Williams v. NEA Food Services, LLC et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/10/2015. (JLC)

FILED
2015 Feb-10 AM 10:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
VALECIA R. WILLIAMS,
Plaintiff,
v.
NEA FOOD SERVICES, LLC,
JOEL MARLER, CEO
Defendants.

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) Case No.: 12-cv-4120-VEH
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MEMORANDUM OPINION
This employment discrimination action was filed on December 19, 2012, by the
plaintiff, Valecia R. Williams, against the defendants, NEA Food Services, LLC
(“NEA”) and Joel Marler. Although the complaint contains three counts, the exact
statutory basis for any of the counts is unclear. For one thing, in the “Jurisdiction”
section of the complaint, the following language appears:
This is a suit for relief from race discrimination instituted pursuant to
Title VII of the Civil Rights Acts of 1964, as amended, 42 U.S.C.
Section 2000e et. seq. and 42 U.S.C. Section 1983. The jurisdiction of
this Court is based on 42 U.S.C. Section 1981.
(Doc. 1 at 1) (emphasis added). Thereafter, the plaintiff sets out three counts, none of

which discuss either Title VII or Section 1983.1
Count One of the complaint alleges that the plaintiff was subjected to “adverse
job actions because of her race,” and that the defendants’ stated reasons for their
conduct were a “pretext for race discrimination.” (Doc. 1 at 4). No statutory or other
basis for relief under this count appears until its request for relief which, among other
things, seeks a declaration that the defendants’ alleged conduct was “in violation of
the Civil Rights Act of 1866 (as amended by the Civil Rights Act of 1991) hereinafter
cited as 42 U.S.C. § 1981; and all other applicable federal laws.” (Doc. 1 at 6). The
only other statutory relief requested in the count is for “attorney’s fees and costs . . .
in accordance with 42 U.S.C. Section 1988; and all other applicable federal laws.”
(Doc. 1 at 6).
Count Two alleges “[t]he [d]efendants retaliated against [p]laintiff for engaging
in protected activity.” (Doc. 1 at 7, ¶ 16). That count alleges that the plaintiff “engaged
in activity protected by 42 U.S.C. Section 1981.” (Doc. 1 at 6). Then, like Count One,
the count seeks a declaratory judgment under Section 1981, and “all other applicable
federal laws” (doc. 1 at 8), and “attorney’s fees and costs . . . in accordance with 42
U.S.C. Section 1988; and all other applicable federal laws.” (Doc. 1 at 8).

1

As will be discussed, this is only the first of many problems with the plaintiff’s
submissions in this case.
2

Count

Three alleges that
[d]efendant failed to adequately train [d]efendants Calvert and Marler /
or failed to take corrective actions to prevent [d]efendants Calvert and
Marler from engaging in racial discriminatory practices in the workplace
against the [p]laintiff and/or failed to prevent [d]efendants Calvert
Marler [sic] from engaging in retaliatory actions against the [p]laintiff.
(Doc. 1 at 9, ¶ 24). Although this count seems to be solely a solely state-law
negligence based claim, the count seeks the same declaratory relief and attorneys fees
under Section 1981, 1988, “and all other applicable federal laws” (doc. 1 at 10) as is
sought in the first two counts.
Counts One and Two are brought against both defendants.2 Count Three
appears to be brought only against NEA.
The case comes before the court on the motion for summary judgment filed by
the defendants. (Doc. 26). For the reasons stated herein, the motion will be
GRANTED, and this case will be DISMISSED with prejudice.
I.

STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there

is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,

2

As will be shown below, the plaintiff seems to think that she has sued three defendants.
In reality, she has sued only two.
3

477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears the
initial responsibility of informing the court of the basis for its motion and identifying
those portions of the pleadings or filings that it believes demonstrate the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings
in answering the movant. Id. at 324. By its own affidavits – or by the depositions,
answers to interrogatories, and admissions on file – it must designate specific facts
showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
4

party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment may
still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of
proof on the given issue or issues at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing the absence of a genuine issue
of material fact – that is, facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once the moving party makes such an
affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering
5

evidence sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no
longer rest on mere allegations; instead, it must set forth evidence of specific facts.
Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
II.

