Ephraim v. The Pantry - Kangaroo

Filing 21

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 9/24/12. (KGE, )

FILED
2012 Sep-24 PM 01:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DORIS EPHRAIM,
Plaintiff,
v.
THE PANTRY, INC.,
Defendant.

}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:11-CV-01604-WMA

MEMORANDUM OPINION
Using a form furnished her by the Clerk, plaintiff, Doris
Ephraim (“Ephraim”), filed this pro se action against her former
employer, The Pantry, Inc. (“The Pantry”).

Her original complaint

was wandering, inartful, and, in many other ways, deficient.

The

court granted her permission to proceed in forma pauperis, but
required her within thirty (30) days to file a complaint meeting
the standards of the substantive and procedural rules.
timely filed a substitute complaint.

Ephraim

She testified at deposition

that she does not remember who drafted her substitute complaint,
but The Pantry must have thought it passed muster under Rule
12(b)(6),

Fed.R.Civ.P., because

it

did

dismiss.

Instead, it filed an answer.

not

file

a

motion

to

The court wishes it had

filed a Rule 12(b)(6) motion, the reasons for which will become
apparent.
Ephraim charges The Pantry with discriminatory work-related
harassment and termination because of her age and her being a
1

Christian.

Taking judicial notice of the fact that there are many

working Christians over forty years of age, the court knows that
this is a sizeable, if narrowly defined, protected group, but this
court is equally satisfied that Ephraim does not mean to pursue an
intersectional or mixed-motives claim based upon her simultaneous
membership in two protected groups.
The Pantry has defended the case as if Ephraim is pursuing
alternative

theories

discrimination.

for

redressing

two

forms

of

employment

Ephraim alleges that The Pantry violated both the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621,
because of her age, and violated Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq., because of her religion.

The

separate claims of hostile work environment and of termination do
not make clear whether she believes that both of these adverse
employment actions resulted from a merger of both motives, or that
the alleged hostile environment was related only to her religion,
while her termination was occasioned by her age, and not by her
religion.

This ambiguity creates problems that would not still be

present if The Pantry had filed a Rule 12(b)(6) motion relying on
Gross v. FBI Fin. Serv., Inc., 557 U.S. 167 (2009).
After discovery that was initiated by The Pantry, and without
any discovery initiated by Ephraim, The Pantry filed the motion for
summary judgment now before the court.
Because of the procedural posture, all admissible evidence,

2

including reasonable inferences, must be viewed in the light most
favorable to Ephraim.
pro se.

This is particularly true when Ephraim is

Although Ephraim must be cut some slack, this does not

mean that she is excused from the rules that control decisionmaking under Rule 56, Fed.R.Civ.P.

“[A] pro se litigant does not

escape the essential burden under summary judgment standards of
establishing that there is a genuine issue as to a fact material to
his case in order to avert summary judgment.”
906 F.2d 667, 670 (11th Cir. 1990).

Brown v. Crawford,

It is apparent that Ephraim,

whose substitute complaint was not subjected to scrutiny under Rule
12(b)(6), does not understand that she cannot, in her reply brief
to The Pantry’s Rule 56 motion, simply testify, asserting would-be
facts for which there is otherwise no evidence.

The court cannot

permit Ephraim, just because she is pro se, to rely on statements
not given under oath, not subject to cross-examination, and largely
hearsay, conclusory, and argumentative.

For this reason, when the

court states the material undisputed facts for the purposes of a
Rule 56 ruling, the court will ignore the purported evidentiary
material proffered for the first time in Ephraim’s brief.
The court is searching, without much help from Ephraim, for
admissible evidence that, without taking impossible inferential
leaps, would constitute proof of animus by The Pantry toward
Christians, or animus by The Pantry toward older employees, or
both. The court can find no evidence upon which Ephraim can travel
3

either the ADEA route or the Title VII route, much less both
routes.
Pertinent Undisputed Evidence
Ephraim is 62 years old and is a professing Christian.

She

was employed by The Pantry over a substantial period of time at
various of its stores in the Birmingham area. Her last position at
The Pantry was as assistant manager of one of these stores.
The Pantry has no written or orally enunciated employment
policy respecting employees’ ages, religious beliefs, religious
affiliations, or religious practices, and no pattern or practice of
discriminatory conduct on either the basis of age or the basis of
religion emerges from the cryptic evidence.
The Pantry does, however, have an unequivocal, written policy
that an employee in charge of a store, such as an assistant manager
like Ephraim, cannot leave the store without first locking the
safe.

