Russell v. Sealing Equipment Products Co Inc et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 11/20/2013. (AVC)
2013 Nov-20 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SEALING EQUIPMENT PRODUCTS
CO., INC., et al.
Case No.: 2:11-CV-04330-RDP
This case is before the court on the Motion for Summary Judgment of Sealing Equipment
Products Co., Inc. (Doc. # 51). On October 1, 2013, the court issued an Order notifying Plaintiff of
his right to file affidavits or other materials in opposition to the motion and to notify him of the
consequences of a failure to respond. (Doc. # 54). Nonetheless, Plaintiff has failed to respond to
Defendant SEPCO is a manufacturer of sealing products in Alabaster, Alabama. (Doc. # 53-
2). Plaintiff Russell was hired by Defendant on January 30, 2006 as a manual machinist in the
Mechanical Seals Department. (Doc. # 53-1 at p. 27). Glenn Clark hired Plaintiff and was his
supervisor. (Doc. # 53-1 at pp. 27-8).
In light of Plaintiff's failure to respond to Defendant's properly supported Motion for Summary Judgment, the facts
set forth by Defendant are undisputed. See Patton v. City of Hapeville, Ga., 162 F. App'x 895, 896 (11th Cir. 2006)
(providing that "the district court properly held that the defendants' statement of undisputed facts filed with their motion for
summary judgment were admitted when Patton failed to respond to the statement of facts in accordance with the Federal
Rules of Civil Procedure and the Local Rules[ ]").
Defendant has a Harassment Policy, which prohibits any form of harassment and contains
an internal complaint procedure. (Doc. # 53-2 at ¶ 3 and Ex. 1). Plaintiff received a copy of the
Harassment Policy and internal complaint procedure at the time he was hired. (Doc. # 53-1 at pp.
On the day Plaintiff was hired, Clark told him that he could not bring his personal tools to
work. (Doc. # 53-1 at pp. 138-39). However, Jimmy Huggins and Greg Lovett were allowed to bring
their tools to work. (Doc. # 53-1 at pp. 153-55). Plaintiff did not ask Clark about bringing his own
tools to work even though Lovett brought his toolbox in. (Doc. # 53-1 at p. 155). Plaintiff was
provided tools for some jobs, and had to ask for tools for other jobs. (Doc. # 53-1 at pp. 145-46,
149, 178). Plaintiff claims that he sometimes ordered tools from the company but they never showed
up, despite the fact that when other employees ordered tools they got them "every time." (Doc. # 531 at pp. 146-48). However, the Rule 56 evidence demonstrates that some of the tools Plaintiff
ordered (inserts) were kept in stock by others, and Plaintiff merely had to ask them for that particular
tool. (Doc. # 53-1 at pp. 149-50, 177-78). Plaintiff admits he had no problem obtaining tools from
others in his department (Doc. # 53-1 at pp. 149-50), and there was never a time that Plaintiff could
not perform his job because he did not have his own tools or tools were not provided. (Doc. # 53-1
at p. 179).
Plaintiff also contends that he was not assigned the same amount of overtime as others in his
department. (Doc. # 53-1 at pp. 110-11). However, he has been unable to identify any particular
dates that he believes he should have been assigned overtime, but was not. He was aware that his
co-workers were working overtime because they did not clock out when he did and work was done
over the weekend. (Doc. # 53-1 at pp. 115, 127-29). Russ Perry, a Caucasian employee in the
department, also did not receive the same amount of overtime as did other employees. (Doc. # 53-1
at p. 114). Nevertheless, the Rule 56 record shows Plaintiff worked overtime in January 2010 (7.5
hours) and in May 2010 (8.25 hours). (Doc. # 53-1 at pp. 117-21 and Ex. 15; Doc. # 53-2 ¶ 4 and
Plaintiff complains that there were discussions in the department that he was not a part of,
and that he would frequently receive instructions from co-workers rather that his supervisor. (Doc.
# 53-1 at pp. 157-59). Clark explained to Plaintiff that he used Owenby to give instructions because
he (Owenby) has been employed a long time. (Doc. # 53-1 at p. 162). Plaintiff believed that
sometimes when these other employees gave him work, it was not really his job and they were trying
to get Plaintiff to do their work. (Doc. # 53-1 at pp. 171-72). Plaintiff admitted that other
Department employees, such as Perry, Reba Henson and Ray Hyde were also excluded from
Department discussions. (Doc. # 53-1 at p. 160).
Plaintiff further testified that a hose was leaking on the manual lathe machine that he
operated and, although he had asked for it to be repaired, months went by with no repair. (Doc. #
53-1 at pp. 181-82, 184, 186-87). Plaintiff complained to Clark about the leaking hose and Clark
advised him to talk to his co-worker, Owenby, about how to fix it. (Doc. # 53-1 at pp. 188-89).