FACTS
A.

Facts Proffered by the Defendants and Deemed Admitted

Regarding any response brief filed in response to a motion for summary
judgment, the court’s summary judgment scheduling order, issued in this case on
December 19, 2012, provides that:
Each party opposing a summary judgment motion also must
submit a statement of facts divided as follows.
...
The first section must consist of only the non-moving party’s
disputes, if any, with the moving party’s claimed undisputed facts. The
non-moving party’s response to the moving party’s claimed undisputed
facts shall be in separately numbered paragraphs that coincide with
those of the moving party’s claimed undisputed facts. Any statements of
6

fact that are disputed by the non-moving party must be followed by a
specific reference to those portions of the evidentiary record upon which
the dispute is based. All material facts set forth in the statement required
of the moving party will be deemed to be admitted for summary judgment
purposes unless controverted by the response of the party opposing
summary judgment.
(Doc. 3 at 17) (italics in original).
The following facts were proffered by the defendants, and are deemed to be
admitted since they were not addressed, and therefore not disputed by the plaintiff:
A.

NEA

1.
NEA provides food service to the National Guard, as a
subcontractor to the State of Alabama.
2.

Defendant Joel Marler is blind.

3.
Kerri Calvert (“Calvert”), NEA Human Resources Manager, has
more than 30 years of food service experience.
4.

Calvert has been a leader or manager for more than twenty years.

5.
Calvert keeps Marler apprised of all discipline and management
issues.
6.

Marler has the power to terminate employees.

7.

NEA has a policy of nondiscrimination and nonretaliation.

8.
From 2010 to 2012, NEA had six (6) African-American and one
(1) white food service manager[].
B.

Plaintiff's Personal and Employment History

9.

Plaintiff is African-American.
7

10. Plaintiff worked as a hostess, cleaner, and cook at fast food
restaurants early in her career.
11. Plaintiff worked at Tysons processing chicken from 1987 to 1994
on and off.
12. Prior to [being hired] at NEA, [p]laintiff had been on federal
disability for about 10 years.
13. Plaintiff did not work during the ten-year period of her federal
disability.
14.

NEA was the only place [p]laintiff applied after disability.

15. Plaintiff had a criminal complaint [filed] against her in 1987 for
fighting, including hitting and raising her voice.
16. In 2011, while she was employed at NEA, [p]laintiff was arrested
for domestic violence.
17. Plaintiff pled guilty and attended an anger management course in
a deal with the prosecutor.
18. The anger management course is a psycho-educational program
to help both men and women stop their abusive behavior and emphasizes
the importance of learning more constructive strategies for resolving
conflict and managing anger.
C.

Plaintiff's Hire and Promotion at NEA

19.

Plaintiff was hired by NEA and Marler as a cook in January 2005.

20.

Marler hired [p]laintiff the day after her interview with him.

21.

Plaintiff was trained by Melladine Elston (“Elston”).

22. Within two weeks of her request to be considered, [p]laintiff went
into training to be a food service manager.
8

23.

Elston trained [p]laintiff to be a manager in 2007.

24. A senior food service manager has more experience than a food
service manager and her job is to help correct and direct food service
managers.
25.

Assistant Project Manager Elston supervised [p]laintiff.

26.

Elston is African-American.

27. The food service manager position description requires “the ability
to handle personnel efficiently in a respectful business manner.” [(Doc.
25-4 at 16)].
28. A food service manager also must have “the ability to discretely
handle problematic situations and to find solutions that are in compliance
with all rules and regulations.” Id.
29.

NEA had manager meetings three or four times out of the year.

30. At one meeting, Marler said “that no one was going to disrespect
one another. Everybody should be treated equal. He was not going to
have it.” [(Doc. 25-6 at 33(128)) (Williams deposition)]3.
31. NEA policy requires [that every employee] respect every other
employee.
32. Disrespect is anywhere from being rude to creating a scene before
the other employees or the customer soldiers.
33.

