatory
14

Ms. Fuller also contends that “[t]here is no evidence that [Defendant’s] policies
adequately train its supervisors, employees, Allegiance on-site supervisors, or temp agency
employees of what to do when temp employees are harassed” by Defendant’s employees, and
that Defendant’s policy addresses harassment experienced by its permanent Associates but not its
temporary employees. (Doc. # 32, at 38 (referencing Defendant’s Associate Handbook).) This
line of argument would be relevant in response to the first prong of the Faragher/Ellerth defense,
but as stated previously, that defense is not before the court. The issue is whether Ms. Fuller has
shown that Defendant actually knew or should have known of Mr. O’Neal’s alleged harassment.
Alternatively, Ms. Fuller suggests that Defendant can be held liable if it had constructive
knowledge of the harassment. (Doc. # 32, at 36.) In view of the undisputed fact that Ms. Fuller
is the lone witness (other than Mr. O’Neal himself) with knowledge of Mr. O’Neal’s conduct,
and there being no other evidence to impute constructive knowledge of O’Neal’s conduct to
higher management, see generally Miller, 277 F.3d at 1278–79, the court cannot conclude from
the record that Defendant should have known about the harassment without receiving notice
from Ms. Fuller. Additionally, the case authorities cited by Ms. Fuller are likely inapposite
because they address the constructive knowledge of an employer where the harasser is the
plaintiff’s supervisor.
26

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working environment.”
Miller, 277 F.3d at 1275 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). She establishes a prima facie case if she can show: “(1) that [s]he belongs
to a protected group; (2) that [s]he has been subject to unwelcome racial
harassment; (3) that the harassment was based on h[er] race; (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.” Baker v. Ala. Dep’t of Pub. Safety, 296
F. Supp. 2d 1299, 1309 (M.D. Ala. 2003) (Albritton, J.).
Defendant argues that the racially offensive remarks directed at Ms. Fuller
by her coworkers are not serious enough, as a matter of law, to have created a
racially hostile work environment. The same four factors discussed supra – i.e.,
whether the conduct was frequent, severe, physically threatening or humiliating,
and substantial enough to affect the plaintiff’s job performance – are relevant to a
determination of whether racial harassment is so objectively severe or pervasive
that it altered the terms and conditions of employment. Bryant v. Jones, 575 F.3d
1281, 1297 (11th Cir. 2009). Defendant says that “[f]ar more egregious facts”
have failed to meet this standard at summary judgment. (Doc. # 28, at 17–18
(citing Brooks, 444 F. App’x at 386; Washington v. Kroger Co., 218 F. App’x 822,
27

823 (11th Cir. 2007); Barrow v. Ga. Pac. Corp., 144 F. App’x 54, 56 (11th Cir.
2005).)
In Brooks, a black plaintiff alleged that on more than one occasion, her team
leader said “you black folks” in an exasperated tone or used the word “nigger.”
444 F. App’x at 386. The Eleventh Circuit affirmed the dismissal of her racially
hostile work environment claim because the alleged racial slurs were infrequent
and because the plaintiff testified that her work performance was unaffected. Id.
In Washington, a black plaintiff complained that a coworker called him “boy” on
multiple occasions over the course of a few months. 218 F. App’x at 823. The
Circuit reasoned that “[t]hese comments, though demeaning, were not severe or
extreme” in nature. Id. at 825.
And in Barrow, one plaintiff testified that he observed racially offensive
symbols – specifically, Confederate flags, the letters “KKK”, and a noose – in
various places in his workplace. 144 F. App’x at 57. He further averred that a
supervisor called him “nigger” on three occasions, “boy” on several other
occasions, and told him more than once that he would kick his “black ass.” Id.
Other supervisors made similar racially derogatory or offensive remarks as well.
Id. The Eleventh Circuit acknowledged that the alleged symbols and slurs were
“discriminatory and offensive,” but insufficient to “permeate” the workplace “with
discriminatory intimidation, ridicule, and insult” and thereby “create an abusive
28

working environment.” Id. at 57–58. (quoting Harris, 510 U.S. at 21) (internal
quotation marks omitted).