Owenby was not able to resolve the problem. When Plaintiff again complained again to Clark about
the hose, Clark told him he had put in a request to purchase a new hose. (Doc. # 53-1 at pp. 189-90,
192-93). In fact, a purchase order for the replacement coolant hose was issued on June 17, 2009.
(Doc. # 53-1 at pp. 195-97; Doc. # 53-2 ¶ 5 and Ex. 3).
After repeated unsuccessful attempts to obtain the parts from the manufacturer to fix the leak,
Defendant had a custom hose made to fix the problem. (Doc. 53-2 ¶ 6). The hose had been leaking
for roughly three months before it was repaired. (Doc. # 53-1 at pp. 199-200). During the time the
hose was leaking, coolant leaked onto the floor around Plaintiff's work area and got on his clothes.
(Doc. # 53-1 at pp. 188, 190). Plaintiff never requested to work on a different lathing machine while
the coolant hose was broken. (Doc. # 53-1 at pp. 203-05).
Plaintiff also complained generally about fumes from the coolant burning his eyes and
nostrils. However, everyone was exposed to the same fumes because the coolant flowed freely from
an open source onto the machine. (Doc. # 53-1 at pp. 207-10, 214-15). The coolant is heavily
diluted with water and is used on all lathing machines in the department. (Doc. # 53-1 pp. 210-11).
The leaking coolant also affected the operation of a control panel, another issue that took a long time
to repair. (Doc. # 53-1 pp. 240-41, 248-49). Eventually, the entire control panel of Plaintiff's
machine was replaced. (Doc. # 53-1 p. 249-50). Plaintiff claims he was the only employee who had
these maintenance problems with his or her machine. (Doc. # 53-1 p. 251).
On April 28, 2010, Plaintiff met with the Plant Manager, Mike Evers and expressed the
following concerns about his employment: (i) no one showed him where anything was when he was
hired and he was not given tools to use; (ii) tools he requested were given to other employees and
he had to get the tools from them; (iii) he received work instructions from co-workers instead of
directly from Clark, his supervisor; (iv) repairs to his machine took a long time; (v) he did not have
the opportunity to work overtime; and (vi) he wanted the chance to do other things. (Doc. # 53-1
pp. 205-07, 370-72, 385).
Evers invited Clark to join he and Plaintiff for this discussion, and Clark informed Plaintiff
that the same tools for his machine were used for other machines, and so when he ordered new tools,
he ordered enough for the whole department to use and wanted them to be kept in a centralized
location. (Doc. # 53-2 ¶¶ 8-9). Clark also explained that, for a while, no one was getting overtime
due to the economic slow-down. (Doc. # 53-1 pp. 113-14; Doc. # 53-2 ¶ 10). When overtime was
available, Owenby, Huggins or Blythe were chosen by Clark to work because they could operate the
manual lathe that Plaintiff used, and also were able to operate more efficient machines that Plaintiff
did not know how to operate. (Doc. # 53-1 pp. 112-13, 116, 174; Doc. # 53-2 ¶ 11).
The coolant hose on Plaintiff's machine had been repaired for at least several months before
the April 28 meeting. (Doc. # 53-1 pp. 206-07; Doc. # 53-2 ¶ 12). As to the question of Plaintiff
receiving instructions from co-workers, Clark explained that, because operations by Owenby and
Huggins were often the first step in building a part, he would give them instructions for the whole
part, and they would pass along the instructions to others once they finished their piece of the
process. (Doc. # 53-2 ¶ 13). Evers and Clark explained to Plaintiff that Clark is in the shop every
day and that Plaintiff could come directly to Clark with questions. (Doc. # 53-2 ¶ 14).
At no time during the April 28 meeting did Plaintiff complain that he was being
discriminated against because of his race. (Doc. # 53-1 pp. 369-70; Doc. # 53-2 ¶ 15).
Blythe, who primarily operated a partially automated, computerized lathing machine known
as the EZ Trak, resigned on June 2, 2010. (Doc. # 53-1 pp. 255-58; Doc. # 53-2 ¶ 16). Although
Owenby and Huggins had used the EZ Trak on occasion, it was their jobs to operate other
computerized machines. (Doc. # 53-1 pp. 255-56). Therefore, Clark asked Plaintiff if he would be
interested in running the EZ Trak after Blyth's resignation. (Doc. # 53-1 p. 260). Plaintiff responded
that he was willing to work on the EZ Trak but that he didn't know how to program it. (Doc. # 53-1
p. 261). Clark told Plaintiff that he would ask Huggins to show him how to program it. (Doc. # 53-1
p. 261). Clark gave Plaintiff the first choice to run the EZ Trak machine, but also told Plaintiff that
if he did not like the EZ Trak, he could go back to the manual machine. (Doc. # 53-1 p. 261).
Plaintiff began learning the EZ Trak machine and was able to use its manual functions to fabricate
some parts. (Doc. # 53-1 p. 269).
