Perry v. Supreme Beverage Company, Inc.

Filing 46

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 1/9/2015. (KEK)

FILED
2015 Jan-09 PM 12:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH PERRY,
Plaintiff,
v.
SUPREME BEVERAGE
COMPANY, INC.,

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Case No.: 2:11-cv-00060-MHH

Defendant.

MEMORANDUM OPINION
This case is before the Court on the magistrate judge’s report and
recommendation. Kenneth Perry brings this action against his former employer,
Supreme Beverage Company, alleging race discrimination and retaliation in
violation of Title VII, 42 U.S.C. § 2000e et seq and Section 1981, 42 U.S.C. §
1981, as well as state law claims for outrage and negligent hiring, supervision, and
retention.

The magistrate judge recommends that the Court grant summary

judgment on all of Mr. Perry’s claims. For the reasons stated below, the Court
adopts and accepts the magistrate judge’s report and recommendation on all claims
except Mr. Perry’s race discrimination claim.

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I.

STANDARD OF REVIEW
The Court must “make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

This means the Court must “give fresh

consideration to those issues to which specific objection has been made.” Jeffrey
S. by Ernest S. v. State Bd. Of Educ. Of State of Ga., 896 F.2d 507, 512 (11th Cir.
1990) (quoting H.R. Rep. No. 94-1609, reprinted in 1976 U.S.C.C.A.N. 6162,
6163). The portions of the report and recommendation to which the petitioner has
not objected are reviewed for clear error. Macort v. Prem, Inc., 208 Fed. Appx.
781, 784 (11th Cir. 2006). The Court “may accept, reject, or modify, in whole or
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1).
II.

DISCUSSION
Mr. Perry objects to the magistrate judge’s recommendation that the Court

grant summary judgment on his race discrimination claim. (Doc. 43). In support,
Mr. Perry contends that he has identified a similarly situated comparator, or in the
alternative, that there is sufficient circumstantial evidence from which a jury could
infer discriminatory animus by the employer. (Doc. 43, pp. 20, 25). The Court
agrees with the magistrate judge’s report and recommendation that Mr. Perry has
failed to identify a proper comparator, but finds that viewing the facts in the light
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most favorable to the plaintiff, there is sufficient circumstantial evidence of racial
discrimination to survive summary judgment.
To establish a prima facie case of race discrimination using comparator
evidence, Mr. Perry and his identified comparator, Mr. Christopher Phelps, “must
be similarly situated in all relevant respects.” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1091 (11th Cir. 2004) (internal quotation omitted). The comparator’s
conduct must be “nearly identical” to that of the plaintiff. Id; see also BurkeFowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).1 As the
magistrate judge points out, Mr. Perry’s and Mr. Phelps’s alleged misconduct is
similar but not sufficiently similar to make Mr. Phelps a proper comparator. (Doc.
42, p. 17).
SBC terminated Mr. Perry after Perry admitted that he made sexual remarks
to a female co-worker. (Doc. 19-1, pp. 170–76). Several of Mr. Perry’s coworkers overheard the remarks. (Doc. 19-13, pp. 128–30). Human Resources
Manager Ira Marcum determined that the remarks violated SBC’s sexual
harassment policy, and Mr. Marcum terminated Mr. Perry’s employment.2 (Doc.
19-1, pp. 179–80). In contrast, SBC moved Mr. Phelps from a delivery route to the
warehouse after a store owner accused Mr. Phelps of harassing a store clerk (who
1

The Report and Recommendation contains a more thorough discussion of comparator
standards. (See Doc. 42, p. 17).
2

CFO James Hall was also involved in the decision to terminate Mr. Perry’s employment. (Doc.
19-17, pp. 272–73).
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was the store owner’s wife) by touching her inappropriately, saying she was
beautiful, and calling her sweetheart. (Doc. 19-17, p. 126). Mr. Phelps denied any
wrongdoing, stating that he did not touch the store clerk’s wife. (Doc. 19-17, p.
131–32). When CFO James Hall reviewed surveillance tape of the incident, the
video revealed that Mr. Phelps touched the female clerk twice. (Doc. 19-17, pp.
161–62, 166–67). Mr. Hall concluded that the touching did not violate SBC’s
sexual harassment policy. (Doc. 19-17, pp. 160–61). The tape did not have audio,
so Mr. Hall was unable to determine whether Mr. Phelps told the clerk that she was
beautiful or called her sweetheart. (Doc. 19-17, p. 132). SBC resolved the matter
by having Mr. Phelps watch a video relating to the company’s harassment policy
and by assigning Phelps to warehouse duty. (Doc. 19-17, pp. 155–56, 161; Doc.
24-1, pp. 7, 8). While the alleged misconduct by Mr. Perry and Mr. Phelps is
somewhat similar, it is not identical.

