Ware v. Supreme Beverage Company, Inc.

Filing 36

MEMORANDUM OPINION AND ORDER: 19 , Supreme Beverage Company's Motion for Summary Judgment, is GRANTED IN PART AND DENIED IN PART. 31 , AND 33 , Motions to Supplement Brief, are DENIED. 35 , Motion to Supplement Brief, is DENIED. Final Pretri al Conference set for 4/23/2013 at 2:15 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Jury Trial set for 6/24/2013 at 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 02/25/13. (CVA)

FILED
2013 Feb-25 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

Civil Action Number
2:11-cv-00059-AKK

MEMORANDUM OPINION AND ORDER
Raphael Ware pursues claims against Supreme Beverage Company, Inc.
(“SBC”) for discrimination, retaliation, and hostile work environment under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and §
1981 of the Civil Rights Act of 1866.1 See doc. 1. Based on this court’s review of
the evidence and the law, Ware failed to establish that racial animus factored into
the elimination of his Red Bull route and his subsequent transfer to a beer
merchandiser position, or that retaliatory animus factored into his discharge.

1

Ware initially also sought relief under state law for alleged negligent supervisory
practices which purportedly led to the discriminatory environment and intentional infliction of
emotional distress. Doc. 1. However, he abandoned his state law claims in his opposition to
SBC’s motion for summary judgment. See doc. 27 at 32.
1

Therefore, SBC’s motion is due to be GRANTED as it relates to the demotion and
retaliatory discharge claims. However, there are disputed factual issues that
preclude summary judgment on the race discrimination discharge claim. Therefore,
SBC’s motion related to that claim is DENIED. The court sets this matter for a
pretrial conference on April 23, 2013 at 2:15 p.m. and for trial on June 24, 2013.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
moving party bears the initial burden of proving the absence of a genuine issue of
material fact. Id. at 323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to establish that there is a “genuine issue for
trial.” Id. at 324 (citation and internal quotation marks omitted). A dispute about a
material fact is genuine “if the evidence is such that a reasonable jury could return
2

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable
inferences must be drawn in the non-moving party’s favor). Any factual disputes
will be resolved in Plaintiffs’ favor when sufficient competent evidence supports
Plaintiffs’ version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275,
1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of events is supported by
insufficient evidence). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain
Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice;
there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson,
477 U.S. at 252)).

3

II. FACTUAL BACKGROUND
SBC is a wholesale beverage distributor that sells beverages to restaurants
and retail outlets. Doc. 21-28 at 1. SBC hired Ware, an African-American male, in
1994 as a merchandiser in beer sales at an initial pay rate of $310 per week. Doc.
21-1 at 7; Doc. 21-29 at 1. By July 1996, Ware made $475 per week as a
merchandiser. Doc. 21-29 at 1-2. In addition to the merchandiser position, Ware
worked as a delivery driver, route salesman and van salesman while employed at
SBC. Doc. 21-1 at 7-9, 11.
Sometime in 2005, SBC succeeded in becoming the exclusive distributor of
the Red Bull drink in the Birmingham area, necessitating an expansion in its Red
Bull group. Doc. 21-8 at 1. This led Tom Casebere, SBC’s Sales Manager, to offer
Ware a salesman position in the Red Bull group at a purported weekly salary of
$500. Id.; Doc. 21-1 at 13; Doc. 21-9 at 2. Ware contests this assertion and
maintains instead that the position paid purely on commission. Doc. 21-1 at 15. In
any event, the position required Ware to market, sell, and deliver Red Bull products
on his route, which included the Norwood, North Birmingham, Collegeville,
Gardendale, and Bessemer neighborhoods. Doc. 21-28 at 2; Doc. 21-1 at 17-18.
Ware contends that the route was less desirable because of its low sales volume and
that SBC gave Caucasian employees with less experience and seniority more
4

