Whetstone v. SL Alabama, LLC

Filing 29

MEMORANDUM OPINION AND ORDER directing that the Motion for Summary Judgment (Doc. # 15 ) is GRANTED, as further set out. Signed by Honorable Judge W. Harold Albritton, III on 8/8/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

RICKY WHETSTONE,
Plaintiff,
v.
SL ALABAMA, LLC,

Defendant.

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Civil Action No. 3:13CV684-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment (Doc. #16), filed by SL
Alabama, LLC on May 30, 2014.
The Plaintiff filed a Complaint in this case on September 23, 2013, bringing claims of
retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended and 42 U.S.C. '
1981 (Count I) and race discrimination, also in violation of Title VII and 42 U.S.C. ' 1981 (Count
II).
For the reasons to be discussed, the Motion for Summary Judgment is due to be
GRANTED.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and

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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 Awhich 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 Ago beyond the pleadings@ and show that there is a
genuine issue for trial. Id. at 324.
Both the party Aasserting that a fact cannot be,@ and a party asserting that a fact is genuinely
disputed, must support their assertions by Aciting to particular parts of materials in the record,@ or
by Ashowing 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 Adepositions, 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 nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

III. FACTS
The submissions of the parties establish the following facts, construed in a light most
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favorable to the non-movant:
The Plaintiff, Ricky Whetstone (“Whetstone”), is an African-American man who was
employed with SL Alabama for four years, first as a truck driver and then as a fork lift driver. His
employment was terminated in November of 2012 for sleeping on the job, and for sleeping on a
forklift while it was running. SL Alabama has an Associate Handbook which sets forth its
Standards of Conduct Policy for its employees. “Sleeping or loafing on the job,” is a type of
misconduct which may result in discharge under the policy. (Doc. #17-7 at p.62). Deborah
Meeks (“Meeks”) was the Human Resources Manager who made the decision to terminate
Whetstone’s employment.
During his employment with SL Alabama, in May of 2011, Whetstone filed an EEOC
charge alleging that his car was towed from a no parking zone because of his race. Meeks was not
the Human Resources Manager at the time that EEOC charge was filed. The EEOC sent a
facsimile to Meeks’s attention in November 2011, however, stating that SL Alabama had not
responded to the EEOC charge.
In May 2012, Whetstone transferred from the second production shift to the first
production shift. Whetstone has taken the position that soon after his transfer his bathroom and
stretching breaks were closely monitored by SL Alabama.
On November 2, 2012, Ryan Kim (“Kim”), Logistics Supervisor, and Team Leader Chris
Williams (“Williams”) reported to Meeks that Whetstone was observed sleeping on a forklift,
while the forklift was running. Whetstone was subsequently terminated for falling asleep on the
job, but states that he did not fall asleep on the job. He told Meeks that he sometimes closes his
eyes and rolls his head to relieve neck pain.
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Meeks made the decision to terminate Whetstone, relying on a photograph of him sitting on
the forklift asleep. Meeks stated in a document dated November 2, 2012 that she met with
Whetstone and told him that he was observed by Kim and Chris Williams along with other hourly
associates who provided written statements that he was sleeping while on the forklift, and that he
had been observed sleeping for a 5-6 minute period.
Whetstone contends that he reported that another employee, Kim, was sleeping on the job
to his supervisor Jeff Bailey and Williams. He also maintains that he told Meeks that Kim was
sleeping on the job. Kim was not terminated. Whetstone claims that his termination was race
discrimination and in retaliation for his May 2011 EEOC charge.

IV. DISCUSSION
Where, as here, a plaintiff seeks to prove intentional discrimination on the basis of race and
retaliation under Title VII and ' 1981 by using circumstantial evidence of intent, the court applies
the framework first set out by the United States Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must establish a prima facie
case. McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established a prima facie
case, the burden of production is placed upon the employer to articulate a legitimate
nondiscriminatory reason for its employment action. Texas Dep=t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981). The plaintiff may seek to demonstrate that the proffered reason was not the
true reason for the employment decision "either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence." Id. at 256; Combs v. Plantation
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Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated or retaliated. Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 147 (2000). Even if a plaintiff establishes a prima facie case
and offers sufficient evidence of pretext as to each of the proffered reasons, summary judgment
Awill sometimes be available to an employer in such a case.@ Chapman v. AI Transport, 229 F.3d
1012, 125 n.11 (11th Cir. 2000).
The court begins with the grounds asserted for summary judgment as to the retaliation
claims, and then will address the discrimination claims.

