Collins v. Supreme Beverage Company, Inc.

Filing 56

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 10/12/12. (KGE, )

FILED
2012 Oct-12 PM 03:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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CIVIL ACTION NO.
11-AR-0058-S

MEMORANDUM OPINION
Before the court is the motion of defendant, Supreme Beverage
Company, Inc., (“SBC”), for summary judgment.

It seeks dismissal

of the above-entitled action brought by plaintiff, James Collins
(“Collins”).

Doc. 19.

Collins, who is black, sued SBC, his former

employer, for race discrimination in violation of 42 U.S.C. § 1981
(Ҥ 1981") and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”), retaliation in violation of Title
VII, and disability discrimination in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”).
appended

the

state

law

claims

of

outrage,

negligent

negligent supervision, and negligent retention.

He

hiring,

Because Collins

has withdrawn his ADA claim and his state law claims, these claims
and the evidentiary materials that may bear only upon them will not
be discussed.
For the reasons that follow, SBC’s motion for summary judgment
will be granted as to the retaliation claim, but denied as to the

race discrimination claim.
Pertinent Facts from
Collins’s Termination1

Collins’s

Perspective

Surrounding

SBC, located in Birmingham, Alabama, is a wholesale beverage
distributor that sells beverages, primarily beer and Red Bull, to
restaurants

and

February 2, 1998.

retail

outlets.

SBC first

hired

Collins

Collins worked in various positions, including

driver, supervisor, salesman, and Assistant Warehouse Manager.
October

28,

competitor.

on

2005,

Collins

left

voluntarily

to

work

for

On
a

Collins went back to work for SBC on April 5, 2006,

after Mike Windham (“Windham”), a white male, who was Operations
Manager of

SBC’s

Birmingham warehouse,

and

who

is

a

central

character in this drama, called him and asked him to come back to
SBC.

It appears, therefore, that SBC considered Collins qualified

for the job of Assistant Warehouse Manager.
changed to Delivery Manager.

His title was later

In both roles, he performed the same

duties, which were to manage the drivers and delivery trucks at the
Birmingham

warehouse,

including

route

assignments,

providing

helpers when needed, and reviewing each driver’s count of product
prior to departure in order to ensure that product counts were in
1

Because of the procedural posture, all admissible
evidence, and reasonable inferences, are viewed in the light most
favorable to Collins. Evidence submitted by SBC that contradicts
evidence relied upon by Collins cannot be weighed in the balance,
or even considered, unless it is admitted by Collins. In other
words, Collins does not have to convince the court of the truth
of any of his evidence, but only that, if believed by a jury, it
would entitle him to relief.
2

agreement with customers’ orders.

Initially, Collins assigned the

helpers to assist the drivers, but after a few months Windham took
over this function.

No complaint about Collins’s performance was

voiced at the time.

At all times relevant, Windham, as Operations

Manager,

was

in

charge

of

the

Collins’s immediate supervisor.

Birmingham

warehouse

and

was

At all times relevant, James Hall

(“Hall”), who is white, was SBC’s Chief Financial Officer, and was
the supervisor of both Windham and Collins.
In March 2007, Collins complained to Windham that black
drivers were being assigned heavier loads than white drivers were,
and that black drivers were not being assigned helpers like white
drivers were.

For example, on a particular occasion Collins told

Windham that James Thornton (“Thornton”), a white driver, should
have taken some of the load of Allen Trainer (“Trainer”), a black
driver.

He also complained to Windham that two other white

drivers, Jason Poer (“Poer”) and Chris Phelps (“Phelps”), had
lighter loads than black drivers.

Windham thereupon asked Collins

if he was “playing the race card.”
replied, “No.

Collins depo. at 99.

I mean, fair is fair.

Collins

You know, you should be

treating everybody fair.”

Id.

pissed off” at this.

During the same conversation, Windham

Id.

Collins says that Windham “got

also said to Collins: “You guys need to get your s[hit] together.”
Id. at 100-101.

Most of the employees in the warehouse and on the

delivery team were black.

3

During 2006 and 2007, the inventory counts of Red Bull were
showing a significant shrinkage. Because of the portable nature of
Red Bull and the ability of thieves to sell it without accounting
for its sale to SBC, the company put in place extra precautions to
prevent this shrinkage. These measures were not issued in writing.
Neither was the discipline for a particular violation.