Rather, the Circuit characterized the evidence as

“isolated” and “sporadic” in view of the plaintiff’s lengthy tenure working for the
defendant. Id. at 58.
Ms. Fuller asserts that her sexual harassment claim is “inextricably
intertwined” with her racially hostile work environment claim, (Doc. # 32, at 22),
which suggests her intention that the court analyze the objective severity of the two
claims simultaneously.15 Plaintiff appears to assert that her race- and sex-based
harassment claims are indistinguishable from one another, presumably because Mr.
O’Neal, a black man, repeatedly described his proclivity for white women as
sexual partners and tried to encourage Ms. Fuller, in his alleged words, “a fine ass
white girl,” to have sex with him, in his alleged words, a “real nigger.” (Fuller
Dep. at 72, 93.) The court has already stated that Mr. O’Neal’s alleged sexual
harassment was pervasive or severe enough to survive summary judgment,
assuming Ms. Fuller can demonstrate a basis for holding Defendant liable. See
supra Part IV.A.1. However, the objective severity of the sexual harassment in
this case is not dependent upon Mr. O’Neal’s references to his being a black man
and Ms. Fuller’s being a white woman. Stated differently, Mr. O’Neal’s comments
15

Title VII case law using the term “inextricably intertwined” usually confronts
situations where discrimination and retaliation claims were so related that a reasonable EEOC
investigation would reveal facts supporting a claim for retaliation in addition to a stated claim for
discrimination. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004).
29

would have been offensive regardless of any reference to race because of the overt,
sexually provocative nature of the misconduct. Moreover, considering the sex- and
race-based harassment claims together is inappropriate because the race-based
harassment was perpetrated by multiple actors – not solely Mr. O’Neal.
Therefore, in the absence of evidence that the alleged sexual harassment is
truly intertwined with the alleged racial harassment, and in the absence of some
legal argument for considering the race- and sex-based harassment claims together,
the court is addressing separately the alleged race-based, offensive remarks made
by all of Ms. Fuller’s former coworkers including Mr. O’Neal, as well as Ms.
Wilson and Ms. Britton’s alleged indifference to those race-based remarks.
Upon review of Ms. Fuller’s deposition testimony, the offensive race-based
mistreatment is limited to name-calling and inappropriate comments that Ms.
Fuller’s coworkers, including Mr. O’Neal, made when confronting her about her
job performance and her “lies.” During the big verbal confrontation with her line,
Ms. Fuller was called “stupid ass white girl” and “stupid white bitch” by Mr.
O’Neal and a black female coworker. A third black female coworker announced
her disdain for white people in general, including Ms. Fuller. Then, Ms. Wilson is
alleged to have condoned the inappropriate conduct by not correcting her
subordinates. Other than this episode, the only explicitly race-based animosity

30

alleged by Ms. Fuller is Mr. O’Neal’s calling her a “white bitch” an unspecified
number of times as they worked beside one another.
Applying the factors used to measure objective severity or pervasiveness, the
alleged race-based harassment could be described as infrequent, but only when
compared to more typical cases where the plaintiff endures a single, racially
charged incident while working for his employer for months or years. Here, Ms.
Fuller was immersed in a racially tense and degrading confrontation within days of
starting her job assignment, which lasted only three weeks. Additionally, Mr.
O’Neal called her a “white bitch” several times before the incident with the line.
Next, although Ms. Fuller’s aggressors did not physically threaten her with their
words, their verbal mistreatment was humiliating. Lastly, while Defendant dwells
on the fact that Ms. Fuller has not claimed that her job performance suffered, a
juror could find that a reasonable person’s job performance would have suffered
under the same circumstances.
Upon consideration of the evidence and of other recent, published Eleventh
Circuit decisions not cited by Defendants, the court concludes that the best course
is to permit a jury to decide whether the harassment was so objectively severe that
it altered the conditions of Ms. Fuller’s employment and created an abusive work
environment. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1302–03 (11th
Cir. 2012) (vacating district court’s order granting summary judgment and
31

remanding for jury trial where a jury could justifiably view the evidence as being
objectively severe); Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1251 (11th
Cir. 2014) (discussing Jones and reaching the same outcome).16
C.

