Brown v. CRST Malone Inc

Filing 35

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/17/14. (SAC )

FILED
2014 Sep-17 AM 09:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIFFINI BROWN,

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Plaintiff,
v.
CRST MALONE, INC.,
Defendant.

CV-12-BE-3954-S

MEMORANDUM OPINION
This matter—asserting retaliation and race and gender employment discrimination—is
before the court on “Motion for Summary Judgment of Defendant CRST-Malone, Inc.” (Doc.
23). The Plaintiff filed a response (doc. 30), the Defendant replied (doc. 32), and the Plaintiff
filed supplemental authority (doc. 34-1); this motion has received thorough briefing. For the
reasons stated in this Memorandum Opinion, the court FINDS that CRST’s motion for summary
judgment is due to be GRANTED in PART and DENIED in PART.
More specifically, the court DENIES the motion as to the claims in Count One for
discrimination based on race and/or gender, brought pursuant to Title VII; GRANTS the motion
as to the claims in Count One for hostile work environment based on race and/or gender;
DENIES the motion as to the claims in Count Two for discrimination based on race, brought
pursuant to § 1981; and GRANTS the motion as to the claims in Count Two for hostile work
environment based on race, brought pursuant to § 1981; GRANTS the motion as to the claim for
retaliation, brought pursuant to Title VII.
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I. FACTS
The Defendant, CRST-Malone is a flat-bed trucking company with offices in Trussville,
Alabama. In January of 2011, CRST hired Plaintiff Tiffini Brown, an African American female,
as a Safety Processor. The month after hiring Brown, CRST hired Tobenna “TC” Chekwa, an
African American male, as a Recruiter to find drivers for hire or lease.
In the position of Safety Processor, Brown was responsible for conducting driver safety
checks—including checks on a driver’s insurance, DOT citation and compliance history, and
background—to determine if a prospective driver satisfied the company’s qualification standards.
During her first seven months at CRST, Brown worked under two different white supervisors,
received no disciplinary action, and was promoted to Team Leader for the Safety Processors. In
late August of 2011, Harry Kimball, a white male, took over the position of Director of Safety
from Chuck Haffenden, a white male, and Kimball became Brown’s direct supervisor. A twoweek overlap existed when both Haffenden and Kimball worked in the Trussville office, and
Brown does not recall having any specific conversation with Haffenden during that period about
Kimball’s maltreatment of her.
Kimball began addressing Brown as “Trouble” in September of 2011, and their working
relationship was indeed troubled. Brown acknowledged that she did not take the moniker
“Trouble” as having any racial or gender connotations. A few weeks before the incident made
the basis of this suit, and after Haffenden left the Trussville office, the working relationship
between Brown and Kimball deteriorated when Brown told Kimball that a driver Kimball had
approved did not fall within the hiring guidelines. According to Brown, at this point, Kimball
began ignoring her and stopped communicating with Brown directly, using Rolinda Golden, a
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Safety Supervisor who was a white female, as an intermediary. Golden confirms that Kimball
communicated with Brown indirectly using Golden as a channel and that Brown would ask
Golden to accompany her to Kimball’s office when Brown needed to communicate with him.
However, both Golden and a black female co-worker, Vershaune Roscoe, stated that they
did not recall Kimball treating Roscoe differently than other employees. Roscoe testified that
Kimball respected her in her position and treated black people the same as white people. Even
Brown, when asked whether Kimball treated Roscoe differently than he treated white employees,
said, “I can’t speak for her on that. All I can speak on is what I experienced while I worked with
Mr. Kimball.” (Brown dep. 41). She acknowledged that she never saw Kimball interact with
Roscoe in his office.
On Friday, October 7, 2011, Chekwa complained to Kimball about an incident that
occurred about 10:15 AM on the company’s smoking dock involving Chekwa and Tiffini Brown.
The facts about the incident are largely undisputed. A group of CRST employees—Chekwa,
Brown, Michael Gibbons, Dustin Knowles and Sarah Lovell—were outside during a work break
when Chekwa tossed a rock in Gibbons’s direction. Gibbons picked up the rock and tossed it
either back at Chekwa or aside, but Brown, who had been standing two to three feet away from
Gibbons and talking to him at the time of the “toss,” saw nothing playful about the incident.
Rather, Brown became mad and upset, insisting that Chekwa had nearly hit her knee with the
rock. Brown later acknowledged that she did not know whether Chekwa intended to hit her and
did not know whether he was throwing the rock toward her or toward Gibbons.
After he threw the rock, Brown asked Chekwa, who by then was standing three- to fivefeet away from her, to back away, and she claimed that Chekwa failed to follow her instruction
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but instead “stood in front of me as if he were mocking me.” (Brown statement dated 10/7/11;
Doc. 24-1, at 50).