One of

SBC’s oral instructions was to confine the Red Bull to a specified
area of the warehouse.

Everybody apparently was aware of this.

SBC also required that the roll-down doors between the loading area
and the warehouse remain closed at all times unless a manager was
present to observe the “pulling” of Red Bull.

Each driver had to

compare his count of Red Bull to the manager’s computer sheet
showing the amount of Red Bull scheduled to be on a particular
truck.

If any additional items were added to a truck after the

driver and manager compared their counts, the additional product
had to be reflected on the driver’s paperwork, and the manager had
to

oversee

the

designated truck.

loading

of

that

additional

product

onto

the

Hall says that he told Windham to communicate

these new procedures to all of the warehouse employees and to make
sure that they understood them.

At deposition, Windham confirmed

that he received this instruction from Hall, and he says he passed
it on to all employees.

Derrick Jones (“Jones”), a black driver,

testified that he was never informed by any member of management of
any issues about shrinkage or that any SBC policies were being

4

changed because of shrinkage.
After the new rules were announced, Hall began watching video
from SBC’s surveillance system each day looking for suspicious
activity in the Red Bull area.
The testimony by Jones calls into question how thoroughly the
new rules were explained to warehouse personnel.

There is no

evidence that Collins, or any other employee, was told that any
particular violation would call for the extreme discipline of
termination.

Collins admitted that he was aware of the shrinkage

problem and that he understood the requirement to keep Red Bull in
certain closed-off areas.

Collins depo. at 91-92.

There is no

evidence as to what procedures, if any, existed for an Assistant
Warehouse Manager or a Delivery Manager to obtain permission to
take a bathroom break while Red Bull was being “pulled” and loaded.
Presumptively, drivers were supposed to know that they could not
“pull” or load Red Bull outside the presence of an Assistant
Warehouse Manager, or a Delivery Manager like Collins, or some
supervisory employee of higher rank.
unwritten

rules was

apparently

left

The enforcement of SBC’s
to

the good

judgment

of

supervisors.
Although he cannot remember who the drivers were, Windham says
that twice in 2007 drivers told him that Collins was not checking
load sheets to make sure they were correct. Windham was not asked,
and did not state, the race of the drivers who gave him this

5

information about Collins. The drivers allegedly told Windham that
Collins was giving out the load sheets to drivers and having them
verify the product on their own trucks.

Windham says that he

considered this a serious offense at the time because it violated
company policies and could result in lost inventory.

The only

corroboration of such an oral warning is an SBC “warning report”,
signed by Hall, offered as proof that Collins received the verbal
warning on April 4, 2007.

The report says that Collins was

verbally warned because he “did not check load sheets causing the
inventory to be short.”
Collins’s signature.

The “warning report”, does not contain

Collins denies ever having received or even

having seen the report.

Under the circumstances, Collins’s denial

of any oral warnings prior to his termination must be taken as
true. There is no evidence of any oral warnings to other employees
on or about April 4, 2007.
Hall

says that

on

September

26, 2007,

he

watched video

surveillance from earlier that morning in the Birmingham warehouse,
where

he

observed

Joe

Winborn

(“Winborn”),

a

black

forklift

operator, open a roll-up door, enter a section of the warehouse,
pull a partial pallet of Red Bull, load the Red Bull onto an empty
pallet, load the pallet onto his forklift, and place the pallet of
Red Bull on a delivery truck.

Although the video, which has been

destroyed or lost, purportedly showed the entire length of the
warehouse floor on the morning in question, Hall testified that he

6

did not see Collins or any other manager supervising the actions of
Winborn.2 Hall says he found Winborn’s activity suspicious because
Winborn went into a prohibited area, pulled product, and loaded it
on a truck that it was not supposed to go on, all unsupervised.
Hall says

he

believed

that

Winborn’s

activity

was

in

direct

violation of the directives that had recently been issued. At that
time, Hall also believed, for some unexplained reason, that Winborn
had placed the Red Bull on a truck driven by driver Kenneth Perry
(“Perry”), who, like Winborn and Collins, is black.
At Hall’s direction, Windham fired Winborn, Perry, and Collins
on September 28, 2007.

The reason given by Windham was “violation

of policies/procedures.”

According to Collins, Windham told him

that he was being fired because he had let Winborn put ten cases of
Red Bull on Perry’s truck when Perry had no order for Red Bull.
Collins’s version of the conversation must be taken as true.
After being terminated, Collins telephoned Mike Schilleci
(“Schilleci”), SBC’s Vice President.

