King v. Piggly Wiggly Alabama Distribution Company, Inc.

Filing 28

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 14 MOTION for Summary Judgment. By separate Order, the Court will set this case for a Final Pretrial Conference. Signed by Judge Virginia Emerson Hopkins on 3/1/2013. (JLC)

FILED
2013 Mar-01 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES KING,

)
)
Plaintiff,
)
)
v.
) Case No.: 2:11-CV-2441-VEH
)
PIGGLY WIGGLY ALABAMA
)
DISTRIBUTION COMPANY, INC., )
)
Defendant.
)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
The court has reviewed the pending Motion for Summary Judgment (Doc. 14)

(the “Motion”) filed by Piggly Wiggly Alabama Distribution Company, Inc.
(“PWADC”) on July 18, 2012, and the parties’ respective supporting and opposing
materials. (Docs. 15-19). In his complaint, Plaintiff James King (“Mr. King”) has
asserted two counts: one for race discrimination arising under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981 and the second one for
retaliation under Title VII and § 1981. (Doc. 1 at 3-4). The Motion seeks a dismissal
of both counts, and for the reasons explained below, is GRANTED IN PART and
DENIED IN PART.

II.

FACTUAL BACKGROUND1
Mr. King, a black male, was employed by PWADC as a casual truck driver

from October 20, 2008, until October 1, 2009. AF No. 1.2 Pursuant to Department
of Transportation regulations and company policy, PWADC’s drivers are required to
inspect their trailers before and after every run and to note any damage or safety
issues on an inspection form. Drivers are also required to report any accident or
damage immediately. AF No. 2.

Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable
to the party opposing the motion, the court provides the following statement of
facts. See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d
1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to
the non-moving party). This statement does not represent actual findings of fact.
See In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court
has provided this statement simply to place the court’s legal analysis in the context
of this particular case or controversy.
1

The designation “AF” stands for admitted fact and indicates a fact offered
by PWADC that Mr. King has admitted in his written submissions on summary
judgment or by virtue of any other evidence offered in support of his case.
Whenever Mr. King has adequately disputed a fact offered by PWADC, the court
has accepted Mr. King’s version. The court’s numbering of admitted facts (e.g.,
AF No. 1) corresponds to the numbering of PWADC’s Statement of Facts as set
forth in Doc. 15 and responded to by Mr. King in Doc. 18. A number following a
decimal point corresponds to the particular sentence within the numbered
statement of facts. For example, (AF No. 7.2) would indicate the second sentence
of paragraph 7 of PWADC’s Statement of Facts is the subject of the court’s
citation to the record. Other facts referenced by the parties that require further
clarification are dealt with later in the court’s opinion.
2

2

On September 30, 2009, HS Trailer Repair, the company that maintains
PWADC’s trailers, reported significant damage to a trailer that had been parked at a
PWADC warehouse door. AF No. 4 (first).3 As the Damage Report provided by HS
Trailer Repair indicates, because the rails on trailer number 334 were pulled in, two
cross members were damaged. (Doc. 16-1 at 6).4
PWADC investigated the damage and discovered that Mr. King had been the
driver of the trailer in question. AF No. 4 (second). While Mr. King has admitted
that he drove the trailer when it was loaded at Ventura Foods and also dropped it off
at the yard, he maintains that someone else (i.e., a hostler) moved the trailer from the
yard to warehouse door number 103. (Doc. 17 ¶ 23).
Mr. King, who never noticed any damage to the trailer, did not report any
problems after conducting both his pre- and post-trip inspections. AF No. 5; (Doc.
17 ¶¶ 20, 30). The drivers who pulled the same trailer immediately prior to Mr. King
confirmed that there had been no damage to this trailer before Mr. King drove it. AF
No. 6.
The trailer had been inspected by a supplier (Ventura Foods) at Mr. King’s last

PWADC’s brief in support of its Motion contains two paragraphs that are
numbered four. (Doc. 15 at 2).
3

The page reference for documents 16-1, 16-2, and 16-3 corresponds with
the CM/ECF numbering system.
4

3

stop before he parked the trailer at the PWADC warehouse. AF No. 7.1. The report
from that inspection confirmed that there was no damage to the trailer floor at that
time. AF No. 7.2.
Dale Reynolds (“Mr. Reynolds”), PWADC’s Director of Operations,
interviewed Mr. King about the damage to his trailer. AF No. 8. Mr. Reynolds
reported that Mr. King initially denied that anything was wrong with the trailer, but
that after “describ[ing] the damage to him, [Mr. King] then told [him] that the trailer
was already damaged when he picked it up that morning.” (Doc. 16-3 at 2 ¶ 3).
The results of Mr. Reynolds’s investigation are disputed by Mr. King. While
Mr. King admitted that he had some difficulty separating the tractor from the trailer,
Mr. King denied that there was any damage done to the trailer because of that and
denied that he ever told Mr. Reynolds that he saw damage to the trailer when he
dropped it off in the yard. (Doc. 17 ¶¶ 16, 20-21); AF No. 9. Mr. King also has
sworn that Mr. Reynold told him that eight ribs on the trailer that he was driving had
been repaired before. (Doc. 17 ¶ 22).
Based on the nature of the damage and the absence of any reports of prior
damage to the trailer floor, David Bullard (“Mr. Bullard”), the then-Human Resources
Director, concluded that Mr. King had in fact damaged the trailer by failing to
properly extend the dolly legs prior to removing his truck. AF No. 11.
4

PWADC considers the failure to report damage to a truck or trailer a very
serious offense; it considers dishonesty about the circumstances of an accident even
more serious. AF No. 13. Because Mr. Bullard had determined that Mr. King
damaged the trailer, that he had failed to report the damage, and that he was
dishonest about the incident, Mr. Bullard decided to terminate Mr. King’s
employment.