A. Retaliation
A prima facie case of retaliation contains three elements: first, the plaintiff engaged in
statutorily protected conduct; second, the plaintiff suffered an adverse employment action; and
finally, the adverse action was causally related to the protected expression. Williams v. Motorola,
Inc., 303 F.3d 1284, 1291 (11th Cir. 2002) (quotation omitted). An action is materially adverse if
it might dissuade “a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). A causal relationship can be
established through evidence that the “desire to retaliate” against the protected expression was the
“but-for cause” of the adverse action. See Univ. of Texas Southwestern Med. Ctr. v. Nassar,__
U.S. __, 133 S.Ct. 2517, 2528 (2013). This requires proof that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action of the employer. Id.
SL Alabama assumes for purposes of its summary judgment motion that Whetstone’s May
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2011 EEOC charge is a protected activity, but contends that there is no “but for” causation for
Whetstone’s discharge. SL Alabama states that seventeen months elapsed between the filing of
the May 2011 EEOC charge and Whetstone’s termination in November 2012. SL Alabama also
states that Meeks, the decision maker, was not employed at SL Alabama when the May 2011
EEOC charge was filed.
Whetstone points to evidence of an EEOC facsimile, dated November 9, 2011, from the
EEOC to Meeks’s attention which states that no response had been received to Whetstone’s EEOC
charge, and which attaches the original charge. (Doc. #23-1 at p.2-5). Whetstone argues,
therefore, that Meeks was aware of his EEOC charge at the time of his termination.
As to the temporal proximity argument made by SL Alabama, Whetstone agrees that if he
were limited to temporal proximity of the EEOC charge to his termination to establish causation he
would fail to create a question of fact. Whetstone argues, however, that after he filed his EEOC
charge he was told that he was taking too long with his bathroom breaks and was told not to take
breaks from the fork lift. (Doc. #17-1 at 32; Dep. p. 125:18-126:6). Weeks testified that he
needed to take breaks from the forklift to stretch his back because he had earlier had back surgery.
(Doc. #17-1 at p. 126: 19-128:6). He argues that criticism of this practice was a pattern of
antagonism following the filing of his EEOC charge.
Evaluation of alleged adverse actions is not limited to a final decision to terminate.
Wideman v. Wal–Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998). While a longer period
of time may exist between the protected activity and an ultimate employment action under a theory
that an employer engaged in a series of retaliatory acts, the alleged series of acts must itself begin
close in time to the protected activity. Id. at 1457 (stating that “the series of adverse employment
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actions commenced almost immediately after management learned she had filed the charge.”).
In his brief, Whetstone’s position is that he had been a target of antagonism “since May
2012 when he transferred to first shift.” (Doc. #22 at p.15).1 The brief then goes on to say that
this “is the same time” as his EEOC charge was filed, but the evidence cited, Exhibit 3 to
Document 23, is the EEOC charge which is dated May 2011. (Doc. #23-1 at p.9).
Even accepting that Meeks may have known about the EEOC charge on November 9,
2011, Whetstone’s position that the alleged retaliatory acts in this case began after he transferred to
the first shift, in May of 2012, means that the alleged pattern of retaliatory acts began
approximately 6 months after the facsimile notice of the EEOC charge in November 2011, and,
therefore, is too far-removed in time to establish causation.2 Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir.2007) (holding that three-month period without more is not close
enough to establish causal connection); see also Rollins v. Alabama Community College System,
814 F.Supp.2d 1250, 1300 -1301 (M.D. Ala. 2011) (finding that the plaintiff did not establish
causation because the first of the alleged pattern of actions did not occur almost immediately after
the protected activity.). Therefore, Whetstone has failed to establish a prima facie case of
retaliation and summary judgment is due to be GRANTED as to this claim.