desirable, high volume routes in predominately Caucasian neighborhoods such as
Mountain Brook. Doc. 21-4 at 13; Doc. 21-1 at 18. The record does not clearly
indicate whether one of these “desirable” routes was vacant at the time Ware
transferred to the Red Bull group and, if so, whether Ware requested the route.
Ware reported initially to Red Bull Brand Manager David Phillips and later
to Red Bull Sales Supervisor Ben Allen. Doc. 21-1 at 14-15; Doc. 21-28 at 2.
Ware contends that Allen talked down to him and refused to help him stock
merchandise and that Allen purportedly provided such assistance to Caucasian
employees. Doc. 21-2 at 4-5. Ware alleges also that SBC required him to take
more drug tests than the Caucasian employees. Id. at 6.
In January 2007, SBC downsized its Red Bull routes by eliminating Ware’s
route and a route in Huntsville assigned to Amanda Sipsey, a Caucasian female,
purportedly because these two routes had low sales volume. Doc. 21-28 at 2-3.
Ware disagreed with SBC’s decision and testified that he “probably did” complain
to Human Resources Manager Kristopher Fletcher, an African American, that SBC
eliminated Ware’s route because of his race. Doc. 21-2 at 5, 16. Ware testified
that he also informed Fletcher that he was the only African American on the Red
Bull routes, id., a contention SBC challenges since it maintains that Melvin Smith,

5

an African American, also worked as a Red Bull salesman.2 Doc. 21-28 at 1-2.
After SBC eliminated Ware’s route, Casebere transferred Ware to a vacant
position as a merchandiser on a beer route in which Ware reported to the Sales
Supervisor Brad Phillips. Id. at 1-3; Doc. 21-2 at 1-2; Doc. 21-29 at 2. The parties
disagree on whether SBC kept Ware’s pay at the same rate or whether, as Ware
contends, SBC reduced his pay to $400 per week plus mileage. Doc. 21-28 at 2-3;
Doc. 21-29 at 2; Doc. 21-2 at 3.
SBC maintains that Ware received various complaints and written warnings
related to his performance during his employment. Doc. 21-29 at 2, 5-13. One
such warning occurred in mid-April 2007 when Ware refused to allow his
supervisor to borrow the company van assigned to Ware. Doc. 21-2 at 12.
Apparently, Ware denied Phillips’s request because Ware had permission from
Johnny Bittle, SBC’s head mechanic or fleet manager, to keep the van over the
weekend since Ware did not have a car. Id. Presumably, other vans may have been
available for Phillips to use since Bittle testified that SBC typically maintained one
to three extra vans for use as needed. Doc. 21-25 at 19, 22. Marshall Nichols, the
sales manager who investigated the incident, contends that Phillips instructed Ware

2

SBC failed to provide Smith’s personnel records and it is unclear when Smith worked as
a Red Bull salesman.
6

to bring the van in for Phillips to use while Ware was out of town, that Bittle did
not tell Ware he could keep the van, and that Bittle lacked the authority to make
such a decision. Doc. 21-11 at 35. Ultimately, this incident resulted in Nichols and
Phillips issuing Ware a warning for insubordination. Doc. 21-11 at 42; Doc. 21-29
at 2, 10.
A few days later, Ware received two more written warnings for separate
performance related issues, which prompted a discussion over email between
Phillips and Nichols about discharging Ware. Doc. 21-29 at 11-13. Later that day,
after reaching a consensus, Phillips and Nichols discharged Ware for
insubordination and poor performance. Doc. 21-29 at 14; Doc. 21-2 at 13-14; Doc.
21-11 at 43. The performance warnings were related to Ware’s purported failure to
stock Red Bull at two store locations and refusal to complete a delivery, both on
April 26, 2007.3 Doc. 21-29 at 11-12. Although SBC contends otherwise in the
write ups it issued Ware, Ware claims that SBC failed to previously counsel him
about similar alleged infractions. Doc. 21-2 at 9-11. Ware supports his contention
by pointing out that the “written counseling” sheet for one of the purported prior
counselings referenced in his termination report is not signed and does not indicate

3

SBC provided no explanation for why it issued Ware a write up for failure to stock Red
Bull on April 26, 2007 when, as of January 8, 2007, it had transferred Ware from Red Bull to
beer merchandising.
7