(Doc. 16-1 at 4 ¶ 7; id. at 13 (Mr. King’s “EMPLOYEE’S

DISCIPLINARY RECORD” dated October 1, 2009, indicating “DISHONESTY” and
“FAILURE TO REPORT ACCIDENT” as “REASON FOR DISCIPLINARY
ACTIONS”)).
The “EMPLOYEE’S DISCIPLINARY RECORD” dated October 2, 2009,
which Mr. King has acknowledged receiving, reflects “VIOLATION OF COMPANY
POLICY” as the reason for his discharge. (Doc. 17 at 10). Mr. Bullard appears to
have been the person who signed these similar, but yet differently dated and worded
documents, and PWADC has not offered any explanation for the variances in these
termination records relating to Mr. King.
In August 2009, PWADC discharged Joe Blackwell, a white driver with 20
years experience, for failing to report an accident and then being dishonest about the
circumstances of the accident. AF No. 14. When discharging Mr. Blackwell, a video
was presented which confirmed that Mr. Blackwell was aware of the damaged vehicle
5

prior to his denial. (Doc. 17 ¶ 27).
PWADC routinely makes video recordings of all areas of the yard at all times.
(Doc. 17 ¶ 26). During his meeting with Mr. Bullard on October 1, 2009, Mr. King
requested a video, but never received such a recording or “pictures of the trailer prior
to the time it was moved by the hostler.” (Id. at ¶¶ 27, 28).
On September 4, 2009, PWADC received a report about a verbal altercation
between Mr. King and a white employee of the company which maintains PWADC's
truck fleet, Penske. AF No. 15. Mr. King provided two written statements about the
incident in which he admitted that he and the Penske employee engaged in a verbal
altercation and that Mr. King threatened to “stomp a mud hole in [the Penske
employee’s] ass.” AF No. 16.
In both statements, Mr. King provided a detailed account of the Penske
employee’s cursing at him, but did not claim that the Penske employee made any sort
of racial statement. AF No. 17; (see Doc. 16-2 at 3 ¶ 6 (“Mr. King never reported to
me that the Penske employee made any type of racial statement during the
altercation.”); id. at 4 (no reporting of racial slur); id. at 5 (same)).
However, in his affidavit offered in opposition to the Motion, Mr. King has
sworn that, during the altercation, the white Penske employee referred to him “and
Brandon, two African-American males, as ‘boy.’” (Doc. 17 at 2 ¶ 3). While Mr. King
6

has indicated, in his opposition, that “he did not put the racial slur in his report of the
incident, nor claimed race discrimination at that time due to fear of retaliation” (see
Doc. 18 at 3 ¶ 4), his affidavit does not substantiate this particular statement. (Doc.
17 at 2 ¶ 5).
PWADC issued a written warning to Mr. King on September 9, 2009, about his
role in the skirmish and requested that Penske similarly reprimand its employee for
his involvement in the fight. AF No. 18; (see also Doc. 16-1 at 17 (“EMPLOYEE’S
DISCIPLINARY RECORD” reflecting a written warning for “Inappropriate verbal
statements/threats towards other employees/coworkers”)).
III.

STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. 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 v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
7

specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
B.

Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-12 (1993); Nix v. WLCY
Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984). Although the Supreme
Court previously established the basic allocation of burdens and order of proof in a
disparate treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Desert Palace v.
Costa, 539 U.S. 90 (2003), that allocation scheme applies only in cases in which there
is no direct evidence of discrimination. Grigsby v. Reynolds Metals Co., 821 F.2d
590, 595 (11th Cir. 1987).5
As the Eleventh Circuit has explained, “only the most blatant remarks,
whose intent could be nothing other than to discriminate on the basis of age, . . .
constitute direct evidence of discrimination.” Carter v. City of Miami, 870 F.2d
578, 782 (11th Cir. 1989) (footnote omitted). Based upon this standard and
because the only person who allegedly made an invidiously-charged utterance was
not employed by Defendant and was not involved in the decision to discharge him,
Mr. King’s case is purely a circumstantial evidence one. (See Doc. 18 at 7
5

8

Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-54; Desert Palace,
539 U.S. at 101-02.
IV.

ANALYSIS
A.

Discriminatory Discipline on the Basis of Race
1.