Chekwa was 6'3" tall and weighed 200 pounds compared to Brown, who was

5'4' and weighed 118 pounds. The situation escalated as Brown began yelling for Erica Aaron,
an African American female who was Recruiting Coordinator, to “get [Chekwa] out of my face.”
Brown told Aaron in front of the co-workers: “you better get out here and get your boy T.C. or
I’m gonna put my foot up his ass.” (Doc. 23, at 9). Brown acknowledges cursing at Chekwa,
calling him a “mother-fucker,” and stating something to the effect that she would stick her foot
up his ass. (Invest. Form, doc. 24-1, at 53). In the meantime, no dispute exists that Chekwa
remained calm and tried to explain to Brown that he had never intended to throw the rock at her.
On the day of the incident, Kimball heard about the incident and immediately notified
CRST’s HR department about it. Chekwa did not submit a formal complaint about the incident.
Determining that the incident required investigation, one of the HR leadership—either Lisa
Oetken, Employee Relations Manager, or Angela Stastny, HR director— promptly asked
Kimball to obtain statements from Chekwa, Brown, and witnesses to the incident on the smoking
dock.
Stastny testified, based on the dates of the statements received, that by the afternoon of
October 7, HR had received statements from Chekwa; Brown; Shafton Reese, the interim
Recruiting Supervisor; Michael Gibbons, a Recruiter who was one of the witnesses to the
incident on the smoking dock; Dustin Knowles, another witness; and Golden. Kimball did not
ask Brown directly for a statement or speak to Brown directly about the incident, but relayed the
request for her statement through Golden. Some of the employees provided their statements to
Kimball to forward to HR and some sent their statements directly to HR. The witness statements
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indicate that no real dispute exists about the general facts surrounding the rock incident; all
confirmed that the incident began when Chekwa tossed a rock in the area where Gibbons and
Brown were standing and that Brown became irate and began cursing Chekwa. Several
witnesses recall her making the statement that she would put her foot up/in his ass.
On Monday, October 10, at the request of Golden, Lovell sent an email to Brown with a
copy to Golden, giving her version of the October 7 incident. This recounting supports Brown’s
statement that the rock Chekwa threw almost hit Brown and that Chekwa continued to stand
about four feet from Brown after she repeatedly asked him to back off. CRST did not provide
this statement to the EEOC when Brown later filed an EEOC complaint.
In addition to receiving the witness statements as part of the investigation into the rock
incident, Stastny and Oetken interviewed Chekwa and Brown in separate video conferences. On
Tuesday, October 11, 2011, Chekwa was interviewed.
On Monday, October 10, 2011, an accident occurred in the yard at CRST. Brown,
Kimball and two white employees, Brian Brown and Amanda Work, went outside to investigate
the accident. According to Tiffini Brown, Kimball conversed with Brian Brown and Work but
ignored Tiffini Brown’s statements and refused to speak with her. Following this incident, which
occurred the day before her own interview with HR, Brown sent an email to Stastny with a copy
to Golden raising her concerns about Kimball’s treatment of her. It states as follows:
Angie,
I have some concerns that I would like to discuss with you. I don’t know what
the issue Harry Kimball has with me but there is one. Since his third day here
and couple of time thereafter he called me “Trouble” don’t know why or where
it came from. Over the past two weeks he has not said one word to me. He
speaks and converses with everyone else in the department and others but has
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blatant disregard for me and my function in the department.
Last Monday there was an issue where he approved a driver that wasn’t in hiring
guidelines and I brought it to his attention he seemed to get upset by me
bringing it to him. After he instructed us to do so. In no way was I trying to
“call him to the carpet.” Afterwards I asked him if he wanted me to review
driver MVR’s for recruiting and he told me “no I will handle that.” That is one
of my job duties and I have been doing since Chuck was here. Since there is
some animosity from him to me and it is making this hard for me to do my job.
Thursday I was standing in the recruiting department talking to a couple of
people and he walked by me not a word and turned his body in a direction as if
he was trying to avoid any contact with me.
Friday there was an incident with a recruiter and he made no attempts to hear
from me what happened or make sure that I was ok. To me he sided with the
recruiter and all fingers were pointed at me and I did nothing wrong. I don’t
understand it.
Today there was an accident on the yard involving two owner operators. Brian,
Amanda, and I were walking outside we meet [sic] Harry at the door. We were
walking out there and I was trying to talk to him about calling the police and he
completely ignored me. When we got around to the trucks he talked to Brian
and Amanda (continued to ignore me) and I was trying to speak to him as well.
That really bothers me.
I feel as if he is out to terminate me for whatever reason he can seem necessary
to find. He doesn’t discuss anything with me concerning the department or my
team, he overlooks me or ignores my presence. I know for sure that I have not
wronged or disrespect [sic] him in any form or fashion. Others in the
department have noticed his attitude towards me. I feel like an odd ball and
don’t think its [sic] fair.
I have contemplated long & hard about discussing this with him but I am not
comfortable speaking to him at all about my concerns.
I am not trying to stick my neck on the chopping block but I have been here
since January and no one has had an issue with working with me. I get along
with everyone and perform my job effectively. Chuck appointed me as a Team
Leader because of my performance. I am a professional and respect him the
same. I would like to resolve any issue if there is one because we do have to
work together and he is my direct supervisor.

