Winborn v. Supreme Beverage Company Inc

Filing 48

MEMORANDUM OPINION. Signed by Judge R David Proctor on 11/8/2012. (AVC)

FILED
2012 Nov-08 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOE WINBORN,
Plaintiff,
v.
SUPREME BEVERAGE COMPANY,
INC.,
Defendant.

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Case No.: 2:11-CV-00047-RDP

MEMORANDUM OPINION
Before the court is Defendant Supreme Beverage Company, Inc’s (“SBC”) Motion for
Summary Judgment (Doc. #19), filed on April 9, 2012 and its Motion to Deem Facts Admitted and
Motion to Strike (Doc. #47), filed on September 12, 2012. The Motion for Summary Judgment has
been fully briefed (Docs. #19-21, 42-46), and was deemed submitted, without oral argument, on
September 12, 2012. For the reasons discussed below, the Motion for Summary Judgment is due
to be granted. Additionally, Defendant’s Motion to Deem Facts Admitted and Motion to Strike
(Doc. #47) is due to be granted.1
I.

Procedural History
Plaintiff Joe Winborn (“Winborn”) commenced this action by filing a Complaint on January

5, 2011 (Doc. #1), alleging that his former employer, Defendant SBC, violated Title VII of the Civil

1

Plaintiff did not respond to this Motion. Because Plaintiff did not respond and because the court finds the
motion well-taken, the court hereby deems Defendant’s Initial Statement of Facts paragraphs 38, 49, 51, 52, 53, 57, 58,
62, 64, 65, 68, 82, 85, 88, 92, and 97 admitted for purposes of summary judgment. Also, the court hereby strikes
Plaintiff’s additional disputed facts due to noncompliance with the Scheduling Order. Finally, the court strikes portions
of Plaintiff’s argument on pages 10, 13, and 14, and strikes paragraphs 27, 28, 30, 32, 34, and 36 of Plaintiff’s Affidavit
submitted in opposition to Defendant’s Motion for Summary Judgment. Where relevant, the court discusses the specifics
of these rulings in Part III of the memorandum opinion.

1

Rights Act of 1964, as amended, by and through 42 U.S.C. § 1983 and 42 U.S.C. § 1981 by failing
to promote him and ultimately terminating his employment because of his race. Plaintiff also alleged
state law claims for negligent hiring, supervision, retention, and training and for intentional infliction
of emotional distress (or outrage).
Defendant’s motion for summary judgment asserts that: (1) Plaintiff’s Title VII and Section
1981 failure to promote claims are untimely, or in the alternative, fail because Plaintiff has not
established a prima facie case of race discrimination based on any promotion decision; (2) Plaintiff’s
Title VII and Section 1981 termination claims fails because Plaintiff has not established a prima
facie case of race discrimination in his discharge, or in the alternative, even assuming Plaintiff has
done so, he has not established that Defendant’s legitimate, nondiscriminatory reasons for
terminating him were pretextual; (3) Plaintiff’s state law claim of negligent hiring, supervision,
retention, and training fail because Plaintiff has not alleged underlying wrongful conduct constituting
a common law Alabama tort; and (4) Plaintiff’s outrage claim fails because such a claim, based upon
alleged race discrimination, does not fall within the three limited circumstances recognized by the
Alabama Supreme Court for the tort of outrage.
On April 9, 2012, Defendant filed a brief (Doc. #20) and evidence2 (Doc. #21) in support of
its motion. Plaintiff filed an opposition to the motion on August 30, 2012 (Doc. #44). Plaintiff also
filed two affidavits3 in support of his opposition. (Docs. # 42-43). Defendant filed a reply brief

2

Defendant submitted the following evidence: Deposition of Joe Winborn and attached exhibits (Exhibit 1);
Deposition of Mike Windham and attached exhibits (Exhibit 2); Deposition of James Hall and attached exhibits (Exhibit
3); Affidavit of Suzie Bullock (Exhibit 4); Affidavit of James Hall (Exhibit 5); Deposition of Buster Tate and attached
exhibits (Exhibit 6).
3

Plaintiff submitted two evidentiary submissions: Affidavit of Joe Winborn (Doc. #42) and Affidavit of Kenneth
Perry (Doc. #43).

2

(Doc. #42) and supplemental evidentiary submissions4 (Doc. #46) on September 12, 2012.
Defendant also filed a Motion to Deem Facts Admitted and Motion to Strike (Doc. #47) on
September 12, 2012.
II.

Legal Standards for Evaluating a Summary Judgment Motion5
Under Federal Rule of Civil Procedure 56(a), summary 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
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). The party asking for 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 the moving party believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met its
burden, Rule 56(a) requires the nonmoving party to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Chapman, 229 F.3d at 1023. All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229
F.3d at 1023; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine

4

Defendants submitted the following supplemental evidence: Deposition of James Thornton and attached
exhibits (Exhibit 7); and Deposition of Robert Warnick and attached exhibits (Exhibit 8).
5

Federal Rule of Civil Procedure 56 was amended on December 1, 2010. However, even considering the 2010
amendments, “the standard for granting summary judgment remains unchanged.” Fed. R. Civ. P. 56 Advisory
Committee’s Note (2010 Amendments).

3

“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. The
method used by the party moving for summary judgment to discharge its initial burden depends on
whether that party bears the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17
(citing United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991) (en banc)).
If the moving party bears the burden of proof at trial, then it can only meet its initial burden
on summary judgment by coming forward with positive evidence demonstrating the absence of a
genuine issue of material fact (i.e. facts that would entitle it to a directed verdict if not controverted
at trial). Fitzpatrick, 2 F.3d at 1115. Once the moving party makes such a showing, the burden
shifts to the nonmoving party to produce significant, probative evidence demonstrating a genuine
issue for trial.
If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden
on summary judgment in either of two ways. First, the moving party may produce affirmative
evidence negating a material fact, thus demonstrating that the nonmoving party will be unable to
prove its case at trial. Once the moving party satisfies its burden using this method, the nonmoving
party must respond with positive evidence sufficient to resist a motion for directed verdict at trial.
The second method by which the moving party who does not bear the burden of proof at trial
can satisfy its initial burden on summary judgment is to affirmatively show the absence of evidence
in the record to support a judgment for the nonmoving party on the issue in question. This method
requires more than a simple statement that the nonmoving party cannot meet its burden at trial but
does not require evidence negating the nonmovant’s claim; it simply requires the movant to point

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out to the district court that there is an absence of evidence to support the nonmoving party’s case.
Fitzpatrick, 2 F.3d at 1115-16.
If the movant meets its initial burden by using this second method, the nonmoving party may
either point out to the court record evidence, overlooked or ignored by the movant, sufficient to
withstand a directed verdict, or the nonmoving party may come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.
However, when responding, the nonmovant can no longer rest on mere allegations, but must set forth
evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)).
III.