Written Warning for Altercation with Penske
Employee

Regarding discriminatory disciplinary claims, the Eleventh Circuit has

(“Plaintiff can prove a prima facie case of race discrimination in discipline, by
using the circumstantial evidence, burden-shifting model of McDonnell
Douglas/Burdine.”)).
9

fashioned the following standard:6
[W]e hold that, in cases involving alleged racial bias in the application
of discipline for violation of work rules, the plaintiff, in addition to
being a member of a protected class, must show either (a) that he did not
violate the work rule, or (b) that he engaged in misconduct similar to
that of a person outside the protected class, and that the disciplinary
measures enforced against him were more severe than those enforced
against the other persons who engaged in similar misconduct.
Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (emphasis added); see also
Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (“With respect to
discharge for violation of work rules, the plaintiff must first demonstrate by a
preponderance of the evidence either that he did not violate the rule or that, if he did,
white employees who engaged in similar acts were not punished similarly”)
(emphasis added).7
Because Mr. King has admitted that he did get into an argument with the

As neither party has drawn a distinction between Mr. King’s claims
asserted under Title VII versus § 1981, the court likewise evaluates Mr. King’s
comparable § 1981 claims under the Title VII framework. See Smith v. LockheedMartin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir. 2011) (“Title VII and § 1981
have the same requirements of proof and utilize the same analytical framework.”
(citing Brown v. Am. Honda Motor Co., 939 F.2d 946, 949 (11th Cir. 1991)); see
also Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008) (“[T]he analysis of
disparate treatment claims under [§ 1981 by and through] § 1983 is identical to the
analysis under Title VII where the facts on which the claims rely are the same.”).
6

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.
7

10

Penske employee and because he has not pointed to any examples of drivers outside
of his protected class who received more favorable treatment than he by PWADC
despite such employees’ becoming involved in a verbal altercation while on the job
(like Mr. King did), the court finds that summary judgment in favor of PWADC is
due to be entered on this particular discriminatory discipline claim for lack of prima
facie evidence.
To the extent that Mr. King has attempted to use the Penske employee as a
comparator, there is no evidence in the record that Mr. King’s supervisors at PWADC
had any authority to discipline a non-employee, like the Penske worker. Cf. Silvera
v. Orange County School Bd., 244 F.3d 1253, 1261 n.5 (11th Cir. 2001)
(“[D]ifferences in treatment by different supervisors or decision makers can seldom
be the basis for a viable claim of discrimination.” (citing Jones, 874 F.2d at 1541)).
Moreover, Mr. King has not offered any other circumstantial evidence
suggesting racial discrimination with respect to the decision to give him a written
reprimand for the role that he played in the admitted altercation. Cf. Burke-Fowler
v. Orange County, 447 F.3d 1319, 1325 (11th Cir. 2006) (“Because she failed to
establish valid comparators and presented no other circumstantial evidence
suggesting racial discrimination, Burke-Fowler did not establish a prima facie case
of race discrimination.” (citing EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286
11

(11th Cir. 2000)).
Alternatively, this discriminatory claim fails due to Mr. King’s inability to
demonstrate pretext. More specifically, because Mr. King lacks suitable comparator
evidence and relies upon no other proof of pretext, the record lacks “‘evidence of
such quality and weight that reasonable and fairminded men in the exercise of
impartial judgment might reach different conclusions.’” MacPherson v. University
of Montevallo, 922 F.2d 766, 776 (11th Cir. 1991) (quoting Verbraeken v.
Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1998)).
2.

Discriminatory Discharge

The court reaches a different conclusion about Mr. King’s discriminatory
discharge claim. Here, Mr. King has shown a prima facie case under the alternative
ways identified in Jones. First, Mr. King has created a material factual dispute over
whether he caused the damage to his trailer that resulted in his dismissal due to his
purported dishonesty and failure to report an accident.
Second, Mr. King requested (but never received) a video recording of what
occurred in the yard after he parked his trailer on September 30, 2009. Moreover, Mr.
King has pointed out that PWADC treated Mr. Blackwell more favorably (in its
decision to fire him for failing to report an accident and being dishonest about the
circumstances surrounding it) because PWADC concedes that its investigation into
12

the incident involving Mr. Blackwell included video evidence confirming that Mr.
Blackwell was aware of the damage done to his trailer.
In its reply, PWADC has not contested Mr. King’s facts regarding its
customary practice of videotaping the yard. (See generally Doc. 19 (absence of any
factual reply)). PWADC also has not disputed that a holster is usually the person
responsible for moving the trailer from the yard and dropping it off at the warehouse
door. Id. PWADC also has not provided any explanation why it did not produce and
review any videotapes (or pictures) of Mr. King’s trailer like it did with respect to the
incident involving Mr. Blackwell. Id.; cf. Morrison v. Booth, 763 F.2d 1366, 1374
11th Cir. 1985) (“Departures from normal procedures may be suggestive of
discrimination.” (citing Jean v. Nelson, 711 F.2d 1455, 1492 (11th Cir. 1983)).
Additionally, Mr. King has adduced unchallenged evidence of two white
drivers who admitted to Mr. King that they caused an accident when they were racing
and collided with each other after one of the drivers stopped for a red light and the
other did not. (Doc. 17 ¶ 35). While the white drivers acknowledged that they had
been in an accident that resulted in damage, they dishonestly reported that it had
occurred because of a third vehicle’s pulling out in front of them. (Id.). Mr. King
subsequently notified PWADC management about what he had learned from the
white drivers, and PWADC did not fire either one of them. (Id. ¶¶ 35-36).
13