Race-Based Discrimination and Retaliation
Title VII and Section 1981 prohibit both race-based discrimination and

retaliation in the workplace. In her complaint, Ms. Fuller claims that she was
discriminated against on account of her race, and retaliated against for complaining
of sexual and racial harassment. In the complaint, she alleges that Defendant’s
unlawful discriminatory and retaliatory intent is revealed in Defendant’s (1) refusal
to consider her for permanent employment and (2) termination or reassignment of
her employment, first as a quality inspector, and later as an employee for EHD.
Where, as here, there is no direct evidence of unlawful race-based
discrimination or retaliation, the plaintiff typically must use the burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
show indirect evidence of discrimination or retaliation. See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1174, 1181 (11th Cir. 2010). First, she must establish a
prima facie case of discrimination and retaliation. “[S]ummary judgment . . . is
16

Defendant repeats its argument that Ms. Fuller failed to report properly the alleged
race-based harassment. However, the court has previously concluded that Ms. Fuller’s testimony
that she told Ms. Britton and Ms. Wilson about harassment creates a genuine dispute as to
whether Defendant knew or should have known about the harassment. Additionally, with
respect to the racially hostile work environment claim, supervisors are alleged to have witnessed
and implicitly condoned several black employees’ racial hostility toward Ms. Fuller.
32

appropriate if [the plaintiff] fails to satisfy any one of the elements of a prima facie
case.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 (11th Cir. 1998).
If she makes her prima facie case of discrimination or retaliation, “the
burden shifts to the defendant to articulate a legitimate nondiscriminatory reason
for its actions.” Gate Gourmet, 683 F.3d at 1255. And if the defendant proffers a
nondiscriminatory reason, the burden returns to the plaintiff, who must show that
the proffered reason is pretextual. Id. The plaintiff can demonstrate pretext by
exposing

“weaknesses,

implausibilities,

inconsistencies,

incoherencies,

or

contradictions” in the defendant’s reasoning. Springer v. Convergys Customer
Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir. 2007). If pretext is shown, then a
claim of discrimination or retaliation survives summary judgment.
1.

Racial Discrimination

Under the McDonnell Douglas framework, the plaintiff makes a prima facie
case of discrimination by demonstrating that: “(1) she is a member of a protected
group; (2) she was qualified for her position; (3) she suffered an adverse
employment action; and (4) employment . . . policies were differently applied to
her” than to similarly situated employees outside of her protected class. Chapter 7
Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012); see also Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). Defendant asserts that
Ms. Fuller cannot demonstrate that it treated a similarly situated temporary
33

employee of another race more favorably than it treated her with respect to her first
reassignment for attendance policy issues. Defendant points out that it terminated
the employment of similarly situated temp employees of all races who violated the
attendance policy during their first month of employment. (See Doc. # 29-1,
at 16.) With respect to Ms. Fuller’s second assignment through EHD, Defendant
notes that all EHD employees, regardless of their race, lost their assignments when
the EHD contract was terminated.
In her opposition brief, Ms. Fuller does not rebut Defendant’s argument
directly. She suggests that Ms. Wilson decided to end her first assignment and that
Ms. Wilson was motivated by racial animus, as demonstrated by her indifference
to alleged racial harassment by her subordinates. However Ms. Fuller may not
avoid the first step of McDonnell Douglas.17 A prima facie case ordinarily requires