Relevant Undisputed Facts6
A.

Background

Winborn is an African American male over the age of nineteen. (Doc. #21, Ex. 1, Winborn
Dep. at 12). SBC is located in Birmingham, Alabama and is a wholesale distributor that sells and
delivers beverages, primarily beer and Red Bull, to restaurants and retail outlets. (Doc. #21, Ex. 5,
Hall Aff. at ¶ 2).

Winborn worked with SBC on two different occassions. (Doc. #21, Ex. 1,

Winborn Dep. at 27, 31, 34). During his second stint with the company, SBC terminated Winborn’s
employment on September 28, 2007 for “violation of policies/procedures” following Winborn’s
unauthorized loading of product onto a delivery truck. (Doc. #21, Ex. 5, Hall Aff. at ¶ 15; Doc. #21,
Ex. 2, Windham Dep. at 93, 104, PEX 5, SBC-WINBORN-000001).

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If the facts are in dispute, they are stated in the manner most favorable to the nonmoving party. See Fitzpatrick,
2F.3d at 1115.

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B.

Plaintiff’s First Employment with Defendant

On or about September 4, 2005, Winborn applied for a warehouse position at SBC in
Birmingham. (Doc. #21, Ex. 1, Winborn Deo. at 27 and DX 1). SBC hired Winborn on October 3,
2005 as a forklift driver. (Doc. #21, Ex. 1, Winborn Dep. at 31). On January 13, 2006, Winborn left
employment with SBC to work for Enterprise Car Rental.7 (Doc. #21, Ex. 1, Winborn Dep. at 34,
39).
C.

Plaintiff’s Second Employment with Defendant
1.

Plaintiff’s Position/s with Defendant

On March 23, 2006, Winborn again applied for employment with SBC as a forklift operator.
(Doc. #21, Ex. 1, Winborn Dep. at 34 and DX2). Mike Windham (“Windham”), SBC’s Operations
Manager over the Birmingham warehouse, interviewed and hired Winborn as a forklift operator on
April 4, 2006. (Doc. #21, Ex. 1, Winborn Dep. at 35-36; Doc. #21, Ex. 2, Windham Dep. at 16, 34).
Winborn’s initial pay rate was $8.75 per hour. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 5). During his
second term of employment with SBC, Winborn reported to Windham and James Collins
(“Collins”), the driver supervisor. (Doc. #21, Ex. 1, Winborn Dep. at 50-51; Doc. #21, Ex. 2,
Windham Dep. at 16, 18, 19-20). Winborn’s job duties as a forklift operator included pulling
products from the warehouse and placing them on delivery trucks. (Doc. #21, Ex. 1, Winborn Dep.
at 54-56). Winborn would also fill in as a delivery driver as needed. (Doc. #21, Ex. 1, Winborn
Dep. at 40-41; Doc. #21, Ex. 2, Windham Dep. at 23). When he would fill in as a delivery driver,
Winborn would drive the smaller delivery trucks because he did not have a commercial drivers’

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Winborn admits that he was not subjected to any type of discrimination during his first term of employment
with SBC. (Doc.#21, Ex. 1, Winborn Dep. at 39-40).

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license. (Doc. #21, Ex. 1, Winborn Dep. at 23, 41; Doc. #21, Ex. 2, Windham Dep. at 23). On July
10, 2006, Windham gave Winborn a pay increase from $8.75 per hour to $9.00 per hour. (Doc. #21,
Ex. 4, Bullock Aff. at ¶ 4).
Around the middle of Winborn’s second period of employment with SBC, he asked
Windham if he could be a driver. (Doc. #21, Ex.1, Winborn Dep. at 42-43). Windham responded
that he would look into it. (Doc. #21, Ex. 1, Winborn Dep. at 44).8 SBC does not have a formal
application process to apply for a promotion to a driver. (Doc. #21, Ex. 1, Winborn Dep. at 42). On
or about June 11-13, 2007, SBC increased Winborn’s pay from $9.00 per hour to $1,050.00 biweekly. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 4).9 On or about June 20-22, 2007, Winborn returned
to his position as a forklift operator at his previous pay. (Doc. #21, Ex. 2, Windham Dep. at 24; Doc.
#21, Ex. 4, Bullock Aff. at ¶ 4). Winborn was warned at least one time for excessive speeding while
operating the forklift. (Doc. #21, Ex. 1, Winborn Dep. at 51).
2.

Defendant’s Policies and Procedures

SBC has a policy against harassment which prohibits, among other things, “any form of
harassment of its employees, whether or not such harassment is unlawful. It is never justifiable to
harass any of our employees because of the employee’s race, color, sex religion, national origin, age,

8

Plaintiff attempts to create an issue of fact regarding Windham’s response to inquiries about becoming a driver.
In his opposition, Plaintiff submits an additional disputed fact that each time he asked to be promoted to bulk driver,
Widham told Plaintiff “I’ll get back with you.” (Doc. #44, Additional Disputed Facts, ¶ 5). However, Plaintiff cites no
evidentiary support for this contention. Additionally, this portion of Plaintiff’s opposition has been stricken due to
noncompliance with the Scheduling Order. See supra note 1. Therefore, no issue of fact exists as to this point.
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Plaintiff attempts to create an issue of fact regarding his pay increase. In his opposition, Plaintiff states that
he was not promoted at a rate of pay of $1050.00 bi-weekly. Plaintiff cites paragraph 7 of his Affidavit as support for
this statement. However, paragraph 7 of Plaintiff’s Affidavit (Doc. #42) only states that he was not promoted to delivery
driver or bulk delivery driver. It says nothing about the wages earned in this position. (See Doc. #42, ¶ 7). Furthemore,
nothing in Plaintiff’s Affidavit disputes that he received wages of $1050.00 bi-weekly for some period of time. Plaintiff
only avers that when he filled in as a driver, his pay remained the same. (See Doc. #42, ¶ 8).