that Ware refused to sign. See doc. 21-29 at 6-8. Basically, Ware contends that
SBC manufactured the purported prior warnings to justify his discharge.
After his discharge, Ware filed a charge with the Equal Employment
Opportunity Commission (EEOC), in which he alleged that SBC “demoted [him]
from a sales person to a merchandiser due to downsizing,” that his “duties were
assigned to five White employees who had less seniority,” that SBC discharged
him when he returned from a two day leave after the van incident for
insubordination, that he “had no problems performing the duties of [his] job as a
salesperson or merchandiser and was the only Black in each of these departments,”
and that “White employees are not subjected to this treatment.” Doc. 21-10 at 1.
As support for these assertions, Ware contends also that SBC has a pattern or
practice of discriminating against African Americans, and brings the court’s
attention to six other EEOC charges filed in 2007 by former African American
employees. See Docs. 24-3, 24-5, 24-7, 24-9, 24-10, 24-13. Ware contends further
that SBC regularly discriminates against African American employees by refusing
to provide them with helpers for unloading trucks, assigning them “to routes in the
predominately Black areas and in the projects” instead of “routes in good areas,”
giving them the worst delivery assignments, and subjecting them to racially
discriminatory comments. Doc. 27 at 25-26. Also, relying on information
8

provided by Caucasian delivery driver Jason Poer, Ware alleges that SBC solicited
stores in African American communities to buy out-of-date beer at a discounted
price. Doc. 26-8 at 24-25. The EEOC ultimately determined that it “found
reasonable cause to believe that violations of the statute(s) occurred with respect to
some or all of the matters alleged in the charge . . .” Doc. 21-10 at 2. The EEOC
then issued Ware a right to sue letter after it failed to “obtain a settlement” on
Ware’s behalf. Id.
III. ANALYSIS
Ware filed this action asserting claims under Title VII and § 1981 for racial
discrimination and retaliation. See doc. 1. More specifically, Ware alleges
discriminatory demotion and discharge, unequal pay, and retaliatory discharge.
The court discusses only the claims for discriminatory demotion and discharge, and
retaliatory discharge since Ware conceded his unequal pay claim in his response to
SBC’s motion. Doc. 27 at 32.
A.

Exhaustion Under Title VII
SBC contends that it is due summary judgment on the discriminatory

demotion and retaliatory discharge claims because of Ware’s purported failure to

9

raise them in his EEOC charge.4 Doc. 20 at 19. The law is clear that a plaintiff
seeking judicial relief under Title VII must first exhaust his administrative
remedies by raising that claim in a charge of discrimination. See 42 U.S.C. §
2000e-5(b); see Houston v. Army Fleet Services, LLC, 509 F. Supp. 2d 1033, 1042
(M.D. Ala. 2007) (“[T]he scope of the judicial complaint is limited to the scope of
the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.”)(quoting Sanchez v. Standard Brands, Inc., 431 F.2d
455, 466 (5th Cir. 1970)). However, SBC’s contention regarding the demotion
claim misses the mark because Ware alleged in his EEOC charge that he was
“demoted from a sales person to a merchandiser” and that his “duties were assigned
to five White employees who had less seniority.” Doc. 21-10 at 1. These
allegations are sufficient for the court to find that Ware exhausted his
administrative remedies by alleging discriminatory demotion in his EEOC charge.
With respect to the retaliatory discharge claim, Ware concedes that he did
not articulate a retaliation claim in his EEOC charge and that his Title VII
retaliation claim fails as a result. Doc. 27 at 30 n.7. However, Ware asserts
correctly that retaliation claims under § 1981 do not carry the same administrative

4

SBC also contends that Ware’s alleged “pattern and practice of discrimination” claim
fails also. However, Ware stated in his response that he is not alleging a pattern and practice, and
is instead using it as evidence to support his demotion and termination claims.
10

requirement and instead are subject to the four-year federal “catchall” limitations
period. See Baker v. Birmingham Bd. of Educ., 531 F.3d 1336 (11th Cir. 2008).
Since Ware filed this action on January 5, 2011, his § 1981 retaliation claim
survives because the last purported retaliatory act occurred when SBC terminated
him on April 27, 2007. Doc. 21-10 at 1.
B.