In its reply, PWADC does not dispute any of these facts presented by Mr. King
regarding the white drivers who it retained despite their dishonest actions. Instead,
PWADC contends that because they reported the accident (unlike Mr. King), the
white drivers are not similarly situated to Mr. King, who was fired not only for being
dishonest, but also for failing to report his damage. (Doc. 19 at 6).
“In determining whether employees are similarly situated for purposes of
establishing a prima facie case, it is necessary to consider whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different
ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (emphasis added).
As the Eleventh Circuit aptly explained in Anderson v. WBMG-42, 253 F.3d
561 (11th Cir. 2001):
In arguing that the conduct of comparator employees must be the same
or nearly identical, WBMG takes the same position rejected by this
Court in Alexander v. Fulton County, 207 F.3d 1303, 1334 (11th Cir.
2000).[8] In that case, the employer defendant contended that the trial
court had mischaracterized the law by charging the jury that it could find
discrimination where “another similarly situated employee” was not
treated in a “similar manner”:
Defendants claim that the term “similarly situated”
is ambiguous, and that this [jury] charge miscasts the
governing law of this circuit, which they claim requires the
“same or nearly identical conduct.” Again, we disagree.
Alexander v. Fulton County, was overruled on other grounds by Manders
v. Lee, 338 F.3d 1304, 1328 n.52 (11th Cir. 2003).
8

14

Although susceptible to manipulation, the phrase “similarly
situated” is the correct term of art in employment
discrimination law. Moreover, the law does not require that
a “similarly situated” individual be one who has “engaged
in the same or nearly identical conduct” as the disciplined
plaintiff. Instead, the law only requires “similar”
misconduct from the similarly situated comparator.
Olmstead v. L.C. by Zirming, 527 U.S. 581, 119 S. Ct.
2176, 2193, 144 L. Ed. 2d 540 (1999) (Kennedy, J.,
concurring in the judgment) (characterizing the “normal
definition of discrimination” as “differential treatment of
similarly situated groups” (emphasis added)); Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248, 258, 101
S. Ct. 1089, 1096, 67 L. Ed. 2d 207 (1981) (“McDonnell
Douglas teaches that it is the plaintiff’s task to demonstrate
that similarly situated employees were not treated equally.”
(emphasis added)); Osram Sylvania, Inc. v. Teamsters
Local Union 528, 87 F.3d 1261, 1265 (11th Cir.1996)
(“Disparate treatment exists when similarly situated
workers are treated differently even though they have
committed similar acts.” (emphasis added)); Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (holding
that in order to show discriminatory discipline, plaintiff
must show either that he did not violate the work rule or
“that he engaged in misconduct similar to that of a person
outside the protected class, and that the disciplinary
measures enforced against him were more severe than
those enforced against other persons who engaged in
similar misconduct” (emphasis added)).
Alexander, 207 F.3d at 1334-35. To the extent that “unprofessional
behavior” can be understood by the ordinary use of that term, we reject
WBMG’s position that the proffered evidence in this case was not
relevant as comparator evidence because the conduct of Lockridge and
Allen was not identical. See id.
Anderson, 253 F.3d at 565 (emphasis by underlining added).
15

Thus, within the Eleventh Circuit (and if and until the Supreme Court or the
Eleventh Circuit en banc holds otherwise),9 the misconduct engaged in does not have
to be identical or even nearly identical in order for another employee to be a valid
comparator. Moreover, in this situation, an argument can be made that the admitted
misconduct of the white drivers (i.e., recklessly racing each other, causing an
accident, damaging two vehicles, and lying about the circumstances of the wreck) is
not only similar in nature, but actually more serious than what Mr. King was found
to have done.10 Cf. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273,
283 n.11, 96 S. Ct. 2574, 2580 n.11, 49 L. Ed. 2d 493 (1976) (“Of course, precise
equivalence in culpability between employees is not the ultimate question: as we
indicated in McDonnell Douglas, an allegation that other ‘employees involved in acts

See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (“[I]t is
the firmly established rule of this Circuit that each succeeding panel is bound by
the holding of the first panel to address an issue of law, unless and until that
holding is overruled en banc, or by the Supreme Court.”). PWADC relies upon
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999), for the proposition that
the comparator’s conduct must be “nearly identical” before a court can properly
consider such evidence in opposition to summary judgment. (Doc. 19 at 5).
However as Anderson illustrates, Maniccia is preceded by several other Eleventh
Circuit decisions that do not impose such an exacting similarly situated standard
on a plaintiff, who is asserting disparate treatment in the workplace.
9

In its own statement of facts, PWADC has indicated that it considers
being dishonest about the circumstances of an accident (which the white
comparators were) to be even more serious than failing to report damage.
10

16

against (the employer) of [c]omparable seriousness . . . were nevertheless retained
. . .’ is adequate to plead an inferential case that the employer’s reliance on his
discharged employee’s misconduct as grounds for terminating him was merely a
pretext.”).
Additionally, while PWADC insists that Mr. King has offered inadequate
comparators, as the Eleventh Circuit has clarified, the absence of acceptable
comparator evidence will not always dispose of a discrimination claim:
The district court, in dismissing Mitten’s claim of race
discrimination, did as federal courts routinely do in disposing of cases,
like this, in which the plaintiff claims that his employer applied a
workplace-conduct rule in violation of Title VII: the court used
McDonnell Douglas’s burden-shifting framework. In so doing, the
district court focused on whether Mitten’s termination for his violation
of the zero tolerance policy was more severe than the discipline
Lockheed imposed on similarly situated black comparators. Mitten’s
comparators were deemed not “similarly situated,” so the court found no
tenable claims of race discrimination. If the record contained no
circumstantial evidence from which a jury could otherwise infer that
Mitten was fired because of his race, our discussion would end here, and
we would affirm the district court’s judgment.
However, establishing the elements of the McDonnell Douglas
framework is not, and never was intended to be, the sine qua non for a
plaintiff to survive a summary judgment motion in an employment
discrimination case. Accordingly, the plaintiff’s failure to produce a
comparator does not necessarily doom the plaintiff’s case.
Rather, the plaintiff will always survive summary judgment if he
presents circumstantial evidence that creates a triable issue concerning
the employer’s discriminatory intent. See Holifield v. Reno, 115 F.3d
17