7

disability, or any other reason.” (Doc. #21, Ex. 1, Winborn Dep. at 70-71 and DX4). On February
17, 2007, Winborn signed an acknowledgment of the fact that he had received, read, and understood
SBC’s harassment prevention policy. (Doc. #21, Ex. 1, Winborn Dep. at 71 and DX4). SBC has an
Equal Employment Opportunity policy contained in its Employee Handbook which provides, in
pertinent part, that “SBC does not discriminate in employment opportunities or practices on the basis
of race, color, religion, sex, national origin, age, disability, military service, or any other
characterstic.” (Doc. #21, Ex. 3, Hall Depo. at 27 and PX1, p. 1).
SBC “may use progressive discipline at its discretion.” (Doc. #21, Ex. 2, Windham Dep.,
PEX 1, p. 42). SBC has an Employee Conduct and Work Rules policy contained in its Employee
Handbook which provides, in pertinent part, that “[e]mployees who break rules such as these may
be subject to disciplinary action, up to and including termination of employment: * Theft or
inappropriate removal or possession of property ...” (Doc. #21, Ex. 3, Hall Dep. at 27 and PX1, p.
37).
SBC has a Problem Resolution policy contained in its Employee Handbook which provides,
in pertinent part, the following: “If a situation occurs when you believe that a condition of
employment or a decision that affects you is not fair, you are encouraged to use the following
problem resolution steps.” (Doc. #21, Ex. 1, Winborn Dep. at 75-76 and DX6; Doc. #21, Ex. 3, Hall
Dep. at 27 and PX1, pp. 43-44). The Problem Resolution policy steps include presenting the
problem to the employee’s supervisor, and if not resolved, to the Human Resources Department, and
if not resolved, then to the General Manager. (Doc. #21, Ex. 1, Winborn Dep. at 75-76, and DX6;
Doc. #21, Ex. 3, Hall Dep. at 27 and PX1, pp. 43-44). SBC’s Employee Handbook also contains the
Harassment policy separately signed by Winborn in February 2007. (Doc. #21, Ex. 3, Hall Depo. at

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27, 40 and PX1, pp. 46-47). On September 7, 2007, Winborn signed an acknowledgment of the fact
that he had received, and was required to read and follow SBC’s Employee Handbook. (Doc. #21,
Ex. 1, Winborn Dep. at 74-75 and DX5).
3.

Defendant’s Inventory Loss Issues

During 2007, SBC experienced a shrinkage problem in its Birmingham warehouse related
to Red Bull product. (Doc. #21, Ex. 3, Hall Dep. at 228-229; Doc. #21, Ex. 5, Hall Aff. at ¶ 6). The
inventory counts in the warehouse showed a significant amount of lost inventory. (Doc. #21, Ex. 5,
Hall Aff. at ¶ 6). Because of the portable nature of SBC’s product and the ability of individuals to
illegally sell the product without accounting for the sale to the company, SBC takes precautions to
prevent shrinkage. (Doc. #21, Ex. 5, Hall Aff. at ¶ 7). Before leaving each morning, each driver
must compare his count to the manager’s computer sheet showing the amount of product scheduled
to be on a particular truck. (Doc. #21, Ex. 2, Windham Dep. at 33). If any additional items are added
to a truck after the driver and manager compare their counts, the additional product is reflected on
the driver’s paperwork, and a manager oversees the loading of that additional product onto the truck.
(Doc. #21, Ex. 2, Windham Dep. at 34; Doc. #21, Ex. 3, Hall Dep. at 230). SBC also put additional
precautions into place. (Doc. #21, Ex. 5, Hall Aff. at ¶ 8).
SBC required the roll-down doors between the loading area and the warehouse area to remain
closed unless a manager was present to observe the pulling of product. (Doc. #21, Ex. 3, Hall Dep.
at 237).10 James Hall (“Hall”), SBC’s Chief Financial Officer, communicated these new procedures

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Plaintiff attempts to create an issue of fact regarding this procedure. Plaintiff’s opposition states that SBC did
not require the roll down doors to remain closed unless a manager was present. (Doc. #44, Plaintiff’s Response to
Defendant’s Statement of Facts, ¶ 26). However, the evidentiary support he cites does not support this contention.
Plaintiff cites paragraphs 12-14 of his Affidavit. Paragraphs 13-14 do not speak as to whether SBC required the roll
down doors to remain closed unless a manager was present. (See Doc. #42, Winborn Aff. at ¶¶ 13-14). Additionally,
paragraph 12 states that “While working at SBC, it did not install new warehouse roll-up doors for added security.” (Doc.

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to the warehouse management, including Windham and Collins. (Doc. #21, Ex. 3, Hall Dep. 255;
Doc. #21, Hall Aff at ¶ 9).11 SBC’s management also began arriving early at the warehouse to watch
the early morning counting for suspicious activity. (Doc. #21, Ex. 5, Hall Aff. at ¶ 10). SBC
confined the Red Bull product to a specific area of the warehouse. (Doc #21, Ex. 3, Hall Dep. at 229;
Doc #21, Ex. 5, Hall Aff. at ¶ 8). Hall also began watching video from the surveillance system each
day to look for suspicious activity in the Red Bull area. (Doc #21, Ex. 3, Hall Dep. at 229; Doc #21,
Ex. 5, Hall Aff. at ¶ 10).
On August 7, 2007, Hall observed Roderick Orr (“Orr”) pull back into the warehouse after
he had been counted out and was ready to begin deliveries. (Doc. #21, Ex. 5, Hall Aff. at ¶ 11). Hall
observed Orr place his truck so that the security cameras were further blocked, load empty kegs on
to his truck and attempt to leave the warehouse with the empty aluminum kegs. (Doc. #21, Ex. 5,
Hall Aff. at ¶ 11). Winborn was also seen in the video. (Doc. #21, Ex. 5, Hall Aff. at ¶11).
Empty aluminum kegs have value so SBC accounts for them. (Doc. #21, Ex. 5, Hall Aff. at
¶ 11). Because Orr was not authorized to remove the kegs from the warehouse, he was terminated
on August 7, 2007 for theft of inventory. (Doc. #21, Ex. 5, Hall Aff. at ¶ 11). However, Winborn
did not move the aluminum kegs in any manner that would have assisted Orr. (Doc. #42, Winborn
Aff. at ¶ 18). Because Hall was not sure if Winborn played a role in stealing the empty aluminum

