Burgin v. Burlington Coat Factory
MEMORANDUM OF DECISION. Signed by Judge James H Hancock on 6/4/2013. (JLC)
2013 Jun-04 PM 01:03
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
BURLINGTON COAT FACTORY,
MEMORANDUM OF DECISION
The court has before it the May 1, 2012 Motion (Doc. # 56) of Defendant
Burlington Coat Factory for summary judgment. Pursuant to the court’s August 20,
2012 and October 23, 2012 orders (Docs. # 71, 72 & 75), the Motion was deemed
submitted, without oral argument, on November 5, 2012. After careful review of the
briefs and admissible evidence, the court concludes that the Motion (Doc. #56) is due
to be granted in full for the following reasons.
I. Procedural History
A. Extensive History of the Case
Plaintiff, through counsel, filed a Complaint on February 23, 2011 alleging
claims of race and age discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 1981, and 29 U.S.C. § 621 (ADEA).
(Doc. # 1.) On May 17, 2011, four days after perfecting service, counsel for Plaintiff
filed a motion to withdraw, citing “differences of opinion on how the case should or
should not proceed” and stating that those “differences have and will make it difficult
for counsel to continue representation on the plaintiff in this case.” (Doc. # 5.) The
court took the motion under advisement and gave Plaintiff the opportunity to show
cause why by May 27, 2011 permission to withdraw should not be granted. (Doc. #
7.) That order also informed Plaintiff of her responsibilities as a pro se litigant in this
court, including the following requirements: (1) that communication with the court
must be through filings only; (2) that all filings must contain the certificate of service
(an example of which was set out in the order); and (3) a reminder to mail all filings
to counsel for all parties. (Id.) After no response from Plaintiff by the date allotted
in the order,1 on June 1, 2011, the court granted the motion to withdraw, (Doc. # 8)
and Plaintiff has proceeded pro se since that date.
Defendant filed its Answer (Doc. #9) to the Complaint on June 2, 2011, and the
court issued its usual order (Doc. # 11), reminding the parties of their obligations
As became the pattern in this case, the court received an undated letter from Plaintiff on
June 10, 2011, fourteen (14) days after the date stated by the court, consenting to the motion to
withdraw stating that it was her “desire to seek new counsel regarding the communication and
application of evidence.” (Doc. # 12.)
under Federal Rule of Civil Procedure 26. Then, on July 25, 2011, Burgin filed her
first motion for recusal, stating that she did “not believe that she will receive a fair
and impartial trial, or hearing from this Court” because of her experience in another
case and sought the appointment of a mediator. (Doc. # 13.) The court denied the
motion, assuring the Plaintiff that it would be fair and unbiased and stated that it
welcomed a motion for mediation if Defendant agreed. (Doc. #14.)
After this order, the court did not hear anything from the parties until
November 22, 2011, when Plaintiff filed a letter motion, dated November 17, 2011,
(Doc. #20) for extension of time within which to respond to Defendant’s Request for
Production. She requested a large extension of 72 days - until January 31, 2012.2
The court denied the request (Doc. #21) and reminded Plaintiff of the requirements
of communication with the court. The court stated that it could not continue to accept
letters or documents without the required certificate and such filings may be struck
in the future. (Id.) Although the court denied the extension, Defendant agreed to a
thirty-day extension. (Doc. # 26 ¶ 4.) Plaintiff filed her Response3 (Doc. # 22) to the
outstanding discovery on December 27, 2011.
The discovery requests were served on October 20, 2011, and under the Rules of Civil
Procedure her deadline for response was November 21, 2011. (See doc. # 26.)
The Response consisted of a cursory response to the document requests, but did not
include any response to the interrogatories.
Then, on February 7, 2012, Defendant filed a Motion (Doc. #26) to Compel
Complete Responses to Discovery Requests, after multiple attempts to resolve the
issue without involvement of the court.4 The Motion also requested an order from the
court compelling Plaintiff to attend her deposition, as noticed, on February 23, 2012.
(Id.) The following day, the court granted (Doc. #27) the motion and ordered
Plaintiff to (1) provide complete, verified responses to the interrogatories, without
objection, by February 20, 2012; (2) conduct a diligent search for responsive
documents, supplement her answers to the request for production, or state that no
such documents exist by February 20, 2012; and (3) appear at her deposition as
noticed. (Id.) Further the court warned that failure to comply with the court’s order
could result in a motion to dismiss for lack of prosecution under Federal Rule of Civil
Procedure 41(b). (Id.) Plaintiff filed her third set of responses on February 10, 2012,
(Doc. # 28) and appeared for her deposition.
Almost one month later, on March 6, 2012, Defendant filed its Second Motion
(Doc. #37) to Compel Responses to Discovery Requests. The motion also sought
Plaintiff’s signature on a HIPPA release for her medical records relating to her claims
of emotional, physical and/or psychological harm allegedly caused by Defendant.
Plaintiff did supplement her discovery response, but provided answers to only 4 of the 21
interrogatories. The remaining responses were objections or unclear references to her previous
(Id.) Before ruling on the motion, the court reviewed the history of the case, to date,
and highlighted much of the above, including specific details relating to Plaintiff’s
attempts at responding to the outstanding discovery and her testimony regarding
alleged medical treatment received as a result of harm allegedly caused by Defendant.
(Doc. # 38.) In light of that history, the court agreed with Defendant that Plaintiff had
not followed the court’s February 8, 2012 order regarding the written discovery. (Id.)
The court, therefore, granted the motion and ordered Plaintiff to provide the
following5: (1) complete, verified responses to the interrogatories, without objection,
by March 16, 2012; (2) supplemental and complete answers6 to the request for
production of documents and produce all responsive documents by March 16, 2012;
and (3) by March 16, 2012 either (a) identify all medical providers and treatments,
produce related and supporting documents and sign a HIPPA release or (b) file an
acknowledgment with the court that she is not seeking any damages for emotional
distress or any other damages related to any claimed physical injuries or medical
treatments allegedly caused by Defendant. (Id.)
The day after the court entered the discovery order, on March 14, 2012,
The court used such a short deadline for response because discovery ended on March
16, 2012. Additionally, the court had already ordered Plaintiff to provide responses to the first
two issues, which had been due on February 20, 2012.
The court specified that the answers should specifically reference which documents
respond to which requests. (Doc. #38.)
Plaintiff filed a Motion to Amend/Correct her Complaint. (Doc. #39.) The motion
sought to “add new information, and includes the Disability of the Plaintiff, not
documented in the first complaint.”7 (Id.)
In ruling on the motion, the court cited
to the June 8, 2011 reminder order (Doc. #11) that stated “the parties to the litigation
and the issues embraced in the litigation shall be reflected by the pleadings on file
120 days after the action was commenced.” (Id.) As this case was then over a year
old (filed on February 23, 2011),8 the court denied the motion to amend her complaint
to add a new claim. (Id.)
While the motion to amend was pending, each party filed a document with the
court. First, on March 21, 2012, Defendant filed a Motion (Doc. #41) to Dismiss for
Lack of Prosecution. Second, on March 26, 2012, Plaintiff filed a Response (Doc.
#44) to the court’s discovery order (Doc. #38). In that response, Plaintiff stated that
she did not receive the court’s order until March 18, 2012, two days after the deadline
in the order.9 (Doc. #44 at 1.) The response detailed Plaintiff’s frustration regarding
The Motion also alleged that Defendant did not return a document to Plaintiff, and that
Plaintiff has evidence that an employee of Defendant destroyed and/or tampered with evidence
related to this case. (Id. at 1-3.) The motion was not clear as to what claims Plaintiff wanted to
add regarding that information.
Additionally, under the Scheduling Order, the discovery deadline was March 16, 2012.
The order was mailed to Plaintiff the same day it was entered, on March 13, 2012.