Therefore, Mr. Phelps is not a proper

comparator.
Mr. Perry does not have to identify a comparator when, as here, there is
“circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1327–28
(11th Cir. 2011). “A triable issue of fact exists if the record, viewed in a light most
favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence
that would allow a jury to infer intentional discrimination by the decisionmaker.”
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Id. at 1328 (internal quotation omitted). This is a close case, and were it not for the
de novo standard, the Court would defer to the magistrate judge’s well-written
report; however, the undersigned finds that the record, taken as a whole and
viewed in the light most favorable to Mr. Perry, contains sufficient circumstantial
evidence of race discrimination to enable Mr. Perry’s discrimination claim to
survive summary judgment.
The disparity in treatment between Mr. Perry and Mr. Phelps, while not
sufficient to establish a prima facie case of discrimination based on comparator
evidence, does serve as circumstantial evidence of discriminatory animus that is
part of a larger patchwork of evidence of racial discrimination. Viewing the facts
in the light most favorable to Mr. Perry, SBC terminated Mr. Perry for making
remarks that were part of a longstanding joke in which Ms. Browder had
participated on previous occasions. (Doc. 21-5, pp. 7, 9). SBC did not hesitate to
terminate Mr. Perry based on Ms. Browder’s complaint.
SBC had demonstrated a quick trigger finger with respect to Mr. Perry on a
previous occasion.

In September 2007, before conducting an investigation,

supervisor Mike Windham fired Mr. Perry and two other African-American drivers
for allegedly mishandling SBC product. (Doc. 19-17, p. 80). At the direction of
Mr. Hall, Mr. Windham re-hired Mr. Perry when a post-termination investigation

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cleared Mr. Perry of wrongdoing. (Doc. 19-17, p. 253; Doc. 19-4, pp. 105–06;
Doc. 19-17, p. 253).
In contrast, SBC offered Mr. Phelps second chances. With respect to the
incident involving the store clerk, when SBC began its investigation, Mr. Phelps
lied to Mr. Hall, stating that he did not touch the clerk. By reviewing video
footage from the store, Mr. Hall learned that Mr. Phelps had, in fact, touched the
clerk on her lower back and on her shoulder; however, Mr. Hall regarded the
touching as non-offensive. (Doc. 19-17, pp. 160–61). Despite the fact that he had
clear proof that Mr. Phelps lied to him regarding the touching, Mr. Hall did nothing
to try to determine whether Mr. Phelps also lied about the remarks that he
purportedly made; Mr. Hall simply took Mr. Phelps’s word. (Doc. 19-17, pp. 131–
32, 160). Before the incident with the clerk, Mr. Phelps had been written up for
taking unauthorized loans from SBC. (Doc. 19-17, p. 139). Still, when it came to
allegations of sexual harassment at SBC’s customer’s store, SBC took Mr. Phelps’s
word over the store owner’s word, asked Mr. Phelps to watch a video relating to
SBC’s harassment policy, and removed Mr. Phelps from his delivery route. SBC
did not terminate Mr. Phelps for taking unauthorized loans, and the company did
not terminate him for his conduct at a customer’s store. When he was asked about
the store clerk incident, Marshall Nichols, SBC’s current director of corporate
operations who previously held a number of other positions in the company, stated
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that if Mr. Phelps touched the store clerk and called her sweetheart, then Phelps
violated SBC’s sexual harassment policy, and he should have been fired.

(Doc.

24-31, pp. 4, 57).
In his mosaic of evidence, Mr. Perry offers other examples of conduct that a
jury could use to infer discriminatory animus in this case. For instance, Mr. Perry
testified that SBC supervisors often denied African-American drivers help with
heavy loads, while help was routinely given to Caucasian drivers. (Doc. 19-3, pp.
14–15). Mr. Perry added that SBC supervisors assigned Caucasian drivers to
routes in safe neighborhoods, while SBC gave African-American drivers routes in
more dangerous neighborhoods where the African-American drivers sometimes
were robbed. (Doc. 19-3, pp. 14–15).
Because Mr. Perry has presented sufficient circumstantial evidence to allow
a jury to infer intentional discrimination, the Court finds that Mr. Perry’s race
discrimination claim survives summary judgment. See Ware v. Supreme Beverage
Company, 927 F. Supp. 2d 1244, 1254 (N.D. Ala. 2013) (denying summary
judgment on a race discrimination claim based on circumstantial evidence,
including that supervisors failed to offer plaintiff the same help they offered
Caucasian employees). At the summary judgment stage, the Court examines this
evidence in the light most favorable to Mr. Perry.

Although Mr. Perry has

presented sufficient circumstantial evidence of racial discrimination to survive
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summary judgment, much of this evidence is strongly contested. A jury will have
to resolve the dispute unless the parties can resolve it themselves.
The Court adopts and accepts the magistrate judge’s report and
recommendation on all other claims.
IV. CONCLUSION
For the reasons stated above, the Court ADOPTS AND ACCEPTS IN
PART the magistrate judge’s report and recommendation. The Court will enter a
separate order consistent with this memorandum opinion granting summary
judgment on all claims except Mr. Perry’s race discrimination claim.
DONE and ORDERED this January 9, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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