#42, Winborn Aff. at ¶ 12). This statement does not contradict SBC’s position that it required the roll-up doors to remain
closed unless a manager was present. Rather, this statement only asserts that SBC did not install new roll-up doors.
Therefore, no genuine issue of material fact exists regarding SBC’s contention that it required the roll-up doors to remain
closed unless a manager was present to observe the pulling of product.
11

Plaintiff attempts to create an issue of fact regarding this statement. However, Plaintiff’s response that no
manager communicated any such procedure to him during his employment (See Doc. #44, ¶ 38), does not dispute the
substance of this “fact.” Additionally, Plaintiff testified in his deposition that Collins told him he was prohibited from
going into the warehouse unless a manager was present. (Doc. #21, Ex. 1, Winborn Dep. at 57). Plaintiff also testified
that he coud not recall if roll-down doors were to be closed unless a manager was present. (Doc. #21, Ex. 1, Winborn
Dep. at 57-58). Therefore, Defendant’s Initial Statement of Fact paragraph 38 is deemed admitted. See supra note 1.

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kegs, no disciplinary action was taken against Winborn at that time. (Doc. #21, Ex. 5, Hall Aff. at
¶ 11).
D.

Plaintiff’s September 28, 2007 Termination

While watching the surveillance video for September 26, 2007, Hall observed Winborn load
Red Bull product onto an empty pallet, load the pallet onto his forklift, and place the product onto
a delivery truck. (Doc. #21, Ex. 3, Hall Dep. at 237; Doc #21, Ex. 5, Hall Aff. at ¶ 12).12 Despite the
fact that the video angle showed a view down the warehouse floor, Hall did not observe Collins or
any other manager supervising any add-on by Winborn. (Doc. #21, Ex. 3, Hall Dep. at 238-240; Doc
#21, Ex. 5, Hall Aff. at ¶ 12). Hall believed that Winborn’s activity was suspicious because Winborn
went into a prohibited area by himself, pulled product, and loaded it on a truck unsupervised. (Doc.
#21, Ex. 3, Hall Dep. at at 238-240; Doc #21, Ex. 5, Hall Aff. at ¶ 13). Hall believed that Winborn’s
activity was in direct violation of the directive that had been issued a few weeks before that a
manager be present to observe the pulling of product. (Doc. #21, Ex. 3, Hall Dep. at 251; Doc #21,
Ex. 5, Hall Aff. at ¶ 13). Winborn admits he knew that he was prohibited from going into the
warehouse area unless a manager was present. (Doc #21, Ex. 1, Winborn Dep. at 57).
At the time, Windham believed that Winborn placed the Red Bull product on a truck that it
was not scheduled to go on, without paperwork, and without supervision. (Doc. #21, Ex. 2,
Windham Dep. at 91, 97, 115, 129). Also, at the time, Hall and Windham, believed that Winborn
placed the Red Bull product on the delivery truck of driver Kenneth Perry. (Doc. #21, Ex. 1,
Winborn Dep. at 116; Doc. #21, Ex. 2, Windham Dep. at 91; Doc. #21, Ex. 3, Hall Dep. at 253).

12

Windham also viewed the video. (Doc. #21, Ex. 2, Windham Dep. at 88, 90).

11

By the end of the day, Windham knew that the truck on which Winborn placed the Red Bull product
belonged to another driver, Derrick Jones (“Jones”). (Doc. #43, Perry Aff. at ¶ 4; Doc. #44, Winborn
Aff at ¶ 23). Hall and Windham believed that loading product onto a delivery truck without proper
authorization was an indication of a scheme to take property from SBC without authority. (Doc.
#21, Ex. 5, Hall Aff. at ¶ 14; Doc. #21, Ex. 2, Windham Dep. at 112-113).
At Hall’s direction, Windham terminated Winborn on September 28, 2007, following this
incident, for “violation of policies/procedures.” (Doc. #21, Ex. 2, Windham Dep. at 93, 104 and
PX5, SBC-WINBORN-000001). Windham noted on the Termination Report in “Additional
Comments” that “Joe was dismissed for putting product on a truck that wasn’t supposed to be there
-- just a request to add more product -- This has happened twice now.” (Doc. #21, Ex. 2, Windham
Dep. at 111 and PX5, SBC-WINBORN-000001). Perry was also terminated on September 28, 2007.
(Doc #21, Ex. 2, Windham Dep. at 104). Later that same day, once it was determined that the truck
onto which Winborn loaded product was not Perry’s, but that of another delivery driver, Windham
contacted Perry and rehired him. (Doc. #21, Ex. 2, Windham Dep. at 106-107).
Although Winborn has no knowledge of who replaced him as a forklift operator, (Doc. #21,
Ex. 1, Winborn Dep. at 118), the undisputed evidence submitted into the Rule 56 record
demonstrates that he was replaced by Antonio Clayton, who is African American. (Doc. #21, Ex.
4, Bullock Aff. at ¶ 5). Winborn did not complain to anyone in upper management at SBC about his
termination. (Doc. #21, Ex. 1, Winborn Dep. at 64, 72-73, 80).13

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Plaintiff attempts to create an issue of fact by stating that he did not complain to anyone in management about
his termination on the advice of counsel. (See Doc. #44, Plaintiff’s Response to Defendant’s Statement of Facts, ¶ 68).
However, this contention and the accompanying evidentiary support from Plaintiff’s Affidavit (See Doc. #43 at ¶ 26)
does not dispute the substance of the factual statement that Plaintiff did not complain. Thus, Defendant’s statement of
fact paragraph 68 is deemed admitted. See supra note 1.