6

Have a wonderful day.
(Doc. 24-1, at 51, Ex. 6).
On Tuesday afternoon, October 11, 2011, Stastny responded to Brown’s email and asked
if she were available the next morning for a conference.
On Wednesday, October 12, 2011, Oetken and Stastny interviewed Brown by video-web
conference at approximately 8:30 AM, and Oetken took notes. According to those notes,
Brown started the interview by focusing on Kimball’s treatment of her, explaining how Kimball,
who had brought the rock incident to HR’s attention, treated her differently than other
employees. She also reiterated matters discussed in her October 10 email, such as Kimball’s
recent refusal to communicate with her directly. Brown stated to Oetken and Stastny that she felt
Kimball and the recruiters discriminated against her and retaliated against her. Brown tied her
complaints of discrimination and retaliation to her actions of making recruiters stick to CRST
hiring guidelines. She explained that when the drivers recruited did not meet the standards, she
would disqualify driver candidates, and when “she tells [recruiters] why the driver doesn’t meet
standards [ ] [t]hey blame her for not getting drivers [ ] hired.” (Doc. 24-1, at 54).
In her deposition testimony, Brown elaborated on the claims she made to Stastny and
Oetken on October 12 of discrimination and retaliation:
[Brown]: And I told [Stastny], I said, I feel discriminated against. I feel like I’m under
attack for something that I did not do or I felt the need to protect myself, and I then told
her, I said I feel like I’m being retaliated against because I do my job very well and they
have the – they have an issue with me because they can’t go against the guidelines. I
respect them; they don’t respect me.
[Q]: That’s referring to recruiting?
[Brown]: Yes.
(Doc. 24-1, at 84-85). Brown reiterated that the basis of her claims of discrimination were the
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issues with Harry Kimball that she had outlined in her October 10 email to Stastny. Brown
acknowledged that she personally had never heard Kimball use a racially or sexually derogatory
term.
As far as any discussion regarding gender-based discrimination, in the investigation
interview, Brown stated that “she could allege sexual harassment. She gets compliments that she
looks nice.” (Doc. 24-1, at 54). However, when asked repeatedly in her deposition to state the
basis for her discrimination and retaliation claims, Brown did not mention those compliments
and also did not refer to them in her brief’s statement of facts and argument.
When Brown and Oetken discussed the rock incident itself, Brown admitted using the “f”
word multiple times during the incident, including calling Chekwa a “mother-fucker,” and
Brown acknowledged making the comment about wanting “to stick my foot up his ass.” (Doc.
29-25). She also acknowledged that she could not say Chekwa intended to hit her with the rock
and could not say whether he threw the rock toward her or Gibbons; she simply knew that it
came close to hitting her. Stastny testified that Chekwa had complained in his statement that
Brown referred to him as a monkey or Chewbacca, a large ape-like character from Star Wars, and
that Brown also treated him differently than other employees based on his color and national
origin. The briefs’ Statements of Facts reflect that Chekwa is African American but do not
reveal his national origin. Although she admitted joking around with Chekwa in the past, Brown
denied ever referring to him as a monkey or Chewbacca.
Stastny solicited statements from employees in the recruiting department, either directly
or indirectly, about incidents in which Brown may have treated Chekwa unfairly or any
inappropriate comments that Brown made. However, the HR department took no further action
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regarding Brown’s complaint against Kimball.
Based on the statements and interviews, CRST concluded that Brown had violated
CRST’s employment policy prohibiting threatening and disruptive behavior. In her deposition
testimony, Stastny explained that “She was disruptive and boisterous, but the primary reason [for
the termination] was threatening, threatening behavior due to that comment she admitted to
[making:] ‘I’m going to shove my foot up your ass.’” (Stastny Dep. Doc. 24-2, at 41, p. 157).
The spreadsheet compiled by HR to show employee discipline reflects that “[Chekwa] accused
[Brown] of racially discriminatory names.” Stastny acknowledged that the discipline Brown
received was for her threatening and boisterous behavior, not for calling Chekwa racially
discriminatory names, and Stastny has no explanation for this “error” on the spreadsheet.
The identity of the decision maker in Brown’s termination is in dispute. Although
Stastny testified in her deposition that she made the decision alone, CRST advised the EEOC in
two different documents that Jim Schommer, Director of Operations, was part of the decision
making process, and CRST stated in an Interrogatory Answer that Schommer was the decision
maker. Schommer also testified that he was present when Brown received the news of her
termination, but that Stastny was the decision maker. (Doc. 29-5, at 17 p. 63).
On October 13, 2013, Brown met with Schommer and Kimball and Stastny, with Stastny
participating by telephone. Stastny advised Brown that CRST was terminating her because of her
boisterous and threatening behavior. Her termination documents state that the reason for her
termination was “Misconduct Fighting and threatening violence on 10/7.” (Doc. 29-19, at 11).
During the meeting, Brown disagreed with the reason given for the termination, stating that the
real reason the company was firing her was because she filed a complaint against Kimball.
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Stastny replied that the complaint against Kimball was irrelevant.
CRST did not discipline Chekwa for the rock incident; he did receive an email
prohibiting him from throwing rocks at work.
Although Golden testified that Kimball treated Brown differently than other employees,
she also testified that Kimball did not treat Vershaune Roscoe, a black female, differently than
other employees. Roscoe confirmed that Kimball did not treat her differently than other
employees.
On October 15, 2011, after her termination, Brown called Haffenden, who had held the
position of Safety Director before Kimball, and left a voice message referencing her termination
and asking if he could help her get her job back. Haffenden called Schommer, who advised him
that HR had conducted an investigation, made a determination, and Schommer would not support
bringing Brown back. Haffenden did not contact Kimball about Brown’s termination.
Haffenden called Brown back on October 16, 2011, advising her that he was unaware that
she had been terminated until after the fact; and he had not participated in the decision to fire her.
According to Brown, Haffenden told her he had talked with HR and Schommer about rehiring
her and “would try to get me my job back.” When Brown asked Haffenden what Kimball’s
problem was with her, Haffenden responded “it’s because you’re an independent black woman.
Some may see it as an asset. Others may see it as a threat.” (Brown Dep. Doc. 24-1, at 99-100).
Haffenden denied making the “independent black woman” statement, does not recall discussing
Kimball at all in his October 16 phone conversation with Brown, and testified that he did not
know Kimball well enough to make a judgment about Kimball’s motives.
On October 17, 2011, CRST hired two safety specialists, a white female and a black
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female.
Company policy
Stastny testified that if an employee is found guilty of fighting or threatening violence in
the workplace, the employee is automatically terminated.
CRST’s Office Employee Handbook listing Employment Policies and Practice includes
an EEO Policy Statement that the company provides equal employment opportunities; expressly
prohibits unlawful employee harassment based on race and sex, among other protected
characteristics; and provides a complaint procedure. That procedure encourages employees and
supervisors who become aware of prohibited discrimination to immediately notify an HR
representative, and it also requests that each complaint be put in writing so that it can receive
thorough investigation. The handbook also includes the following provisions.
DISCIPLINARY ACTION
***
Failure to abide by the rules, regulations and policies of the company may
justify disciplinary action, up to and including termination.
Disciplinary actions are generally progressive. The severity of the infractions
may justify immediate suspension or termination. The company reserves the
right to immediately terminate an employee if deemed appropriate or necessary
under the circumstances.
The following violations of company policy shall subject an employee to
disciplinary action. Violations are not limited to the following list.
***
•
Fighting or threatening violence in the workplace
•
Boisterous or disruptive activity in the workplace
***
VIOLENCE IN THE WORKPLACE
Nothing is more important to the company than the safety and security of its
employees. Threats, threatening behavior, or acts of violence against
employees, visitors, guests, or other individuals by any employee is prohibited.