17

Ms. Fuller claims that she has other evidence that is adequate to support a “convincing
mosaic” supporting an inference of intentional discrimination. See Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“[E]stablishing the elements of the McDonnell
Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to
survive a summary judgment motion in an employment discrimination case. Accordingly, the
plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case. Rather,
the plaintiff will always survive summary judgment if he presents circumstantial evidence that
creates a triable issue concerning the employer’s discriminatory intent. A triable issue of fact
exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by
the decision[-]maker.”) (internal citations and quotation marks omitted).
Ms. Fuller’s mosaic is not “convincing.” It might be if there were evidence that Ms.
Fuller had a reason to anticipate an offer of full-time employment with Defendant, or if there was
evidence to substantiate her claim that Ms. Wilson influenced Ms. Weeks – the actual decisionmaker, see infra Part IV.C.2.d. – to terminate Ms. Fuller’s assignment on August 15, 2012. But
there is no such evidence.
34

a showing that a comparator was treated more favorably, and there are no
comparators here. There is therefore no direct or circumstantial evidence in the
record to support the inference that Defendant either refused long-term
employment to or had Ms. Fuller reassigned on the basis of her race. Accordingly,
Defendant’s motion for summary judgment is due to be granted as to Ms. Fuller’s
claims of race-based discrimination.18
2.

Retaliation
a.

Standard for Making a Prima Facie Case

To succeed on her retaliation claim, Ms. Fuller likewise must demonstrate a
prima facie case of unlawful retaliation. A plaintiff makes a prima facie case of
retaliation by showing 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, 529 F.3d at 970. Although Title VII discrimination claims can
be supported by evidence that an employer has both lawful and discriminatory
motives, the Supreme Court has fairly recently announced that “Title VII
retaliation claims require proof that the employer’s desire to retaliate was the but-

18

In the absence of a prima facie case of discrimination, it is unnecessary to proceed with
an analysis of Defendant’s proffered non-discriminatory explanations for ending Ms. Fuller’s
assignments.
35

for cause” of the plaintiff’s challenged employment action. Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).19
To establish a causal connection, the plaintiff must demonstrate that “the
decision[-]maker was aware of [her] protected conduct at the time of the adverse
employment action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799
(11th Cir. 2000); see also Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712,
717 (11th Cir. 2002) (requiring the same). Ordinarily, “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, 231 F.3d at 799. However, “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.

19

Defendant proposes that Nassar did away with prior Eleventh Circuit precedent
elucidating the causation requirement of a prima facie case of retaliation. (See Doc. # 35, at 34.)
A panel of the Eleventh Circuit has noted in an unpublished per curiam opinion that “the
[Nassar] Court did not clarify the role of ‘but for’ causation in a plaintiff’s prima facie case.”
Ramirez v. Bausch & Lomb, Inc., 546 F. App’x 829, 833 (11th Cir. 2013). And in another recent
unpublished opinion, another panel explained that Nassar requires the plaintiff to bear the
“burden of persuasion to proffer evidence sufficient to permit a reasonable fact finder to
conclude that discriminatory animus was the ‘but-for’ cause of the adverse employment action.”
Smith v. City of Fort Pierce, Fla., 565 F. App’x 774, 778 (11th Cir. 2014) (internal quotation
marks omitted). No Eleventh Circuit opinion since Nassar has disturbed any precedent cited by
Ms. Fuller, and the court does not believe that Nassar precludes plaintiffs from continuing to
present indirect or circumstantial evidence to support a prima face case of retaliation. See Terry
v. Laurel Oaks Behavioral Health Ctr., Inc., ___ F. Supp. 2d ____, No. 1:12-CV-905-WKW,
2014 WL 805477, at *20 (M.D. Ala. Feb. 28, 2014).
36

b.