Plaintiff’s mailing address is a post office box in Woodstock, Georgia.
working with Defendant on the outstanding discovery requests,10 and again requested
that the court rule on her motion to amend, which she attached. (Id.)
On March 27, 2012, the court took Defendant’s Motion (Doc. #41) to Dismiss
for Lack of Prosecution under advisement and set a briefing schedule. (Doc. #43.)
The briefing schedule gave Plaintiff four (4) weeks to file her opposition to the
motion and allowed Defendant one (1) week to reply to Plaintiff’s opposition. (Id.)
On April 2, 2012, Plaintiff filed a Motion (Doc. #45) for Extension of Time To
Respond. The Motion sought “an extension of at least thirty (30) days from the date
of March 31, 2012" to respond to the Motion to Dismiss. (Id.) The motion attached
her “Amended Complaint,” detailed her continued struggles with correcting her
deposition, and discussed some alleged discovery that she claimed was not answered
by Defendant. (Id.)
On April 4, 2012, the court denied (Doc. # 46) Plaintiff’s request for more time
to respond to the motion to dismiss, stating that a full four weeks was more than
adequate time to respond. In addition, the court reminded Plaintiff that it denied her
motion to amend her complaint and that the only claims before the court were the
ones filed in her original complaint. (Id.) Finally, the court stated that it could not
Plaintiff characterized these discovery difficulties as “harassment” by the Defense.
(Doc. #44 at 2.) She also insisted that the Defendants were “intentionally deceiving” the court
regarding the situation. (Id. at 3.)
make an informed decision regarding the amendments to her deposition and the
alleged discovery dispute as it did not have enough information regarding the issues
to rule. (Id.)
Obviously displeased with the court, on April 13, 2012, Plaintiff filed a Second
Motion for Recusal or Disqualification. (Doc. # 47.) Stated reasons for such recusal
included: (1) the court’s “extreme bias in this case against disabled persons”; (2) the
court’s “personal disdain for the Plaintiff Burgin, who is Pro Se”; and (3) that “Judge
Hancock has stated in Orders to the Plaintiff that the judge is unable to understand
or interpret and reasonably conceive of what the Plaintiff is asking in her motions to
the court.” (Id.) On April 17, 2012, the court denied (Doc. # 48) the motion to
On April 26, 2012,11 Plaintiff filed her Opposition (Doc. #51) to Defendant’s
Motion to Dismiss, and also titled the document as a Motion for Summary
Judgment.12 She also filed an affidavit in support of her opposition. (Doc. #52.) In
addition, Plaintiff filed yet another Response (Doc. #53) to Defendant’s Request for
Plaintiff’s Opposition was due on April 24, 2012. (Doc. # 46.) On April 26, 2012, the
court received a Notice of Timely Submission stating that “Plaintiff has timely filed her response
on April 23, 2012, by Email, to the Defense Attorney in this case . . . . The Plaintiff has
submitted this filing to the Court, on today, April 24, 2012.” (Doc. # 49.)
That same day, Plaintiff filed a Notice (Doc. #50) of intent to file “a complaint with the
Judicial Inquiry Committee” regarding the court’s refusal to recuse.
Production, which were ordered answered originally by February 20, 2012 and again
by March 16, 2012.13 (See Docs. # 27, 38.) Defendant timely filed its reply (Doc.
#54) to Plaintiff’s opposition to the Motion to Dismiss on May 1, 2012. Defendant
also filed a Motion (Doc. #56) for Summary Judgment on May 1, 2012.
After reading the briefs filed on the Motion to Dismiss, the court took up an
evidentiary issue raised in Plaintiff’s Opposition - specifically Plaintiff argued that
her deposition was inadmissible. (See Doc. #51.) Plaintiff provided the stenographer
service that transcribed her deposition testimony with a copy of her original transcript
with handwritten revisions, made mainly in red ink, to an extremely large portion of
her testimony, along with a signed and notarized statement of her reasons for the
changes. (See Exh. D to Doc. # 54.) The court, therefore, considered Plaintiff’s
argument, the changes and signed statement of reasons in combination and viewed
them as a Motion to Strike portions of her deposition testimony and substitute the
handwritten portions of her new testimony. (Doc. #58.)
After consideration of the argument of the parties and the applicable law, the
On May 7, 2012, without any explanation as to what the documents were, Plaintiff filed
ten (10) pages of mobile phone records with dates from 8/29/11, 8/30/11, 4/24/12, 7/8/11,
6/29/11, 1/27/12-2/1/12, 2/14/12, 8/1/11, 8/18/11, 8/19/11. (Doc. #57.) There was no cover
page with the documents, but merely a hand-written case name and number on the right-hand
corner of the top page of phone records. (Id.) The court remains baffled by this filing, but
assumes that Plaintiff believes them to be responsive to Defendant’s Request for Production.
court gave Plaintiff a choice. (Id.) She could choose for the court to either (1) use
the original, unaltered deposition testimony or (2) allow the changes, but also allow
the reopening of Plaintiff’s deposition, with questions limited in scope to the changes.
(Id.) If Plaintiff chose the second option, the court stated that Plaintiff would be
responsible for the costs and attorney’s fees associated with the reopening of her
deposition. (Id.) The court directed Plaintiff to alert the court of her decision by May
25, 2012.14 (Id.)
On May 29, 2012,15 Plaintiff filed a document entitled “Answer to the Court’s
Order and Motion for a Directed Verdict and Motion to Dismiss Defense Summary
Judgment for Failure to Prosecute.” (Doc. # 60.) That same day, she also filed a
“Renewed Motion for Summary Judgment Against Defense and Renewed Motion in
Opposition to the Defense Motion to Dismiss and Motion against Countclaim [sic]
of Defense Summary Judgment.” (Doc. #61.) The first document was comprised of
three main arguments: (1) a statement of facts and summary of argument in support
Because there had been some issues with Plaintiff timely receiving orders from the
court, the court directed the clerk to send a copy of this order by certified mail, return receipt
requested. (Doc. #58.) The order was received and signed for by Plaintiff on May 14, 2012.
That same day, the court received a letter from Plaintiff regarding the “poor quality”
and “condition of the documents” sent by counsel for Defendant regarding her “amended
deposition.” (Doc. #59.) The apparent purpose was for the court to “see the difference in
quality” between the documents Plaintiff had and the documents counsel for Defendant sent to
of summary judgment; (2) argument regarding “prejudicial stenographers
statements”; and (3) an extensive argument regarding her deposition testimony and
the court’s order surrounding the issue. (Id. at 60.) The second document is a thirtyfive (35) page response to Defendant’s Motion to Dismiss for failure to prosecute, as
well as an argument for summary judgment, and includes prayers for relief as well as
a new trial. (Doc. #61.) The document also contained discussions regarding alleged
“slander and libelous claims by defense” (id. at 3-6), other alleged malicious conduct
of counsel for the defendant, (id. at 10-12), and her deposition testimony (id. at 6-9).
Along with the above three filings, also on May 29, 2012, Plaintiff filed two
Notices (Docs. # 62 & 63) of Interlocutory Appeal regarding the court’s discovery
order - specifically the order regarding her deposition.16 These notices of appeal
were transmitted to the Eleventh Circuit Court of Appeals on May 31, 2012, and
divested the court of jurisdiction in this case until the appeal was resolved.
While the case was pending on “interlocutory appeal,” the parties continued to
file motions and documents with the court. First, on June 6, 2012, Defendant filed
a Motion (Doc. #64) regarding the appeal and Objection to Plaintiff’s additional
answer to the court’s order contained in her “Interlocutory Appeal.” That same day,
Plaintiff also used this filing as an “additional answer to the court’s order.” In essence,
the additional answer is more argument by Plaintiff regarding her deposition testimony.
Defendant also filed a Motion (Doc. #65) to Strike Documents 60 and 61. Then, on
June 22, 2012, Plaintiff filed a document entitled “Response to the Defenses
Introduction and Answer to Defense Commission of Perjury and Obstruction of
Justice Plaintiffs Motions Against the Defense on All Front Have Been Reiterated.”