Plaintiff received the employment handbook during her

3

The movant cites to a travel transcript. The court has altered this fact to indicate the
portion of the record cited by the movant. The citation the court uses refers first to the court
document number (“doc. 25-6”), then to the page of that document on which the travel transcript
page appears (“at 33"), then to the specific page of the deposition cited on that travel transcript
page (“(128)”).
9

employment.
34. Plaintiff knew that if she violated a policy, she could be
terminated.
35. Plaintiff received the NEA harassment policy on or about March
19, 2010.
36.

Plaintiff was aware of NEA’s policy against harassment.

37. Plaintiff attended a meeting about NEA’s anti[-]harassment policy,
called by Human Resources Manager Kerri Calvert.
38.

At the meeting, they talked about the policy and watched a film.

39.

Plaintiff was aware that harassment was prohibited at NEA.

40. Plaintiff understood that harassing behavior would . . . possibly
[result] in termination.
41. Plaintiff understood that if people used language that was not
respectful, it could result in termination.
D.

Plaintiff's Warnings and Discipline

42. Plaintiff was warned on many occasions not to use a disrespectful
tone.4
4

While the court has omitted most citations, the court adds this note in order to set out
the instances cited in this fact. See doc. 25-5 at 4 (“HR Notation” dated 2/26/08 for refusing to
sign write up slip after being written up for “attitude”) doc. 25-5 at 5 (“Employee Probationary
Period” dated 2/25/08 for “Attitude Towards Fellow Associates,” “disrespectful in tone” towards
a Senior Manager); doc. 25-5 at 10 (“disciplinary” record of verbal warning dated 1/20/12 to
“watch tone taken with employees and subordinates; condescending and insubordinate; another
infraction will result in termination.”); doc. 25-5 at 11 (Calvert note of verbal warning given on
1/20/12, “to change tone--stop the attitude please . . . cease and desist warning); doc. 25-5 at 12
(Calvert note of verbal warning dated 9/24/07, to “stop making crude comments towards Branda
O’hammer . . . have a positive attitude and to be respectful towards her co-workers.”); doc. 25-5
at 13 (Calvert note of verbal warning dated 11/16/07, re: “the way she talks to Ms. Brenda . . .
10

43.

Plaintiff's pay did not change when she received warnings.

44.

Plaintiff was not demoted after receiving warnings.

45.

Plaintiff received raises like everyone else.

E.

Plaintiff Never Complained About Race Discrimination

46.

Plaintiff never complained about race discrimination.

47. Plaintiff complained that she did not receive a Christmas gift
because she was on leave at the time (December 2011).
48. Although [p]laintiff calls it a “bonus,” it was not based on
productivity or performance.
Loose [sic] the attitude. Treat her the way you want to be treated. Be respectful. Change tone.”);
doc. 25-5 at 14 (Calvert note of verbal warning dated 6/20/11, re: “yelling at employees . . .
change tone . . . calm down . . . if happens again will be subject to termination”); doc. 25-5 at 15
(Calvert note of verbal warning dated 3/3/10 re: “confrontational . . . attitude . . . disrespectful . .
. calm down . . . stop raising voice . . . change attitude”); doc. 25-5 at 16 (Calvert note of verbal
warning dated 08/01/08 re: “attitude when trying to constructively correct adjustments to recipe
cards”); doc. 25-5 at 17 (Calvert note of verbal warning dated 06/04/08 re: “constant attitude
during correction”); doc. 25-5 at 18 (Calvert note of verbal warning dated 01/12/11 re: “yelling
at employees . . . and ‘snapping on’ soldiers,” “asked to immediately guard her words . . . and
instructed could lose position as a [manager] if happens again”); doc. 25-5 at 19 (Calvert note of
verbal warning dated 03/06/10 re: “outburst . . . jumping up in [co-employee’s] face yelling . . .
anything like this again will be cause to be subject to termination”); doc. 25-5 at 20 (Calvert note
of verbal warning dated 08/19/11, re: “called with attitude on phone alleging her hours weren’t
correct on her check . . . asked to loose [sic] attitude and I would pull her hours”); doc. 25-5 at
21 (Calvert note of verbal warning (date unclear) re: “attitudes . . . soldier complaint, yelling at
employees”); doc. 25-5 at 4, ¶14 (Affidavit of Melladine Elston) (“[O]n or about January 20,
2012, I gave Renee Williams a verbal warning to watch her condescending tone with employees
and subordinates and told her that another infraction will result in termination.”); doc. 25-7 at
20(73-74) (Williams deposition) (acknowledging two occasions where she was asked to calm
down); doc. 25-2 at 9 (29-30) (Marler deposition) (“She was called into the office multiple times
to get her to tone her voice down, to quit yelling at people, and that she had to stop it.”); doc. 252 at 20 (74) (Marler deposition) (“I cautioned her about [raising her voice and talking down to
people] more than once verbally.”); doc. 25-2 at 25(93) (Marler deposition) (“There’s been
occasions where I stepped out the door and asked [the plaintiff] to tone it down.”).
11