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Any person or employee who threatens (directly or indirectly), exhibits
threatening behavior, or engages in violent behavior or that which is considered
by the company as inappropriate while on company property shall be removed
from company premises as quickly as safety permits, and shall remain off
company premises pending the outcome of an investigation. The company will
initiate a decisive and appropriate response should the investigation substantiate
that a violation of this policy (by letter or in spirit) has occurred. This response
may include, but is not limited to, suspension and/or termination of any business
relationship, reassignment of job duties, suspension or termination or
termination of employment and/or seeking arrest and prosecution of the person
or persons involved.
All employees are responsible for notifying the Human Resources Director of
any threat, perceived threats, act of violence or other inappropriate behavior that
they have witnessed, received or have told of by another person. All employees
are responsible for making this report regardless of the nature of the relationship
between the individual who initiated the threat or threatening behavior and the
person or persons who were threatened or were the focus of threatening
behavior.
***
(Doc. 24-3, at 9, 16, & 19).
Although CRST has two separate employee handbooks, one for drivers and another for
office personnel, both handbooks have policies against fighting and threatening behavior.
Stastny testified that fighting or threatening violence in the workplace is a terminable offense for
both drivers and office personnel, as stated in both handbooks. (Stastny Dep. 68, 72, & 374).
EEOC Charge
On March 6, 2014, Brown filed a Charge of Discrimination with the EEOC checking the
boxes for discrimination based on race and sex, and retaliation. In that charge, Brown refers to
Kimball’s treatment of her, calling her “Trouble” instead of her name, ignoring her when she
came into his office, refusing to address her directly or take anything from her hand, and forcing
her to enlist Golden to accompany her to talk to Kimball. She states in the Charge that she