Clark later met with Plaintiff, Huggins and Owenby and instructed Huggins to train Plaintiff
on the EZ Trak while Clark was vacation. (Doc. # 53-1 p. 262). While Clark was on vacation,
Huggins told Plaintiff that he did not know anything about the EZ Trak and refused to train Plaintiff.
(Doc. # 53-1 p. 263).
When Clark returned, Plaintiff complained that Huggins had not trained him. Clark told
Plaintiff they would hire somebody to train him, but for now to just do the best he could. (Doc. #
53-1 pp. 279-80). Plaintiff read the EZ Trak catalog and manual and gained some understanding of
the machine and was able to make some parts on it. (Doc. # 53-1 pp. 280-81). Evers decided that
two employees should be trained on the EZ Trak and that, going forward, Plaintiff would operate the
manual lathe and the EZ Trak. (Doc. # 53-2 ¶ 17).
Plaintiff was given a $2.00/hour raise on July 19, 2010. (Doc. # 53-2 ¶ 18). Plaintiff had the
opportunity to work overtime on the EZ Trak and worked 58.5 hours of overtime between June 2010
and August 2010. (Doc. # 53-1 pp. 121-23 and Ex. 15; Doc. # 53-2 ¶ 4 and Ex. 2). After the April
28 meeting with Evers and Clark, he had no further complaints about overtime. (Doc. # 53-1 pp.
On August 9, 2010, Lovett was hired to fill the second EZ Trak operator position. (Doc. #
53-2 ¶ 19). Plaintiff saw Huggins showing Lovett how to pull up files on the EZ Trak machine.
(Doc. # 53-1 pp. 265, 267, 278).
Plaintiff was out of work for a week from August 16-20, 2010, for his mother's funeral.
When he returned, he saw Huggins and Owenby "showing [Lovett] how to keep notes on how to
mash this button and make it do this" on the EZ Trak machine. (Doc. # 53-1 pp. 281, 329-30).
Plaintiff asked Clark why he was not being trained. Clark responded that he would make sure
Huggins showed Plaintiff what he knew and would bring in somebody to train both Lovett and
Plaintiff. (Doc. # 53-1 p. 282-83).
After speaking with Clark, on August 30, 2010, Plaintiff approached Evers and told Evers
that he would rather go back to working on the manual lathe. (Doc. # 53-1 pp. 291-92). Evers
explained to Plaintiff that he did not mind him working mostly on the manual lathe, but that he
needed Plaintiff to learn the EZ Trak. (Doc. # 53-1 p. 292). Evers discussed Plaintiff's concerns
with Clark, and Clark committed to getting Plaintiff up to speed on the EZ Trak. (Doc. # 53-2 ¶ 20).
That same day, Clark arranged for Huggins to train Plaintiff on the EZ Trak. (Doc. # 53-1
p. 294). Plaintiff told Clark that Evers had told him he could work on the manual lathe for now and
learn the EZ Trak later. (Doc. # 53-1 pp. 294-95). Clark asked if Plaintiff was refusing work.
Plaintiff responded no, "could you let me go back to doing what I'm doing?" (Doc. # 53-1 p. 295).
Clark told Plaintiff to return to the manual lathe and he would talk to Evers. (Doc. # 53-1 p. 296).
Plaintiff was upset that Clark had initially told him it was his choice whether or not to operate the
EZ Trak and then told him that he no longer had a choice. (Doc. # 53-1 p. 299).
On September 7, 2010, Plaintiff, Clark and Evers met to discuss what Clark viewed as
Plaintiff's failure to cooperate in training for the EZ Trak. (Doc. # 53-1 pp. 300, 304, 337). Evers
assured Plaintiff that he was going to train on the EZ Trak, and that they would get someone in to
do that training. (Doc. # 53-1 p. 304). Evers and Clark informed Plaintiff that he no longer had a
choice about not working on the EZ Trak because the company needed a backup. (Doc. # 53-1 pp.
305-06). Nevertheless, Plaintiff informed them he would rather stay on the manual lathe. (Doc. #
53-1 pp. 306-08). At no time during the meeting with Evers and Clark did Plaintiff ever state that
he thought he was being treated differently because of his race. (Doc. # 53-1 pp. 369-70; Doc. # 532 ¶ 21).
Within a day or two of the September 7, 2010 meeting, Evers apologized to Plaintiff for
pushing him about training on the EZ Trak. (Doc. # 53-1 pp. 319-21). Evers told Plaintiff he could
return to working on the manual lathe, but that at some point he would be required to learn how to
use the EZ Trak. (Doc. # 53-1 pp. 320-21). Plaintiff admits that after this one-on-one meeting with
Evers, all of his then existing concerns about his employment had been addressed. (Doc. # 53-1 p.