1555, 1562 (11th Cir. 1997) (declaring that, in cases where a plaintiff
cannot establish a prima facie case, summary judgment only will be
“appropriate where no other evidence of discrimination is present.”
(citations omitted)); Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th
Cir. 2011) (“To avoid summary judgment . . . the plaintiff must produce
sufficient evidence, either direct or circumstantial, to create a triable
question of intentional discrimination in the employer’s decision.”). A
triable issue of fact exists if the record, viewed in a light most favorable
to the plaintiff, presents “a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by
the decisionmaker.” Silverman, 637 F.3d at 734 (citations and internal
quotation marks omitted); see also James v. N.Y. Racing Ass’n, 233 F.3d
149, 157 (2d Cir. 2000) (“[T]he way to tell whether a plaintiff’s case is
sufficient to sustain a verdict is to analyze the particular evidence to
determine whether it reasonably supports an inference of the facts
plaintiff must prove—particularly discrimination.”).
A plaintiff may raise a reasonable inference of the employer’s
discriminatory intent through various forms of circumstantial evidence.
Rioux v. City of Atlanta, 520 F.3d 1269, 1281 (11th Cir. 2008) (holding
that the plaintiff established a prima facie case of racial discrimination
when he did not present evidence of a comparator but presented other
circumstantial evidence that was sufficient); see also Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (stating that
the circumstantial evidence necessary to present a Title VII case of
discrimination under McDonnell Douglas is “flexible and depend[s] on
the particular situation” (citations omitted)); cf. Burke–Fowler v. Orange
County, Fla., 447 F.3d 1319, 1325 (11th Cir. 2006) (affirming the
district court’s grant of summary judgment because plaintiff “failed to
establish valid comparators and presented no other circumstantial
evidence suggesting racial discrimination” (emphasis added)). Yet, no
matter its form, so long as the circumstantial evidence raises a
reasonable inference that the employer discriminated against the
plaintiff, summary judgment is improper.
Smith, 644 F.3d at 1327-28 (footnotes omitted) (emphasis added).

18

Therefore, even if the employees relied upon by Mr. King do not fully
constitute valid comparators, there is still other circumstantial evidence suggesting
racial discrimination in the decision to discharge him. See Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (“The district court must evaluate
whether the plaintiff has demonstrated ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them unworthy
of credence.’” (quoting Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061,
1072 (3d Cir. 1996)). Such proof includes PWADC’s apparent refusal to produce (or
review) the video recordings of the yard (which the company regularly makes) to
verify whether a hostler caused the damage to the trailer as well as the unexplained
deviations in PWADC’s records relating to the documentation of Mr. King’s
discharge. (Compare Doc. 16-1 at 13 (Mr. King’s “EMPLOYEE’S DISCIPLINARY
RECORD” dated October 1, 2009, indicating “DISHONESTY” and “FAILURE TO
REPORT ACCIDENT” as “REASON FOR DISCIPLINARY ACTIONS”), with Doc.
17 at 10 (Mr. King’s “EMPLOYEE’S DISCIPLINARY RECORD” dated October 2,
2009, indicating “VIOLATION OF COMPANY POLICY” as “REASON FOR
DISCIPLINARY ACTIONS”)); cf. Bechtel Const. Co. v. Secretary of Labor, 50 F.3d
926, 935 (11th Cir. 1995) (“The pretextual nature of Bechtel’s terminating Nichols
19

is further demonstrated by Bechtel’s shifting explanations for its actions.”).
Accordingly, because a reasonable jury could return a verdict for Mr. King, the
Motion is DENIED with respect to his discriminatory discharge claim.
B.

Retaliation

Mr. King premises his retaliation claim upon the internal complaint that he
made to his supervisor, Shane,11 about a white employee from another company (i.e.,
Penske) calling him and one other African-American co-employee “boy” after Mr.
King and the Penske employee had gotten into an argument. Mr. King also reported
this same incident to Mr. Bullard, PWADC’s Director of Human Resources, during
a meeting that they had on October 1, 2009. Thus, Mr. King’s Title VII retaliation
claim is an opposition-based one.
Under binding Eleventh Circuit precedent:
[A] plaintiff can establish a prima facie case of retaliation under the
opposition clause of Title VII if he shows that he had a good faith,
reasonable belief that the employer was engaged in unlawful
employment practices. See Rollins v. State of Fla. Dept. of Law
Enforcement, 868 F.2d 397, 400 (11th Cir.1989). It is critical to
emphasize that a plaintiff’s burden under this standard has both a
subjective and an objective component. A plaintiff must not only show
that he subjectively (that is, in good faith) believed that his employer
was engaged in unlawful employment practices, but also that his belief
was objectively reasonable in light of the facts and record presented. It
The court was unable to locate the full name of this particular PWADC
supervisor in the record.
11