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complained to Haffenden about how Kimball treated her, and complained to Golden that Kimball
had a problem with black women. She stated she also complained to Stastny and Oetken that she
felt discriminated against based on race and gender, but they never addressed the issue and
focused instead on the rock incident with Chekwa. When the company terminated her, claiming
the action was based on her behavior during the rock incident, she told Stastny that the real
reason for her termination was her complaints against Kimball, a claim Stastny denied.
Comparators
Brown proffers evidence of CRST white employees who were written up for boisterous
behavior involving profanity, fighting and/or threats but whom CRST did not terminate for that
behavior: Mary Cooper—white female loudly referring to her workload as “this damn shit” and
“this bullshit”; Roy Bowers—white male calling the fleet manager “a fucking idiot” and “fucking
stupid”; Michael Dickerson—a white male whom a co-driver accused of playing offensive music
and making threatening remarks; John Henderson—a white male accused of threatening the life
of another employee; Travis Pruter—a white male accused of threatening violence; Richard
Herob—a white male accused of fighting or threatening violence; Casey Crabtree—a white male
accused of participating in a physical altercation; Ted Sams—a white male accused of being
involved in a verbal altercation; Alan Kronjak—a white male accused of being involved in a
verbal altercation; Virginia Paris—a white female accused of threats and sexual harassment;
James Snead—a white male accused of getting in someone’s face and threatening him; Michael
Trapp—a white male who was accused of assault; Thomas Watkins—a white male accused of
assault; Jefferey Jacobs—a white male who was accused of making physical threats.
As for the discipline that CRST meted out for precise behavior, CRST records provide a
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code for employees leaving the company, explaining the reason for leaving. The spreadsheet
lists the terminations of Dickerson and Henderson as Code 28, which means they were
terminated for failing to meet company standards, not misconduct. The spreadsheet lists Herob
and Pruter’s termination as Code 7, which means they were terminated for failing to show up for
work. The spreadsheet lists the termination of Sams, Paris, Trapp, Watkins, Jacobs and Crabtree
as voluntary. Snead’s termination was listed as Code 33, which means he abandoned his load.
As the codes on the spreadsheets demonstrate, all of the white employees listed in the preceding
paragraph were written up for threatening conduct but the codes reflect that none was terminated
for that conduct.
Stastny testified that the company may or may not have an employee relations file on
employees who were disciplined. She also stated that she could not determine from the
spreadsheet whether an investigation was required and conducted nor could she tell from the
spreadsheets whether the drivers were independent contractors or employees.
CRST records do not reflect that any of these accusations were determined to be
unfounded and further do not reflect the race of the employee in question, or that the person
making the discipline decision knew their race. At the time the report about these employees was
generated, some of these employees still worked for CRST and some had been terminated or left
voluntarily.
III. LEGAL STANDARD
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary
judgment allows a trial court to decide cases when no genuine issues of material fact are present
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a
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district court reviews a motion for summary judgment it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) Substantive law determines which facts are
material and which are irrelevant. Id. at 248. In responding to a motion for summary judgment,
the non-moving party “must do more than simply show that there is some metaphysical doubt as
to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by
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the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
56(e)); see also Advisory Committee Note to 1963 Amendment of Fed. R. Civ. P. 56(e), 28
U.S.C. app. (“The very mission of summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.”). “The non-moving
party need not present evidence in a form admissible at trial; however, he may not merely rest on
his pleadings.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)
(citing Celotex, 477 U.S. at 324). If he does, or if the evidence is “merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain from weighing the evidence and making credibility
determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S.
at 255; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Furthermore, all evidence and
inferences drawn from the underlying facts must be viewed in the light most favorable to the
non-moving party. Graham, 193 F.3d at 1282. The non-moving party “need not be given the
benefit of every inference but only of every reasonable inference.” Id. The evidence of the nonmoving party “is to be believed and all justifiable inferences are to be drawn in [its] favor.”
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Anderson, 477 U.S. at 255. After both parties have addressed the motion for summary judgment,
the court must grant the motion if no genuine issues of material fact exist and if the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
Even if a district court “‘believes that the evidence presented by one side is of doubtful
veracity, it is not proper to grant summary judgment on the basis of credibility choices.’”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (quoting Miller v.
Harget, 458 F.3d 1251, 1256 (11th Cir. 2006)). The court should not disregard self-serving
statements made in sworn testimony simply because they are self-serving at the summary
judgment stage, and if the self-serving statements create a genuine issue of material fact, the
court should deny summary judgment on that basis. Id. at 1253.
IV. DISCUSSION
Brown’s Complaint presents the following claims: Count One - Discriminatory Discipline
based on Race and Gender, and Hostile Work Environment, all brought pursuant to Title VII;
Count Two - Race Discrimination, and possibly Hostile Work Environment, brought pursuant to
§ 1981; and Count Three - Retaliation based on race brought pursuant to Title VII and § 1981,
and Retaliation based on gender brought pursuant to Title VII. The court will address these
claims separately.
A. Race Discrimination
Brown asserts claims of race discrimination, or a combination of race and sex
discrimination, based upon a disparate application of disciplinary rules, brought pursuant to both
Title VII and § 1981. Because the standards of proof and analytical elements are the same under
both statutes, the court will analyze them concurrently under the same framework. See, e.g.,
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Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir. 2010) (citing Standard v. ABEL
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)). As Brown does not present direct evidence
of discrimination, she relies upon the burden-shifting framework set out in McDonnell Douglas
v. Green, 411 U.S. 792 (1973) to present a case based on circumstantial evidence.
Under that framework, to establish a prima facie case for disparate treatment based on
race in a disciplinary matter, a plaintiff must show that “(1) she is a member of a protected class;
(2) she was subjected to an adverse employment action; (3) her employer treated similarly
situated employees outside of her protected class more favorably than she was treated; and (4)
she was qualified to do the job.” Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th
Cir. 2006). CRST challenges elements two and three.
Element Two: Adverse Employment Action
CRST argues that Brown cannot establish an adverse employment action, stating “[a]part
from her discharge, Ms. Brown only complains that Mr. Kimball ignored her or treated her
rudely.” (Doc. 23, at 22). That statement is akin to saying “apart from your husband’s
assassination, Mrs. Lincoln, did you enjoy the play?” Brown’s discharge is unquestionably an
adverse employment action and any attempt to argue otherwise is not appropriate advocacy; the
court FINDS that she has established element two of her prima facie case.
Element Three: Similarly Situated Comparator
CRST also argues that Brown has failed to establish element three because she has not
provided evidence of a similarly situated comparator. When addressing the “similarly situated”
element in a discriminatory discipline case, the court must evaluate “‘whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different ways.’”
18

Burke-Fowler, 447 F.3d at 1323 (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999) (citations and quotation marks omitted)). The Eleventh Circuit has explained that the
proffered comparator must be “similarly situated in all relevant respects.” Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). “The quantity and quality of the comparator’s misconduct
should be nearly identical.” Stone & Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127,
1135 (11th Cir. 2012)1. The Court of Appeals also pointed to “[t]he most important factors in the
disciplinary context[:] the nature of the offenses committed and the nature of the punishments
imposed.” Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999) (quotations and citations
omitted).
As to similarly situated white comparators, Defendants argue that Brown has only
presented one white comparator, Mary Cooper, and that Cooper is not similarly situated because
she cursed but did not direct her cursing at another employee. This argument perplexes the court
because it mischaracterizes the evidence.
Brown has presented a number of potential white comparators, including white males and
white females, who, she claims, were similarly situated to Brown in that company records in