(Doc. # 67.) The court did not address any of these orders as the case was on appeal.
On August 10, 2012, the Court of Appeals sua sponte dismissed the appeal for
lack of jurisdiction. (Doc. #70.) Because Plaintiff was challenging the discovery
rulings of the court, the Eleventh Circuit held that those rulings were not final or
immediately appealable. (Id.) This court then regained jurisdiction to clean up the
mess and “find a clear path to a resolution.” (Doc. #71.) The court issued an order
addressing all seven (7) pending motions and disposing of all of them but two
dispositive motions - Defendant’s Motion (Doc. #41) to Dismiss for Lack of
Prosecution and Defendant’s Motion (Doc. #56) for Summary Judgment. (Id.) In
that order, the court again addressed the issue of Plaintiff’s deposition and her
purported changes, as many of her then-pending motions related to her objections to
the court’s order regarding her deposition testimony. (Doc. #71 at 14-15.) The court
denied what it considered as Plaintiff’s motion for reconsideration regarding her
deposition testimony and changes throughout and made the following decision for her
because of her failure to follow yet another court order: the court disallowed any
changes to her deposition testimony and found that the only admissible evidence
before the court would be that to which Plaintiff testified in her original deposition.
(Id. at 15.)
B. Current Motion for Summary Judgment
With that lengthy history, the court turns to the Motion (Doc. #56 ) for
Summary Judgment filed by Defendant Burlington Coat Factory. Both parties have
filed briefs and submitted evidence in support of their respective positions.
Defendant submitted a brief and evidence17 (Doc. # 73) in support of its own Motion
for Summary Judgment on September 14, 2012. On October 24, 2012 and October
25, 2012, Plaintiff filed a brief and evidence18 (Docs. # 76 & 77) in Opposition to
Defendant’s Motion for Summary Judgment. On November 5, 2012, Defendant filed
a brief (Doc. # 80) in reply to Plaintiff’s opposition.
II. Standards for Evaluating a Summary Judgment Motion
Under Federal Rule of Civil Procedure 56(c), 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
Defendant submitted the following evidence: deposition of Bridgette Burgin with
Plaintiff submitted Exhibits labeled 1-18 and supplemented her exhibits on October 25,
2012. (Exh 1 to Docs. # 76 & 77.)
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 Transp., 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 which it believes demonstrate the absence of a
genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. After the moving
party has met its burden, Rule 56(e) requires the nonmoving party to go beyond the
pleadings and by its 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. See id. at 324.
The substantive law will identify which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
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 Prop., 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. See Fitzpatrick, 2 F.3d at 1115. Once the moving party makes
such a showing, the burden shifts to the non-moving 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 non-moving party will be unable to prove its case at trial. Once the moving party
satisfies its burden using this method, the non-moving 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 non-moving
party on the issue in question. This method requires more than a simple statement
that the non-moving party cannot meet its burden at trial but does not require
evidence negating the non-movant’s claim; it simply requires the movant to point out
to the district court that there is an absence of evidence to support the non-moving
party’s case. See Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial
burden by using this second method, the non-moving party may either point out to the
court record evidence, overlooked or ignored by the movant, sufficient to withstand
a directed verdict, or the non-moving 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 non-movant can no longer
rest on mere allegations, but must set forth evidence of specific facts. See Lewis v.
Casey, 518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)).
III. Relevant Undisputed Facts19
Before discussing the relevant, undisputed facts in this case, the court notes
that Plaintiff did not present facts supported by citation to the record to the court in
her brief (Doc. # 76) in opposition to summary judgment. Instead, the entire 28 pages
These are the facts for summary judgment purposes only. They may not be the actual
facts. See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994)
(“‘[W]hat we state as ‘facts’ in this opinion for purposes of reviewing the rulings on the
summary judgment motion [ ] may not be the actual facts’”) (citation omitted). Where the facts
are in dispute, they are stated in the manner most favorable to the plaintiff. See Fitzpatrick, 2
F.3d at 1115.
are devoted to her argument, although she does use some alleged facts as part of her
argument. Those “facts”, however, do not contain any citation to the evidence before
the court. It is not the job of the court to sort through Plaintiff’s brief and evidentiary
submissions to discover which facts are supported by the record, which are not, and
which facts presented by Defendant that she disputes. Therefore, the court’s
recitation of the relevant, undisputed facts comes directly from the brief and properly
cited evidence submitted by Defendant, which are amply supported by the record.
A. Sales Associate in Women’s Department and Shoe Department - May
2009 through April 2010
Plaintiff Bridgette Burgin, an African-American with a date of birth of
September 10, 1959, began working as a part-time sales associate at a Burlington
retail store in Birmingham, Alabama in May 2009. (Burgin Dep. at 112, 174-75,
178.) For the first six or seven months of her employment, Burgin worked as a sales
associate in the women’s department. (Burgin Dep. at 492.) Sometime toward the
end of 2009, Burgin began working in the shoe department, because Burlington was
trying to improve sales in that area. (Id. at 493.) Burgin worked in the shoe
department until April 2010. (Id. at 456.)
As a sales associate, Burgin reported to Area/Department Manager Linda
Joiner (Caucasian, date of birth 10/8/57), and to Assistant Store Manager of
Merchandise Marye Williams (African-American, date of birth 6/4/43). (Burgin Dep.
at 188-189; McKenzie Decl. at ¶¶ 4-5.) Indirectly Burgin also reported to the
Assistant Store Manager of Operations Denise Rich (African-American, date of birth
4/19/61), and the Store Manager Ronda Fulton (Caucasian, date of birth 12/28/60).20
(Burgin Dep. at 189-190; McKenzie Decl., at ¶¶ 6-7.)
Burgin began having problems with her Department Manager, Linda Joiner,
a few months into her employment. On August 2, 2009, Burgin complained to the
Assistant Store Manager Denise Rich that Joiner was “disrespectful, unkind, and
astoundingly mean,” and that Joiner had made racial comments on July 31, 2009.
(Burgin Dep. at 408-10, Exh. 32.)
Specifically, Burgin complained that she
overheard Joiner tell a customer that she needed “lighter” skinned employees “to get
things done right.”21 (Burgin Dep. at 411.)
A little over a month later, Burgin received her first disciplinary action. On
Burgin is younger than Joiner and Williams, and only one year older than Fulton. (Id. at
472-74; McKenzie Dec., at ¶¶ 4-5, 7.) Burgin testified that her age discrimination claim is based
on her belief that Joiner, who she believes is a “sociopath,” resented her for looking 10 years
younger than she, despite the fact that they were approximately the same age. (Burgin Dep. at
Burgin testified that both Joiner and Fulton discriminated against her, though Burgin
believes only that Fulton “allowed” discrimination against her, and did not actively discriminate
herself. (Burgin Dep. at 35-36, 478-79.) Other than the statement Burgin contends she
overheard Joiner make to a customer, Joiner never made any statements to Burgin about race.
(Id. at 428-29.) In fact, Burgin testified that other than Joiner, no one at Burlington, including
Fulton, ever said anything about race to Burgin. (Id. at 350, 474-75.)
September 19, 2009, Burgin received an Employee Corrective Action Form, signed
by Williams and Joiner, based on a customer’s complaint about her alleged rude
behavior. (Burgin Dep. at 185-186, Def. Exh. 17.) Specifically, the customer
complained that Burgin was very rude when the customer asked for assistance in the
shoe department, and that while Burgin was walking away she stated that she worked
with “jackasses” in front of the customer’s child. (Def. Exh. 17.)
A few months later, on November 13, 2009, Williams gave Burgin a one-page,
eleven-point “Action Plan” outlining her duties as a sales associate in the shoe
(Burgin Dep. at 217.)