Discriminatory Demotion and Discharge Under Title VII and § 1981
The court turns now to the merits of Ware’s Title VII and § 1981 demotion

and discharge race discrimination claims, which “have the same requirements of
proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, the court “explicitly
address[es] the Title VII claim with the understanding that the analysis applies to
the § 1981 claim as well.” Id. “A plaintiff may prove a claim of intentional
discrimination through direct evidence, circumstantial evidence, or through
statistical proof.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir.
2008). Where, as here, a plaintiff offers only circumstantial evidence, the court
evaluates the sufficiency of his claim through the burden shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).5

5

Ware’s motion to supplement his brief in opposition to SBC’s motion for summary
judgment with the opinion from James Collins v. Supreme Beverage Company, Inc., 2:11-cv00058-WMA, docs. 31 and 33, is DENIED. The case specifically pertains to direct evidence of
11

Under this framework, the plaintiff bears the initial burden of establishing a prima
facie case. McDonnell Douglas, 411 U.S. at 802. “The successful assertion of a
prima facie case then creates a rebuttable presumption that the employer unlawfully
discriminated against the plaintiff.” Rioux, 520 F.3d at 1275 (internal quotation
marks and citations omitted). The burden then shifts to the employer to produce
evidence that it had a legitimate non-discriminatory reason for the challenged
action. Id. If the employer satisfies its burden, the burden shifts back to the
plaintiff to “show that the proffered reason really is a pretext for unlawful
discrimination.” Id. (internal quotation marks and citations omitted).
1.

Discriminatory Demotion

Ware’s first claim is that SBC demoted him from his Red Bull position
because of his race. To establish a prima facie case of discriminatory demotion,
Ware must show “(1) that [he] was a member of a protected class, (2) that [he] was

discrimination, which Ware failed to raise in this instance. “Direct evidence is evidence that
establishes the existence of discriminatory intent behind the employment decision without any
inference or presumption. . . . [R]emarks by non-decisionmakers or remarks unrelated to the
decisionmaking process itself are not direct evidence of discrimination.” Standard, 161 F.3d at
1330 (internal citations omitted). As such, “‘only the most blatant remarks, whose intent could
be nothing other than to discriminate on the [protected classification]’ are direct evidence of
discrimination.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002)
(quoting Damon v. Fleming Supermkts. of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999)).
Ware failed to raise evidence of remarks made by a decision-maker with respect to his alleged
discriminatory demotion or discharge, and thus his claim is based on circumstantial evidence.
Likewise, SBC’s motion to supplement it’s brief in support of the motion for summary judgment,
doc. 35, is DENIED.
12

qualified for the job, (3) that [he] suffered an adverse employment action, and (4)
that [he] was replaced by someone outside the protected class.” Hinson v. Clinch
Cnty, Georgia Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000). The only issues of
contention are related to the third and fourth prongs. Doc. 20 at 22-23. According
to Ware, his transfer from Red Bull sales to beer merchandising constituted an
adverse employment action. Doc. 27 at 21-33. Moreover, he claims that SBC
reassigned his duties to five Caucasian employees. Id. SBC counters that the
elimination of Ware’s route and his subsequent transfer were not a demotion or
adverse employment action, that it did not replace Ware, and, alternatively, that
Ware cannot dispute SBC’s legitimate non-discriminatory reason for eliminating
his Red Bull route.
a.

Adverse Employment Action

Generally, a “transfer [to a different position] can constitute an adverse
employment action . . . if it involves a reduction in pay, prestige, or responsibility.
We use an objective test, asking whether a reasonable person in the plaintiff’s
position would view the employment action in question as adverse.” Hinson, 231
F.3d at 829 (internal quotation marks and citations omitted). In this instance, Ware
asserts that he made more in the Red Bull position than in the beer merchandising
position. Doc. 21-1 at 15; Doc. 21-2 at 3. SBC challenges Ware’s assertion and
13

claims instead that it paid Ware $500 per week in both positions. Doc. 21-29 at 2.
However, neither party offered the relevant payroll documents to support his or its
contentions. Moreover, the parties also disagree on whether a beer merchandiser
has less responsibility and prestige than a salesperson. See docs. 20 and 27. While
SBC contends its version of the facts is more credible, at this juncture, the court
must construe the facts in the light most favorable to the non-moving party.
Consequently, the court finds that Ware has met his burden of showing that he
suffered an adverse employment action.
b.