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E.

Plaintiff’s November 14, 2007 EEOC Charge

On November 14, 2007, Winborn filed a Charge of Discrimination with the EEOC.
(Doc.#21, Ex. 1, Winborn Dep. at 85-86 and DX7). Winborn asserted in his EEOC charge that he
was subjected to race discrimination and terminated in violation of Title VII. (Doc. #21, Ex. 1,
Winborn Dep. at 85-86 and DX7). Winborn also claimed in his EEOC charge that “in 2007, I was
told by Caucasian Supervisor Mike Wyndam [sic] that I could not be promoted to a driver.”
(Doc.#21, Ex. 1, Winborn Dep. at 85-86 and DX7). Winborn also contended in his EEOC charge
that “[i]n September 2007, I was accused of misloading a truck and shorting it ten cases . . . [and]
[m]y employer knew that I did not misload the truck and short it ten cases.” (Doc.#21, Ex. 1,
Winborn Dep. at 85-86 and DX7). Winborn further argued in his EEOC charge that SBC “has a
pattern of terminating African American employees.” (Doc.#21, Ex. 1, Winborn Dep. at 85-86 and
DX7).
Winborn believes he was discriminated against because Windham “wouldn’t give me my job
back and he wouldn’t promote me up to a driver.” (Doc.#21, Ex. 1, Winborn Dep. at 65). Winborn
also contends he was discriminated against because Chris Phelps (“Phelps”) and James Thornton
(“Thornton”), Caucasians, were promoted to driver instead of him. (Doc.#21, Ex. 1, Winborn Dep.
at 67, 188). Winborn admits that he does not know anything about Phelps’ or Thornton’s
backgrounds, whether they had any driver experience prior to coming to SBC, or why they were
promoted instead of him. (Doc.#21, Ex. 1, Winborn Dep. at 67-68, 175-176).
When hiring drivers, SBC factored in candidates’ prior experience, CDL class, and driving
record. (Doc.#21, Ex. 2, Windham Dep. at 55). SBC hired Phelps as a driver on July 26, 2006.
(Doc.#21, Ex. 4, Bullock Aff. at ¶ 6). Phelps has a Class A commercial drivers’ license. (Doc.#21,

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Ex. 4, Bullock Aff. at ¶ 6).14 Prior to working for SBC, Phelps worked as a route sales driver for
Buffalo Rock Company for approximately two years, and as a driver for Cahaba Sand & Gravel for
over four years. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 6). SBC hired Thornton as a driver on August
30, 2004. (Doc.#21, Ex. 4, Bullock Aff. at ¶ 10). Thornton has a Class A commercial drivers’
license. (Doc.#21, Ex. 4, Bullock Aff. at ¶ 10). Prior to working for SBC, Winborn had worked as
a helper, a fill-in driver, and a forklift operator. (Doc. #21. Ex. 1, Winborn Dep. at 19, 23 and DX1).
In contrast, Winborn did not have a commercial drivers’ license at the time he worked for SBC.
(Doc. #21, Ex. 1, Winborn Dep. at 18, 41).
Winborn also believes that his termination was race discrimination because Windham is
white and he is black. (Doc.#21, Ex. 1, Winborn Dep. at 68-70). Winborn admits that he does not
know of any Caucasian employees who were accused of “misloading a truck” and were not
terminated. (Doc. #21, Ex. 1, Winborn Dep. at 116). From 2006 to 2010, SBC terminated at least
four Caucasian employees for theft of product. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 9). Winborn
contends that SBC’s “pattern of terminating African American employees” is based on the fact that
he, Rod Tate (“Tate”), Collins, and Perry were terminated. (Doc. #21, Ex. 1, Winborn Dep. at 9296).
Winborn believes that SBC terminated Tate for trying to get some empty kegs, but does not
have personal knowledge of why he was terminated. (Doc. #21, Ex. 1, Winborn Dep. at 92-96). The

14

Plaintiff attempts to create an issue of fact by stating in his opposition that Phelps did not have a Class A
commercial driver’s license on the date he was promoted. (Doc. #44, Plaintiff’s Response to Defendant’s Statement of
Facts, ¶ 82). However, this contention contradicts Plaintiff’s deposition testimony that he did not know anything about
Phelps’ background or his qualifications. Plaintiff cannot create an issue of fact by contradicting his own testimony.
See Van T. Junkins & Assocs., Inc. V. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has given
clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party
cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given
clear testimony.”). Therefore, Defendant’s Statement of Fact paragraph 82 is admitted. See supra note 1.

14

next driver hired by SBC at its Birmingham warehouse after Tate was terminated was Rodriguez
Deet, who is African American. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 7). Winborn does not know why
Collins was terminated. (Doc. #21, Ex. 1, Winborn Dep. at 94).15 Collins was terminated for failure
to follow company policies and lack of institutional control. (Doc. #21, Ex. 2, Windham Dep. at 131,
149-150 and PX16, SBC-COLLINS-000029). Tate, an African American, took over Collins’ job
duties for a period of time. (Doc. #21, Ex. 6, Tate Dep. at 33).
During Winborn’s employment at SBC, all of the warehouse workers at SBC’s Birmingham
warehouse were either African American or Hispanic. (Doc. #21, Ex. 2, Windham Dep. at 20).
During 2007, the majority of drivers (31 out of 43) who worked at SBC’s Birmingham warehouse
were African American. (Doc #21, Ex. 4, Bullock Aff. at ¶ 8). Winborn believes that SBC condoned
and tolerated discrimination because “they was just getting rid of black guys.” (Doc. #21, Ex. 1,
Winborn Dep. at 104).16 Winborn never reported discrimination to anyone at SBC. (Doc. #21, Ex.
1, Winborn Dep. at 110-111).
15
Plaintiff attempts to create an issue of fact regarding his knowledge of why Collins was terminated. Plaintiff
states in his opposition that Collins was terminated for allegedly assisting in what Hall and Windham thought was
attempted theft by Plaintiff. (Doc. #44, Plaintiff’s Response to Defendant’s Statement of Facts, ¶ 92). However, Plaintiff
testified at his deposition that he did not know why Collins was terminated. Plaintiff cannot create an issue of fact by
contradicting his own testimony. See Van T. Junkins & Assocs., Inc. V. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.
1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue
of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without
explanation, previously given clear testimony.”). Additionally, the Affidavit cited in support of Plaintiff’s contention
that he knows why Collins was terminated states that Plaintiff “does not know for certain” why Collins was terminated.
(Doc. #42, ¶ 37). Therefore, Defendant’s Statement of Fact paragraph 92 is admitted. See supra note 1.
16