Defendant’s Arguments

Defendant first argues that Ms. Fuller did not engage in protected conduct
because her complaints were not subjectively or objectively reasonable. It
emphasizes anew Ms. Fuller’s admission that the alleged harassment of which she
complained failed to impact her job performance. The court has already rejected a
similar argument with respect to the objective severity of her mistreatment.
Assuming that Ms. Fuller’s testimony about her experiences at Defendant’s plant is
true, any complaint of sexual or racial harassment by coworkers was reasonable
and made in good faith. See Swanson v. Civil Air Patrol, 37 F. Supp. 2d 1312,
1325 (M.D. Ala. 1998) (“[A] plaintiff engages in ‘statutorily protected activity’
when [s]he protests an employer’s conduct which is actually lawful, so long as
[s]he demonstrates ‘a good faith, [objectively] reasonable belief that the employer
was engaged in unlawful employment practices.’”) (citing Little v. United Tech.,
Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).
Defendant further contends that Ms. Fuller’s complaints to Ms. Wilson and
Ms. Britton, who Defendant reiterates were not the proper recipients for her
grievances, are not the “but-for” cause of Defendant’s decisions not to offer a
permanent job and to end her assignments. Instead, Defendant avers that Ms.
Fuller was reassigned because Ms. Meeks, who lacked knowledge of Ms. Fuller’s
complaints to anyone, determined that Ms. Fuller had earned two-and-a-half points
37

of three allowable attendance points within her short tenure as a temp employee.
Defendant further represents that Mr. Coltrain, who also lacked knowledge of Ms.
Fuller’s complaints, was solely responsible for the decision to end EHD’s quality
inspection contract, which resulted in her second termination. Assuming arguendo
that Ms. Fuller makes a prima facie showing of retaliation, Defendant repeats its
proffered legitimate, non-retaliatory reasons for reassigning Ms. Fuller – that she
was in violation of the attendance policy during her first assignment, and that
EHD’s contract ended for unrelated reasons during her second assignment.
c.

Ms. Fuller’s Response

In response, Ms. Fuller disputes Defendant’s explanation that Ms. Meeks
and Mr. Coltrain were the decision-makers or that the proffered, non-retaliatory
explanations are truthful. She reiterates that she lodged several complaints with
Ms. Britton, Ms. Wilson, and Mr. Taunton, and she stresses that Ms. Britton and
Ms. Wilson said that they were tired of her complaining and suggested that she
could lose her job because of the disruptions she had caused on the assembly line.
Ms. Fuller emphasizes that she suffered two adverse employment actions within
close temporal proximity to the times that she complained.
Thus, Ms. Fuller argues, the evidence supports the inference that Ms. Wilson
rather than Ms. Meeks decided to terminate the first assignment in retaliation for
Ms. Fuller’s complaints. In addition to Ms. Wilson’s deposition testimony that she
38

was the one who decided to terminate Ms. Fuller’s assignment, Ms. Fuller cites
Defendant’s EEOC Position Statement in which it represented that Mr. Taunton
and Ms. Wilson had conferred with her about her absenteeism. (See Doc. # 33-1,
at 4.) She notes that the Position Statement lacks any reference to Ms. Meeks as a
decision-maker. Further, Ms. Fuller offers as evidence an email from Mr. Taunton
to Ms. Meeks stating that Ms. Britton and Ms. Wilson asked him to end Ms.
Fuller’s assignment because they felt that Ms. Fuller had too many personal
conflicts with coworkers. (Doc. # 33-2.) Next, she notes that Ms. Meeks cannot
remember who informed her on August 13, 2012, that Ms. Fuller was excessively
absent, and Ms. Meeks’s deposition admission that it could have been Ms. Wilson.
(Meeks Dep. at 103.)
Finally, Ms. Fuller says that the credibility of Defendant’s proffered nonretaliatory reason is undermined because Ms. Meeks violated the terms of
Defendant’s attendance policy by preemptively terminating Ms. Fuller at two-anda-half points rather than three points. She adds that Defendant falsely reported to
the EEOC that Ms. Fuller had actually reached three points at the time that her first
assignment was terminated.
With respect to Defendant’s contention that the EHD contract was
terminated for reasons unrelated to Ms. Fuller, Ms. Fuller responds that she was
asked to step down from her lead position with EHD because of Ms. Britton and
39

Ms. Wilson’s complaints to her EHD supervisor, Todd. She claims that EHD was
fearful of losing its contract with Defendant because of the complaints.
d.