Replacement by a Non-Protected Class Member

SBC challenges Ware’s prima facie case next by claiming that it did not
replace Ware. While SBC has presented evidence that it eliminated Ware’s route
and did not hire a replacement employee, it neglected to address Ware’s contention
about the actual ongoing servicing of the accounts. Unless SBC stopped selling
Red Bull on Ware’s route completely, SBC presumably transferred the
responsibilities for servicing Ware’s accounts to the rest of its sales force.
Critically, although one of the other sales persons is purportedly African American
and may have received some of Ware’s duties,6 SBC failed to present any evidence

6

Again, SBC failed to provide the relevant payroll record. As such, the record is unclear
regarding whether the other African American employee held the Red Bull position
contemporaneously to Ware.
14

regarding how it reallocated Ware’s Red Bull duties. Therefore, there is no
evidence in the record to refute Ware’s contention that SBC replaced him by
assigning his duties to the Caucasian employees. Accordingly, because the court
must construe the facts in Ware’s favor and because establishing a prima facie case
is not onerous, Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997), the court
finds that Ware has met his burden of establishing a prima facie case.
c.

Pretext for Discrimination

Alternatively, SBC contends that, even if Ware can establish a prima facie
case, his demotion claim fails because SBC eliminated Ware’s Red Bull route for a
legitimate reason, i.e. low sales volume. To support this contention, SBC claimed
that another African American purportedly worked a Red Bull route that SBC did
not eliminate, and that the other route it eliminated belonged to a Caucasian female.
Doc. 21-28 at 1-3. Ware does not address these contentions, except to argue that
SBC failed to provide the personnel records proving the existence of the other
African American salesman, nor does Ware rebut SBC’s contention that his route
and the Caucasian female’s had the lowest sales. Instead, Ware contends only that
SBC’s decision to assign him to a low sales route in a predominately African
American area was discriminatory and that SBC has a practice of assigning
minorities to routes in minority neighborhoods. While such a practice would
15

indeed run afoul of the anti-discrimination laws, unfortunately for Ware, his
contention does not carry his burden of establishing pretext for several reasons.
First, the discriminatory assignment claim is one that Ware should have challenged
in 2005, or at least by 2009, to have a timely claim under § 1981. Indeed, perhaps
because Ware can no longer challenge the 2005 assignment, Ware expressly limits
his claim in this lawsuit to “removal from a sales route/demotion. . . based on his
race.” Doc. 27 at 32. Second, Ware presented no evidence showing that a “more
profitable” route existed at the time SBC assigned him his Red Bull route in 2005.
While Ware maintains that SBC has a practice of assigning African Americans to
the less lucrative routes in minority neighborhoods, absent a showing that a
vacancy existed in the profitable Caucasian neighborhoods at the time of his initial
assignment, the purported practice of discriminatory territory assignments does not
help Ware establish that SBC’s contention that it eliminated Ware’s sales position
because of low sales is pretextual. Third, although Ware maintains that he asked to
transfer to one of the more profitable routes and that SBC gave the vacancies
instead to Caucasian employees, Ware only offered vague testimony on these
purported vacancies. Doc. 21-1 at 18-20. For example, Ware does not know when
the vacancies occurred or the identity of the persons SBC hired, and presented no
facts in his deposition for this court to conclude that SBC hired the successful
16

candidates because of their race. Id. at 19-20. In fact, Ware testified that he
believed SBC hired these individuals because of their friendships with the hiring
officials. Id. at 20. However, “[a]s a matter of law, favoring an employee because
of friendship is not favoring the employee because of race.” White v.
ThyssenKrupp Steel USA, LLC, 743 F. Supp. 2d 1340, 1352 (S.D. Ala. 2010),
citing Greene v. Potter, 557 F.3d 765, 771 (7th Cir. 2009); Swackhammer v.
Sprint/United Management Co., 493 F.3d 1160, 1170-71 (10th Cir. 2007). In
short, SBC’s alleged practice of assigning African Americans only to
predominately minority neighborhoods, while deplorable if true, does not help
Ware establish that racial animus factored in SBC’s decision to eliminate his route.
Ultimately, Ware’s failure to present evidence suggesting a race based
reason for his removal from the Red Bull sales route is fatal to his discriminatory
demotion claim. The court cannot conclude that SBC’s articulated reason for
eliminating Ware’s position (low sales) is pretextual given the undisputed evidence
that SBC simultaneously eliminated the route of a white female for the same
reason. In the final analysis, “[a] reason cannot be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the
real reason.” Blue v. Dunn Constr. Co., Inc., 453 Fed. Appx. 881, 884 (11th Cir.
2011) (emphasis in original) (internal quotation marks and citations omitted).
17

Ware failed to make either showing in this case. Therefore, the court thus
GRANTS SBC’s motion with respect to the demotion claim.
2.