49.

No managers ever received a Christmas gift while on leave.

50. All other food service managers, including five African-American
managers, received Christmas gifts that year.
F.

Plaintiff's Termination

51. On Monday, April 23, 2012, after [p]laintiff's prior weekend
shifts, Elston received complaints from multiple employees about
[p]laintiff's actions and statements.
52. Elston asked the complaining employees to sit separately and
write their statements of what happened.
53. The following five (5) employees submitted statements: David
Anderson, Mary Brown, Kameshia Davis, Pam Moore, and Gerri Glass.
54.

All of these employees are African American.

55. David Anderson stated: “On Sunday morning 4-22-2012, I was
sitting at [the] table … having a conversation with Mrs. Gerri, Shan, and
Kamesha. [Plaintiff] came in and told me to shut the fuck up! This is not
the first time she has said this to me.” [(Doc. 25-4 at 5)].5
56. Gerri Glass stated: “David, Kameshia and I were in the din[]ing
room and [Plaintiff] walked in as David was asking me a question, out
of nowhere she told him to shut the F! up. I asked [plaintiff] not to talk
to him [to him] that way, David didn’t respond.” [(Doc. 25-4 at 8)].
57. Kameshia Davis stated: “We (David and I) was sitting at the table
and David was talking to Gerri about something and [plaintiff] was
getting coffee and said David F-U or F-U David it was said one of those
ways and he said nothing after that was said.” [(Doc. 25-4 at 6)].

5

There has been no challenge to the admissibility of these written statements.
12

58. Mary Brown stated: “We came up here to 1211 to help with sacks
[sic] lunch. When [plaintiff] came in the door, she said all of you, mother
f…kers going to help with the sacks lunches.” [(Doc. 25-4 at 6)]
(emphasis in original).
59. Pam Moore stated: “I was cut[ting] up tomato & lettuce & onion
for the Taco salad & heard [plaintiff] say that she has to make sack
lunc[h] all you M.F. are gone [sic] to make too.” [(Doc. 25-4 at 7)].
60. After the statements were collected, Calvert read the statements to
Marler for his consideration. The statements were communicated to
Marler in this manner because Marler is blind.
61.

When Marler spoke to [p]laintiff, she stated that everyone cursed.

62. No other manager had cursed at other employees to the knowledge
of NEA.
63.

Plaintiff was separated from NEA on April 26, 2012.

64. In her deposition, [p]laintiff stated that she sometimes had to ask
employees to help with sack lunches.
65. Plaintiff testified that the reason Marler gave her for her
termination was that Marler did not tolerate attitudes and she cursed in
the kitchen.
G. No Evidence of Race Discrimination
66.
all.