As noted in more detail below, Plaintiff resigned his employment on January 25, 2011. (Doc.
53-1 p. 365). At no point after the one-on-one with Evers and up to the time Plaintiff resigned did
either Evers or Clark tell Plaintiff it was time to start the EZ Trak training. (Doc. # 53-1 pp. 314,
321). Nor did Plaintiff tell them he was ready to train on the EZ Trak. (Id.). Moreover, Defendant
never imposed any discipline, such as a written warning, suspension or demotion, as a result of
Plaintiff's refusal to participate in training on the EZ Trak machine. (Doc. # 53-2 ¶ 22).
On November 1, 2010, Plaintiff filed an EEOC charge alleging race and age discrimination,
and retaliation. (Doc. # 53-1 pp. 107-08 and Ex. 14).
On or about January 19, 2011, in front of Clark and Ray Hyde, Reba Henson accused
Plaintiff of sexually harassing her. Hyde agreed that Plaintiff had been sexually harassing Hensen.
(Doc. # 53-1 pp. 341-42, 355). Plaintiff denied the accusation and asked Clark why he did not "stop
them from saying this." (Doc. # 53-1 p. 342). According to Plaintiff, Clark was standing beside him
and smiling and laughing. Plaintiff was not amused by the exchange. (Doc. # 53-1 pp. 343-44).
Plaintiff acknowledges that everyone in the room knew that he had not been sexually
harassing Henson. (Doc. # 53-1 p. 349). He was friends with Henson and Hyde, frequently joked
with them, and never had any problem with them. (Doc. # 53-1 pp. 349-50). Other than his
immediate denial, Plaintiff did not make any complaint about this incident to anyone in management.
(Doc. # 53-1 p. 364). No action was taken by Defendant against Plaintiff in response to the
"accusation." (Doc. # 53-1 pp. 360-61).
Plaintiff does not have any evidence that either Henson or Hyde was aware of his EEOC
charge or an upcoming mediation of the charge. (Doc. # 53-1 p. 360). Nor does Plaintiff have any
evidence suggesting that Henson made the accusation at the suggestion or direction of anyone in
management. (Doc. # 53-1 pp. 359-60). Plaintiff claims that Henson's accusation of harassment was
retaliatory, but candidly admits that he has no factual support to that effect. (Doc. # 53-1 pp.
Plaintiff's last day of work with Defendant was January 19, 2011. (Doc. # 53-1 pp. 34-6).
Thereafter, on January 25, 2011, Plaintiff tendered his voluntary resignation. (Doc. # 53-1 p. 365).
Plaintiff filed a claim for unemployment benefits with the Alabama Department of Industrial
Relations which was denied on the grounds that he voluntarily resigned his employment without
good cause connected to work. (Doc. # 53-1 pp. 401-04 and Ex. 22). Plaintiff appealed the denial
of unemployment benefits to a hearing officer. A telephone hearing was conducted by the Hearings
and Appeals Division during which Plaintiff appeared, gave testimony and was represented by
counsel. (Doc. # 53-1 p. 404 and Ex. 22). During the telephone hearing, Plaintiff asserted that he
resigned because he was falsely accused of sexual harassment by a co-worker. (Doc. # 53-1 p. 402
and Ex. 21 at pp. 9, 19, 22). The Hearing Officer determined that Plaintiff failed to take advantage
of Defendant's grievance procedure to address the sexual harassment accusation, and that his
resignation was without good cause. (Doc. # 53-1 p. 403-04 and Ex. 22 thereto).
Plaintiff filed his Complaint in this action on December 27, 2011. (Doc. # 1).
Standard of Review
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 and that the moving party is entitled to
judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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. Celotex, 477 U.S. at 323. Once the moving party
has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by her
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. 249.
For the reasons stated below, the court concludes that there are no material issues of fact in
this case and Defendant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56.
Plaintiff's Amended Complaint
In his Amended Complaint, Plaintiff asserts the following claims:
Count I - Race Discrimination in Violation of Title VII;
Count II - Race Discrimination in Violation of 42 U.S.C. § 1981;
Count III - Retaliation under Title VII;
Count IV - Constructive Discharge; and
Count V - Mental and Emotional Distress.
(Doc. # 31). The court addresses these claims out of their listed order.
Plaintiff's Mental and Emotional Distress Claim Fails as a Matter of Law
Although titled a "Mental and Emotional Distress" claim, in actuality Count V is an outrage
claim. "The tort of outrage requires that: (1) the actor intended to inflict emotional distress, or knew
or should have known that emotional distress was likely to result from his conduct; (2) the conduct
was extreme and outrageous; (3) the defendant's actions caused the plaintiff distress; and (4) ... the
distress was severe. With respect to the conduct element, this Court has stated that the conduct must
be 'so outrageous in character and so extreme in degree as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized society.'" Gunter v.