Discriminatory Discharge

Ware contends next that SBC discharged him because of his race. To
establish a prima facie claim for discriminatory discharge, Ware bears the burden
of showing “that he (1) was a member of a protected class, (2) was qualified for the
job, (3) suffered an adverse employment action, and (4) his employer treated
similarly situated employees outside his classification more favorably.” Ashmore
v. Secretary, Dept. of Transp., No.12-10515, 2013 WL 28433, at *3 (11th Cir. Jan.
3, 2013) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). SBC
contends that Ware cannot satisfy the second or fourth elements or, alternatively,
that Ware cannot establish that the articulated reasons for his discharge are
pretextual.
a.

Ware was Qualified for the Position

SBC first asserts that Ware “cannot show he was qualified [for the beer
merchandiser] position because during the few months he held the merchandiser
position, he continually failed to meet SBC’s expectations for the position and was
reprimanded and counseled for poor performance.” Doc. 20 at 25. This assertion
misses the mark and is more related to whether SBC had a legitimate reason to
18

discharge Ware rather than whether Ware was initially qualified for the position.
In fact, SBC originally hired Ware in 1994 as a beer merchandiser and Ware held
the position until his transfer to the Red Bull department in 2005. It strains
credibility for SBC to argue that Ware was not qualified for a position Ware
worked in for approximately ten years and to which SBC transferred him back to in
2008. Therefore, the courts finds SBC’s argument unavailing.
b.

Alleged Failure to Identify a Comparator

SBC asserts next that Ware failed to identify a similarly situated person
outside the protected class SBC purportedly treated more favorably. Doc. 20 at 2526. Ware counters that under Smith v. Lockheed-Martin he does not have to
identify a comparator when there is sufficient circumstantial evidence of racial
discrimination. Doc. 27 at 40.7 Specifically, Ware maintains that (1) SBC’s failure
to counsel him for the alleged incidents referenced in his final write-up and which
formed the predicate for his termination, (2) SBC’s admission that it has no proof
that it warned Ware about the purported earlier infractions, (3) his supervisors
talking down to him, making him take more drug tests, and failing to offer him the

7

Ware also points to Jason Poer and James Thornton as Caucasian employees who had
performance issues but were not immediately terminated. Doc. 27 at 38. However, the rest of
Ware’s argument centers on the Lockheed-Martin analysis, which implies the absence of a
comparator. Id. Nonetheless, as discussed in the next section on pretext, the court agrees with
Ware that Thornton is a proper comparator.
19

same help they offered Caucasian employees, and (4) evidence that seven other
former SBC employees filed EEOC charges against SBC for racial discrimination
are sufficient circumstantial evidence of discrimination to bypass the need to
identify a comparator. Doc. 27 at 39-40.8 Since “establishing the elements of the
McDonnell Douglas framework is not, and never was intended to be, the sine qua
non for a plaintiff to survive a summary judgment motion in an employment
discrimination case,” the court agrees with Ware that the evidence he outlines
“presents a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin,
644 F.3d 1321, 1328 (11th Cir. 2011)(internal quotation marks and citations
omitted). Therefore, the court finds that Ware has established a prima facie case
for his discriminatory discharge claim.
c.

Pretext for Discrimination

In addition to establishing a prima facie case, to prevail Ware must also rebut
SBC’s articulated reasons for his discharge. Again, SBC contends it discharged
Ware because of insubordination and poor performance – to which Ware has

8

While the other EEOC charges may imply that SBC engages in discriminatory practices,
unfortunately for Ware, the EEOC charges do not lend to an inference that discriminatory animus
factored in his discharge since the decision-makers responsible for Ware’s discharge are not the
same decision-makers in the adverse employment actions resulting in the other EEOC charges.
See docs. 24-3, 24-5, 24-7, 24-9, 24-10, 24-13.
20