No one at NEA made racial comments, slurs, or referred to race at

67. Plaintiff [testified at her deposition that she] “didn’t have a
problem with Mr. Joel [Marler] at all.” [(Doc. 25-7 at 29(110))].
68. Plaintiff claims she does not know why she was fired. [(Doc. 25-7
at 6(19))].
13

69. Plaintiff did not know if it was race, sex, or something else. [(Doc.
25-7 at 21(80)-22(81))].
70.

Plaintiff just thought it was unfair. Id.

71. After [p]laintiff left NEA, existing African-American managers
and managers-in-training performed her usual duties.
72. When managers wrote employees up or employees had
complaints, NEA investigated and talked to each party separately.
73. NEA management had no knowledge of an NEA manager, other
than [p]laintiff, cursing at other employees.
74. NEA management had not received any complaints that managers
other than [p]laintiff cursed at other employees.
75. David never made a complaint that anyone other than [p]laintiff
had been disrespectful to him.
76. Prior to [p]laintiff's termination, NEA terminated a white
inventory manager after receiving written complaints about her
inappropriate remarks and tone.
77. Prior to [p]laintiff's termination, Marler gave a white
manager-in-training a verbal warning for her inappropriate tone.
78. The only white food service manager at the time of [p]laintiff's
termination worked on a different shift than [p]laintiff.
(Doc. 26 at 7-15).

B.

The Plaintiff’s Narrative Statement of Facts Is STRICKEN

Regarding the statement of facts contained in the non-movant’s brief, the
court’s summary judgment scheduling order provides:
14

The second section may contain additional, allegedly undisputed
facts set out in separately numbered paragraphs that the opposing party
contends require the denial of summary judgment. The second section of
the opposing party’s statement of facts, if any, shall be clearly designated
as such. The opposing party should include only facts which the
opposing party contends are true and not in genuine dispute.
...
The third section may contain additional, allegedly disputed facts
set out in separately numbered paragraphs that the opposing party
contends require the denial of summary judgment. The third section of
the opposing party’s statement of facts, if any, shall be clearly designated
as such. Each statement of allegedly disputed facts must be followed by
specific reference to those portions of the evidentiary record which both
support and contradict the alleged fact.
(Doc. 3 at 17-18). In a footnote the court also noted:
Each statement of fact should be supported by its own evidentiary
citation, regardless of the fact that more than one statement of fact
allegedly is supported by the same specific reference to the evidentiary
record or more than one statement of fact is contained in the same
numbered paragraph.
(Doc. 3 at 18, n. 4).
Instead of complying with these requirements, the plaintiff has submitted a
narrative statement of facts, not in separately numbered paragraphs. (Doc. 29 at 1-5).
Many facts appear in sentences not followed by a citation to the record. Further,
several of these sentences are not facts at all, but on their face are merely “averments.”
(See doc. 29 at 2 (“[p]laintiff avers that she was singled out . . . ”); doc. 29 at 2
(“[p]laintiff avers that after she complained . . .”); doc. 29 at 3 (“[p]laintiff avers that
15

she received unfair treatment . . .”); doc. 29 at 3 (“[p]laintiff avers that a white
manager . . .”); doc. 29 at 4 (“[p]laintiff avers that she was not given seniority . . .”);
doc. 29 at 4 (“[p]laintiff avers that when Kelli Shultz . . .”); doc. 29 at 4 (“[p]laintiff
avers that the NEA policy . . .”); doc. 29 at 4 (“[p]laintiff avers that her work
environment . . .”); doc. 29 at 4-5 (“[p]laintiff avers that after she wrote Pam Moore
. . .”)).
Regarding the requirements for motions and responses to summary judgment,
the court’s uniform initial order is clear that “[e]xcept for good cause shown, briefs
and evidentiary materials that do not conform to the following requirements may
be stricken.” (Doc. 3 at 14) (emphasis in original). That order also provided that
“[t]he court reserves the right sua sponte to STRIKE any statements of fact or
responsive statements that fail to comply with these requirements.” (Doc. 3 at 19)
(emphasis in original). Because the plaintiff failed to comply with this court’s
requirements, her statement of facts is STRICKEN. No portion of the narrative
statement of facts provided by the plaintiff will be considered by the court, or included
in this court’s opinion.
III.