Schilleci, who is white and

who is over both Windham and Hall in the SBC chain of command, told
Collins he had been terminated because “they said you let ten cases
of Red Bull get by” and “I’m tired of all the stuff being missing.”
Collins depo. at 148.
fired.”

Id.

This

Schilleci told Collins: “All of ya’ll are
remark

can

2

fairly

be

interpreted

The arguable significance of the fact that the video
footage no longer exists is discussed infra.
7

as

an

accusation of collaborative theft by the three fired employees.
Later, the day of the firings, it was somehow determined that
the truck onto which Winborn had loaded the Red Bull was not, in
fact, Perry’s truck.

Thereupon, at Hall’s direction, Windham

contacted Perry and re-hired him, overlooking or forgiving any
possible violation by him of the policies and procedures applicable
to drivers.

There is no evidence that an investigation was

conducted into whose truck, if any, Winborn placed the Red Bull in,
if any.

How Hall arrived at his erroneous belief that it was

Perry’s truck is not reflected in the record.
Other Evidence in Support of Collins’s Story
Collins says that Windham used racial slurs when referring to
black employees.

Collins testified that Windham would say: “You

people”, or “Ya’ll people”, when speaking to blacks
at 108-109.

Collins depo.

Collins also testified that Windham once said to a

group of black drivers: “You mother-fuckers need to do this.
sick of your shit, I’m going to fire all your asses.”

I’m

Collins

depo. at 103-04. When Collins heard Windham talk to the drivers in
this way he told Windham, “You can’t do this to grown guys.”

Id.

Windham denies making any racial slurs or racial comments. Windham
depo. at 289-90.

What Windham said or did not say is a question of

material disputed fact for a jury.
Collins also says that SBC took black drivers off their routes
and replaced them with white drivers, and that black drivers were
8

given

routes

in

predominately

black

areas

of

Birmingham.

Specifically, Collins says that the routes of two black drivers,
Trainer and Frederick Gaines (“Gaines”), were given to white
drivers, Poer and Thornton.

Windham explained to Collins that he

moved Thornton to the route covered by Gaines because a bigger
truck was needed and that Thornton had a Class A commercial
driver’s license while Gaines did not.

Similarly, Windham told

Collins that he moved Poer to the route covered by Trainer for the
same reason, namely, that Poer had a Class A commercial driver’s
license and Trainer did not. Even though Windham denies any racial
motivation for making these assignments, he does admit that Collins
complained that assignments had been based on race.
Collins

also

says

that

he

detected

a

pattern of black

employees being fired and replaced with whites.

According to

Collins, the ratio of black to white employees “significantly”
changed in favor of whites.

However, Collins admits that during

the entire time he worked at SBC, the majority of its warehouse and
delivery employees were black.

During 2007, although some whites

and Hispanics worked in the warehouse, a substantial majority of
drivers and workers (31 out of 43, or 72%) at SBC’s Birmingham
warehouse were black. On April 5, 2006, the date Collins began his
second term of employment at SBC, at least 32 out of 45 employees
working in SBC’s Birmingham warehouse were black (71%), and on
September 28, 2007, the date Collins was fired, at least 41 out of

9

48 employees working in the Birmingham warehouse were black (85%).3
Collins says that two white managers, Shea Hankey (“Hankey”)
and Ben,4 had jobs that were “a little bit underneath mine, I
think,” but received raises when he did not, that they were
assigned company vehicles when he was not, and that they were
assigned company e-mail addresses when he was not.
at 86.

Collins depo.

It is undisputed that Hankey and Ben were Red Bull

supervisors who oversaw the Red Bull salesmen responsible for
marketing, sales, and delivery of Red Bull. Neither Hankey nor Ben
reported to supervisors to whom Collins reported. Collins depo. at
87-88.

How Collins obtained information about Hankey’s and Ben’s

compensation does not appear.

It would probably be hearsay.

Collins also says that black drivers were denied helpers while
white

drivers

were

warehouse workers.

provided

helpers.

Helpers

were

usually

They were assigned as needed by Windham.