This Action Plan was in response to a
conversation between Williams and Burgin on October 23, 2009. (See Def. Exh. 20.)
The plan stated that Williams would follow up with Burgin in 30 days to assess her
progress. (Id.) Burgin signed the Action Plan and wrote the following comment: “I
agree with this if we, as promised, educate other PT workers to maintain the . . .
[illegible] of the shoe department without which reprimand will be construed as cruel
and unusual.” (Id.)
In further response to the “Action Plan”, Burgin submitted to Williams a
three-in-a half-page, single-spaced letter, in which she complained, among other
things, that the Action Plan was “evidence of harassment, retaliation, and sabotage.”
(Burgin Dep. at 217, 222, 230, Def. Exh. 21.) Discrimination, whether race or age19
based, was not mentioned. (See id.) Burgin testified at her deposition that she
considered the Action Plan to be a form of “harassment,” because it stopped her from
doing her job as she saw fit, and was little more than “bringing [her] into the office,
arguing or fussing or debating about issues [she] already underst[oo]d.” (Burgin Dep.
at 224.) Burgin also testified at her deposition that she believed that the Action Plan
was in retaliation for her on-going complaints that Williams and Joiner failed to
properly direct, train, or help her do her job, and that in doing so, Williams and Joiner
were sabotaging Burlington’s sales production. (Id. at 228.) Burgin felt Williams and
Joiner treated her differently than employees who did not question their management
skills when they criticized her performance. (Id. at 230-31.)
Two months later, Burgin received three disciplinary actions in three days.
Burgin received a second Employee Corrective Action Form, on January 21, 2010,
after a customer complained that Burgin had threatened to report that customer to
child services. (Burgin Dep. at 198, Exh. 18.) The next day, on January 22, 2010,
Burgin received a Final Written Warning for carelessness and negligence in
performing her duties in the shoe department, signed by Williams. (Burgin Dep. at
284-85, Exh. 26.) Additionally, on the following day, January 23, 2010, Burgin was
issued Notice of Corrective Action, also signed by Williams, for failure to follow
through on assigned tasks. (Burgin Dep. at 306, Exh. 27.)
About a week later, on February 2, 2010, Burgin received a third Notice of
Corrective Action signed by Joiner and Williams, for dishonesty after she allegedly
allowed a customer to purchase an item for half the price for which it was listed.
Finally, Burgin received a formal Written Warning dated March 4, 2012, signed by
Williams, for insubordination. (Burgin Dep. at 203, 319, Exhs. 19, 29.)
Burgin also received informal performance counseling during her time in the
women’s department and shoe department. Burgin was counseled informally through
action plans, reminders, and task lists regarding her duties and responsibilities as a
sales associate. (See Burgin Dep. at 213, 242, 250-253, 256-57, 277-278, 314-316,
Exhs. 20, 22, 23-25, 28.) Not including the ones specifically discussed above, Burgin
was counseled on the following dates for performance-related issues: November 30,
2009 (Exh. 22), December 31, 2009 (Exh. 23), January 4, 2010 (Exh. 24), January 17,
2010 (Exh. 25), and February 28, 2010 (Exh. 28).
Williams authored these
performance-related counselings. (See Burgin Dep. at 243, 253, Exhs. 20, 22, 23-25,
B. Sales Associate in Merchandising/Markdowns and Lingerie - April
2010 through November 16, 2011
In April 2010, Burlington moved Burgin to a new position in
merchandising/markdowns for one or two weeks. (Burgin Dep. at 456.) Burgin
testified that a younger employee named “Frankie” took over in the shoe department
when Burgin was moved to merchandising/markdowns. (Id. at 455-458.) After
Burgin complained about being in merchandising/markdowns, Burlington again
moved her to the lingerie department in approximately late April/early May 2010
where she remained until her resignation on November 16, 2011. (Id. at 472.)
On May 11, 2010, Burgin received her 2009 Hourly Performance Evaluation
covering her employment through January 30, 2010. (Burgin Dep. at 335-36; Def.
Exh. 30.) Burgin received an overall rating of 2 out of 5, which represented “does
not meet expectations” on the performance scale. (Id.) Burgin responded to the
Annual Performance Review with a lengthy rebuttal in which she complained about
retaliation by “management,” for her “repeated complaints regarding behavior and
attitudes.” (Burgin Dep. at 368; Def. Exh. 30.) Burgin testified that she believed
Fulton was retaliating against her for criticizing how the store was being managed.
(Burgin Dep. at 369-372.) Although the rebuttal mentioned nothing of race, age, or
discrimination, Burgin testified at her deposition that she believed that the Annual
Performance Review was discriminatory because a poor review equates with the
perception that African-Americans are lazy, though the review itself does not contain
any statement along those lines. (Burgin Dep. at 343-44.)
On May 14, 2010,22 Burgin filed her first Charge of Discrimination with the
EEOC. (Def. Exh. 3.) In the charge, Burgin alleged discrimination on the basis of
race and age and retaliation, during the time period from September 1, 2009 until
March 22, 2010. (Id.) Burgin claimed to have been “subjected to disparate terms and
conditions with respect to a hostile work environment,” based on Joiner’s alleged
statements in July 2009. (Id.) She further alleged that she was retaliated against for
complaining about Joiner’s alleged statement when she was removed from the shoe
department approximately eight months later, and a younger, white employee took
over in that role. (Id.) Burgin also claimed that her hours had been reduced.23 (Id.)
Burgin received a Dismissal and Notice of Rights letter (“First Right to Sue Letter”)
relating to her First Charge, on or around November 30, 2010. (Burgin Dep. at 65;
Def. Exh. 3.)
Burgin filed a second EEOC Charge on or around July 27, 2010. (Burgin Dep.
at 68; Def. Exh. 5.) In it, Burgin alleged disability discrimination and retaliation for
filing her First Charge. (Def. Exh. 5.) Burgin also alleged that her managers
The court notes that Burgin signed the Charge on May 6, 2010, but it was date-stamped
received on May 14, 2010. (Def. Exh. 3.)
Although Burgin mentions an “off the job injury” and a “need for surgery” due to “a
job that has aggravated the injury,” she does not allege discrimination on the basis of a disability
in her charge. (Def. Exh. 3.)
reviewed her performance excessively and failed to post her weekly schedule in a
timely manner, and that she had been harassed by loss prevention,24 all in retaliation
for having filed the First Charge. (Id.) Burgin’s Right to Sue Letter relating to her
Second Charge is dated March 2, 2011, or about a week after Burgin filed her
complaint in this court. (Burgin Dep. at 75, Exh. 5.)
In November 2010, Burgin contacted Burlington’s corporate division to request
a leave of absence for personal reasons. (Burgin Dep. at 383-84, 390, 499.)
Burlington granted Burgin a personal leave of absence of ten weeks, beginning on
November 16, 2010, and ending no later than January 25, 2011.25 (Burgin Dep. at
387-88, Exh. 31.)
Burgin understood that Burlington was not required to grant
Burgin unpaid personal leave. (Burgin Dep. at 387.) She also understood that under
the terms of her leave of absence, there was no guarantee that Burlington would
As it relates to her claim of harassment by loss prevention, Burgin testified at her
deposition that Benita Artis, African-American, of Burlington’s loss prevention group, harassed
her by following her around the store, and that on at least one occasion in August 2010, she and
Artis were involved in a verbal altercation in the store. (Burgin Dep. at 435-36, 438, 440; Def.
Exhs. 34-35.) Burgin testified that she overheard Joiner instruct Artis to keep an eye on Burgin,
but that the alleged altercation was purely between herself and Artis. (Burgin Dep. at 438-39.)