ANALYSIS
A.

The Only Defendants in This Case Are NEA and Marler

Count Three of the Complaint refers to “[d]efendants [Kerri Webb] Calvert and
16

Marler.” (Doc. 1 at 9). As noted in the introduction to this opinion, the only
defendants in this case are NEA and Marler. Calvert is not listed in the court’s
CMECF system as a defendant in this case. Calvert is named in the complaint, under
the section entitled “Parties,” in the same paragraph with the other defendants. But she
is not expressly identified as a defendant there. Further, the complaint fails to list
Calvert’s name in its title. See, FED. R. CIV. P. 10(a) (“The title of the complaint must
name all the parties.”). Accordingly, the clerk of court has docketed only NEA and
Marler as defendants. Too, the record does not reflect service of process on Calvert.
No Answer has been filed by Calvert. Neither Calvert, nor counsel on her behalf,
participated in the Rule 26 meeting of the parties. (Doc. 12 at 1).
Whether Calvert is in fact a defendant is an issue that was not raised by the
parties. However, in the interest of closure and finality, the court feels the need to
address it now. Because Calvert was not named in the title of the complaint, because
the parties have acted as if Calvert was not a party to this case, and because no service
of process was perfected on Calvert over the two years since this case was filed, the
court deems Calvert to have never been a party to this action.
Regardless, if Calvert somehow is later determined to be, or to have been, a
party, the failure to serve Calvert after all this time is grounds for her dismissal. The
plaintiff was advised of this possibility on December 19, 2012, in the court’s Uniform
17

Initial Order. (See doc. 3 at 5). Accordingly, in the event that Calvert somehow is
deemed to be, or to have ever been, a party to this case, the court wishes to make clear
that she is now DISMISSED without prejudice for lack of service.
B.

The Complaint Contains No Claims under 42 U.S.C. § 1983 or Title
VII for Race or Gender Discrimination

As noted above, except for one sentence under the “Jurisdiction” section of the
complaint, there is no mention of Title VII or Section 1983 in the complaint. Although
the plaintiff argues both causes of action in her response to the motion for summary
judgment, “[i]n this circuit, a plaintiff cannot amend his complaint through argument
made in his brief in opposition to the defendant's motion for summary judgment.”
Miccosukee Tribe of Indians of Florida v. United States, 716 F.3d 535, 559 (11th Cir.
2013). Regardless, even assuming that the vague reference to these statutes somehow
was sufficient to set out a claim for relief thereunder, the claims fail for the reasons
set out below.
Further, the complaint is clear that “[t]his is a suit for relief from race
discrimination” (doc. 1 at 1) (emphasis added), and all counts of the complaint refer
only to race discrimination or retaliation based upon complaints of race
discrimination. Further, the complaint mentions only a “race discrimination charge”

18

which was filed with the EEOC. (Doc. 1 at 1).6 Strangely, the plaintiff still devotes six
pages of her brief to demonstrating that “the plaintiff has made a claim for gender
discrimination under Title VII.” (Doc. 29 at 5-10) (emphasis added) (capitalization
omitted). Again, since the plaintiff cannot amend her complaint through argument in
her brief, these arguments are without merit.7
C.

The Plaintiff’s Race Discrimination Claim Fails

Regardless as to whether Count One is read to allege race discrimination in
violation of Title VII or 42 U.S.C. § 1981, the analysis is the same. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). As stated by the Eleventh
Circuit:
Where, as in this case, a plaintiff relies on circumstantial evidence to
prove discrimination, we apply the familiar burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817 (1973). Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1264 (11th Cir.2010). Under that framework, the plaintiff must first
establish a prima case of discrimination. Id. If the plaintiff meets her
burden, the employer can rebut the resulting presumption of
discrimination by articulating a legitimate non-discriminatory reason for
its challenged employment action. Id. Plaintiff then has an opportunity
6