Jones, the black driver, testified that on more than one occasion
he asked for a helper for unloading product, but was always denied
a helper.
Procedural History
After discovery was complete, SBC filed its present motion for
3

Collins argues that SBC has not produced evidence to
support these statistics. This assertion is incorrect. The
statistics may be challenged for their accuracy, but not for
their existence. The percentage of black employees may be
consequential at trial, but not for a Rule 56 ruling.
4

Collins never provides Ben’s full name.
10

summary judgment, Doc. 19. Collins responded, Doc. 36, after which
SBC replied, Doc. 44.

On the same day on which SBC filed its reply

brief, it filed a separate motion to deem as admitted certain of
its alleged facts submitted in support of its motion for summary
judgment, Doc. 39, and an entirely separate motion to strike, Doc.
41. Collins filed responses to both of SBC’s motions, Doc. 47, and
Doc. 48.

The court denied SBC’s motion to deem facts admitted and

its motion to strike.

See text order entered June 22, 2012.

SBC

then filed a motion to reconsider, Doc. 49, which the court denied,
while informing the parties that the court would re-think any
issues raised in SBC’s motions if the evidence SBC objected to, or
is

allegedly

admitted

by

Collins,

were

deemed

deciding SBC’s motion for summary judgment.

necessary

See Doc. 50.

for
The

court now finds that Collins has not admitted any facts asserted by
SBC that would change this court’s decision.
Race Discrimination Claim
Both Title VII and § 1981 preclude employers from taking any
adverse employment action on account of an individual’s race.
Maynard v. Bd. of Regents, 342 F.3d 1281, 1288 (11th Cir. 2003).
Title VII and § 1981 race discrimination claims are subject to the
same analytical framework.

See Standard v. A.B.E.L. Servs. Inc.,

161 F.3d 1318, 1330 (11th Cir. 1998).
Collins

can

pass

the

prima

facie

threshold

either

by

presenting “direct evidence” of racial animus, or by presenting
11

“circumstantial evidence” of racial animus.

“Direct evidence of

discrimination is evidence, that, if believed, proves the existence
of a fact in issue without inference or presumption.”
Florida, 285

F.3d

1339,

1342

n.2

(11th

Cir.

2002)

Rojas v.
(internal

quotations and citation omitted). On the other hand, evidence that
only arguably suggests a discriminatory motive, is, by definition,
circumstantial evidence.
or deduction.

It requires an application of inference

It is not self-evident of animus.

Burrell v. Bd. of

Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 (11th Cir.
1997).
Collins contends that in this case there is direct evidence of
racial discrimination.

Doc. 55.

does

direct

not

constitute

The evidence he refers to, if it
evidence,

circumstantial evidence of racial animus.

certainly

constitutes

The distinction between

these two kinds of evidence is not always easy to make, but it is
important. The jurisprudence on this issue fails to draw a clearly
discernable line between the two, leaving an element of judgment or
discretion with the trial court.

The reason why the line must be

drawn is if a plaintiff relies on direct evidence, and the trial
court agrees that direct evidence exists, the employer’s mere
articulation of a legitimate non-discriminatory reason for its
adverse employment action is not a defense that then calls for
proof by the employee that the employer’s given reason is pretextual.

If there is direct evidence, the employer has the burden
12

of proving that its adverse action would have been the same, even
if some animus did, in fact, exist.

In Wall v. Trust Co. of

Georgia, 946 F.2d 805 at 809 (11th Cir. 1991), the Eleventh Circuit
held:
When plaintiff establishes her prima facie case by direct
evidence of intent to discriminate on account of race,
defendant’s burden to rebut that evidence is to prove by
a preponderance of the evidence that it would have made
the same employment decision in the absence of
discriminatory motivation. (case citations omitted).
Collins testified at deposition as follows:
A.

“[Windham] had a habit of talking really loud
and verbally, well, explicit with the black
drivers. “You mother-fuckers need to do this.
I’m sick of your shit. I’m going to fire all
of your asses.” (Plaintiff, p. 103, ln. 5-10)
* * *

A.

He runs the warehouse.
103, ln. 17).

(Plaintiff Dep., p.

Q.

And those kind of comments, where he was going
to fire their “mother-fucking asses” and all
that stuff, I mean was that—Was he directing
that specifically at the blacks?

A.

Yes, sir.

Q.

Did you ever hear him—Were whites in that
vicinity at that time?

A.

No sir.

Q.

None of the white drivers?

A.

No sir.”

Not at all.