Plaintiff attempts to create an issue of fact by offering additional information. In his opposition, Plaintiff states
that he believed SBC condoned and tolerated discrimination because “they was just getting rid of black guys” for little
or no reason. (Doc. #44, Plaintiff’s Response to Defendant’s Statement of Facts, ¶ 97). Plaintiff has changed his
deposition testimony. See Doc. #21, Ex. 1, Winborn Dep at 104:3-7 (“Q. Why do you believe that Supreme condoned
and tolerated discrimination in this case? A. They was just getting rid of black guys.”). Plaintiff cannot create an issue
of fact by contradicting his own testimony. See Van T. Junkins & Assocs., Inc. V. U.S. Indus., Inc., 736 F.2d 656, 657
(11th Cir. 1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any
genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts,
without explanation, previously given clear testimony.”). As such, Defendant’s Statement of Fact paragraph 97 is
admitted. See supra note 1.

15

IV.

Discussion
A.

Plaintiff’s Abandoned Claims

First, the court will address Defendant’s argument that Plaintiff has abandoned the following
claims: (1) Section 1981and Title VII promotion (Count One); (2) negligent hiring, supervision,
training, and retention (Count Two); and (3) outrage (Count Three). As discussed above, Plaintiff’s
Complaint alleges Defendant’s failure to promote him was discrimination on the basis of his race
in violation fo Section 1981 and Title VII. (Doc. #1, ¶¶ 12, 20). Plaintiff’s Complaint also alleges
negligent hiring, supervision, training and retention claims. (Id., ¶¶ 26-30). Plaintiff also asserts
claims of outrage or intentional infliction of emotional distress. (Id., ¶¶ 31-33).

Defendant’s

Motion for Summary Judgment addresses all three claims. Specifically, Defendant argues that
Plaintiff’s Section 1981 promotion claim is untimely because Plaintiff did not file the claim within
the two-year statute of limitations. (Doc. # 20). Defendant argues Plaintiff’s Title VII promotion
claim fails because Plaintiff did not file a charge of discrimination within 180 days from the date of
the last discriminatory act and because Plaintiff has not established a prima facie case. (Id.).
Defendant also claims Plaintiff’s negligent hiring, supervision, training, and retention claims fail
because the underlying wrongful conduct does not constitute an Alabama common law tort. (Id.).
Finally, Defendant argues that Plaintiff’s outrage claim fails because the claim is based on alleged
race discrimination, which is not one of the three limited circumstances recognized by the Alabama
Supreme Court for the tort of outrage. (Id.).
In his Opposition to Defendant’s Motion for Summary Judgment, Plaintiff does not address
Defendant’s argument that his Section 1981 promotion claim is barred by the two-year statute of
limitations. Plaintiff only argues that the claim is not time barred by failure to file a charge of

16

discrimination because he should be allowed to “piggy back” the failure to promote claim with the
termination charge. (Doc. #44). Plaintiff’s Opposition also does not address whether he has
established a prima facie case of failure to promote under Title VII and Section 1981. (Doc. #44).
Additionally, Plaintiff’s Opposition does not address the negligent hiring, supervision, training, and
retention claims or the outrage claims. Therefore, Defendant contends these claims have been
abandoned. The court agrees.
Plaintiff’s failure to address Defendant’s arguments regarding these claims results in
abandonment of those claims. See e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.
2001) (affirming summary judgment on claim raised in complaint but not addressed in initial
response in opposition to summary judgment); Brassler, U.S.A.I, L.P. v. Stryker Sales Corp., 182
F.3d 888, 892 (11 th Cir. 1999) (“[A]ssertions made in the pleadings . . . but not made in opposition
to summary judgment need not be considered by the district court or the appellate court in ruling on
the motion for summary judgment.”); Resolution Trust Corp. V. Dunmar Corp., 43 F.3d 587, 599
(11 th Cir. 1995) (“In opposing a motion for summary judgment, ‘a party may not rely on his
pleadings to avoid summary judgment against him.’ There 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; grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned.”). Because Plaintiff
has failed to address his Section 1981 and Title VII promotion, negligent hiring, supervision,
training, and retention, and outrage claims, the court finds Plaintiff has abandoned them and
summary judgment is due to be granted. Thus, the only claims left for the court to analyze are
Plaintiff’s Title VII and Section 1981 termination claims.

17

B.

Plaintiff’s Title VII and Section 1981 Termination Claims
1.

Applicable Substantive Law

Title VII and Section 1981 race discrimination claims are evaluated using the same analytical
framework. Standard v. A.B.E.I. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Both [Title VII
and Section 1981] have the same requirements of proof and use the same analytical framework as
well; therefore we shall explicitly address the Title VII claim with the understanding that the analysis
applies to the § 1981 claim as well.”). Thus, the court analyzes Plaintiff’s Title VII and Section 1981
termination claims as a single claim for purposes of summary judgment.
A plaintiff in an employment discrimination case maintains the ultimate burden of proving
that an adverse employment decision was made because of intentional discrimination. See Reeves
v. Sanderson Plumbing, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 113 S.Ct.
2742, 2747-48 (1993); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir.
1984). Although the Supreme Court previously established the basic allocations of burdens and order
of proof in a disparate treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), as modified by Desert Palace
v. Costa, 123 S.Ct. 2148 (2003), that model applies only in cases where there is no direct evidence
of discrimination. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987).
Under the McDonnell Douglas /Burdine scheme, a plaintiff first has the burden of proving
by a preponderance of evidence a prima facie case of discrimination. Once the plaintiff proves a
prima facie case, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden of
production, the plaintiff must either present substantial evidence which shows (1) that the legitimate

18

reasons offered by the defendant are merely a pretext for discrimination or (2) a reasonable jury
could conclude that discrimination was a "motivating factor" for the employment action, even though
defendant's legitimate reason may also be true or have played some role in the decision. McDonnell,
411 U.S. at 802; Burdine, 450 U.S. at 253-54; Desert Palace, 123 S.Ct. at 2154-55.
2.