B. Race Discrimination
1. Termination

In her written report of the termination meeting, Meeks also noted that Whetstone “stated that he
felt that he had been a ‘target’ ever since he came to 1st shift.” (Doc. #17-1 at p. 162).
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If viewed in comparison to the date of his termination in November 2012, the elapsed time
between Meeks’s alleged notice of the EEOC charge and the termination is an even longer period.
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“[I]n cases involving alleged racial bias in the application of discipline for violation of
work rules, the plaintiff, in addition to being a member of a protected class, must show either (a)
that he did not violate the work rule, or (b) that he engaged in misconduct similar to that of a person
outside the protected class, and that the disciplinary measures enforced against him were more
severe than those enforced against the other persons who engaged in similar misconduct.” Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). The court must “evaluate ‘whether the
employees are involved in or accused of the same or similar conduct and are disciplined in
different ways.’” Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).
SL Alabama has provided evidence that Meeks terminated Whetstone because he was
sleeping on the job while sitting on a motorized vehicle while it was running. (Doc. #17-1 at
p.162). SL Alabama states that Whetstone has failed to point to an appropriate comparator
because he has failed to point to evidence of any employee outside of his protected class whom the
decision maker believed committed a similar offense and who was not terminated, and he has
failed to offer any other evidence of discrimination in his termination. SL Alabama contends that
Whetstone has offered no evidence that decision maker Meeks was ever told that Kim fell asleep
on the job, or that there was evidence to confirm that it happened.
Whetstone responds that he reported that Kim was sleeping on the job to his supervisors
Jeff Bailey and Chris Williams, and that Jeff Bailey was present at his termination meeting.
There is no evidence, however, to support that Meeks was made aware of reports made to other
management employees.
Whetstone argues that Meeks was aware of his complaint regarding Kim, pointing out that
in her memorandum about Whetstone’s termination, Document 17-1 at p. 162, dated November 2,
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2012, and bearing a handwritten signature of “Debbie Meeks,” the following statement is made by
Meeks:
Ricky stated that he and several other associates had taken pictures of other
associates sleeping on the job. I asked him why he had not brought the
pictures to me for action and once again Ricky replied, “I didn’t want to be
a tattle-tale.”
***
I told Ricky that he needed to turn in his badge, car hanger and get his
possessions out of his locker. Jeff Bailey walked Ricky out of the building.

In its reply brief, SL Alabama does not respond to this argument by Whetstone. The
existence of evidence that Meeks was made aware of Kim’s alleged sleeping on the job during
Whetstone’s termination meeting, however, would only preclude summary judgment to the extent
that it is a material fact.
In her affidavit, Meeks states that a report was made to her that Whetstone was sleeping on
a forklift while it was running. She conducted an investigation, including receiving a photograph
of Whetstone sleeping, and statements from employees that they witnessed Whetstone sleeping.
She states that she made the decision to terminate Whetstone, based on her investigation, on
November 2, 2012, because sleeping on the job was a violation of the SL Alabama Standards of
Conduct Policy, and because sleeping on a motorized vehicle while it was running is a serious
safety violation. (Doc. #17-7 at p. 8-9).
In the context of a termination or disparate treatment claim based upon violation of work
rules, the court must “evaluate ‘whether the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.’ ” Burke–Fowler, 447 F.3d at 1323. The
“most important factors in a comparator analysis in the disciplinary context are the nature of the
offenses committed and the nature of the punishments imposed.” Rioux v. City of Atlanta, Ga., 520
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F.3d 1269, 1281 (11th Cir. 2008). A plaintiff must show that the employees are “similarly
situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).3
In this case, the undisputed evidence is that Meeks considered it relevant both that
Whetstone was asleep, and that he was asleep on a piece of machinery which was still running.
There is no evidence that any report was made to Meeks of another employee asleep on a piece of
running machinery. Whetstone’s report to Meeks that Kim was asleep on the job did not include
the relevant factor of being asleep on a piece of running machinery.4
Whetstone also argues that Kim and Williams violated the SL Alabama Standards of
Conduct by failing to wake him when they saw him allegedly asleep on equipment in operation.
He argues that he has been accused of engaging in a safety violation but that their actions were also
a safety violation and they were not terminated. As to this argument, the court concludes that to
the extent that Kim and Williams’s actions violated a safety rule, it was not the same or similar to
Whetstone’s rules violation.
The court concludes, therefore, that Whetstone has not presented evidence of a valid
comparator to establish a prima facie case of discrimination in termination.
Whetstone also argues that there is a question of fact as to whether he committed the
charged work violation. Whetstone challenges the evidence of reports made to Meeks by
employees Rodrigus Marbury (“Marbury”) and Stephforn Leonard (“Leonard”), upon which
There is some question in the district courts as to whether a “nearly identical” standard which is
applied in some cases is the appropriate standard. See, e.g., Calhoun v. McHugh, No.
1:11cv4134-VEH, 2014 WL 838763, at *11 (N.D. Ala. March 4, 2013). The lack of a comparator
who was reported to have been asleep on a piece of running machinery means that the lower “all
relevant respects” standard is not satisfied in this case, so this court need not address this issue.
3