Williams, Joiner, and Fulton were not involved in Burgin’s request for voluntary leave
of absence, and played no role in Burlington’s decision to grant Burgin a personal leave of
absence. (Id. at 384.) Burgin took a personal leave of absence because she had been evicted
from her residence, and had moved to Georgia to live with family. (Burgin Dep. at 137-38, 38586.) Burgin also testified that she was having health problems at the time she took leave, but that
she never informed Burlington of those health problems, her need for treatment, or any
subsequent treatment that she may have received. (Burgin Dep. at 115-17, 385, 401.)
return Burgin to her position if she returned on or before the end of her leave.
(Burgin Dep. at 393-395; Def. Exh. 31.) Moreover, Burgin was informed that if she
did not return to work by January 25, 2011, her employment would be terminated.
(Id.) Burlington also informed Burgin that while she could reapply for open positions
at Burlington if she did not return by the end of her leave, she was not guaranteed
future employment. (Id.)
Burgin did not return to her position with Burlington on or before January 25,
2011, and testified that she could not have returned to work on or before that date.
(Burgin Dep. at 403.) She never formally requested her job back during her leave.
(Burgin Dep. at 397-98.) Burgin did not communicate with Williams or Joiner during
her leave. (Id. at 397, 406-08.) Instead she took her questions to Martine McKenzie,
a Burlington HR Manager who Burgin believes interfered with her efforts to secure
a position at a Burlington location in Georgia. (Id.)
Burgin filed her Complaint in this court on February 23, 2011, alleging Race
and Age Discrimination (Count A), and Retaliation (Count B), under 42 U.S.C. §
2000 (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), and 29 U.S.C. § 621, the Age
Discrimination in Employment Act (“ADEA”). (Compl.) The Complaint references
the First Charge and the First Right to Sue Letter. (Compl. at ¶ 2.) At the time she
filed the Complaint, Burgin had not yet received the Second Right to Sue Letter,
which is dated March 2, 2011. (Burgin Dep. Exh. 5.) Burgin was represented by
counsel in this matter until May 18, 2011. (Docket No. 7.)
Before delving into a discussion of the allegations made by Burgin, the court
reminds the parties that plaintiff's pro se status does not entitle her to special
treatment on summary judgment, nor does it exempt her from compliance with Rule
56 and the orders of this Court. See, e.g., Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007) (explaining that “we are to give liberal construction to the pleadings
of pro se litigants,” but that “we nevertheless have required them to conform to
procedural rules”) (citation omitted); Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989) (a pro se party “is subject to the relevant law and rules of court, including
the Federal Rules of Civil Procedure,” and may be sanctioned “for failure to comply
with court orders”). Further, a court is not obligated to read minds or to construct
arguments or theories that a party has failed to raise.26 See Resolution Trust Corp.
See also Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 142 (3rd Cir. 2001) (“The
ruling on a motion for summary judgment is to be made on the record the parties have actually
presented, not on one potentially possible.”); Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 260 (1st Cir. 1999) (declaring that a “party who aspires to oppose a summary judgment
motion must spell out his arguments squarely and distinctly, or else forever hold his peace,” as
district court may ignore arguments not adequately developed by non-movant).
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“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.”). Clearly, “the onus is upon the parties
to formulate arguments.” Id. As such, Burgin’s decision not to proffer argument,
evidence or authority on many aspects of her claims in response to Defendant’s
Motion for Summary Judgment is at her peril. This court will not commit scarce
judicial resources to ferreting out every possible contention plaintiff could have
made, but chose not to make, in opposition to the Motion. See Case v. Eslinger, 555
F.3d 1317, 1329 (11th Cir. 2009) (noting that a litigant “cannot readily complain
about the entry of a summary judgment order that did not consider an argument [she]
chose not to develop for the district court at the time of the summary judgment
motions”) (citation omitted).
With that in mind, the court turns to the claims made by Burgin in her
Complaint: (1) race and age discrimination “in the areas of termination, job/work
assignments, hours of work, constructive discharge, and other adverse terms and
conditions of employment” (Compl. ¶ 15); (2) retaliation after she complained about
race and age discrimination, including the removal from the shoe department and her
alleged constructive discharge; (Compl. ¶¶ 18 & 19) and (3) hostile work
environment (Compl. ¶ 8). As reiterated by the court on numerous occasions, her
Complaint does not include a claim of disability discrimination (see, e.g. docs. # 42,
46) and the court did not consider any argument regarding disability discrimination.
Although Burgin devotes much of her argument to her alleged disability, (see doc. #
76 at 1-3, 5-8, 11, 14, 17-19, 27, 28), any and all claims regarding her alleged
disability is not before the court, and, therefore, irrelevant to the claims at hand.
A. Race and Age Discrimination
As to her claims of race and age discrimination, Defendant’s Motion for
Summary Judgment is properly evaluated under the time-honored McDonnell
Douglas standard. Absent direct evidence of discrimination (which Burgin has not
presented), Burlington must make a showing of circumstantial evidence that satisfies
the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). Under this familiar burden-shifting analysis, plaintiff is
required to make out a prima facie case of race discrimination. If she does so, that
showing “creates a rebuttable presumption that the employer acted illegally.”
Underwood v. Perry County Com’n, 431 F.3d 788, 794 (11th Cir. 2005).
At that point, “the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action . . . . If the employer
does this, the burden shifts back to the plaintiff to show that the employer’s stated
reason was a pretext for discrimination.” Crawford v. Carroll, 529 F.3d 961, 976
(11th Cir. 2008) (citations and internal quotation marks omitted). A plaintiff may
establish pretext “either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.”
Brooks v. County Com'n of
Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation omitted).
Either way, “[i]f the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot recast the reason but must meet it head on and rebut it .
. . . Quarreling with that reason is not sufficient.” Wilson v. B/E Aerospace, 376
F.3d 1079, 1088 (11th Cir. 2004); see also Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1278 (11th Cir. 2008) (“It is the plaintiff’s burden not merely to raise a
suspicion regarding an improper motive, but rather to demonstrate there is a genuine
issue of material fact that the employer’s proffered reason . . . was pretextual.”). “The
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Springer
v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1347 (11th Cir.
2007). Thus, “[i]f the plaintiff does not proffer sufficient evidence to create a genuine
issue of material fact regarding whether each of the defendant employer’s articulated
reasons is pretextual, the employer is entitled to summary judgment.” Chapman v.
AI Transport, 229 F.3d 1012, 1024–25 (11th Cir. 2000) (en banc).
1. Burgin Has Not Made a Prima Facie Case of Race or Age
To establish a prima facie case of disparate treatment under Title VII and the
ADEA, a plaintiff must show that “(1) she belongs to a protected class; (2) she was
qualified to do the job; (3) she was subjected to adverse employment action; and (4)
her employer treated similarly situated employees outside her class more favorably.”
Crawford, 529 F.3d at 970; see also McCann v. Tillman, 526 F.3d 1370, 1373 (11th
Cir. 2008) (similar). Defendant does not dispute that Burgin is a member of a
protected class by virtue of her race, African American, and her age, over forty. (Doc.
#73 at 17.) Defendant also does not dispute, for purposes of summary judgment only,
that Burgin was qualified for her position of part-time sales associate.
Defendant does challenge the third and fourth elements: that she was subjected to an
adverse employment action and that it treated similarly situated employees outside
her class more favorably. (Id.)
a. Adverse Employment Action Prong
An adverse employment action is an essential element of a claim of
discrimination. Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001).
“[T]o prove [an] adverse employment action . . . an employee must show a serious
and material change in the terms, conditions, or privileges of employment.” Id. at
1239 (quoted in Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010)).
“[T]he employee’s subjective view of the significance and adversity of the employer's
action is not controlling; the employment action must be materially adverse as viewed
by a reasonable person in the circumstances.” Davis, 245 F.3d at 1239 (quoted in
Howard, 605 F.3d at 1245.) Therefore, plaintiff must “establish an ‘ultimate
employment decision’ or make some other showing of substantiality in the
employment context in order to establish an adverse employment action.” Crawford
v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)(citing, inter alia, Davis, 245 F.3d at
An “ultimate employment decision” is one “such as termination, failure to hire,
or demotion.” Id. For a decision “falling short of an ultimate employment decision”
to rise to the level of an actionable adverse employment, that decision “must, in some
substantial way, alter the employee’s compensation, terms, conditions, or privileges
of employment, deprive him or her of employment opportunities, or adversely affect
his or her status as an employee.” Id. (internal quotations and citation omitted).
