Harris v. Tyson Foods, Inc

Filing 29

MEMORANDUM OPINION AND ORDER: As further set out in M.O. and Order, the court GRANTS Defendant Tyson's Motion for Summary Judgment. Accordingly, Plaintiff Harris' claims are DISMISSED with prejudice. Signed by Judge Abdul K Kallon on 12/28/12. (CVA)

FILED
2012 Dec-28 AM 11:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHEILA F HARRIS,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

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Civil Action Number
2:11-cv-1809-AKK

MEMORANDUM OPINION AND ORDER
Sheila F. Harris filed this lawsuit against Tyson Foods, Inc., her former
employer, alleging that Tyson discharged her in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.1 Doc. 1.
Harris worked for Tyson with no significant infractions for nineteen years.
However, after receiving bereavement pay on two occasions for the deaths of her
maternal and paternal grandmothers, Harris submitted a third claim for her
“grandmother.” Tyson paid the claim and subsequently received an anonymous

1

The court previously granted Tyson’s motion to dismiss Harris’ Title VII retaliation
claim. Doc. 18. Harris also pled an outrage claim but concedes that summary judgment is due to
be granted on the outrage claim. Docs. 1 at ¶ 36; 26 at 11 n.2. Accordingly, the court GRANTS
the motion on Harris’ outrage claim.
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report informing it of the fraudulent nature of Harris’ claim. Tyson investigated
the alleged fraud and eventually discharged Harris, which triggered this lawsuit.
The court has for its consideration Tyson’s motion for summary judgment,
which is fully briefed and ripe for resolution. Docs. 19, 26, 28. Unfortunately for
Harris, based on this record, she has failed to establish her claims. Therefore, for
the reasons set out fully below, the court GRANTS Tyson’s motion on all claims.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
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marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Id. However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,1563 (11th Cir. 1989)).
II. FACTUAL BACKGROUND
Tyson hired Harris, an African American female, as a deboner in its poultry
processing facility in Blountsville, Alabama in 1990. Docs. 1 at ¶ 12; 22 at 3, 9;
23 at 1. Harris also worked in evisceration, rehang, and pack out, and was
working in sanitation at the time of her discharge. Doc. 22 at 10. From all reports,
Harris performed her duties with distinction.
Tyson offers its employees bereavement leave pursuant to its Bereavement
Compensation Policy. Doc. 22-1 at 12. Relevant to this lawsuit, the Policy
provides that employees are eligible for three days of paid leave for the death of an
immediate family member, which the Policy defines as a “spouse, children,
parents, siblings, father/mother-in-law, sister/brother-in-law, son/daughter-in-law,
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grandparents, grandparents-in-law, grandchildren, stepparents, stepsiblings, and
half siblings.” Id. For other family members, employees are eligible for one day
of unpaid leave. Id. Harris was familiar with the Policy and had utilized it for
time off with pay to attend funerals for immediate family members, including her
maternal and paternal grandmothers, and for time off without pay to attend the
funeral of her uncle. Doc. 22 at 11, 12, 16; 22-1 at 10.
In January 2010, David Faust, Harris’ direct supervisor, approved Harris’
leave request to attend Ruth Parker’s funeral. Docs. 22 at 10; 22-1 at 16-17. As a
result, Harris missed work on January 27-29, 2010. Doc. 22-1 at 16. When Harris
returned to work, she submitted a Bereavement Pay Form in which she identified
Parker as her grandmother. Id. Consequently, Tyson approved the bereavement
pay request and paid Harris $272.40 for her three-day absence. Doc. 23 at ¶ 4.
Sometime thereafter, Vicky Craig, Shift Human Resources Manager, received a
telephone call from an anonymous person informing Craig that Parker was not
Harris’ grandmother. Docs. 23 at ¶ 5. As a result, Craig interviewed Harris on
February 4, 2010, regarding her relationship to Parker. Although Harris admitted
that she was not related to Parker, she described Parker as being “like” a
grandmother because Parker “raised her up from a little child” and “ran together”
with Harris’ mom. Doc. 22-1 at 18-19. Harris volunteered to refund the
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bereavement pay. Id. at 20. Tyson rejected the offer and instead discharged
Harris for misrepresenting her eligibility for bereavement pay. Doc. 23 at ¶ 6. At
the time of her discharge, Harris was fifty-five years old. Doc. 22 at 3.
III. ANALYSIS
A.