The charge itself appears in the record at document 25-11 page 5. In the charge, the
boxes for “race” and “sex” discrimination are checked. (Doc. 25-11 at 5). Further, in her charge
the plaintiff states that she believes that “she was discriminated against because of [her] race,
Black and sex, female in violation of Title VII.” (Doc. 25-11 at 5). However, the sex
discrimination claims are not included in the complaint.
7

Even if there were a gender discrimination claim in the complaint, the plaintiff’s
argument, which is mostly six pages of legal citations strung together, seemingly randomly, is
unpersuasive, to say the least.
19

to produce evidence that the proffered reason is a pretext for
discrimination. Id.
. . . The available methods of establishing a prima facie case “are
flexible and depend on the particular situation.” Id. As relevant to this
case, [p]laintiff can meet her burden with evidence that (1) she is a
member of a protected class, (2) she was qualified for the position that
she held, (3) she was terminated from that position, and (4) in
terminating her employment, [d]efendants treated [p]laintiff less
favorably than a similarly situated employee outside of her protected
class. Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1325 (11th
Cir.2011).
Carter v. Columbia Cnty., No. 14-11963, 2014 WL 7388797, at *2-3 (11th Cir. Dec.
30, 2014).8
The defendants argue that the plaintiff cannot establish a prima facie case of
discrimination. The plaintiff makes no argument in her brief that she was subject to
race discrimination.9 Accordingly, she has not satisfied her prima facie case and her
8

The defendants argue the same elements cited in Carter, except the fourth. The
defendants contend that the fourth element should be that “she was replaced by a person outside
the protected class.” (Doc. 26 at 17 (citing Coutu v. Martin County Bd. of County Comm’rs, 47
F.3d 1068, 1073 (11th Cir. 1995)). As will be shown, because the plaintiff makes no attempt to
satisfy any elements of any version of the prima facie case of discrimination, the difference
between the court’s and the defendant’s elements does not matter.
9

In the section of her brief discussing “retaliation,” the plaintiff briefly mentions
“harassment.” (doc. 29 at 13), and “an abusive working environment” (doc. 29 at 14). These
arguments are more appropriate to a hostile work environment claim–something not present in
the complaint in this case. Even if such a claim were present in this case, the plaintiff’s
underdeveloped argument would not suffice. Further, because the EEOC charge filed in this case
did not contain a hostile work environment claim (see doc. 25-11 at 5), the plaintiff has failed to
satisfy her Title VII administrative prerequisites regarding any such claim. Green v. Elixir
Indus., Inc., 152 F. App'x 838, 840 (11th Cir. 2005).

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race discrimination claim fails.
Even assuming that the plaintiff established a prima facie case of
discrimination, the defendants have presented a legitimate non-discriminatory reason
for her discharge. Company policy did not allow for disrespectful treatment. The
evidence is overwhelming that the plaintiff had been warned many times to watch her
tone and treat fellow employees with respect and refused to do so. (Doc. 26 at 19).
Finally, after all of the warnings in the record, several employees lodged formal
complaints against the plaintiff for this same conduct. Upon investigation, the plaintiff
did not deny that the conduct occurred. The plaintiff has made no showing of pretext
regarding this evidence.
D.