Whetstone testified in his deposition that he did not take a photograph of Kim asleep, and that
when he saw Kim asleep, Kim was at a desk in a cubical. (Doc. #17-1 at p.17, Dep. p. 62:20-64:3).
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Meeks relied in making her decision to terminate him. Initially, Whetstone noted that the
statements attached to Meeks’s affidavit are dated after the investigation and so could not have
been relied upon by Meeks. SL Alabama, however, has substituted, with leave of court, the
statements which were disclosed to Meeks during her investigation.
In reply to the substituted statements, Whetstone points out that Marbury’s handwritten
statement is “11-2-10 I saw Ricky sleep on the forklift at 10:00 until 10:15 today Friday.” (Doc.
#24 at p.8) (emphasis added). 5 Leonard, however, gives the date of November 2, 2012 (Doc. #24
at p.6), which is consistent with the other record evidence.6 Whetstone also argues that Marbury’s
statement indicates that he observed Whetstone sleeping for 15 minutes, but that Meeks’s
investigation statement says that Whetstone was asleep for 5-6 minutes. Whetstone argues,
therefore, that questions of fact have been raised as to whether Whetstone was asleep and the date
of the alleged sleeping incident, which preclude summary judgment.
While Marbury’s handwritten statement is arguably somewhat inconsistent with other
record evidence, those inconsistencies are not sufficient to create a genuine issue of material fact in
this case. First, Marbury’s statement does not contradict that Whetstone was observed sleeping
on a piece of running machinery. Second, even if the evidence were sufficiently contradictory so
as to create a question of fact as to whether Whetstone committed the work rule violation for the
purpose of establishing a prima facie case, the evidence is uncontroverted that Meeks received a
report from two people, a photograph, and statements from employees that Whetstone was
Marbury’s writing is unclear and could be read as stating “10:00 to 10:15” or “10:10 to 10:15,”
but construing it in a light most favorable to the non-movant, the court will accept that it says
“10:00 to 10:15.”
5

Marbury also said that he saw Whetstone asleep on a Friday. The court takes judicial notice that
November 2, 2010 was a Tuesday, while November 2, 2012 was a Friday. (Doc. #24 at p.8).
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6

sleeping on the job, and supports the articulated reasons for Whetstone’s termination. Therefore,
the one statement which arguably contains a different date and length of time of Whetstone’s
infraction is not sufficient to create a question of fact as to whether Meeks honestly believed that
Whetstone was asleep on the job on a piece of running equipment. Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999) (stating that “[a]n employer
who fires an employee under the mistaken but honest impression that the employee violated a
work rule is not liable for discriminatory conduct.”); EEOC v. Total Sys. Servs., Inc., 221 F.3d
1171, 1176 (11th Cir. 2000) (stating that when an employer's investigation “produces
contradictory accounts of significant historical events, the employer can lawfully make a choice
between the conflicting versions . . . as long as the choice is an honest choice.”).
The court concludes, therefore, that Whetstone has failed to create a genuine issue of
material fact as to his race discrimination in termination claims, and summary judgment is due to
be GRANTED as to those claims.
2. Transfer
SL Alabama argues that Whetstone cannot establish a prima facie case of discrimination in
the timing of his transfer because his allegation that he was not transferred from second shift to
first shift before other employees is not a sufficient adverse action. SL Alabama also states that
Whetstone has failed to point to a similarly-situated white employee who was treated more
favorably.
Whetstone has not responded to the arguments regarding a transfer claim, nor presented
any evidence to create a question of fact as to such a claim. The court, therefore, considers any
such claim, to the extent that one was brought, to have been abandoned. Resolution Trust Corp. v.
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Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (holding a non-movant's silence on an issue after
a movant raises the issue in a summary judgment motion is construed as an abandonment of the
claim).
V. CONCLUSION
For the reasons discussed, it is hereby ORDERED that the Motion for Summary
Judgment (Doc. #15) is GRANTED. A separate Final Judgment will be entered in accordance
with this Memorandum Opinion and Order.
Done this 8th day of August, 2014.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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