Huddle, 724 So.2d 544, 547 (Ala.Civ.App. 1998) (quoting Harris v. McDavid, 553 So.2d 567,
569-70 (Ala. 1989)); see also American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980)
(recognizing the tort of outrage as actionable in Alabama).
"The Alabama Supreme Court has clarified that 'outrage is a very limited cause of action that
is available only in the most egregious circumstances.'" Edwards v. Hyundai Motor Mfg. Alabama,
LLC, 603 F.Supp.2d 1336, 1354 (M.D. Ala. 2009) (quoting Thomas v. BSE Indus. Contractors, Inc.,
624 So.2d 1041, 1044 (Ala. 1993)). The cause of action requires that both the conduct and the
emotional distress be extreme. "[T]his standard has been applied 'strictly' by the Alabama Supreme
Court." Edwards, 603 F.Supp.2d at 1354 (quoting Saville v. Houston County Healthcare Auth., 852
F.Supp. 1512, 1541 (M.D. Ala. 1994) (quoting Continental Cas. Ins. Co. v. McDonald, 567 So.2d
1208, 1211 (Ala. 1990))). "So circumscribed, in fact, is the reach of the tort of outrage that the
Alabama Supreme Court has allowed such claims only in three limited circumstances: 'cases having
to do with wrongful conduct in the context of family burials; cases where insurance agents employed
heavy-handed, barbaric means to coerce a settlement; and cases involving egregious sexual
harassment.'" Garrett v. Stanton, 2008 WL 4701215, *8, n.17 (S.D. Ala. 2008) (quoting Carter v.
Harris, 64 F.Supp.2d 1182, 1194 (M.D. Ala. 1999)).
Plaintiff simply has not presented evidence of either the type of extreme and outrageous
conduct required to establish a cognizable outrage claim, nor has he put forth evidence showing the
requisite level of severe emotional distress. The words of Judge Myron H. Thompson apply here:
"While the defendants' behavior here may have been insensitive or made [Plaintiff] uncomfortable,
he has presented no evidence suggesting that their conduct reached such an intolerable level."
Hendrix v. Chambers, 2008 WL 509633, *5 (M.D. Ala. 2008) (citing Am. Road Serv. Co. v. Inmon,
394 So.2d 361, 364-65 (Ala.1980) (no outrage recovery for "mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities")). Therefore, Defendant is entitled to summary
judgment on Plaintiff's "Mental and Emotional Distress" claim asserted in Count V.
Plaintiff's Constructive Discharge Claim Fails as a Matter of Law
Plaintiff's discrimination and retaliation claims are addressed below. Before discussing those,
the court addresses Plaintiff's claim that Defendant not only discriminated and/or retaliated against
him, but that it also made the conditions of his work so intolerable as to constructively discharge
him. First, as noted below, the Rule 56 evidence does not support Plaintiff's claim that he was the
subject of retaliation or discrimination. Second, even if that were not the case — that is, even if
Plaintiff could present a triable issue as to discrimination and/or retaliation, he has wholly failed to
present substantial evidence of a constructive discharge.
A "[c]onstructive discharge occurs when an employer deliberately makes an employee's
working conditions intolerable and thereby forces him to quit his job." Bryant v. Jones, 575 F.3d
1281, 1298 (11th Cir. 2009) (citations omitted). Whether an employee's working conditions were
so intolerable is an objective question. See Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1363 (11th
Cir. 1994) ("A claim for constructive discharge requires the employee to demonstrate that the work
environment and conditions were so unbearable that a reasonable person in that person's position
would be compelled to resign."). "[F]or a constructive discharge claim to present a jury issue and
thereby survive summary judgment, a plaintiff must produce substantial evidence that conditions
were intolerable." Akins v. Fulton County, 420 F.3d 1293, 1299–1300 (11th Cir. 2005).
Here, this court concludes that the conditions shown by Plaintiff do not meet the high burden
established by the Eleventh Circuit to establish a constructive discharge. See, e.g., Poole v. Country
Club of Columbus, 129 F.3d 551, 553 (11th Cir. 1997) (reversing grant of summary judgment where
plaintiff was "[s]tripped of all responsibility, given only a chair and no desk, and isolated from
conversations with other workers"); see also Wardwell v. Sch. Bd., 786 F.2d 1554, 1558 (11th Cir.
1986) (holding that no constructive discharge occurred where the female plaintiff was not given a
promotion, the promotion went to a less-qualified male, and the plaintiff was given additional duties
requiring her to work longer hours).
Plaintiff admitted in his deposition that all of his complaints about his working conditions
were addressed by Defendant months before his resignation. The final straw that compelled Plaintiff
to resign was the sexual harassment accusation made by Reba Henson. Plaintiff denied the
accusation, and Defendant took no action against Plaintiff related to the accusation. Plaintiff never
complained to management that the accusation had been made. A constructive discharge will
generally not be found if the employer is not given adequate time to remedy the situation. See
Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996). "Part 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).
