Daugherty v. Warehouse Home Furnishings Distributors Inc
MEMORANDUM OPINION AND ORDER GRANTING 17 MOTION for Summary Judgment only to the extent that Mr. Daugherty's complaint asserts separate claims against Farmers for directly discharging him in retaliation for engaging in protected activity under Title VII and § 1981. Otherwise, Farmers' Motion is DENIED. By separate Order, the Court will set this case for a Final Pretrial Conference. Signed by Judge Virginia Emerson Hopkins on 6/28/2013. (JLC)
2013 Jun-28 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
INC., d/b/a FARMERS HOME
) Case No.: 1:12-CV-883-VEH
MEMORANDUM OPINION AND ORDER
Plaintiff Neil Daugherty (“Mr. Daugherty”) initiated this job retaliation case
arising under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 against
Defendant Warehouse Home Furnishings Distributors, Inc., d/b/a Farmers Home
Furniture (“Farmers”) on March 21, 2012. (Doc. 1). The lawsuit stems from acts of
retaliation that Mr. Daugherty alleges occurred after complaining about “what he
reasonably believed to be racial discrimination perpetuated against African-American
employees” by other white employees of Farmers. (Doc. 1 at 9 ¶ 74).
Pending before the court is Farmers’ Motion for Summary Judgment (Doc. 17)
(the “Motion”) filed on April 1, 2013. The parties have briefed and filed evidence
relating to the Motion (Docs. 18-19, 21-22, 24-25), and it is now under submission.
For the reasons explained below, the Motion is GRANTED IN PART and otherwise
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“Retaliation against an employee who engages in statutorily protected activity
is barred under both Title VII and § 1981.” Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249, 1257-58 (11th Cir. 2012). Further, in Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the
Supreme Court abrogated prior circuit law, including that of the Eleventh Circuit,
limiting anti-retaliation claims under Title VII to claims involving actions that are
related to employment or that occur at the workplace. Id. at 2409. Rather, postBurlington Northern, the recognized elements of a claim of retaliation under Title VII
or § 1981 are that the plaintiff: (1) “engaged in statutorily protected activity”; (2)
“suffered a materially adverse action”; and (3) “there was a causal connection
between the protected activity and the adverse action.”
As the Eleventh Circuit has explained the standard for establishing the second
prima facie element to a Title VII retaliation claim:
[T]he Supreme Court has defined an adverse employment action in the
context of a retaliation claim as an action by an employer that is
[“]harmful to the point that it could well dissuade a reasonable worker
from making or supporting a charge of discrimination.”
Wallace v. Georgia Dept. of Transp., 212 Fed. App’x 799, 802 (11th Cir. 2006)
(quoting Burlington Northern, 548 U.S. at 57, 126 S. Ct. at 2409). The Eleventh
Circuit has clearly recognized this abrogation, and has consistently applied the now
seven year old Burlington Northern standard in retaliation cases. See Gate Gourmet,
683 F.3d at 1258 (citing collection of cases).
Mr. Daugherty’s Uncontested Claim(s)
Mr. Daugherty’s complaint contains two counts–one arising under Title VII
and the other arising under § 1981. Within each separate count, Mr. Daugherty
alternatively claims that he was either explicitly or constructively discharged by
Farmers in retaliation for opposing race discrimination in the workplace.
By virtue of the evidence developed during discovery, the parties are in
agreement that Mr. Daugherty’s case is appropriately limited to a claim for retaliatory
constructive discharge only. (See Doc. 21 at 2 n.1 (“As set forth below, the evidence
since adduced has pointed to the direction that, at the end of the day, it was Daugherty
who cut the tie of employment.”)); id. (“Consequently, Daugherty proceeds only
under a claim of constructive discharge.”). Accordingly, with Mr. Daugherty’s
consent, his claims for non-constructive retaliatory discharge under Title VII and §
1981 are HEREBY DISMISSED WITH PREJUDICE and, to that extent, Farmers’
Motion is GRANTED.
Mr. Daugherty’s Contested Claim(s)
Given the nature of this court’s ruling on summary judgment, it elects not to
recite a separate statement of facts.
As set out above, post-Burlington Northern, an “[a]dverse action is broader in
the retaliation context than in the racial discrimination context.” See Rainey v.