Analysis

If Ms. Wilson was a decision-maker in this case, Ms. Fuller could make a
prima facie case of retaliation on the basis of Ms. Wilson’s purported knowledge
of her complaints. However, there is undisputed record evidence showing that it
was Ms. Meeks who decided to reassign Ms. Fuller, effective Wednesday, August
15, 2012.20

Ms. Fuller points to no evidence that contradicts Ms. Meeks’s

testimony that when she made her decision, she lacked knowledge of Ms. Fuller’s
complaints of harassment. Ms. Fuller’s contention that Ms. Wilson decided to
terminate Ms. Fuller’s assignment on Monday, August 20, 2012, is unfounded in
view of (1) the timing of undisputed events and (2) Ms. Wilson’s clarification in
her declaration that she mistakenly believed Ms. Fuller was absent from work
beginning August 15, 2014.

The record is clear that Ms. Wilson made her

“decision” several days after Ms. Fuller had already been reassigned by Ms.
Meeks; hence, Ms. Wilson’s “decision” was moot and based upon mistaken
information. (See Wilson Dep. at 56–57.)

20

There is no dispute that this was the day of Ms. Fuller’s termination. Ms. Fuller has
testified that Mr. Taunton contacted her before her shift on August 15, 2012, to say that she
should not report to work because her assignment had ended, (Fuller Dep. at 45), and she did not
return to Defendant’s plant until she was placed with EHD.
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Similarly, there is no evidence to contradict the testimony of the second
decision-maker, Mr. Coltrain, that (1) he was unaware of Ms. Fuller’s complaints
and uninfluenced by Ms. Fuller’s former coworkers, and (2) Ms. Fuller’s
assignment to EHD had nothing to do with Defendant’s decision to end EHD’s
contract.21
Furthermore, there is not a “convincing mosaic” of circumstantial evidence
to support a finding of causation absent evidence that the relevant decision-makers
were aware of any complaints of harassment.
Thus, because Ms. Fuller has no evidence that her complaints of harassment
were known to either decision-maker at the times she alleges she was retaliated
against, she cannot make a prima facie case of retaliation. See Brungart, 231 F.3d
at 799. In the absence of a prima facie case, the court will not proceed to consider
whether Ms. Fuller can rebut Defendant’s non-retaliatory reason as a pretext for
retaliation.

In sum, Defendant’s motion for summary judgment is due to be

granted with respect to Ms. Fuller’s claim of unlawful retaliation.

21

As for Ms. Fuller’s assertion that Ms. Britton and Ms. Wilson caused or influenced her
demotion from a lead position while she worked for EHD in Defendant’s warehouse, Ms.
Fuller’s own evidence suggests that the decision to demote her was made by a supervisor with
EHD – Todd – not by anyone who worked for Defendant, and for reasons other than her
disagreements with Ms. Britton and Ms. Wilson. (See Doc. #33-2.) Additionally, her demotion
is not included as a ground for her retaliation claim in her complaint. (See Doc. # 1.)
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e.

After-Acquired Evidence

Defendant contends that Ms. Fuller’s prospect of recovering reinstatement,
compensatory damages, or back pay is eliminated by the existence of afteracquired evidence that Ms. Fuller falsified her job application and additional
evidence that Ms. Fuller mitigated her damages by taking and leaving other jobs
after losing her first assignment with Defendant. (See Doc. # 35, at 36–37.) In
view of the finding that Defendant is entitled to summary judgment on Ms. Fuller’s
discrimination and retaliation claims, the after-acquired evidence issue appears to
be moot, and the court declines to address the parties’ positions on its impact.
V. CONCLUSION
In accordance with the foregoing analysis, it is ORDERED that Defendant’s
motion for summary judgment (Doc. # 27) is GRANTED IN PART and DENIED
in PART as set out in this opinion.

Ms. Fuller’s racial discrimination and

retaliation claims are DISMISSED, but her sexual harassment and racially hostile
work environment claims will proceed to trial.
DONE this 26th day of September, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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