20

thus is not enough for a plaintiff to allege that his belief in this regard
was honest and bona fide; the allegations and record must also indicate
that the belief, though perhaps mistaken, was objectively reasonable.
A plaintiff, therefore, need not prove the underlying
discriminatory conduct that he opposed was actually unlawful in order
to establish a prima facie case and overcome a motion for summary
judgment; such a requirement “[w]ould not only chill the legitimate
assertion of employee rights under Title VII but would tend to force
employees to file formal charges rather than seek conciliation of
informal adjustment of grievances.” Sias v. City Demonstration Agency,
588 F.2d 692, 695 (9th Cir.1978). See also Payne v. McLemore's
Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. Unit A Sept.
1981) (“To effectuate the policies of Title VII and to avoid the chilling
effect that would otherwise arise, we are compelled to conclude that a
plaintiff can establish a prima facie case of retaliatory discharge under
the opposition clause of [Title VII] if he shows that he had a reasonable
belief that the employer was engaged in unlawful employment
practices.”), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71 L. Ed. 2d
866 (1982).
Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997) (emphasis added).
PWADC contends that Mr. King cannot prevail on his retaliation claim because
he is unable to show that he engaged in statutorily protected conduct. (Doc. 19 at 12). More specifically, PWADC maintains that despite Mr. King’s being subjectively
offended by the use of “boy” in direct reference to him and another black employee
and swiftly reporting such incident to his supervisor and subsequently to PWADC’s
Director of Human Resources, he cannot show objective reasonableness.
In making this argument, PWADC relies upon Little, Butler v. Alabama Dept.

21

of Transp., 536 F.3d 1209 (11th Cir. 2008), and Clark County School Dist. v.
Breeden, 532 U.S. 268 (2001). Therefore, the court closely examines these decisions.
In Little, the court determined that the white plaintiff failed to satisfy the
objectively reasonable prong in asserting retaliation relating to the alleged harassment
that he endured after his reporting of a racially derogatory comment made by another
white employee about some of their black co-workers: “Nobody runs this team but
a bunch of niggers and I’m going to get rid of them.” Little, 103 F.3d at 958 (internal
quotation marks omitted). As the court reasoned in rejecting the plaintiff’s Title VII
retaliation claim:
In light of the facts of this case, however, we find Little’s
assertion that he reasonably believed Wilmot’s comment to be a
violation of Title VII by Carrier to be implausible at best. As noted
above, Little never voiced his concern over Wilmot to a supervisor or
management-level employee at Carrier and reported the comment for the
first time in a team meeting held approximately eight months after the
remark was made. The record indicates that no rational jury could find
Little’s belief that his opposition to Wilmot’s racist remark constituted
opposition to an unlawful employment practice to be objectively
reasonable. As a result, although we acknowledge that a plaintiff
conceivably could prevail on his retaliation claim notwithstanding the
fact that the practice he opposed was not unlawful under Title VII, such
a circumstance is not presented in this case. We conclude not only that
Little’s opposition to Wilmot’s racially derogatory comment did not
constitute opposition to an unlawful employment practice as a matter of
law, but also that, based on the particularized facts of this case, Little did
not have an objectively reasonable belief that he was opposing an
unlawful employment practice.

22

Little, 103 F.3d at 960 (emphasis added).
Mr. King’s retaliation claim differs from Little in at least two critical ways:
one, the racial slur that he heard was directed at him, and, two, he immediately
reported the incident to his supervisor and later to PWADC’s Director of Human
Resources. Therefore, Little does not clearly establish that no reasonable jury could
conclude that Mr. King’s “did not have an objectively reasonable belief that he was
opposing an unlawful employment practice.” Id.
In Butler, the black plaintiff maintained that she was retaliated against for
reporting, to her immediate supervisor, a white co-employee’s use of “racial epithets
in her presence . . . [during] a lunch break.” Butler, 536 F.3d at 1213. More
specifically, the white co-employee asked the plaintiff after the truck he was driving
collided with another vehicle while he and the plaintiff were on their way to lunch:
“Did you see that? Did you see that stupid mother fucking nigger hit me?” Id. at
1210 (internal quotation marks omitted). The white co-employee later stated to the
plaintiff: “Look at him now. Now that stupid ass nigger down there is trying to
direct traffic. I hope something come [sic] over that hill and run over his ass and kill
him.” Id. (internal quotation marks omitted).
The Eleventh Circuit relied upon Little in deciding Butler and explained:
Assuming that Butler did believe that Stacey’s words immediately
23