Title VII and ADEA claims
The McDonnell Douglas framework applies here since Harris is using

circumstantial evidence to prove her discrimination claims.2 Burke-Fowler v.
Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citation omitted). “A
plaintiff must first establish a prima facie case of age or race discrimination by
showing that she was (1) a member of the protected class; (2) qualified for her
current position; (3) subject to an adverse employment action; and (4) treated less
favorably than a similarly-situated employee outside her protected group.”
Thomas v. Humana Health Plan, Inc., 457 Fed. App’x 819, 821 (11th Cir. 2012),
citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). “In
determining whether employees are similarly situated . . . it is necessary to
consider whether the employees are involved in or accused of the same or similar
2

“Direct evidence is ‘evidence, that, if believed, proves [the] existence of [a] fact without
inference or presumption.”’ Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(citation omitted). “‘[O]nly the most blatant remarks whose intent could mean nothing other
than to discriminate on the basis of’ some impermissible factor constitute direct evidence of
discrimination.” Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (citations and
quotation marks omitted). There is no direct evidence presented here.
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conduct and are disciplined in different ways.” Knight v. Baptist Hosp. of Miami,
Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (citation omitted). Furthermore, the
“quantity and quality of the comparator’s misconduct [must] be nearly identical to
prevent courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir. 1999) (citation omitted).
After the plaintiff establishes a prima facie case, “then the defendant must
show a legitimate, non-discriminatory reason for its employment action.” BurkeFowler, 447 F.3d 1323 (citation omitted). “If it does so, then the plaintiff must
prove that the reason provided by the defendant is a pretext for unlawful
discrimination.” Id. “To show pretext, a plaintiff may demonstrate ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ in
the proffered reasons for the employment action such that ‘a reasonable factfinder
could find them unworthy of credence.’” Cooper v. So. Co., 390 F.3d 695, 725
(11th Cir. 2004) (quotation marks omitted). “However, the plaintiff cannot merely
quarrel with the wisdom of the employer’s reason, but ‘must meet the reason head
on and rebut it.’” Licausi v. Symantec, Corp., 378 Fed. App’x 964, 966 (11th Cir.
2010) (citation omitted).
The only issue of contention here is whether Harris has established that
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Tyson treated her less favorably than similarly situated employees outside of her
protected class. In that respect, Harris identifies two purported similarly situated
employees – Sue Plodzien, a white female over the age of 50, and Felton
Anderson, an African American male over the age of 45 – that she contends Tyson
treated more favorably by allowing them to repay stolen money and to keep their
jobs.3 Docs. 26 at 6, 7; 23 at ¶ 8. Tyson contends that “neither Plodzien nor
Anderson committed the same or similar misconduct” and, as such, are not
similarly situated to Harris. Doc. 20 at 14. The court addresses these alleged
comparators below.
1.

Harris fails to establish a prima facie case of race and age
discrimination

Harris contends that she is similarly situated to Plodzien and Anderson
because they “obtained money from Defendant to which they were not entitled.”
Doc. 26 at 6. The evidence shows that contrary to Tyson’s policy that employees
first consult their supervisors regarding wage disputes, Plodzien and Anderson
consulted a payroll clerk instead and received additional wages for a purported
under-payment. Doc. 23 at ¶ 8. Tyson subsequently discovered that the payroll

3

The court notes that Anderson is not a proper comparator to establish circumstantial
evidence of race or age discrimination because he is a member of both of Harris’ protected
classes. Doc. 23 at ¶ 8.
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clerk issued the additional wages in error. Id. Consequently, Tyson issued
Plodzien and Anderson written warnings, suspended them for failing to follow the
proper chain of command, and required that they repay the wages they received in
error. Id. The opportunity to repay the wages, which Tyson declined to offer
Harris, is the reason for Harris’ contention that Tyson treated her less favorably
than Plodzien and Anderson. Doc. 26 at 6.
Unfortunately for Harris, she is not similarly situated to Plodzien and
Anderson because they violated different policies – a fact Harris acknowledges
with respect to Plodzien:
Q:
Harris:

Do you know what [Plodzien] did to get suspended?
****
Hers was a little different from mine. I think she told us
she was – they said that she took money from the – got
paid for the days, or one or two days, that she didn’t
work; and she went up there, and then she, I guess, paid
the money back or they took it back from her, and she
comes back to work.

Q:

Do you know what happened there, why she was
erroneously paid for time she didn’t work?

Harris:

All I know, she just told us they laid her and her old man
off, said that they had paid her money that she didn’t
receive – that she didn’t work for; and they called up
there, and they talked to her. They laid her off for three
days; she went back to work; and they restored her job.

Doc. 22 at 24. Moreover, even ignoring the difference in policy violations,
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Plodzien and Anderson are not similarly situated because Harris presented no
evidence to suggest that Plodzien and Anderson lacked an honest belief that their
paychecks were inaccurate when they disputed their pay with the payroll clerk.
Conversely, Harris knew that she had no real relationship to Parker when she
requested and received bereavement pay for Parker’s death. Doc. 22-1 at 19-20.
While Harris maintains that Parker was “like” a grandmother, the fact remains that
she previously requested and received bereavement pay for her maternal and
paternal grandmothers. In other words, unlike Plodzien and Anderson, the
evidence establishes that Tyson had a reasonable basis to conclude that Harris
intended to commit fraud. Therefore, Plodzien and Anderson are not proper
comparators and, as such, Harris has failed to meet her burden of establishing a
prima facie case of race and age discrimination. Holifield v. Reno, 115 F.3d 1555.
1562-63 (11th Cir. 1997).
2.