The Plaintiff’s Retaliation Claim Fails

As noted by the Eleventh Circuit:
A retaliation claim based on circumstantial evidence is analyzed
according to the McDonnell Douglas framework. See Goldsmith v. City
of Atmore, 996 F.2d 1155, 1162–63 (11th Cir.1993). Accordingly, if the
plaintiff makes out a prima facie case, and the employer proffers a
legitimate, nondiscriminatory reason for taking the materially adverse
action, the plaintiff must show that proffered reason is pretextual. See
Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir.2009). A plaintiff may
establish a prima facie case of retaliation by presenting evidence
showing that (1) he engaged in statutorily protected conduct, (2) the
employer took action that would have been materially adverse to a
reasonable employee, and (3) there is a causal connection between the
protected conduct and the adverse employment action. Pennington v.
City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.2001); Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 2409, 165
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L.Ed.2d 345 (2006).
Walker v. Sec'y, U.S. Dep't of Air Force, 518 F. App'x 626, 627-28 (11th Cir. 2013).10
The defendants argue that the plaintiff cannot demonstrate that she engaged in
statutorily protected conduct. (Doc. 26 at 24-25; doc. 30 at 6). In the plaintiff’s brief,
she acknowledges her duty to “show that she was engaged in protected opposition to
. . . discrimination” (doc. 29 at 11), but provides no evidence that she did so. She
states only that her “authority was continually undermined by [d]efendant Kerri
Calvert’s actions to question and refusal to support [p]laintiff’s authority while
supporting white supervisor Kelli Schultz.” (Doc. 29 at 12). This lone statement
identifies no protected activity. The plaintiff’s retaliation claim fails.11
E.

Count Three

Count Three alleges that
[d]efendant failed to adequately train [d]efendants Calvert and Marler /

10

As with the discrimination claim, the same analysis applies to retaliation claims under
both Title VII and Section 1981. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th
Cir. 2008).
11

Further, this claim fails because the plaintiff has not explained what “adverse conduct”
was taken against her. Even assuming that, somewhere in her stricken facts, there is support for
this, or any other aspect of the plaintiff’s case, “[t]here is no burden upon the district court to
distill every potential argument that could be made based upon the materials before it on
summary judgment. . . . Rather, the onus is upon the parties to formulate arguments[.]”
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). To the extent that
the adverse conduct complained of is the plaintiff’s termination, as noted in this court’s
discussion of the discrimination claim, the defendants have presented a legitimate nondiscriminatory reason for that action, which the plaintiff has not rebutted.
22

or failed to take corrective actions to prevent [d]efendants Calvert and
Marler from engaging in racial discriminatory practices in the workplace
against the [p]laintiff and / or failed to prevent [d]efendants Calvert
Marler [sic] from engaging in retaliatory actions against the [p]laintiff.
(Doc. 1 at 9, ¶ 24). As noted above, this claim cites Section 1981 as its basis for relief,
but it sounds like (and the defendants treat it like) an Alabama state law negligent
training and supervision claim. Regardless, the defendants argue that there is no
evidence to support this claim.
Having done so, the non-movant may no longer rest on mere allegations;
instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358
(1996). However, the plaintiff does not respond to the argument. “[G]rounds alleged
in the complaint but not relied upon in summary judgment are deemed abandoned.”
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (internal
citations omitted). Count Three fails.
F.

Any Section 1983 Claims Must Fail

To the extent that the complaint could be read to include any discrimination
and/or retaliation claims under 42 U.S.C. § 1983, they fail for the same reasons as the
Title VII and Section 1981 claims since they are analyzed under the exact same
framework. See, Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009)
(“[D]iscrimination claims, including hostile work environment claims, brought under
the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of the Civil Rights Act of
23

1964, 42 U.S.C. § 2000e–2, are subject to the same standards of proof and employ the
same analytical framework.”); Pennington v. City of Huntsville, 261 F.3d 1262, 1265
(11th Cir. 2001) (“[C]laims under § 1983 and Title VII generally have the same
elements of proof and use the same analytical framework.”).
Further, in order to prevail on a Section 1983 claim, the plaintiff
must establish that [she was] deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation
was committed under color of state law. Like the state-action
requirement of the Fourteenth Amendment, the under-color-of-state-law
element of § 1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful[.]
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L.
Ed. 2d 130 (1999). In her response to the motion for summary judgment, the plaintiff
provides no evidence that the defendants were state actors. She merely alleges that
“[d]efendant Marler and NEA Foods is [sic] a private company with a government
service contract.” (Doc. 29 at 18). She somehow equates this with being a
“government employee”–a completely unsupported assertion.
IV.

CONCLUSION
Based on the foregoing, the motion for summary judgment is due to be

GRANTED, and this case DISMISSED with prejudice. A final order will be
entered.

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DONE and ORDERED this 10th day of February, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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