after the wreck amounted to an unlawful employment practice by
ALDOT, her belief is not objectively reasonable. It is not even close.
The incident consisted of Stacey’s use of a racial epithet twice a few
minutes apart. What Stacey said was, as Butler testified, “uncalled for”
and “ugly.” But not every uncalled for, ugly, racist statement by a
co-worker is an unlawful employment practice. This incident occurred
away from work. It did not happen within the hearing of any
supervisors. Butler admits that she never thought the epithets,
deplorable as they are, were aimed at her. She has never even suggested
that this one-time use of vile language away from work created a hostile
work environment. She also conceded during cross-examination that the
incident did not affect her ability to do her job.
The incident that gave rise to this case is nowhere near enough to
create a racially hostile environment. We held in Rojas v. Florida, 285
F.3d 1339, 1344 (11th Cir. 2002), that in order “[t]o establish that a
workplace constitutes a hostile work environment, a 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.” Id. at 1344 (internal quotation marks and citation
omitted). It is objectively unreasonable to believe that the use of racially
discriminatory language on one occasion by one co-worker away from
the workplace is enough to permeate the workplace with “discriminatory
intimidation, ridicule, and insult” and to “alter the conditions of the
victim’s employment and create an abusive working environment.” See
id. This is what we said about that in the Little case:
[A] racially derogatory remark by a co-worker,
without more, does not constitute an unlawful employment
practice under the opposition clause of Title VII, 42 U.S.C.
§ 2000e-3(a), and opposition to such a remark,
consequently, is not statutorily protected conduct.
Little, 103 F.3d at 961. And, as we also explained in Little, “not every
act by an employee in opposition to racial discrimination is protected.
The opposition must be directed at an unlawful employment practice of
24

an employer, not an act of discrimination by a private individual.” Id. at
959 (quoting Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978)).
While a plaintiff can prevail on a retaliation claim based on
opposition to an employment practice that is not actually unlawful, we
have to consider the controlling substantive law in this circuit when we
assess whether a plaintiff’s mistaken belief is objectively reasonable.
See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 & n.2
(11th Cir. 1998) (examining the objective reasonableness of an
employee’s belief that an employment practice is unlawful in light of
existing substantive law). Where binding precedent squarely holds that
particular conduct is not an unlawful employment practice by the
employer, and no decision of this Court or of the Supreme Court has
called that precedent into question or undermined its reasoning, an
employee’s contrary belief that the practice is unlawful is unreasonable.
See id. at 1388-89; see also Weeks v. Harden Mfg. Corp., 291 F.3d
1307, 1317 (11th Cir. 2002) (“Finally, the plaintiffs may not stand on
their ignorance of the substantive law to argue that their belief was
reasonable. As we have stated previously, if the plaintiffs are free to
disclaim knowledge of the substantive law, the reasonableness inquiry
becomes no more than speculation regarding their subjective
knowledge.” (internal citations, brackets, and quotation marks omitted)).
Butler, 536 F.3d at 1213-14 (emphasis added).
The plaintiff in Butler is dissimilar to Mr. King in at least two significant ways.
First (and like the plaintiff in Little), the epithets uttered were not directed at the
plaintiff. Instead, the racial remarks were made about a stranger. Second, the
incident occurred away from the workplace. Therefore, Butler’s holding does not
necessarily dictate that Mr. King is unable to satisfy the objectively reasonable
retaliation standard.

25

However, Butler does provide a useful framework under which a court may
evaluate objective reasonableness for the purposes of an opposition-based retaliation
claim: “Where binding precedent squarely holds that particular conduct is not an
unlawful employment practice by the employer, and no decision of this Court or of
the Supreme Court has called that precedent into question or undermined its
reasoning, an employee’s contrary belief that the practice is unlawful is
unreasonable.” Butler, 536 F.3d at 1214.
Breeden involved an opposition retaliation claim premised upon the following
facts:
On October 21, 1994, respondent’s male supervisor met with
respondent and another male employee to review the psychological
evaluation reports of four job applicants. The report for one of the
applicants disclosed that the applicant had once commented to a
co-worker, “I hear making love to you is like making love to the Grand
Canyon.” Brief in Opposition 3. At the meeting respondent's supervisor
read the comment aloud, looked at respondent and stated, “I don't know
what that means.” Ibid. The other employee then said, “Well, I'll tell
you later,” and both men chuckled. Ibid. Respondent later complained
about the comment to the offending employee, to Assistant
Superintendent George Ann Rice, the employee’s supervisor, and to
another assistant superintendent of petitioner. Her first claim of
retaliation asserts that she was punished for these complaints.
Breeden, 532 U.S. at 269-70.
In reversing the Ninth Circuit which had ruled in the plaintiff’s favor on
summary judgment, the Court explained:
26

No reasonable person could have believed that the single incident
recounted above violated Title VII’s standard. The ordinary terms and
conditions of respondent’s job required her to review the sexually
explicit statement in the course of screening job applicants. Her
co-workers who participated in the hiring process were subject to the
same requirement, and indeed, in the District Court respondent
“conceded that it did not bother or upset her” to read the statement in the
file. App. to Pet. for Cert. 15 (District Court opinion). Her supervisor’s
comment, made at a meeting to review the application, that he did not
know what the statement meant; her co-worker’s responding comment;
and the chuckling of both are at worst an “isolated inciden[t]” that
cannot remotely be considered “extremely serious,” as our cases require,
Faragher v. Boca Raton, supra, at 788, 118 S. Ct. 2275. The holding of
the Court of Appeals to the contrary must be reversed.
Breeden, 532 U.S. at 271 (emphasis added).
Therefore, Breeden dealt with a female plaintiff who complained about the
joking behavior of her male supervisor and male co-worker while all three employees
were reviewing job applications. Although the sexually-charged joking involved the
plaintiff’s supervisor, the Court nevertheless determined that the situation objectively
lacked the level of severity necessary to meet Title VII’s harassment standard. In
contrast, Mr. King’s complaint involves the use of a racial slur against him and
another black co-employee in a non-joking manner in the workplace.
Against this backdrop, the court finds that while Little, Butler, and Breeden all
strongly suggest that another company’s white worker’s calling Mr. King and another
black worker “boy” on one occasion would not state a claim for actionable racial