Holder, 412 Fed. App’x 235, 238 (11th Cir. 2011) (citing Crawford v. Carroll, 529
F.3d 961, 973–74 (11th Cir. 2008)). However, despite Burlington Northern’s nolonger-new retaliation standard, Farmers makes no effort to address its impact upon
analyzing the viability of a constructive retaliatory discharge claim.
Indeed, the primary case upon which Farmers relies in its initial brief and in
reply to support its constructive retaliatory discharge arguments is an unpublished
decision arising under the Family and Medical Leave Act. Cf. Foshee v. Ascension
Health-IS, Inc., 384 Fed. App’x 890, 891 (11th Cir. 2010) (“However, it is
unnecessary for us to decide whether Burlington Northern applies in FMLA
retaliation cases in order to dispose of this appeal because even if the broader
Burlington Northern standard applies, Foshee still cannot show that any of Ascension
Health’s actions had a materially adverse effect on her.”).
Thus, Foshee fails to carry Farmers’ burden as the movant and, on the whole,
Farmers’ position is significantly underdeveloped. As the Eleventh Circuit has
described a litigant’s duty to suitably frame an issue for judicial review:
The district court did not consider that argument because it was
not fairly presented. Only one sentence in Smith’s 116-page petition
for a writ of habeas mentioned the possibility of inter-claim cumulative
analysis and no authority was cited for it. Smith did not even allude to
the argument in his combined 123-page memoranda of law in support of
his petition. That is not adequate presentation of the issue. See United
States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (an issue was not
adequately presented unless it was raised in a way that the district court
could not misunderstand it); United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”); cf. Flanigan’s Enters. Inc. v. Fulton County, 242 F.3d 976, 987
n. 16 (11th Cir. 2001) (holding that an argument was waived because the
appellants “fail[ed] to elaborate or provide any citation of authority in
support of” the argument in their brief). Because the issue or argument
was not properly presented to the district court, we will not decide it.
See Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th Cir. 2003)
(“Arguments not raised in the district court are waived.”); Hurley v.
Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000); Nyland v. Moore, 216
F.3d 1264, 1265 (11th Cir. 2000); Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1511 n. 30 (11th Cir. 1996); Walker v. Jones,
10 F.3d 1569, 1572 (11th Cir. 1994).
Smith v. Secretary, Dept. of Corrections, 572 F.3d 1327, 1352 (11th Cir. 2009)
(emphasis added). Consistent with the foregoing reasoning in Smith, Farmers’
attempt to gloss over the effect of Burlington Northern upon retaliatory constructive
discharge claims means that it has inadequately presented the merits of its Motion to
In contrast, Mr. Daugherty has cited to Kurtts v. Chiropractic Strategies
Group, Inc., 481 Fed. App’x 462 (11th Cir. 2012) in his opposition to Farmers’
Under the panel’s analysis in Kurtts, determining whether Farmers
“constructively discharged” Mr. Daugherty is no longer a relevant inquiry with
respect to retaliation, even though it would be in the context of a Title VII
constructive discharge claim founded upon discrimination.
We begin by noting that the parties have assumed that the
definition of an adverse employment action under the anti-retaliation
provision of Title VII, 42 U.S.C. § 2000e–3(a), is the same as that for an
adverse employment action under the anti-discrimination, or substantive,
provision of the statute, § 2000e–2(a). The Supreme Court rejected this
view in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 64, 126 S. Ct. 2405, 2412–13, 165 L. Ed. 2d 345 (2006), and we
have recognized that our prior precedent was abrogated by this decision.
See Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008).
The Supreme Court clarified that “Title VII’s substantive
provision and its antiretaliation provision are not coterminous.”
Burlington, 548 U.S. at 67, 126 S. Ct. at 2414. To establish a prima
facie case of retaliation, a plaintiff is not required to show “an ultimate
employment decision or substantial employment action.” Crawford, 529
F.3d at 974. It is therefore unnecessary to decide whether a reasonable
jury could find that Kurtts was constructively discharged.
The key question is whether the employer’s conduct “might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (quoting Burlington, 548 U.S. at 68, 126 S. Ct. at
2415). Although this standard does not always reflect the common
understanding of the term “retaliation,” it is consistent with the central
purpose of the anti-retaliation provision—to prohibit “employer actions
that are likely to ‘deter victims of discrimination from complaining to
the EEOC,’ the courts, and their employers.” Burlington, 548 U.S. at
68, 126 S. Ct. at 2415 (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
346, 117 S. Ct. 843, 848, 136 L. Ed. 2d 808 (1997)).