responded by presenting evidence of pretext. With respect to the insubordination,
it is undisputed that Ware refused to let his supervisor use the company van
assigned to Ware. However, giving Ware the inferences he is due as the nonmovant, head mechanic Bittle’s testimony shows that SBC ordinarily allowed Ware
to take his van home, including on off days, since Ware did not own a car, and that
there were one to three other vans available for the supervisor to use. Based on
these facts, although a company certainly has a right to use its vehicles only for
company business, a jury could find that the discrepancies in the supervisor’s
decision to ask for Ware’s van instead of using one of the available vans from the
fleet, the request for Ware to hand over the van right before Ware took off a few
days when SBC knew Ware did not have his own transportation, and the
subsequent decision to write up Ware for refusing to comply, may be sufficient for
a jury to find – if it is so inclined – that the decision to discipline Ware for
insubordination was pretext for unlawful discrimination.
A jury may decide to reach such a conclusion in light of Ware’s contentions
that his infraction only qualified as “failure to perform” under SBC’s progressive
discipline system. To support this contention, Ware relies on Nichols, an SBC
sales manager, who testified that a first offense did not ordinarily warrant a write
up for insubordination; rather, SBC required a pattern of infractions after prior
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discipline and counseling. Doc. 21-11 at 37-39. Although Nichols testified that he
“was aware of a lot of other problems with [Ware]” that warranted issuing the next
level of progressive discipline, Nichols also stated that he did not actually review
Ware’s personnel record prior to issuing the warning for insubordination. Id. If he
had, perhaps he would have noticed that some of the purported prior counseling
and disciplinary warnings are not signed by Ware. Doc. 21-29 at 5-12. Moreover,
Nichols testified that SBC has no evidence showing that it actually issued Ware
these alleged previous warnings. Doc. 21-11 at 43. Nichols’s testimony and the
general record create a discrepancy that is sufficient for Ware to have the
opportunity to argue to a jury – as he maintains – that SBC purportedly fabricated
the prior warnings SBC contends warranted its decision to elevate the infraction for
the van incident from “failure to perform” to insubordination.
The discrepancy in the earlier written warnings is also relevant to the final
two poor performance infractions Ware received that led to his termination. In
these two April 2007 written warnings, SBC maintained that Ware failed to stock
Red Bull product at two stores and refused to complete a delivery. Doc. 21-29 at
11-12. First, while neither side addressed the issue, the record is unclear as to why
SBC disciplined Ware on April 26, 2007 for failing to stock Red Bull given that
SBC removed Ware from the Red Bull group in January. Presumably, Ware filled
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in for one of the Red Bull salesmen; however, the court cannot assume facts that
are not in the record. Moreover, in light of Ware’s contention that SBC’s decision
to discharge him was pretext for race discrimination, the court simply cannot
assume that this April 26, 2007 discipline for failure to stock Red Bull did not, in
fact, pertain to conduct that occurred prior to Ware’s January 8, 2007 transfer from
the Red Bull group. These missing facts are relevant to the court’s evaluation of
Ware’s pretext claim.
Second, summary judgment is also inappropriate because of other
discrepancies. For example, SBC maintained that the two April 26, 2007
disciplinary warnings and the decision to discharge Ware were warranted because
it had previously counseled Ware about similar infractions. In fact, one of the two
final poor performance warnings specifically states that Ware “has been verbally
warned several times about stocking Red Bull.” Id. at 11. However, three of these
written warnings Ware purportedly received are not signed by Ware and do not
indicate that he refused to sign them. See id. at 5-11. Moreover, Ware claims that
he does not recall SBC counseling him about the alleged incidents or receiving the
prior written warnings. Doc. 21-2 at 10. Ware’s contentions, coupled with
Nichols’s testimony that SBC has no way to confirm that it actually issued the
written warnings to Ware, cast sufficient doubt about the prior warnings that
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require a credibility determination to resolve whether SBC or Ware is correct about
the alleged prior warnings, or lack thereof, for similar infractions.
Finally, the motion is also due to be denied because Ware presented evidence
that SBC failed to discharge at least one other SBC employee who also received
multiple written warnings, including for insubordination. Specifically, although
James Thornton admitted to several performance related issues, even after SBC
purportedly placed him on “final warning” for a deposit error in 2005, it still did
not discharge him when he received at least three subsequent written warnings.
Doc. 26-11 at 29-30. Instead, according to the record, SBC opted to suspend
Thornton for three days in 2009 when he engaged in insubordination and improper
conduct. Id. at 19-20. To further confound matters, like Ware, Thornton also
testified that SBC failed to counsel or warn him about the alleged infractions
referenced in some of his written warnings, and, incredibly, that SBC failed to
inform him that it had placed him on a final warning or had suspended him. Id. at
29-30. If Thornton is correct, SBC never placed him on a final warning or
suspended him, meaning that Thornton may have received even less discipline than
the records show. Such testimony by Thornton, if true, suggests that Ware may
have more than speculation and conjecture to support his contention that SBC
purportedly fabricated some of the written warnings in this case. In any event, this
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is an issue for a jury to resolve after hearing from the parties and assessing their
respective credibility.
Based on these facts, the court finds that significant factual issues remain
regarding whether SBC’s articulated reasons for Ware’s discharge are pretext for
discrimination. Accordingly, SBC’s motion regarding discriminatory discharge is
DENIED.
C.