Plaintiff's Prima Facie Case

In order to establish a prima facie case of disparate treatment in termination based on race,
Winborn must show that: “(1) he is a member of a protected class; (2) he was qualified for the
position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside
his protected class or was treated less favorably than a similarly situated individual inside his
protected class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). Winborn has
failed to establish a prima facie case of discrimination because he has failed to establish the fourth
element. The parties do not dispute that Winborn is a member of a protected class, that he was
qualified for the forklift operator position, or that he suffered an adverse employment action. The
only remaining issue is whether Winborn has demonstrated that he was replaced by someone outside
of his protected class or that SBC treated similarly situated employees outside his classification more
favorably. Winborn has not done either. Therefore, he cannot establish a prima facie case.
First, Winborn has not established that he was replaced by someone outside of his protected
class. The Eleventh Circuit has held that African American employees cannot establish a prima facie
case of race discrimination if they cannot show that they were replaced by a Caucasian. See Hawkins
v. Ceco Corp., 883 F.2d 997, 984 (11th Cir. 1989) (“Because [the employee] did not show he was
replaced by a white, he failed to establish a prima facie case.”). Winborn has testified that he does
not know who replaced him as a forklift operator. Furthermore, it is undisputed that SBC hired

19

Antonio Clayton, an African American, to replace Winborn. (Doc. #21, Ex. 4, Bullock Aff. at ¶ 5).
Therefore, Winborn has not established that he was replaced by someone outside of his protected
class.
Second, Winborn has not established that SBC treated similarly situated employees outside
his classification more favorably. To determine whether employees are similarly situated for
purposes of establishing a prima facie case, “it is necessary to consider whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different ways.”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Also, “to make a comparison of the
plaintiff’s treatment to that of non-minority employees, the plaintiff must show that he and the
employees are similarly situated in all relevant respects.” Id. Specifically, the Eleventh Circuit
requires that “the quantity and quality of the comparator’s misconduct be nearly identical to prevent
courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.”
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). And, “[i]f a plaintiff fails to identify
similarly situated, non-minority employees who were treated more favorably, [his] case must fail
because the burden is on [him] to establish [his] prima facie case.” Jones v. Bessemer Carrway Med.
Ctr., 137 F.3d 1306, 1311 (11 th Cir. 1998), superseded in non-relevant part on denial of reh’g, 51
F.3d 1321 (11th Cir. 1998).
Winborn has identified two individuals whom he believes engaged in misconduct similar to
his without being terminated. First, Winborn claims that Thornton, a Caucasian driver, was accused
of theft of company property and was not terminated. (Doc. #44). Second, Winborn also claims that
Phelps, a Caucasian driver, took company money without authorization and also violated SBC’s
sexual harassment policy and was not terminated. (Id.). The court addresses these contentions in

20

turn.
The evidence is undisputed that in April 2005, someone stole $2,000 in cash from Thornton’s
truck. (Doc. #45, Ex. 7, Thornton Dep. at 88, 91, 99, 181-188 and PX2). Because Thornton failed
to follow SBC’s policy on the proper handling of cash, SBC required him to pay back the money.
(Doc. #45, Ex. 7, Thornton Dep. at 97). In June 2005, SBC gave Thornton a written warning about
being short $975.28. (Doc. #45, Ex. 7, Thornton Dep. at 104 and PX2). SBC required Thornton to
pay the shortage back because he made a mistake on the deposit slip. (Doc. #45, Ex. 7, Thornton
Dep. at 105). Thornton also received written warnings for being late or leaving work early and for
damaging the door of a customer. (Doc. #21, Ex. 9, Windham Dep. at 77). Additionally, Thornton
delivered the wrong product to a customer and was not terminated. (Doc. #21, Ex. 9, Windham Dep.
at 77).
The evidence is undisputed that in February 2007, SBC gave Phelps a written warning for
taking “unauthorized loans” from his cash receipts. (Doc. #21, Ex. 9, Windham Dep. at 243; Doc.
#21, Ex. 14, Employee Warning Report). Phelps’s managers did not consider this theft of property
because SBC had allowed drivers to accept cash from customers to buy lunch and then have payroll
deduct the difference. (Doc. #21, Ex. 9, Windham Dep. at 244-45). From 2004 until late 2007, SBC
had a policy that allowed drivers to borrow small amounts from cash and pay it back. (Doc. #45, Ex.
8, Warnick Dep. at 71-73). Additionally, Phelps was accused of violating SBC’s sexual harassment
policy. (Doc. #21, Ex. 2, Windham Dep. at 235-36). However, it is also undisputed that Winborn
has no personal knowledge of the sexual harassment incident involving Phelps. (Doc. #21, Ex. 1,
Winborn Dep. at 155-56).
The court finds this undiputed evidence of misconduct engaged in by Thornton and Phelps