Kurtts, 481 Fed. App’x at 467 (emphasis added).
Glaringly absent from Farmers’ briefing is any acknowledgment, much less an
attempt to discredit, the unambiguous distinction drawn in Kurtts between a Title VII
constructive discharge claim premised upon discrimination versus one connected to
retaliation. Compare Kurtts, 481 Fed. App’x at 465 (“In a sexual harassment case
based on a constructive discharge, in addition to the elements of sexual harassment,
the employee must also show ‘that the abusive working environment became so
intolerable that her resignation qualified as a fitting response.’”), with id. at 467 (“It
is therefore unnecessary to decide whether a reasonable jury could find that Kurtts
was constructively discharged [in the context of a retaliation claim].”).
Furthermore, even though it is an unpublished decision, this court, in the dearth
of any countervailing binding authority from the Eleventh Circuit, is persuaded that
the Title VII retaliation framework utilized in Kurtts is the appropriate avenue to
follow regarding Mr. Daugherty’s Title VII and § 1981 retaliation claims. The
court’s conclusion is further bolstered by Farmers’ failure to reference any Eleventh
Circuit authority, published or unpublished, post-Burlington Northern, which
embraces Farmers’ naked insistence that Title VII’s discriminatory constructive
discharge analysis continues to apply to retaliation-based constructive discharge
claims after Burlington Northern. (See, e.g., Doc. 18 at 28 (citing Foshee, 384 Fed.
App’x at 892)); (Doc. 25 at 8-9 (same)).
Concerning Mr. Daugherty’s claim of retaliatory constructive discharge
asserted under both Title VII and § 1981,2 the only prong that Farmers challenges is
Mr. Daugherty’s ability to show a materially adverse action. Because a reasonable
jury could conclude that the collective acts taken against Mr. Daugherty after he
engaged in protected activity in the form of a complaint to his supervisor, Randy
Carroll (“Mr. Carroll”), on July 21, 2011, about racial comments made by another
employee, Lavon Carr (“Mr. Carr”), might dissuade the reasonable worker from
making or supporting a charge of discrimination, Farmers’ Motion is DENIED.
Taken in a light most favorable to Mr. Daugherty, this materially adverse postprotected activity treatment includes:
After he told Carroll about Carr’s racist comments, he never heard back
from anyone about the matter and Carroll added work to Daugherty,
ordered him (for the first time) to send new inventory from his store to
the outlet center, raised the credit requirement for his customers, and
ordered him to discipline only a black employee under circumstances
where white employees were equally at fault. Faced with Carroll’s
ignoring his complaint of race discrimination after other instances of
such discrimination and the retaliation given instead, Daugherty felt he
had no choice but to resign. As to the financial ramifications of what he
would have endured, he was right. The proposed shipment of new
merchandise to the outlet center would have cost Daugherty’s store
money. Further, as set forth above, Daugherty’s store had less bad debt
than other stores in Carroll’s group, but Carroll did not raise their credit
level. Contrary to the claim of Carroll and Farmers that this increase
Neither party has suggested that the court analyze Mr. Daugherty’s Title VII
retaliation claim differently than the one he has asserted under § 1981. Further, the
court finds that no such distinction applies. See Gate Gourmet, Inc., 683 F.3d at
would have actually raised store profits and Daugherty’s income, the
evidence as set forth above is that it both decreased substantially after
(Doc. 21 at 17).
In sum, while the court acknowledges that a jury might ultimately find the
material adversity prong to be lacking, nonetheless, it is persuaded that the record
contains “evidence of such quality and weight that reasonable and fairminded men
in the exercise of impartial judgment might reach different conclusions.”
MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir. 1991) (internal
quotation marks omitted) (quoting Verbraeken v. Westinghouse Elec. Corp., 881 F.2d
1041, 1045 (11th Cir. 1998)).
Therefore, Farmers’ Motion is GRANTED only to the extent that Mr.
Daugherty’s complaint asserts separate claims against Farmers for directly
discharging him in retaliation for engaging in protected activity under Title VII and
§ 1981. Otherwise, Farmers’ Motion is DENIED. By separate order, the court will
set this case for a final pretrial conference.
DONE and ORDERED this the 28th day of June, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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