Ephraim admits that she was aware of this absolute work-

rule, of the rule’s importance, and that its violation constituted
an offense for which termination may result.

She also admits that

shortly before her termination, she was accused by another employee
of leaving the safe unlocked, and that this was the reason given
her by The Pantry’s decision-makers at her termination interview.
The record is devoid of evidence that any fellow employee over
forty years of age has not been terminated after The Pantry had a
reason to believe that he or she, being responsible for the safe,

4

left it unlocked.

The record is equally devoid of admissible

evidence that after her termination, Ephraim was replaced by a
person under forty years of age, or by a non-Christian.

In other

words, Ephraim points to no legitimate comparators upon whom a jury
could find that Ephraim was disparately treated.
Applicable Law
The Pantry has not exploited Gross v. FBI Fin. Servs., Inc.,
557 U.S. 167, 177-78, 129 S.Ct. 2343, 2351 (2009), in which the
Supreme Court recognized that to proceed with a claim under the
ADEA, the plaintiff must prove that her age was the “but-for” cause
for the adverse employment action. There is a lingering post-Gross
dispute about whether a plaintiff can make out an ADEA case by
employing the McDonnell Douglas framework (articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). The Eleventh Circuit
has been a bit tentative in its reading of Gross in relation to
McDonnell Douglas, but the Eleventh Circuit makes quite clear its
understanding that in Gross the Supreme Court meant what it said
when it “ruled out the idea of a ‘mixed motive’ ADEA claim”.

See

Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th
Cir.2010)(emphasis added), in which this unequivocal proposition is
set forth twice on the same page, and from which the Eleventh
Circuit has never retreated, or from which it has ever had any
reason to retreat.
It is still theoretically possible to prove by using McDonnell
5

Douglas that “age” was the “but-for” reason for an adverse action,
but is not possible to allege that both “age” and some other
proscribed motive was a reason for the adverse action.

In Mora,

the Eleventh Circuit recognized the irreconcilability of such a
pleading with Gross.
between

her

two

The Pantry has not forced Ephraim to elect

theories.

In

order

to

prevent

her

from

transgressing the lessons in Gross and Mora, the court will not
make

her

elect

between

theories

at

this

late

stage

in

the

proceeding, but will interpret Ephraim’s complaint as two separate
consolidated cases, one for hostile work environment based on her
Christianity, and another for termination based on her age.

This

is the only way to treat Ephraim’s complaint to prevent it from
violating Gross and Mora.
There is neither direct nor circumstantial evidence in this
record to justify either of Ephraim’s contentions, assuming, as the
court does, that she can pursue both by separating differing
adverse employment actions and ascribing different motives to them.
Although Ephraim asserts, and may truly believe, that The Pantry’s
decision-makers are lying about the reason they gave her for her
termination, there is no proof upon which a reasonable jury could
find that The Pantry’s assertion that Ephraim’s leaving the safe
unlocked was only articulated as a reason to disguise The Pantry’s
real reason, her age.
Casual and infrequent workplace remarks about religion that
6

may have offended Ephraim do not rise to the level of objectively
unreasonable
encouraged

conduct,

by

The

especially

Pantry’s

when

managerial

not

participated

employees.

in

or

Innocuous,

teasing statements by co-workers, or even judgmental opinions about
religious differences, cannot constitute the severe and pervasive
harassing atmosphere that is proscribed by Title VII.

An employer

is not required to monitor the workplace every minute and put a
stop

to

every

remark

that

an

employee

may

find

offensive,

particularly when, as in this case, there was never any serious
complaint made by Ephraim to management that would trigger an
investigation or corrective action.
Conclusion
There would be no purpose to be served in this court’s trying
to explain to Ephraim the complexities and insurmountable obstacles
in her case.

The court is pretty sure that if it wrote a hundred

pages, it could not persuade Ephraim that she is not entitled to
redress from The Pantry under either of the federal employment
discrimination laws she invokes, that is, unless she can get
Congress retroactively to amend the statutes, something it cannot
do.

7

A separate order granting The Pantry’s motion for summary
judgment will be entered.
DONE this

24th

day of September, 2012.

______________________________

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

8