21

does not create an issue of material fact regarding whether their respective conduct is “nearly
identical” to Winborn’s misconduct. Taken in the light most favorable to Winborn, the record
indicates that SBC management believed, based on video surveillance, that Winborn may have been
involved in theft of product on August 7, 2007. (Doc. #21, Ex. 5, Hall Aff. at ¶11). Subsequently,
SBC terminated him for loading a truck unsupervised in violation of company policy. (Doc. #21,
Ex. 2, Windham Dep. at 93, 104 and PX5, SBC-WINBORN-000001). Winborn has admitted he
knew he was prohibited from entering the warehouse area without a supervisor present. (Doc #21,
Ex. 1, Winborn Dep. at 57).
The Eleventh Circuit has elaborated on the level of similarity required between a Title VII
plaintiff’s conduct and that of a valid comparator. In Knight v. Baptist Hosp of Miami, Inc., the court
affirmed summary judgment in favor of the defendant employer where the plaintiff and another
employee both had documented absenteeism and tardiness problems. 330 F.3d 1313, 1318 (11th Cir.
2003). Even though the plaintiff and the other employee had problems in both of these areas, the
court found “their problems were not of the same nature.” Id. Similarly, in Coar v. Pamco Aeroplex,
Inc., the Eleventh Circuit found that a Title VII plaintiff failed to present valid comparators when
those identified by the plaintiff violated different rules than the plaintiff. 372 Fed. Appx. 1, 3-4 (11th
Cir. 2010).
Here, Winborn has presented no facts suggesting that an individual who loaded product
unsupervised and who had also been suspected of theft was not terminated. The comparators cited
by Winborn did not load product onto a truck unsupervised in violated of SBC’s directive that a
manager be present. Therefore, Winborn has failed to meet his burden of showing that a similarlysituated Caucasian employee who was suspected of theft also engaged in the unsupervised loading

22

of a truck without being terminated. See Holifield, 115 F.3d at 1562; Maniccia, 171 F.3d at 1368;
Jones, 137 F.3d at 1306. Because Winborn has failed to establish a prima facie case, SBC is entitled
to summary judgment on Winborn’s wrongful termination claim.
3.

Plaintiff Cannot Show Pretext

Even assuming Winborn has established a prima facie case, which he has not, SBC is still
entitled to summary judgment because Winborn has not shown that SBC’s legitimate,
nondiscriminatory reason for his termination is a pretext for intentional discrimination. A reason
offered may be either objective or subjective if it is premised upon facts that are particular (i.e., clear
and reasonably specific). Chapman, 229 F.3d at 1034-35; EEOC v. Joe's Stone Crab, Inc., 220 F.3d
1263, 1280 (11th Cir. 2000). It is emphatically not the court’s job to presume or judge whether an
employment decision is fair or wise, but only whether it is legal. Chapman, 299 F.3d at 1030, n.19;
see also Pennington v. City of Huntsville, 251 F.2d 1262 (11th Cir. 2001). Here, SBC’s legitimate,
nondiscriminatory reason for terminating Winborn’s employment is that Winborn violated company
policies by loading a truck unsupervised. (Doc. #21, Ex. 2, Windham Dep. at 93, 104 and PX5,
SBC-WINBORN-000001).
"Where . . . the employer's asserted justification is that the employee violated a work rule,
the employee must prove pretext by showing either that she did not violate the work rule or that, if
she did, other employees not within the protected class who engaged in similar acts were not
similarly treated." Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 (11th Cir. 1987)
(citing Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir. 1980)). Winborn has not produced
sufficient evidence of a comparator whom SBC treated more favorably.17 Accordingly,Winborn

17

See infra Part IV.B.2.

23

must attempt to demonstrate pretext by showing that he complied with the work rule and that the
employer knew he had complied. Sparks, 830 F.2d at 1563.
The entire basis for Winborn’s termination claim is that he was falsely accused of misloading
a truck and that the person who terminated him was white.18 However,Winborn knew that he was
prohibited from going into the warehouse area unless a manager was present. (Doc #21, Ex. 1,
Winborn Dep. at 57). Moreover, even if Winborn believes he was wrongly accused of misloading
a truck, the relevant question is whether Hall and Windham believed, in good faith that Winborn
violated SBC policy at the time they made the decision to terminate Winborn. The proper inquiry
is what the decision-makers believed, even if that belief was wrong. Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466, 1470 (11th Cir. 1991) (“That the employee did not in fact engage in the misconduct
reported to the employer is irrelevant to the question whether the employer believed the employee
had done wrong.”); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (“The law is clear that,
even if a Title VII claimant did not in fact commit the violation with which he is charged, an
employer successfully rebuts any prima facie case of disparate treatment by showing that it honestly
believed the employee committed the violation.”).
The Rule 56 record is undisputed in this regard: at the time they watched the surveillance
video, Hall and Windham believed Winborn violated SBC’s policy by loading a truck unsupervised.
(Doc. #21, Ex. 2, Windham Dep. at 93, 104, 112-113 and PX5, SBC-WINBORN-000001; Doc. #21,
Ex. 5, Hall Aff. at ¶ 14). And, Winborn has offered no evidence to suggest that Hall or Winham

18
See Doc. #21, Ex. 1, Winborn Dep. at 69-70 (Q: Well, why did you think that race had anything to do with
you being let go? A: Something Mike -- It was just about Mike. Mike Windham. ... Q: Do you think it was race
discrimination because he [Windham] was white? A: Yes. ... Q: Any other reasons you thought it was discrimination that
he [Windham] let you go, other than he’s white and you’re black? A: No, sir.).

24

were motivated by any other reason than what they saw. Therefore, the undisputed record evidence
shows that (1) the employment decision was not itself discriminatory, and (2) SBC decision-makers
possessed a good faith belief that Winborn violated the work rule in question. See Holmes v. West
Palm Beach Hous. Auth., 309 F.3d 752, 755 (11th Cir. 2002) ("An employer articulates a legitimate
nondiscriminatory reason for termination where the employer had an honest, good faith belief in the
reason for termination, even if it turns out that the employer was mistaken in that belief.");
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir. 2000), reh'g denied, 218 F.3d 749
(11th Cir. 2000) ("a plaintiff must show not merely that the defendant's employment decisions were
mistaken but that they were in fact motivated by race.").
Accordingly, Winborn cannot show pretext because (1) he cannot demonstrate that he did
not violate the policy in question and (2) he cannot produce sufficient evidence of a comparator.
Therefore, even if Winborn had established a prima facie case of discrimination–and to be clear he
has not–SBC is entitled to summary judgment because Winborn cannot show SBC’s legitiamte,
nondiscriminatory reason for his termination is pretextual.
V.

Conclusion
For the reasons stated above, there being no dispute as to any material fact, Defendant SBC’s

Motion for Summary Judgment (Doc. #19) is due to be granted. A separate order will be entered
dismissing all claims.
DONE and ORDERED this

8th

day of November, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

25