(emphasis added).
Windham, the alleged loud-mouth who was “pissed off” when Collins
13

said to him “fair is fair”, was one of the decision-makers in the
firing of Collins. He was the supervisor who actually communicated
the bad news to Collins.

Two other black employees were fired at

the same time, as part of the same incident.

Neither Hall nor

Windham asked Collins for an explanation of his alleged misconduct
before the ax fell.

Although Windham never used the “N” word while

in the presence of any of Collins’s witnesses, there was no
cerebration required by Collins, and none required by this court,
to discern that Windham was threatening to fire black employees
because of their perceived shortcomings as a racial group. Whether
what Windham said was, as a matter of fact, or as a matter of law,
“direct

evidence”

of

racial

termination is a close call.
Collins.

motivation

for

the

subsequent

The court makes the call in favor of

Windham admittedly did not say, “I am going to fire your

black assess”.

Instead, he used a well-understood pejorative term

while speaking harshly to a group made up exclusively of black
employees.

The court finds that Windham’s use of the term, “you

people”, when speaking judgmentally only to black employees, cannot
be reconciled, unless by jury deliberation, with a federal statute
requiring that all employees, black and white, be treated alike.
The words “you people” necessarily meant “black” in the context
they

were

uttered.

There

was

no

need

for

explanation

or

elaboration.

Windham was as graphic and unsubtle as if he had used

the “N” word.

The Eleventh Circuit has held that making reference

14

to “you people” may, in certain circumstances, be direct evidence
of racial animus.

See E.E.O.C. v. Alton Packaging Corp., 901 F.2d

920, 922 (11th Cir. 1990) (supervisor’s statement to black employee
that “you people can’t do a ___ thing right” was direct evidence of
discrimination).

An illustration of circumstances or context that

removes all possibility of mis-comprehension of what is the intent
of a speaker is a speech made to the N.A.A.C.P. in which the
speaker said, “They’re gonna put y’all back in chains.”

Every

N.A.A.C.P. listener, and the general public, immediately understood
the racial connotation in this remark.

Collins and his friends

understood what Windham was saying.
Analysis
On the possibility that the court is wrong in finding the
existence of direct evidence, the court will proceed first on SBC’s
hopeful

courter-assumption

that

there

is

only

circumstantial

evidence of racial animus.
The analytical framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies if the evidence of
proscribed racial motivation is only circumstantial.

Employing

this assumption, Collins would be required to demonstrate that: (1)
he is a member of a protected class; (2) he was qualified for the
position from which he was terminated; (3) he was terminated; and
(4) he was replaced by a person outside his protected class or was
treated less favorably than a similarly-situated individual outside

15

his protected class.

Maynard, 342 F.3d at 1289.

The first, second, and third elements of Collins’s prima facie
case under McDonnell Douglas are not disputed.

There is a sharp

dispute, however, with regard to the fourth element, namely,
whether Collins was replaced by a white employee.

SBC contends

that Buster Tate (“Tate”), a black male, replaced Collins. Collins
initially testified that he did not know who replaced him. Collins
depo. at 328.

He now says that Tate merely filled in temporarily

until a white male, Glen, was brought in to replace him.

A white

driver, Thornton, testified: “It was – I can’t even remember his
name.

It was a white gentleman though.

Collins’s job.

That’s all I know.”

He took over James

Thornton depo. at 185.

Tate’s

deposition testimony is that he replaced Collins for a very short
period of time, but that Glen was the permanent replacement.
testified:
Q. Who did James Collins’ duties after James
was terminated?
A. Well, we had night — well, I – I took over
his duties.
Q. Did you do that – excuse me, permanently
or was that for a time until they could hire
somebody?
A.

Just for a time till we got someone hired.

Q.

And who got hired?
. . .

A. I can’t recall. Well, I think Glen came
up from Tuscaloosa then.

16

Tate

Tate depo. at 23-4, 33.
Whether SBC actually intended for Tate merely to “fill in”
until Glen could replace Collins can only be determined by a
weighing of the relative believability of the witnesses. The court
cannot

make

credibility

inferences at this stage.

determinations

or

indulge

logical

Construing the facts in the light most

favorable to Collins, the court finds that for Rule 56 purposes,
Collins has made a sufficient showing of the fourth element,
namely, that he was replaced by someone outside his protected
class.
met

his

With all four elements supported by evidence, Collins has
burden

of

establishing

a

prima

facie

case

of

race

discrimination, even if the court is wrong in finding direct
evidence of animus.5

Thus, examining Collins’s claim under the

McDonnell Douglas burden-shifting analysis, the burden shifts to
SBC to rebut the prima facie case.