Nothing about the handling of Henson's accusation would have compelled a reasonable person to
resign. Neither life nor the law favor quitters — particularly quitters who do not give their employer
a chance to remedy a perceived wrong. But even if that adage did not apply here, Plaintiff simply
has fallen far short of establishing any facts necessary to prove a constructive discharge. Therefore,
Defendant is entitled to summary judgment on Plaintiff's constructive discharge claim.
Plaintiff's Race Discrimination Claims Fail as a Matter of Law
As the Eleventh Circuit has explained, "[b]oth § 1981 and Title VII 'are subject to the same
standards of proof and employ the same analytical framework.'" Bryant v. Jones, 575 F.3d 1281,
1296, n. 20 (11th Cir. 2009); see also Sims v. Coosa County Bd. of Educ., 2008 WL 4080769, at *4
(M.D. Ala. 2008) ("The elements of § 1981 race discrimination claim in the employment context are
the same as a Title VII disparate treatment claim.") (citing Patterson v. McLean Credit Union, 491
U.S. 164 (1989)). Thus, as the substantive analysis for these claims is the same, it is appropriate to
discuss contemporaneously whether Plaintiff has met this standard with respect to both his Title VII
and § 1981 claims.
Where, as here, a plaintiff relies upon circumstantial evidence of discrimination and
retaliation under Title VII and § 1981, courts apply the burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Crawford v. Carroll, 529 F.3d 961, 975–76 (11th
Cir. 2008). Under this analysis, once a plaintiff has established a prima facie case for discrimination
or retaliation, "the burden shifts to the employer to 'articulate some legitimate, nondiscriminatory
reason'" for the challenged action. Crawford, 529 F.3d at 976 (quoting McDonnell Douglas, 411 U.S.
at 802). If the employer does so, "the burden shifts back to the plaintiff to show that the employer's
stated reason was a pretext for discrimination." Id. (citations omitted).
To prevail under Title VII or § 1981, evidence must be presented that is "sufficient to create
an inference of discrimination." Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997). A plaintiff
can establish that inference by showing: "(1) he was a member of a protected class; (2) he was
qualified for the job; (3) he suffered an adverse employment action; and (4) his employer treated
similarly situated employees outside the protected class more favorably." Crawford, 529 F.3d at 970.
The Eleventh Circuit has held, with respect to a disparate treatment claim, that "an 'adverse
employment action' includes 'termination, failure to hire, or demotion.'" Blue v. Dunn Const. Co.,
Inc., 453 Fed.Appx. 881, 884 (11th Cir. 2011) (quoting Crawford, 529 F.3d at 970). "An employer's
conduct falling short of those actions '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.'" Blue, 453 Fed.Appx. at 884
(citing Crawford, 529 F.3d at 970). "With regard to the level of substantiality required, the plaintiff
must demonstrate that he 'suffered a serious and material change in the terms, conditions, or
privileges of employment.'" Blue, 453 Fed.Appx. at 884 (citing Crawford, 529 F.3d at 970–71)
(emphasis in original).
Many of the issues about which Plaintiff complains do not rise to the level of an adverse
employment action. See, e.g., White v. Hall, 389 Fed. Appx. 956 (11th Cir. 2010) (more difficult
assignments not adverse); Belt v. Alabama Historical Comm'n, 181 Fed. Appx. 763 (11th Cir. 2006)
(minor changes in job duties including suspending authority to order inventory and requiring reports
to go through supervisor were not adverse employment actions). And as will be seen below, as to
the single employment action that may be actionable, Defendant has articulated a legitimate, nondiscriminatory reason for its actions, and Plaintiff has not shown that reason was a pretext for race
Refusal to Allow Plaintiff to Use Personal Tools is Time Barred
The refusal to allow Plaintiff to bring his personal tools to work occurred in 2006. (Doc. #
53-1 pp. 138-39). The longest statute of limitations applicable to § 1981 claims is four years. Jones
v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). This case was filed in 2011. Therefore,
any claim over the refusal to allow Plaintiff to bring in personal tools is time-barred under § 1981.
Tools Ordered by Plaintiff Were Not Provided
Plaintiff asserts that although he ordered tools for his job, they were not provided, while other
unidentified workers ordered tools that were provided. (Doc. # 53-1 pp. 146-48). However, as
Plaintiff candidly admits, he was able to obtain tools by asking other employees for them, which was
not a problem. (Doc. # 53-1 pp. 149-50, 177-78). Plaintiff also admits that there was never a time
that he was unable to perform his job because tools were not available. (Doc. # 53-1 p. 179).
Plaintiff simply has not shown an actionable change in the terms or conditions of Plaintiff's
Denial of Overtime
Although a denial of overtime would involve an actionable adverse employment action,
Plaintiff was unable to identify any occasions where similarly situated employees outside his
protected class were given overtime that he was qualified to perform. (Doc. # 53-1 pp. 115, 127-29).