1

The court acknowledges Brown’s argument that the “nearly identical” standard set forth
in Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 199) and Burke-Fowler v. Orange Cnty., Fla.,
447 F.3d 1319, 1323 n. 2 (11th Cir. 2006) should not govern, and Brown cites as support for her
argument a district court opinion, Terpo v. RBC Bank, No. 12-2325-VEH, 2013 WL 5519704, *8
n. 17) N.D. Ala. Oct. 2, 2013). However, the court rejects that argument, noting that, in 2012,
the Eleventh Circuit addressed head-on in its Stone & Webster decision the argument against
applying the “nearly identical” standard. In that decision, the Court of Appeals stated that it had
resolved that conflict in favor of the “nearly identical” standard, and had expressly set aside the
case that did not rely on that standard. In Stone & Webster, the Eleventh Circuit applied once
again the “nearly identical” standard. 684 F.3d at 1135. Given that clear direction, unless and
until the Eleventh Circuit specifically advises this court to apply another standard, the court will
apply the “nearly identical” standard.
19

CRST Employee Relations Spreadsheets reflect that they threatened other employees with
physical violence on at least one occasion. Stastny, whom CRST now identifies as the decision
maker, explained that the primary reason CRST terminated Brown was her threatening behavior
on one occasion—her threat that the Recruiting Supervisor better get Chekwa away from her “or
I’m gonna put my foot up his ass”—a statement Stastny interpreted as one for physical violence.
Although profanity accompanied Brown’s behavior, Stastny’s testimony about the primary
reason for the termination is consistent with the Human Resources Change Notice documenting
Brown’s termination, which lists the reason for the termination as “Misconduct Fighting and
threatening violence on 10/7.” The termination notice does not mention the profanity.
The CRST Employee Relations Spreadsheets reflect that the proffered comparators
threatened other employees with physical violence on at least one occasion. For example, the
spreadsheet entry on Henderson reflects that he “threatened Martinez’ [sic] life”; Pruter’s entry
reflects that he was written up for a “Threat of violence”; and the entry on Jacobs says he made
“physical threats.” The court finds these comparators who made physical threats to be “nearly
identical” within the meaning of the term. Because Brown is a 115-pound woman and Chekwa
is a much larger man, the threat—to “put her foot up his ass”—is not one where the person
threatened was reasonably in fear of bodily harm. Therefore, in analyzing similarly situated
comparators, the court focuses only on the fact of a threat of violence.
The court finds disingenuous CRST’s argument that the information in the Employee
Relations spreadsheets listing employee disciplinary matters is not evidence that Brown can
appropriately rely upon for the purposes of summary judgment. Stastny testified that the primary
reason for the termination was Brown’s threats to Chekwa, a threat she interpreted as one for
20

physical violence. CRST argues that the spreadsheet information is “informal” for internal use by
HR and that it does not give enough specific information about each disciplinary matter to
establish that the matters on the spreadsheet are nearly identical to the disciplinary matter in the
instant case. CRST further argues that the company may have determined, after investigation,
that some of the matters on the spreadsheet represented unfounded accusations of misconduct.
The court disagrees with CRST’s argument that the spreadsheet is not evidence
sufficiently establishing comparator misconduct at the summary judgment stage. CRST is the
entity doing the documenting. CRST provided enough documentation to present a list of
employees with nearly identical behavior (threats) with a dissimilar outcome (no resulting
termination). If CRST had further information about the results of the internal investigation of
the threats that would show the incidents were not nearly identical, then it should have provided
that information in discovery and presented that information at summary judgment. In addition,
if CRST had information to show that employees listed on the spreadsheet were African
American and were not terminated for misconduct similar to that of Brown, it had an opportunity
to present that evidence during discovery and to the court at summary judgment, but the briefs’
Statements of Fact do not include such information. Brown has presented to the court enough
evidence to establish her prima facie case based on a number of white employees and/or
employees who were not black females who were written up for threatening behavior but who
were not terminated.
That said, the court agrees with CRST that Mary Cooper is not a similarly situated
comparator. Stastny testified that the primary reason for the termination was Brown’s threats to
Chekwa, a threat she interpreted as one for physical violence. Accordingly, the white employees
21

reported to HR as threatening physical violence at CRST but who were not terminated would
represent similarly situated comparators based on what is before the court at this summary
judgment stage. Cooper and Roy Bowers, another white comparator, cursed but did not threaten;
thus, they and the white employees who did not commit nearly identical behavior are not
appropriate comparators. However, Brown meets her prima facie case by presenting other
similarly situated comparators who were white and/or who were not black females, and who
threatened co-workers with physical violence but were not terminated.
As to male comparators, the court notes that a number of the comparators listed above
who exhibited threatening behavior were male, and it FINDS that Brown has met her prima facie
case by presenting similarly situated male comparators.
Because Brown has established her prima facie case on the discriminatory discipline
claim, CRST must articulate a non-discriminatory reason for firing Brown. See St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 506 (1993). In its briefs, CRST argues that Brown has not
established her prima facie case, and does not provide an alternative argument regarding pretext;
therefore, CRST gives a non-discriminatory reason for the termination—Brown’s conduct of
threatening violence—but it does not give a non-discriminatory reason for disciplining her
differently than other employees who threatened violence. In other words, it gives a nondiscriminatory reason for terminating her but that reason fails to explain why it terminated Brown
but not others who engaged in the same behavior. In any event, to the extent, if any, that CRST
has met its burden to articulate a legitimate, non-discriminatory reason for the termination, the
court FINDS that Brown has met that reason head on and shown pretext for the reasons discussed
below.
22