Defendant must articulate one

or more legitimate, non-discriminatory reasons for its decision to
terminate Collins.
Cir. 1997).

Holifield v. Reno, 115 F.3d 1555, 1564 (11th

Keeping in mind that the defendant’s intermediate

burden is “exceedingly light,” id. (citing Turnes v. AmSouth Bank,
N.A., 36 F.3d 1057, 1061 (11th Cir. 1994)), the court finds that

5

It is enough that Collins has met the fourth prong by
showing that he was replaced by someone outside of his protected
class, so the court need not address whether Collins has also met
the fourth element by using the alternative method, i.e., that a
similarly situated white employee was treated more favorably than
he.
17

SBC has met its intermediate burden with evidence that would allow
a rational factfinder to conclude that Collins’s termination was
not an act of racial discrimination, but rather was motivated by
one or more of the legitimate reasons it has articulated.
When the employer, as in this case, has met its intermediate
burden, any presumption of discrimination that may have arisen from
plaintiff’s prima facie case “simply drops out of the picture,” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). Plaintiff
is then required to demonstrate that the employer’s articulated
reasons

are

mere

pretext,

Holifield, 115 F.3d at 1565.

disguises

for

its

real

reasons.

The Eleventh Circuit has elaborated

this concept as follows:
When deciding a motion by the defendant for
judgment
as
a
matter
of
law
in
a
discrimination case in which the defendant has
proffered nondiscriminatory reasons for its
actions, the district court’s task is a highly
focused one. The district court must, in view
of all the evidence, determine whether the
plaintiff has cast sufficient doubt on the
defendant’s
proffered
nondiscriminatory
reasons to permit a reasonable factfinder to
conclude
that
the
employer’s
proffered
“legitimate reasons were not what actually
motivated its conduct.”
The district court
must evaluate whether the plaintiff has
demonstrated
such
weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered
legitimate reasons for its action that a
reasonable factfinder could find them unworthy
of credence.
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(internal citations and parentheticals omitted).
18

Collins argues that SBC’s changing, conflicting, and false
reasons given for firing him are enough to prove pretext.

He

points out that when he was fired no Red Bull had been loaded onto
Perry’s truck as SBC contended, and that this reason given him was
facially false.

He also points out that SBC has destroyed or lost

the surveillance video from the day in question, and that Collins
is entitled to the adverse inference that the video would benefit
him by showing the falsity of Hall’s testimony.
An employer’s giving of inconsistent or “shifting” reasons for
an adverse employment decision can be sufficient evidence of
pretext.

See Cleveland v. Home Shopping Network, Inc., 369 F.3d

1189, 1194 (11th Cir. 2004).

The evidence here reflects that

varying and arguably conflicting reasons have been given by SBC.
Although

legitimate

reasons

have

been

articulated,

their

consistency or their contradictory natures are matters for a jury.
Windham filled out a “Termination Report” on the day Collins was
fired,

checking

“Additional

the

box

Comments”:

“Performance”
“James

was

and

writing

dismissed

for

under

the

lack

of

institutional control – people were stealing right in front of him
and he wasn’t doing anything about it.”

Windham later testified

that Collins, Perry, and Winborn were all terminated because “they
loaded Red Bull on the wrong truck, on a truck that it wasn’t
scheduled to go on.”

Windham depo. at 91.

Windham confirmed that

when he told Collins and Winborn that they were fired, he told them

19

both “it was because of loading Red Bull onto Kenny Perry’s truck.”
Windham depo.

at

104-05.

When

Windham

was

later

questioned

specifically about the firing of Collins, he testified as follows:
Q. And was James Collins also accused of theft
and terminated because of theft?
A. He was – he was – because he did not follow
company policy about the way this was supposed
to be done. And this wasn’t the only reason
that he was – he was not fired because of this
Red Bull incident. This was the – the end of
it.
He had done that – done that on – not
done that on several occasions, but he had –
he had not followed company policies on
several things.
Q. You told me earlier he was fired because of
this incident.
A. Well, this was the – this was what got him
fired.
. . .
Q. And as far as Mr. Collins goes, it’s your
understanding that the – he was terminated not
just for the incident?
MS. WILKINSON: Object to the form.
A. There was – I understand there were others
– yeah, other reasons.
Q. And did that have to do with him following
company policies –
MS. WILKINSON: Object to the form.
Q. Inventory control, stuff like that?
A. Yeah. Absolutely.
checked in and out.
Windham depo. at 131, 370-71.