Plaintiff admits that the employees he believes were working overtime were qualified to work on
machines for which he was not qualified. (Doc. # 53-1 pp. 113-13, 116, 174; Doc. # 53-2 ¶ 11).
Plaintiff also admits that after he received training on an additional machine (the EZ Trak), he
received overtime in February and May 2010. (Doc. # 53-1 pp. 117-21; Doc. # 53-2 ¶ 4 and Ex. 2).
Therefore, Plaintiff simply cannot establish a prima facie case on this issue. Moreover, Defendant
articulated a legitimate non-discriminatory reason for the difference in treatment, i.e., the employees
who received more overtime were qualified to operate machines Plaintiff was not qualified to
operate. (Doc. # 53-2 ¶ 11). Plaintiff has not attempted to show this reason is a pretext for
Receipt of Instructions from Co-Workers
Plaintiff asserts a claim that he was excluded from discussions with Clark, his supervisor,
about work planning and he received instructions from co-workers, rather than Clark. (Doc. # 53-1
pp. 157-59). However, Caucasian employees also received instructions from co-workers and were
excluded from discussions with Clark about work planning. (Doc. # 53-1 p. 160). The Rule 56
evidence shows that the difference in treatment was based on seniority. (Doc. # 53-1 p. 162).
Plaintiff admitted that there was nothing wrong with Clark passing on instructions via others. (Doc.
# 53-1 p. 171). This is particularly the case where those who passed on the instructions were
working "upstream" in the production process of building a particular part. (Doc. # 53-2 ¶ 13). Not
only does this issue not rise to the level of an actionable adverse employment action, Plaintiff cannot
demonstrate that he was treated less favorably than others outside his protected class. Moreover,
Defendant has articulated a legitimate, non-discriminatory reason for communicating instructions
in this manner which Plaintiff has not established is a pretext for discrimination.
Repairs to Manual Lathe and Exposure to Coolant Fumes
A coolant hose on the manual lathe which Plaintiff operated broke, causing him to be
exposed to coolant liquid and fumes. The leaking coolant also affected the operation of a control
panel. (Doc. # 53-1 pp. 240-41, 248-49). Plaintiff complains that it took Defendant three months
to repair the machine. (Doc. # 53-1 pp. 181-82, 184, 186-89). The undisputed evidence is that
Plaintiff's co-worker attempted, but was unable, to repair the hose. Defendant made repeated efforts
to obtain a new part from the manufacturer, and eventually, repaired the hose and the control panel.
(Doc. # 53-1 p. 249-50). Plaintiff never asked to move to another machine and, in any event, even
if there had not been a leak, Plaintiff would have been exposed to the coolant fumes anywhere in the
department because the coolant flows freely from an open source onto the machine. (Doc. # 53-1
at pp. 207-10, 214-15).
This change in work conditions is not actionable because it is not sufficiently serious and
material. However, putting that aside, the Rule 56 evidence is that whenever Plaintiff complained
that his machine needed repairs, a maintenance employee would attempt to fix it. (Doc. # 53-1 pp.
249-50). Moreover, Plaintiff cannot identify any other employee who had similar problems with
their machines whose machine was fixed more quickly. (Doc. # 53-1 p. 251). Therefore, Plaintiff
cannot establish a prima facie case of discrimination as to any failure to repair the manual lathe.
Alleged Failure to Train
Plaintiff alleges that he was not properly trained on the EZ Trak machine, but that a white
employee, Greg Lovett did receive training. Blythe, who primarily operated the EZ Trak, resigned
on June 2, 2010. (Doc. # 53-1 pp. 255-58; Doc. # 53-2 ¶ 16). Clark asked Plaintiff if he would be
interested in running the EZ Trak after Blyth's resignation. (Doc. # 53-1 p. 260). Huggins was
instructed to train Plaintiff on the EZ Trak, but failed to do so. Huggins told Plaintiff that he did not
know anything about the EZ Trak. (Doc. # 53-1 p. 263). Plaintiff complained to Clark that Huggins
had not trained him, and Clark responded that they would hire somebody to train him, but "for now"
he should do the best he could. (Doc. # 53-1 pp. 279-80). Plaintiff taught himself how to perform
some tasks on the EZ Trak. (Doc. # 53-1 pp. 280-81). Once he started learning the EZ Trak,
Plaintiff received a $2.00 per hour raise and began receiving overtime. (Doc. # 53-1 pp. 121-23 and
Ex. 15; Doc. # 53-2 ¶¶ 4, 18 and Ex. 2).
Thereafter, Defendant decided that two employees should be trained on the EZ Trak. (Doc.