To show pretext, a plaintiff must demonstrate that the employer’s “proffered reason was
not the true reason for the employment decision.” Texas Dep’t of Cmty. Affairs. v. Burdine, 450
U.S. 248, 256 (1981). She must “confront the employer’s seemingly legitimate reason for [the
adverse employment action ] ‘head on and rebut it.’” Kidd v. Mando Am. Corp., 731 F.3d 1196,
1206 (11th Cir. 2013). To do so, she must “cast sufficient doubt on the defendant’s proffered ...
reasons to permit a reasonable factfinder to conclude that the employer’s proffered ‘legitimate
reasons were not what actually motivated its conduct.’” Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997) (quoting Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605
(11th Cir. 1994)). She can do that by demonstrating “‘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.’” Combs, 106
F.3d at 1538 (quoting Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3rd. Cir.
1996)). However, a plaintiff “‘cannot succeed by simply quarreling with the wisdom of that
reason ....’” Kidd, 731 F.3d at 1206 (quoting Chapman v. AI Tranport, 229 F.3d 1012, 1030
(11th Cir. 2000)); see Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) (“[I]t
is not the court’s role to second-guess the wisdom of an employer’s decisions as long as the
decisions are not [] motivated [by discrimination or retaliation]”).
In the instant case, Brown has presented evidence of inconsistencies in disciplining
Brown versus white employees, male employees, and employees who are not black females who
exhibited the same behavior. She also argues that the harsh discipline of termination makes no
sense when no one could reasonably characterize her words to Chekwa as a true threat of
violence. Rather, her words about sticking her “foot up [Chekwa’s] ass” represented an empty
23

figure of speech instead of a serious threat, particularly given that she was a petite girl and
Chekwa was 200 pounds and over six feet tall. Thus, Brown has cast sufficient doubt on the
non-discriminatory reason to establish a genuine issue of material fact that the reason for her
termination was pretext for discrimination. The court notes that CRST has provided evidence
that Kimball and safety and recruiting department employees were frustrated at Brown for doing
her job well and strictly adhering to company hiring guidelines, as further discussed below.
However, that evidence would not explain why the decision makers, Stastny and/or or
Schommer, treated Brown differently. Accordingly, the court FINDS that the motion for
summary judgment is due to be DENIED as to the claim for discriminatory discipline in Count
One.
Because the standards of proof and analytical elements are the same under Title VII and §
1981, the court also FINDS that the motion for summary judgment is due to be DENIED as to
the claim for discriminatory discipline in Count Two brought pursuant to § 1981.
B. Hostile Work Environment
Brown also alleges in Count One that she “has been discriminated and harassed because
of her gender and has further been subjected to unequal treatment, terms and pay thus subjecting
Plaintiff to a hostile work environment because of her gender.” (Compl. doc. 1, at 7). In her
brief, Brown characterizes the work environment as a hostile one based on race and gender. She
points to evidence of Kimball’s treatment as supporting a hostile work environment. As
discussed previously, Brown provides evidence that Kimball addressed Brown as “Trouble,”
instead of her name, but acknowledges that she saw no racial or gender connotations in that
moniker. In addition, Brown provides evidence that, after she questioned Kimball’s hiring a
24

driver as outside the hiring guidelines, Kimball began ignoring her and stopped communicating
with Brown directly, using Golden, a white female, as an intermediary. Brown also provided
evidence that Kimball’s refusal to deal with her was so complete and disruptive to work
communication that Brown asked Golden to accompany her to Kimball’s office when Brown
needed to communicate with him. She provided further evidence that Kimball was the
employee who lodged the complaint about the incident between Brown and Chekwa that led to
her termination.
To establish a prima facie case of hostile work environment, brought pursuant to Title
VII, a plaintiff 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).
In the instant case, CRST challenges elements three and four, arguing that no evidence
ties the harassment to race and sex and that the harassment was not sufficiently severe or
pervasive.
Element Three: Harassment Based on Race and Gender
As to element three, CRST argues that although the evidence reflects Kimball did treat
Brown differently than other employees, it also reflects that the difference in treatment was not
based on race or gender. In support of its argument, CRST points to evidence that (1) Kimball
treated another black female with whom he worked daily, Vershaune Roscoe, no differently than
25

he treated the white employees; (2) Kimball treated Golden, a female, no differently than he
treated male employees; and (3) that the deterioration of Kimball’s relationship with Brown
occurred about the time she called him out on hiring a driver outside company hiring guidelines.
Brown’s own email to HR complaining of Kimball’s treatment mentions and implies a link with
the hiring guideline incident but does not mention race or gender discrimination. In fact, that
email includes the statement that Kimball treated Brown differently than everyone else in the
department. Because the department included another black female, this statement that Brown is
the only one he treated differently is very significant.
Further, in her interview with Stastny, Brown does use the words “discrimination” and
“retaliation” but the context of those words is important: a careful reading shows that she is
complaining of unfair treatment not because of race or gender but because her co-workers are
mad at her for making them adhere to company hiring guidelines. As she explained to Stastny: “I
feel discriminated against. I feel like I’m under attack for something that I did not do or I felt the
need to protect myself, and I then told her, I said I feel like I’m being retaliated against because I
do my job very well and they have the – they have an issue with me because they can’t go against
the guidelines.” Thus, when placed in context, her complaints point to a reason for differential
treatment that has nothing to do with race and gender.
Title VII and § 1981 do not protect against all differential treatment in the employment
context. They certainly do not protect against differential treatment based on co-worker
frustration at being held to strict hiring guidelines. Rather, they only protect against unlawful
differential treatment such as treatment based on race and/or gender. Brown’s use of the words
“discrimination” and “retaliation” does not automatically invoke protection under Title VII: she
26