The

way

trucks

were

(emphasis added).

A jury will have before it not only the evidence proffered by
20

Collins, but will have substantial evidence from SBC upon which it
may find that the decision-makers sincerely believed one or more of
the various valid reasons that they have articulated.
Collins

argues

that

the

disappearance

of

the

alleged

surveillance video depicting Winborn loading the Red Bull outside
the presence of Collins entitles him to the adverse inference that
this footage would have been of forensic benefit to him.

“A party

has

.

an

obligation

to

retain

relevant

litigation is reasonably anticipated.”

documents

.

.

where

Managed Care Solutions,

Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1324 (S.D.
Fla. 2010). Because SBC’s articulated reason or reasons for firing
Collins, if employed at trial, will require SBC to refer to the
absent video tape, the possible significance of the tape and its
absence need not be addressed at this point.
If the court is correct in its earlier finding that Collins
has presented “direct evidence” of racial animus, Collins has no
burden of proving pretext.

Instead, SBC has the burden of proving

that one or more of its various articulated reasons was its only
reason for firing Collins.
there

is

no

absolute

On the state of the evidence thus far,

or

incontrovertible

articulated reasons were its only reasons.
dispute.

The

credibility

of

the

determination of this issue.

21

proof

that

SBC’s

The reasons are in

witnesses

is

crucial

to

a

The Retaliation Claim
In addition to his claim of racial discrimination, Collins
contends that he was fired in retaliation for complaining to
Windham that black drivers were being assigned heavier loads than
white drivers and black drivers were not getting the same help as
white drivers.

“To establish a claim of retaliation under Title

VII [], a plaintiff must prove that he engaged in statutorily
protected activity, he suffered a materially adverse action, and
there was some causal relation between the two events.” Goldsmith,
513 F.3d at 1277 (citation omitted).
established

the

elements

of

a

“After the plaintiff has

claim,

opportunity to articulate a legitimate,

the

employer

has

an

nonretaliatory reason for

the challenged employment action as an affirmative defense to
liability.”

Id.

“The plaintiff bears the ultimate burden of

proving retaliation by a preponderance of the evidence and that the
reason provided

by

the

employer

is

a

pretext

retaliatory conduct.” Id. (citation omitted).

for

prohibited

The rubric is the

same as that enunciated in McDonnell Douglas.
Was Collins’s March 2007 complaint to Windham “protected
activity” as Title VII defines that term?

Title VII’s retaliation

provisions apply to employees who engage in one of two types of
protected

activity:

“participation

in”

1)
a

“opposition

to”

discrimination

discrimination-related

proceeding

example, filing an EEOC charge of discrimination).
22

or

2)

(for

42 U.S.C. §

2000e-3(a).
rendering

Collins filed his EEOC charge after he was fired,

the

participation

clause

inappropriate.

Under

the

opposition clause, an employee is protected from adverse action if
he has “opposed any practice made an unlawful employment practice
by this subchapter.”

42 U.S.C. § 2000e-3(a).

A plaintiff engages

in activity protected by the opposition clause when he opposes an
employment practice that he has a good faith, reasonable basis to
believe is unlawful.

Butler v. Ala. Dep’t of

1209, 1213 (11th Cir. 2008).

Transp., 536 F.3d

In order to satisfy this standard:

A plaintiff must not only show that he
subjectively (that is, in good faith) believed
that his employer was engaged in unlawful
employment practices, but also that his belief
was objectively reasonable in light of the
facts and record presented.
It thus is not
enough for a plaintiff to allege that his
belief in this regard was honest and bona
fide; the allegations and record must also
indicate that the belief, though perhaps
mistaken, was objectively reasonable.
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960
(11th Cir. 1997).

(emphasis in original).

The opposition clause

is viewed in the context of what can reasonably be expected in an
ordinary business environment.

Accordingly, informal employee

complaints in the workplace are given less protection than the
participation

clause

gives

something

like

an

EEOC

complaint.