# 53-2 ¶ 17). Lovett was selected for the second EZ Trak operator position. (Doc. # 53-2 ¶ 19).
Around this time, Plaintiff told the Plant Manager that he would rather go back to working on the
manual lathe. (Doc. # 53-1 pp. 291-92). Evers explained to Plaintiff that he did not mind him
working primarily on the manual lathe, but that he needed Plaintiff to learn the EZ Trak. (Doc. # 531 p. 292). Plaintiff was upset because Clark had initially told him it was his choice whether or not
to operate the EZ Trak and then told him that he no longer had a choice. (Doc. # 53-1 p. 299).
When Evers and Clark explained that the company needed a backup operator for the EZ Track,
Plaintiff again informed them he would rather stay on the manual lathe. (Doc. # 53-1 pp. 305-08).
This alleged failure to train is not an actionable adverse employment action. First, Plaintiff
has not established that any similarly situated employee outside the protected class received training
that he did not receive. Second, Defendant had given Plaintiff a raise and was in the process of
having Plaintiff and Lovett trained when Plaintiff declined the training.2 Simply put, Plaintiff has
failed to establish a prima facie disparate treatment claim as to an alleged failure to train.
Plaintiff's Retaliation Claim Fails as a Matter of Law
To establish a Title VII or § 1981 retaliation claim based on circumstantial evidence, the
plaintiff must show: (1) that he engaged in statutorily protected expression; (2) that he suffered an
adverse employment action; and (3) that there is a causal connection between the two events. See
Crawford, 529 F.3d at 970; see also Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277
(11th Cir. 2008) (applying the same three-part test to retaliation claims under § 1981 and Title VII).
Plaintiff can only establish the first element of his retaliation claims. Without question,
Plaintiff's EEOC charge constitutes protected conduct.3 Plaintiff filed his EEOC charge on
November 1, 2010. (Doc. # 53-1 pp. 107-08 and Ex. 14). But that is as far as Plaintiff's evidence
of retaliation goes. Here, the only alleged adverse action Plaintiff alleges occurred after he filed his
EEOC charge was the sexual harassment accusation against him made by Reba Hensen. (Doc. # 31
at ¶ 67). However, this is not an adverse "employment" action. Defendant took no action against
Again, Plaintiff has inexplicably claimed he did not receive for discriminatory reasons.
Plaintiff testified that, prior to filing his EEOC charge, he did not make any complaints to Defendant about race
discrimination. (Doc. # 53-1 at 369-70).
Plaintiff because of Hensen's accusation. He was not disciplined, nor was he reprimanded. And
Plaintiff made no complaint about the fact that the accusation was made. He simply quit. (Doc. #
53-1 at 350-64). "[The Eleventh Circuit has] not explicitly recognized retaliatory co-worker
harassment as an 'adverse employment action' for retaliation purposes." Terrell v. Paulding County,
2013 WL 4779697 (11th Cir. September 9, 2013) (citing Lewis v. U.S. Dep't of Labor, 368 Fed.
App'x 20, 30 (11th Cir. 2010) ("[W]e have not explicitly recognized a retaliation claim based on a
hostile work environment."). Moreover, even assuming such an accusation is actionable, "[m]ere
ostracism in the workplace is not grounds for a retaliation claim...." Manatt v. Bank of Am., 339 F.3d
792, 803 (9th Cir. 2003). See also Burlington, 548 U.S. at 68 (requiring actionable employer conduct
to be "significant," rather than "trivial," emphasizing that "petty slights or minor annoyances that
often take place at work"). Plaintiff has not shown that the accusation was "anything more than a
petty slight or minor annoyance." Cobb v. City of Roswell, Ga. ex rel. Wood, 2013 WL 4046578
(11th Cir. August 12, 2013) (citing Burlington, 548 U.S. at 68). Therefore, Plaintiff cannot establish
the second element of his prima facie case.
Finally, even if the sexual harassment allegation could be considered an adverse employment
action, Plaintiff cannot establish the third element, causation. To establish causation, Plaintiff must
show that the alleged retaliator was aware of his "protected activity" and "the protected activity and
the adverse action were not wholly unrelated." Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th
Cir. 2000), abrogated on other grounds by Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006). Although Plaintiff testified that the accusation occurred around the time the
mediation of his EEOC charge was scheduled, he presented no evidence that Hensen, the accuser,
was even aware of the EEOC charge or that the mediation was to occur.4
For the foregoing reasons, Defendant is entitled to judgment as a matter of law on all of the
claims asserted in Plaintiff's Amended Complaint and Defendant's Motion for Summary Judgment
is due to be granted. A separate order will be entered.
DONE and ORDERED this
day of November, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
For the reasons explained in Defendant's brief in support of summary judgment, an alternative basis for granting summary judgment as
to Plaintiff's § 1981 claim is that he is collaterally estopped from arguing the sexual harassment accusation compelled him to resign. (See Doc. # 52
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