Retaliatory Discharge Under § 1981
Ware’s final claim is that SBC discharged him in retaliation for engaging in

a protected activity. “[T]he analysis for a retaliation claim brought pursuant to §
1981 mimics the analysis of a Title VII claim.” Williams v. Carrier Corp., 889 F.
Supp. 1528, 1530 (M.D. Ga. 1995). “To establish a prima facie case of
retaliation[,] a plaintiff must show that (1) he engaged in statutorily protected
expression; (2) he suffered an adverse employment action; and (3) the adverse
action was causally related to the protected expression.” Tucker v. Talladega City
Schools, 171 Fed. Appx. 289, 296 (11th Cir. 2006) (internal quotation marks and
citations omitted). If the plaintiff establishes a prima facie case, the burden shifts
to the defendant to articulate a legitimate reason for the adverse employment
action. Id. If the defendant is able to meet the burden, “the plaintiff must respond
by showing that the employer’s reasons are a pretext for retaliation” in order to
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prevail. Id.
Although SBC doubts that Ware engaged in a protected activity,9 it contends
primarily that Ware’s retaliation claim fails because he cannot demonstrate a causal
link between his purported protected activity and his discharge or that SBC’s
reason for the discharge was pretextual. Doc. 20 at 29. The court assumes that
Ware’s complaint to Fletcher that SBC eliminated his Red Bull route because of his
race, see doc. 21-2 at 5, 16, is a protected activity. Nonetheless, Ware’s retaliation
claim fails because of the causation prong.
Generally, a plaintiff can satisfy the causation prong by “prov[ing] that the
protected activity and the negative employment action are not completely
unrelated.” Meeks v. Computer Assocs., 15 F.3d 1013, 1021 (11th Cir.
1994)(internal citation and quotation mark omitted). “To establish a causal
connection, a plaintiff must show that the decision-makers were aware of the
protected conduct, and that the protected activity and the adverse actions were not
wholly unrelated.” Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712,
716 (11th Cir. 2002). Ware failed to make this showing. Specifically, Ware
presented no evidence that Nichols and Phillips, the individuals who made the

9

Ware testified that he “probably did” complain to Fletcher that SBC eliminated his route
because of his race. See doc. 21-2 at 5, 16.
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decision to discharge him, “were aware of the protected conduct,” i.e. the
complaint to Fletcher. While Ware maintains that the seven EEOC charges filed by
former African American SBC employees paint a mosaic of racial discrimination,
this contention fails to establish the causation prong or that SBC’s articulated
reasons for Ware’s discharge are pretext for retaliatory conduct. The referenced
charges pertain to race and disability based discharge and, unlike Ware, in several
instances the complainant presented direct evidence of discrimination in the form
of racially derogatory statements made by the decision-making supervisor prior to
termination or video evidence establishing that the articulated reason for discharge
was false. See e.g., Doc. 24-3 at 2-3, Doc. 24-7 at 2. Moreover, those instances of
alleged discrimination involve different decision-makers. Ultimately, the existence
of the other EEOC charges does not salvage Ware’s failure to show that the
decision-makers responsible for his discharge were aware of his prior complaint.
Absent such knowledge, no basis exists for the court to find that retaliatory animus
motivated the discharge decision. Accordingly, SBC’s motion on the retaliation
claim is GRANTED.
IV. CONCLUSION
For the reasons stated more fully above, the court DENIES SBC’s motion
with respect to Ware’s discriminatory discharge claim, but GRANTS the motion
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in all other respects.
DONE this 25th day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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