Anduze v. Fla. Atl. Univ., 151 F. App’x 875, 878 (11th Cir. 2005).
SBC argues that Collins’s expressed belief that SBC displayed
racial animus and violated Title VII when it assigned black drivers

23

heavier loads and less help than white drivers was not objectively
Collins grousing probably was subjectively reasonable

reasonable.

to Collins, but was it objectively reasonable?
Circuit

has

employee’s

held

that

“[t]he

belief

that

his

objective

employer

has

The Eleventh

reasonableness
engaged

in

of

an

unlawful

employment practice must be measured against existing case law.”
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir.
1999). Under existing Eleventh Circuit law, a plaintiff attempting
to make out a prima facie case of retaliation must establish, among
other things, that the complaint was of some federally protected
adverse employment action. See McDonnell Douglas, 411 U.S. at 802.
SBC persuasively argues that an employer’s allegedly assigning of
heavier loads to black drivers than to white drivers does not rise
to the level of an adverse employment action that results in a
“serious and material change in the terms, conditions or privileges
of employment.”

Davis v. Town of Lake Park, Fla., 245 F.3d 1232,

1239 (11th Cir. 2001).

SBC correctly points out that there is no

evidence that the black drivers who allegedly did not get helpers,
or who had heavier loads, suffered any decrease in salary or
benefits.

See id. at 1244 (“Courts . . . have been reluctant to

hold that changes in job duties amount to adverse employment action
when unaccompanied by any tangible harm.”), citing Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (agreeing with
“other circuits [which] have held that changes in assignments or
24

work-related duties do not ordinarily constitute adverse employment
decisions if unaccompanied by a decrease in work salary or work
hour changes”). To the contrary, the Eleventh Circuit has held that
“[w]ork assignment claims strike at the very heart of an employer’s
business

judgment

and

expertise

because

they

challenge

an

employer’s ability to allocate its assets in response to shifting
and competing market priorities.”

Davis, 245 F.3d at 1244.

Collins has not responded to SBC’s argument that what Collins
said to Windham, if it was intended to convey Collins’s belief that
SBC

had

engaged

in

unlawful

racial

discrimination,

was

not

objectively reasonable. See Collins’s opposition brief at 57 (“The
only issue in the instant case is whether a causal connection
existed.”).

The absence of a rebuttal to SBC’s argument may not

be an “admission” by Collins, but by failing to respond to SBC’s
argument, Collins has conceded that he did not engage in protected
activity and thus has no retaliation claim.
can be deemed abandoned.

An argument not made

Even if Collins has not conceded the

point, the court agrees with SBC that Collins’s belief that SBC
violated federal employment law when it assigned black drivers
heavier

loads

and

less

help

than

white

drivers

was

not

an

objectively reasonable belief as measured by existing case law.
Changes in work assignments do not constitute adverse employment
actions for purposes of making a prima facie case of discrimination
by black drivers.

The drivers who were given heavier loads could

25

not have succeeded in a Title VII action if they had filed one.
Put another way, Collins cannot mount a retaliation claim based on
his having voiced, on behalf of others, a complaint that would have
had no chance of success.

An employee’s general complaint of

unfair treatment does not translate into a charge of illegal
discrimination

protected

by

Title

VII’s

anti-retaliation

provisions.
Assuming arguendo that Collins did, in fact, engage in any
activity protected by Title VII’s opposition clauses, and that
Collins has not waived the point, the causal relationship necessary
for a prima facie case has not been demonstrated.

There is a six-

month gap between Collins’s complaints to Windham and Collins’s
termination.

There is nothing in the evidence that could lead a

reasonable jury to conclude that between the six months separating
Collins’s conversation with Windham and Collins’s termination,
Windham and SBC had spent their time laying a trap for Collins and
finally springing it.

The Eleventh Circuit has made it clear that

“in the absence of other evidence tending to show causation, if
there is a substantial delay between the protected expression and
the adverse action, the complaint of retaliation fails as a matter
of law.”

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007).

See also Henderson v. FedEx Express, 442 F.

App’x 502, 506 (11th Cir. 2011) (“[i]f there is a delay of more
than three

months

between

the

two

26

events, then

the

temporal

proximity is not close enough, and the plaintiff must offer some
other evidence tending to show causation”).
do so.

Collins has failed to

The mere existence of direct evidence of racial animus to

prove another claim is no substitute for the causal connection
necessary to prove retaliation.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment as to the retaliation claim will be granted, but will be
denied as to defendant’s race discrimination claim.
DONE this 12th day of October, 2012.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

27