27

harassment, none of these decisions “squarely holds” that the particular conduct at
issue is not an unlawful employment practice. Moreover, PWADC has not cited to
any other controlling authority which “squarely” establishes such a legal precedent.
However, in McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008), the Eleventh
Circuit did squarely hold that the sporadic use of racially insensitive terms such as
“girl” and “boy” by a white supervisor in the workplace when addressing subordinate
black employees, including the plaintiff, without more, does not constitute actionable
racial harassment. As the McCann court addressed the merits of the plaintiff’s claim:
To establish a hostile work environment claim, McCann must
show: “(1) that [s]he belongs to a protected group; (2) that [s]he has
been subject to unwelcome harassment; (3) that the harassment must
have been based on a protected characteristic of the employee . . . ; (4)
that the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatorily
abusive working environment; and (5) that the employer is responsible
for such environment under either a theory of vicarious or of direct
liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). Determining whether the harassment was sufficiently severe
or pervasive involves “both an objective and subjective component.” Id.
at 1276. In determining the objective element, a court looks to “ ‘all the
circumstances,’ including ‘the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’ ” Morgan, 536 U.S. at 116, 122 S. Ct.
2061 (quoting Harris, 510 U.S. at 23, 114 S. Ct. 367); see also Miller,
277 F.3d at 1275.
McCann alleges she was subject to a hostile work environment
where white employees made derogatory racial comments about blacks,
28

harsher discipline was received by black employees, and complaints of
discrimination were subject to retaliation and not investigated.
According to McCann, however, the only racially insensitive comments
she heard between 2003 and 2005 were when Bounds [i.e., McCann’s
immediate supervisor] called her “girl” and called two male black
employees “boys.” McCann also alleges that, at some time prior to 2003,
out of McCann’s hearing, Tillman [i.e., the Sheriff of Mobile County]
referred to a former black employee as a “nigger bitch” and declared that
“he had never received the ‘nigger vote’ and that he didn't want it. . . .”
Although offensive, such instances of racially derogatory
language alone, extending over a period of more than two years, are too
sporadic and isolated to establish that her employers’ conduct was so
objectively severe or pervasive as to alter the terms and conditions of
her employment. As the district court properly found, the only term ever
directed at McCann was “girl” and the term “boy” was used only once
in front of her. McCann, 2006 WL 1867486, at *20. McCann does not
allege that anyone else ever used racially derogatory speech towards her.
Although McCann heard of racial epithets being spoken twice by Sheriff
Tillman, these were never directed at McCann, nor spoken in her
presence. Id.; see also Harris, 510 U.S. at 21, 114 S. Ct. 367 (finding
that the “‘mere utterance of an ... epithet which engenders offensive
feelings in a employee,’ ... does not sufficiently affect the conditions of
employment to implicate Title VII”) (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)).
Moreover, although McCann alleges that she was upset by this
language, she has not demonstrated that the alleged environment
interfered with her job performance. In fact, McCann actually testified
that it did not affect her work.
Consequently, the evidence presented by McCann was
insufficient to support a claim of hostile work environment, and the
district court properly granted summary judgment with respect to this
claim.
McCann, 526 F.3d at 1378-79 (footnote and citations omitted) (emphasis added).

29

Thus, the McCann decision squarely holds that a supervisor’s sporadic use of
racially insensitive terms directed at the plaintiff and her co-workers (in conjunction
with other pieces of racially derogatory evidence that were not directed toward or
heard directly by the plaintiff) is insufficient to support a claim of racial harassment.
Moreover, the holding in McCann “squarely” confirms that Mr. King’s complaint
about an isolated racial utterance directed at him and one other black employee by a
non-co-worker is, a fortiori, inactionable under Title VII. Furthermore, the court is
unaware of any binding precedent which undermines the analysis utilized in McCann.
Finally, reading McCann and Butler together, because McCann “squarely holds
that particular conduct [in form of the sporadically using racially insensitive terms
such as “girl” and “boy” when addressing black employees] is not an unlawful
employment practice by the employer, and no decision of this Court or of the
Supreme Court has called that precedent into question or undermined its reasoning,
the plaintiff’s contrary belief that the practice is unlawful [for the purpose of asserting
an opposition-based retaliation claim] is unreasonable.” Butler, 536 F.3d at 1214.
As a result, Mr. King’s retaliation claim fails because to the extent that the complaint
that he made about racial harassment satisfies the subjective retaliation standard, his
belief regarding Title VII unlawfulness about the isolated racially insensitive conduct,
consistent with McCann and Butler, lacks objective reasonableness. Accordingly, the
30

Motion is GRANTED with respect to count two of Mr. King’s complaint.
V.

CONCLUSION
In accordance with the above analysis, the Motion is GRANTED in connection

with Mr. King’s claims for discriminatory written warning discipline and retaliation.
Accordingly, those claims are both HEREBY DISMISSED WITH PREJUDICE.
However, the Motion is DENIED as to Mr. King’s discriminatory discharge
claim. By separate order, the court will set this case for a final pretrial conference.
DONE and ORDERED this the 1st day of March, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

31