Among the facts and circumstances affecting whether a decision is considered
“adverse” are whether the decision results in “lesser pay, responsibilities or prestige,”
and whether the decision would “impede an employee’s professional growth or
advancement.” Doe v. DeKalb County School District, 145 F.3d 1441, 1452 (11th
Cir.1998). “Although proof of direct economic consequences is not required in all
cases, the asserted impact ‘cannot be speculative and must at least have a tangible
adverse effect on the plaintiff's employment.’” Soloski v. Adams, 600 F.Supp.2d
1276, 1356 (N.D.Ga. 2009) (quoting Filius v. Potter, 176 Fed. Appx. 8, 10 (11th Cir.
2006))(unpublished). “While adverse employment actions extend beyond readily
quantifiable losses, not everything that makes an employee unhappy is an actionable
adverse action. Otherwise, minor and even trivial employment actions that an
irritable, chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit.” Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir.
1996)(internal quotations and citations omitted).
Burgin does not make any specific argument as to what she alleges as her
adverse actions. Although the court will not make her argument for her, after reading
her brief, she does attempt to make some argument that she was treated differently
and/or discriminated against in the following ways: (1) discipline and performancerelated coaching and reviews; (2) movement out of the shoe department, an alleged
demotion according to Burgin; (3) the assignment of hours to work; and (4) her
alleged constructive discharge and/or termination. None of these alleged actions rise
to the level of an actionable adverse employment action for the following reasons.
None of the disciplines, performance-related coachings, or reviews were
adverse employment actions because there is no admissible evidence that any of them
affected the terms, conditions, or privileges of her employment. See Clark v. Potter,
232 Fed. Appx. 895, 897 (11th Cir. 2007)(letter of warning that had no effect on the
plaintiff’s employment was not an adverse employment action); Austin v. City of
Montgomery, 196 Fed. Appx. 747, 753 (11th Cir. 2006)(counseling memos not
adverse employment actions; plaintiff failed to show that memos were “a formal
reprimand or triggered any tangible form of adverse action such as loss in benefits,
ineligibility for promotional opportunities, or more formal discipline”); Summerlin
v. M & H Valve Co., 167 Fed. Appx. 93, 97 (11th Cir. 2006)(a reprimand that does
not “have an impact on an important condition of employment, such as salary, title,
position, or job duties,” is not an adverse employment action); Braswell v. Allen, 586
F.Supp.2d 1297, 1306 (M.D.Ala. 2008)(“A reprimand does not constitute an adverse
employment action when the employee suffers no tangible harm as a result.”)
Second, although Burgin contends that her work hours changed and/or were
reduced during her employment because of her race and/or her age, there is absolutely
no evidence in the record before the court to support this allegation. Although Burgin
submitted four (4) unverified documents allegedly showing her work hours on four
(4) different weeks while she was working at Burlington, (Doc. #76 at 52-56 ), these
documents alone do not support her contention that her hours were reduced in
general. Instead, they show one week, while Burgin was in Markdown, where her
hours were allegedly reduced.27 Burgin only worked in this department for one or
two weeks. (Burgin Dep. at 456), and was moved to the lingerie department as soon
as she complained. (Id. at 472.) The court has no information about Burgin’s hours
when she moved to the merchandising/lingerie department. (Id.)
Third, Burgin’s move from part-time sales associate in the shoe department
from part-time sales associate in merchandising and lingerie was not an adverse
employment action. Although Burgin characterizes the move as a “demotion,” there
These documents, entitled “Schedule Report” do not contain any marks of reliability,
and the court would be hard-pressed to rely on them as admissible evidence in this case.
is no evidence before the court that the move caused any change in her status at
Burlington; nor is there any evidence that the move in departments affected the
terms, conditions, or privileges of her employment. See Melton v. Nat’l Dairy LLC,
705 F. Supp. 2d 1303, 1329 (M.D. Ala. 2010) (changes in work assignments, absent
more, do not constitute adverse employment actions).
Finally, the evidence before the court does not support Burgin’s contention that
she was constructively discharged. “A constructive discharge occurs when a
discriminatory employee imposes working conditions that are ‘so intolerable that a
reasonable person in [the employee’s] position would have been compelled to
resign.’” Fitz v. Pugmire Lincoln–Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003)
(citing Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997)).
The Eleventh Circuit uses an objective standard to evaluate constructive discharge
claims. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001)
(citing Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1450 (11th Cir.1998)). The
standard for proving constructive discharge is higher than that for a hostile work
environment. Id.; see Barrow v. Ga. Pacific Corp., 144 Fed.Appx. 54, 59 (11th
Cir.2005) (a plaintiff cannot meet the standards for a constructive discharge claim if
he cannot establish a hostile work environment claim). The court must find that
“pervasive conduct by employers” occurred prior to finding that a constructive
discharge occurred. Hipp, 252 F.3d at 1231. Moreover, “[p]art of an employee's
obligation to be reasonable is an obligation not to assume the worst, and not to jump
to conclusions too fast.” Garner v. Wal–Mart Stores, Inc., 807 F.2d 1536, 1539 (11th
Cir.1987) (finding that it would have been reasonable for the employee to complain
about her position to her manager rather than quit after one day of being in an
In this case, there is no evidence to support a constructive discharge. Instead,
the evidence before the court is that Burgin voluntarily left Burlington for personal
reasons and did not return to her position by the end of her leave of absence. (Burgin
Dep. at 137-38, 385-86, 397-98, 406-08.) More specifically, the undisputed evidence
is that Burgin contacted Burlington’s corporate division to request a leave of absence
for personal reasons in November 2010, and Burlington granted Burgin a personal
leave of absence of ten weeks, beginning on November 16, 2010, and ending no later
than January 25, 2011. (Burgin Dep. at 303-84, 387-88, Exh. 31.) Burgin testified
that she understood that Burlington was not required to grant Burgin unpaid personal
leave and that under the terms of the leave of absence, there was no guarantee that
Burlington would return Burgin to her position if she returned on or before the end
of her leave. (Burgin Dep. at 387, 393-395; Def. Exh. 31.) Moreover, Burgin was
informed that if she did not return to work by January 25, 2011, her employment
would be terminated and that while she could reapply for open positions at Burlington
if she did not return by the end of her leave, she was not guaranteed future
employment. (Id.) Burgin did not return to her position with Burlington on or before
January 25, 2011, and even testified that she could not have returned to work on or
before that date. (Burgin Dep. at 403.)
Moreover, there is no evidence before the court, other than her own
unsupported speculative beliefs, that Fulton, Joiner and Williams had some sort of
plot to “get rid” of Burgin. “[M]ere suspicion of an unsubstantiated plot is not an
intolerable working condition” sufficient to establish a constructive discharge.
Foshee v. Ascension Health-is, Inc., 384 Fed. Appx. 890, 892 (11th Cir. 2010). In
addition, as discussed in detail below, Burgin cannot establish the existence of a
hostile work environment as a matter of law, and the standard for establishing a claim
for constructive discharge is higher than the standard for hostile work environment.
Hipp, 252 F.3d at 1231.
For the above reasons, Burgin has failed to establish the third prong of her
prima facie case - an adverse employment action. As such, summary judgment is
proper as to her claims of race and age discrimination.
b. Similarly Situated Employee Prong
Even if she had established an adverse employment action, she did not present
sufficient evidence to support the fourth prong of her prima facie case. As to the
fourth element, “[a] plaintiff does not shift the burden to the defendant under
McDonnell Douglas merely by stating that [s]he was fired or treated unfavorably.