Pretextual

Alternatively, summary judgment is warranted because Harris failed to rebut
Tyson’s contention that it discharged her for misrepresenting information on her
bereavement pay application. Perhaps because she cannot attack Tyson’s
articulated reason, Harris contends instead that Tyson is collaterally estopped from
presenting a non-discriminatory reason based on the Alabama Department of
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Industrial Relations (“ADIR”) finding that Harris’ representation that Parker was
her grandmother was not a dishonest act.4 As a result, Harris contends that “the
issue of Plaintiff’s termination of employment . . . has already been decided by
ADIR.” Doc. 26 at 8-10. While the ADIR concluded that Harris’ representation
did not qualify as a dishonest act that barred Harris from receiving unemployment
benefits, that finding has no relevance on Tyson’s reason for discharging Harris or
any preclusive effect in this court. Indeed, it is settled law that unreviewed state
administrative proceedings have no preclusive effect over Title VII or ADEA
claims. Astoria Fed. Sav. and Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991);
Univ. of Tenn. v. Elliott, 478 U.S. 788 (1986); see also Bishop v. City of
Birmingham Police Dep’t, 361 F.3d 607, 610 (11th Cir. 2004). Therefore, where,
as here, there is no evidence that the ADIR’s determination has undergone any
4

Sometime after her discharge, Harris applied for unemployment benefits with the ADIR.
Doc. 26-2 at 4. Eventually, the ADIR held a hearing to determine whether Tyson discharged
Harris due to a dishonest act in connection with her employment. Id. Ultimately, the
Administrative Hearing Officer qualified Harris for unemployment benefits based on the
following finding:
While the claimant’s interpretation of the individual in question in this case as a
grandmother may not meet the intention of the employer’s policy, the
preponderance of evidence shows that this individual did become an immediate
family member to the claimant in effect as a parent and was known as the
claimant’s grandmother. Thus, it cannot be found that the claimant committed a
dishonest act when she informed her employer that her grandmother had passed
away.
Id. Tyson did not appeal the decision.
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judicial scrutiny, the court declines to give it any preclusive effect.
Moreover, even if the ADIR finding has preclusive effect, summary
judgment is still due because Harris failed to make any showing of racial or agebased animus. In contrast, Tyson has presented evidence that it treated Harris no
differently than a similarly situated employee outside of her protected classes who
committed the same infraction. Doc. 23 at ¶ 7. Specifically, Tyson discharged
Darrin Shane Burns, a 29 year old white male, for committing the same infraction
as Harris. Id. Like Harris, Burns requested three days of bereavement pay to
attend his purported grandmother’s funeral. Id. Tyson later discovered that the
deceased was not related to Burns and was instead someone Burns considered a
“grandmother.” Id. Although Burns stated that he misunderstood the Policy and
failed to read it, Tyson discharged him nonetheless for “giving false information.”5
Id. In light of the fact that Tyson discharged Burns, a similarly situated employee
outside of Harris’ protected classes, the court cannot infer any racial or age-based
animus in Tyson’s decision to discharge Harris.

5

Harris acknowledged that Burns’ situation was identical to hers:

Q – “Do you agree with me that Mr. [Burns’] situation is the same as yours?”
Harris – “It’s definitely the same.”
Doc. 22 at 23.
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Unfortunately for Harris, despite her nineteen year history of an otherwise
unblemished record, she submitted a false claim for paid bereavement leave.
While Harris may believe discharge is harsh or unfair given her long tenure and
offer to pay back the money, “Title VII [and the ADEA] address[ ] discrimination.
Title VII [and the ADEA are] not a shield against harsh treatment at the
workplace.” Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1187 (11th Cir.
1984) (citations omitted). Moreover, “[a]lthough [the employer’s] decision to fire
[the plaintiff] and its refusal to reconsider that decision, might seem unfair or even
‘incredible’ to outside observers, [the plaintiff] cannot prevail in h[er] Title VII [or
ADEA] action for [s]he has not established discriminatory intent.” Id. Put
differently, it is completely within Tyson’s right to enforce its policies and make
business decisions without second guessing from the courts, especially when, as
here, the evidence shows that Tyson enforced its policies in a non-discriminatory
fashion. Wilson, 376 F.3d at 1092 (citation omitted) (“The role of this Court ‘is to
prevent unlawful [ ] practices, not to act as a super personnel department that
second-guesses employers’ business judgments.”).
IV. CONCLUSION
Based on the record before it, no evidentiary basis exists for the court to
find that Harris can establish a prima facie case of race or age discrimination or
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that Tyson’s proffered reasons for her discharge are pretextual. Therefore, the
court GRANTS Tyson’s motion for summary judgment. Accordingly, Harris’
claims are DISMISSED with prejudice.
Done the 28th day of December, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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