McDonnell Douglas requires the plaintiff to establish a prima facie case which
includes identifying an individual who replaced him or was treated better than he was
who was not a member of his protected class.” Morris v. Emory Clinic, Inc., 402
F.3d 1076, 1082 (11th Cir. 2005). To satisfy this “similarly situated” threshold, “[t]he
comparators for the fourth prong must be similarly situated in all relevant respects.”
Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). The
comparator must be nearly identical to the plaintiff to prevent the court from
second-guessing a reasonable decision by the employer. See Silvera v. Orange
County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001).
Burgin does not identify any potential comparators as it relates to her claim of
race discrimination. As for her claim of age discrimination, Burgin testified that a
younger employee named “Frankie” took over in the shoe department when Burgin
was moved to merchandising/markdowns. (Id. at 455-458.) She also argues that an
employee named Shenelle replaced her in the shoe department. (Doc. #76 at 15.)
Finally, Burgin references Tiffany Reid (Doc. #76 at 11, 24) when discussing
“younger employees” but does not give any specific information as to this individual.
Other than their names and their alleged ages, the court has no further
information about these three individuals. The mere fact that Burgin contends that
two younger employees replaced her in the shoe department is insufficient to
establish the similarly situated prong of the prima facie case. The court has no other
information regarding these individuals by which to compare them to Burgin. For
instance, the court does not know the positions where these individuals worked, their
duties and responsibilities, or their work experience. Without such information, the
court would be merely second guessing the decision made by Burlington, something
that the Eleventh Circuit has warned against doing. See Silvera, 244 F.3d at 1259.
As for Tiffany Reid, the court has no information about her sufficient to establish her
as a suitable comparator. Therefore, Burgin failed to present evidence to satisfy the
fourth element of her prima facie case.28
The court is aware that the failure to prove this final element of the prima facie case is
not necessarily fatal to a plaintiff’s claim: “[i]f a plaintiff fails to show the existence of a
similarly situated employee, summary judgment is appropriate where no other evidence of
discrimination is present.” Holifield, 115 F.3d at 1562 (internal citation omitted). However, as
explained, Burgin has failed to show any evidence of discrimination with regard to her
In conclusion, Burgin has failed to establish a prima facie case of
discrimination as to her race and/or her age. She has failed to establish that she was
subjected to an adverse employment action while she worked at Burlington. Even if
she had established this element, she failed to establish a suitable comparator. As
such, summary judgment is proper as to Burgin’s claims of race and age
2. Burgin Has Submitted No Evidence of Pretext
Even if Burgin had made out a prima facie case of race and age discrimination
(which she has not), Defendant’s Motion for Summary Judgment would be properly
granted as to these claims because she has failed to come forth with sufficient
evidence to establish pretext. As explained above, Burgin may establish pretext in
one of two ways: (1) “either directly by persuading the court that a discriminatory
reason more likely motivated the employer” or (2) “indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Brooks., 446 F.3d at
1163 (quotation omitted). Either way, “[i]f the proffered reason is one that might
motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it
head on and rebut it . . . . Quarreling with that reason is not sufficient.” Wilson, 376
employment at Burlington.
F.3d at 1088; see also Rioux, 520 F.3d at 1278.
Here, Burgin has done nothing more than disagree with decisions made by
Burlington, including how it managed its store and evaluated her performance. She
does not make any argument whatsoever creating a genuine issue of material fact that
the decisions made during her employment with Burlington were motivated because
of race and/or age.29 Instead, her testimony and argument merely establishes a
personality conflict between Burgin and her superiors. Federal law does not protect
employees from personality conflicts with other employees or their superiors. “The
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Springer
v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1347 (11th Cir.
2007). Burgin has completely failed in this regard. As such, she has not established
pretext in regards to her discrimination claims, and summary judgment is proper as
to both claims under Title VII and the ADEA.
The one comment attributed to Joiner about “white” or “lighter” employees in August
2009 was an isolated comment that unrelated to any challenged employment decision. As such,
it is insufficient to establish pretext. See Ritchie v. Indus. Steel, Inc., 426 Fed. Appx. 867, 87273 (11th Cir. 2011); English v. CSA Equip. Co., 2006 WL 2456030 at *17 (S.D. Ala. Aug. 22,
B. Hostile Work Environment
To establish a hostile work environment claim under Title VII and the ADEA,
the plaintiff must show that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993); Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The requirement
that the harassment be “severe or pervasive” contains an objective and a subjective
component. Miller, 277 F.3d at 1276. “Thus, to be actionable, this behavior must
result in both an environment that a reasonable person would find hostile or abusive
and an environment that the victim subjectively perceive[s] ... to be abusive.” Id.
(internal quotation marks omitted). In evaluating the objective severity of the
harassment, this court looks at the totality of the circumstances and considers, among
other things: “(1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee's
job performance.” Id. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances.” Harris, 510 U.S. at 23, 114
S.Ct. 367. Discrete acts cannot alone form the basis of a hostile work environment
claim. See Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir.
2008). Instead, a hostile work environment claim addresses acts that are “different
in kind” and whose “very nature involves repeated conduct,” such as “‘discriminatory
intimidation, ridicule, and insult.’” McCann v. Tillman, 526 F.3d 1370, 1378 (11th
Cir. 2008) (quoting Nat’l R.R. Passenger Corp., 536 U.S. at 117, 122 S.Ct. 2061)).
Burgin makes the following arguments in regard to her hostile work
Burgin contends she “suffer[ed] deep, mental, emotional, and
psychological humiliation, making Burgin feel embarrassed often in
front of customers and co-workers” from actions by Joiner and Williams
(Doc. #76 at 5);
Burgin stated that she experienced “constant ‘nitpicking’” by Williams
and Joiner. (Id.);
Burgin “informed her managers of Bonita Artis . . . of assaulting
Plaintiff. Burgin also filed a Police Report . . . against Artis. Burgin
stated to managers and to the police that Burgin was stressed due to the
hostile environment, and felt unsafe in the environment. Burgin also
stated that she felt her environment was ‘perverse’ as Ms. Artis often
fondled the women’s lingerie in a sexual nature while in Burgin’s
presence. Burgin voiced severe discomfort, uneasy, and distressed
emotions, and the Plaintiff felt as if she were in a hostile environment.”
(Id. at 6.)
“[V]erbal attacks by Williams, Joiner, and the verbal and physical
attacks by Bonita Artis were intimidating, and hostile, which affected
Burgin’s ability to perform her job.” (Id.)
“Linda Joiner and Bonita Artis used aggressive and unreasonable
behavior against Burgin, when Joiner was overheard by Burgin, saying
to Artis to follow Burgin, and ‘watch her, she steals.’ Artis took this
directive one step further by pushing, grabbing, and shoving Burgin.
Artis was seen by others workers yanking and twisting Burgin’s injured
wrist, while slamming down Burgin’s arch with the heel of her foot.”
(Id. at 7.)
None of these allegations (and the other ones mentioned in her brief but not
highlighted above) come close to establishing the requirements necessary to sustain
a claim for hostile work environment based on race and/or age. In fact, none of her
allegations contain any reference whatsoever to Burgin’s race or age. Instead,
Burgin’s complaints of alleged ridicule and humiliation seem to stem from
personality conflicts and general dislike between her managers, co-workers and
herself. Neither Title VII nor the ADEA is not a federal “civility code.” Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998).
Burgin’s hostile work
environment argument is based on her subjective perception and speculation, rather
than on specific facts from which a reasonable jury could find that she was subjected
to a discriminatorily hostile work environment because of her race and/or her age.
It therefore, fails as a matter of law, and Burlington is entitled to summary judgment
on Burgin’s hostile work environment claim.
Title VII prohibits employers from retaliating against an employee “because
[s]he has opposed any ... unlawful employment practice ... or because [s]he has made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). To establish
a prima facie case of retaliation, the plaintiff must show that (1) she engaged in
statutorily protected activity; (2) she suffered a materially adverse employment
action; and (3) there was a causal link between the two. Dixon v. The Hallmark
Companies, Inc., 627 F.3d 849, 856 (11th Cir. 2010).
If the plaintiff is able to
advance a prima facie case of retaliation, the burden then shifts in accordance with
McDonnell Douglas to USS to articulate legitimate, non-discriminatory reasons for
the alleged retaliatory acts. See Phillips v. Aaron Rents, Inc., 262 Fed. Appx. 202,
2008 WL 111038, No. 07-11477 at *8 (11th Cir. Jan. 11, 2008) (“Retaliation claims
are also analyzed under the McDonnell Douglas burden-shifting framework.”) (citing
Holifield, 115 F.3d at 1566). Once her employer articulates such a reason, the
plaintiff must demonstrate that her employer’s proffered explanation is a pretext for
retaliation for her claim to survive summary judgment. See id.
Burgin engaged in a protected activity when she complained to Rich about
Joiner’s alleged comments. For the purposes of summary judgment only, the court
will assume, without deciding that Burgin can establish a prima facie case of
retaliation as it relates to her transfer from the shoe department and her performance
reviews, counselings and warnings.
Even with that assumption, Burgin cannot demonstrate that Burlington’s
legitimate, nonretaliatory reasons for the asserted actions were a pretext for
Burlington states that it transferred Burgin out of the shoe department
because of her “well-documented poor performance in the shoe department.” ( Doc.
# 73 at 26.) As for her performance reviews, counselings and warnings, Burlington
articulated specific reasons for each one - all of which are legitimate business reasons
for giving a counseling or a warning to an employee. See infra, Section III. A & B.
Burgin’s argument in support of pretext is the timing of her performance
reviews and warnings, which began about a month after she made her complaint to
Rich about her Department Manager, Joiner. Those performance evaluations led to
her alleged demotion out of the shoe department. She contends (without any citation
to the record) that Rich shared the complaint with Joiner and Williams.30 (Doc. # 76
at 10.) She then argues that the Assistant Store Manager of Merchandise, Williams,
Other than this unsubstantiated remark in her brief to the court, there is no evidence to
support this contention.
began writing her up only after she reported that Joiner was “disrespectful, unkind,
and astoundingly mean,” and that she overheard Joiner tell a customer that she needed
“lighter” skinned employees “to get things done right.” (Id.; Burgin Dep. at 408-11;
Timing alone is insufficient to establish pretext and that is especially true
based on the facts presented in this case. Here, Burgin made a complaint against
Joiner on August 2, 2009, and about a month later, on September 19, 2009, she
received her first Employee Corrective Action Form. This Corrective Action Form,
however, was based on a customer complaint about Burgin’s alleged rude behavior
to that customer, and not based upon Williams or Joiner’s opinions of Burgin and/or
her performance. Burgin does not contest that the event took place or that the
complaint was somehow fabricated by Williams. The next alleged “counseling” did
not occur until November 13, 2009, over four months after her complaint. Moreover,
this “counseling” was actually not a counseling or warning at all, but simply an
Action Plan detailing the expectations for Burgin in the shoe department. The true
performance counselings and warnings did not begin until November 30, 2009 and
continued on a regular basis until she was transferred out of the shoe department.
Burgin asks the court to infer from the timing of these actions that Williams
was motivated by retaliatory intent. The court cannot accept this argument in the
absence of additional facts to support retaliatory intent. If timing alone were
sufficient, any employer who received a complaint protected under one of the
retaliation provisions would thereafter have its hands tied regarding any discipline of
the employee. Title VII and the ADEA are not a shield to protect employees from
legitimate disciplinary action by their employers if their performance is lacking.
Here, the evidence of Burgin’s poor performance is well-documented and Burgin has
not introduced any evidence, other than her unsubstantiated beliefs, that she was
retaliated against because of her race or because of her age. As such, summary
judgment is proper as to Burgin’s claims of retaliation.
In summary, Burlington’s Motion (Doc. # 56) for Summary Judgment is due
to be granted in full. As a result of this conclusion, Burlington’s pending Motion
(Docs. # 41) To Dismiss for Lack of Prosecution31 is MOOT. The court will enter
The court could have easily dismissed this case because of Burgin’s blatant disregard of
the court’s orders. District courts possess the inherent power to sanction errant litigants before
them. See Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir.
2002) (“Courts have the inherent authority to control the proceedings before them, which
includes the authority to impose “reasonable and appropriate” sanctions.”). Indeed Federal Rule
of Civil Procedure 41(b) expressly “authorizes a district court to dismiss a complaint for failure
to prosecute or failure to comply with a court order or the federal rules.” Gratton v. Great
American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999). While “[p]ro se pleadings
are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be
a separate, final order dismissing the instant action with prejudice.
DONE this the 4th
day of June, 2013.
SENIOR UNITED STATES DISTRICT JUDGE
liberally construed[,]” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), this
does not extend to a pro se litigant’s failure to comply with federal procedural rules, local court
rules, or orders of the court. See Ingram v. Alabama State Univ., 2006 WL 3791975, *1 (S.D.
Ala. Dec. 21, 2006); Brown v. Tallahassee Police Dept, 2006 WL 3307444, *1 (11th Cir. Nov.
Notwithstanding the availability of such a sanction in the arsenal of every district court,
the Eleventh Circuit has held that dismissal of an action for failure to prosecute should be
undertaken only as a last resort, when lesser sanctions would be inappropriate, and “only in the
face of a clear record of delay or contumacious conduct by the plaintiff.” McKelvey, 789 F.2d
1518, 1520 (11th Cir. 1986); see also Goforth, 766 F.2d at 1535 (dismissal for failure to
prosecute is appropriate where the record reflects a “clear record of delay or willful contempt” on
the part of a litigant). “In determining whether a Rule 41(b) dismissal for failure to prosecute or
failure to comply with court orders is appropriate, courts have considered such factors as (1) the
culpability of the plaintiff; (2) the degree of prejudice to the defendant; (3) whether the plaintiff
has a history of deliberately proceeding in a dilatory fashion; and (4) the efficacy of less drastic
sanctions.” Hudson v. Cardwell Corp., 2006 WL 2135791, *2 (S.D. Ala. July 26, 2006)
(citations omitted). Contumacious conduct warranting dismissal for failure to prosecute includes
such activities as “protracted foot-dragging,” “defiance of court orders,” “ignoring warnings,”
and “wasteful expenditure of the court’s time.” Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1,
4-5 (1st Cir. 2002); see also Jones, 709 F.2d at 1462 (affirming dismissal for failure to prosecute
where plaintiff disregarded multiple court orders directing him to respond within a certain time).
Violations “caused by simple negligence, misunderstanding, or inability to comply”, however, do
not constitute “willfulness.” In re Se. Banking Corp., 204 F.3d 1322, 1332 (11th Cir. 2000);
McKelvey, 789 F.2d at 1520 (simple negligence does not warrant dismissal).
As set out in detail in the background section of this memorandum opinion, see infra
Section I.A, Plaintiff has utterly failed, despite repeated warning from this court, to comply with
court orders and imposed deadlines, and has failed to proffer any explanation or good cause for
same. Accordingly, the court finds that due to Plaintiff’s repeated failure to comply with court
orders and to prosecute this action, and upon consideration of the alternatives that are available to
this court, Plaintiff’s action is due to be dismissed with prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure as no other lesser sanction will suffice. See, e.g., Zocaras v.
Castro, 465 F.3d 479 (11th Cir. 2006); Norman v. Montgomery Bd. of Educ., 177 Fed. Appx.
939 (11th Cir. 2006) (unpublished); Brown, 2006 WL 3307444; Gratton, 178 F.3d at 1374;
Goforth, 766 F.2d at 1535.
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