must provide some more information indicating that the discrimination and retaliation is
unlawful. See 42 U.S.C. § 2000e-2(a)(1) (stating “It shall be an unlawful employment practice
for an employer ... to discharge any individual, or otherwise to discriminate against any
individual ... because of such individual’s race, color, religion, sex, or national origin ....”)
(emphasis added); 42 U.S.C. § 2003-3(a) (providing that “It shall be an unlawful employment
practice for an employer to discriminate against any of his employees ... because [the employee]
has opposed any practice made an unlawful employment practice by this title. . . .”) (emphasis
added).
The only evidence that Brown offers as tying her different treatment to race and gender is
(1) Kimball’s favorable treatment of Golden, a white woman, and Kimball’s better treatment of
Brown when Golden accompanied her to Kimball’s office; and (2) Vice President Haffenden’s
response to Brown’s question, after her termination, about why Kimball had a problem with her:
“it’s because you’re an independent black woman. Some may see it as an asset. Others may see
it as a threat.”
As to the different treatment of Brown versus Golden, that treatment is consistent with
the non-discriminatory reason presented for Kimball’s treatment, because no evidence exists that
Golden made Kimball mad by advising him that he had hired a driver outside the company hiring
guidelines. Further, because no evidence exists that Kimball treated Roscoe, the other black
woman in his department, differently than white or male employees, any assumption that
Kimball’s differential treatment of Brown was based on race and gender is not a reasonable one.
As to Haffenden’s “independent black woman” response, whether Haffenden made this
statement is a disputed fact. However, taking the facts in the light most favorable to Brown, the
27

court must assume for the purposes of summary judgment that Haffenden did make the
statement. Nevertheless, that assumption does not mean that the court must accept that statement
as admissible evidence of a link between Kimball’s treatment of Brown and discrimination based
on race and gender. The evidence reflects that Haffenden, the former safety director, and
Kimball, who took his place, only had a two-week overlap in the Trussville office before the
relationship between Brown and Kimball deteriorated. No evidence exists that Brown
communicated Kimball’s maltreatment of her during that period or that Haffenden personally
witnessed Kimball’s differential treatment of Brown, or indeed, differential treatment of any
black female employee, black employee, or female employee. No evidence exists that
Haffenden heard Kimball say any words indicating a bias against black women, blacks, or
females. Notably, Haffenden did not participate in the harassment of Brown, did not discuss the
harassment of Brown or her termination with Kimball, was not involved in the termination of
Brown, was not aware of the termination until after it had occurred, and did not discuss the
termination with Kimball after the fact. Further, no evidence exists that Haffenden and
Schommer discussed Kimball during their October phone conversation.
On motions for summary judgment, the court may consider only evidence that “can be
reduced to an admissible form.” Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005).
Under these circumstances, any statement that Haffenden may have made about Kimball’s
motives for harassment and differential treatment of Brown would not be reducible to admissible
form; it was a mere inadmissible opinion of a person who did not participate in the harassment,
personally witness it, or discuss the harassment with the harasser. See Rowell, 433 F.3d at 800
(affirming grant of summary judgment in favor of the employer in a discrimination suit when the
28

alleged dispute of fact regarding the employment decision was the inadmissible personal opinion
of defendant’s employee about the decision and when that employee did not participate in the
decision or policy); Williams v. Hager Hinge Co., 916 F. Supp. 1163, 1168 (M.D. Ala. 1995)
(“[b]ald conclusions, opinions, and hearsay without supporting specific facts are not admissible
and do not create a genuine issue of material fact”) (citing Evers v. Gen. Motors Corp., 770 F.2d
984, 986 (11th Cir. 1985)); see also Kidd , 731 F.3d at 1209-1211 (remanding the case to the
district court that granted motion for summary judgment to make a ruling on the admissibility of
the declarant’s statement regarding the employer’s decision making process, but acknowledging
that if the declarant did not participate in the decision making process, his opinion of the
employment decision is inadmissible and summary judgment would be appropriate).
Because Haffenden’s response is the only link with race and gender and because that
response is inadmissible opinion, the court FINDS that Haffenden’s response does not create a
genuine issue of material fact that Kimball’s harassment of Brown was based on race and/or
gender. In light of this ruling, the court need not and does not address any other elements of
Brown’s prima facie case or the pretext argument. Accordingly, the motion for summary
judgment is due to be GRANTED as to the claim for hostile work environment based on race
and/or gender brought pursuant to Title VII in Count One, and as to the claim for hostile work
environment based on race brought pursuant to § 1981 in Count Two, to the extent that claim
exists.
C. Count Three: Retaliatory Termination Under Title VII and § 1981
In Count Three, Brown asserts that her termination was in retaliation for complaining
about Kimball’s harassment of her.
29

To establish a prima facie case of retaliation, a plaintiff must show “(1) that she engaged
in an activity protected under Title VII; (2) she suffered a materially adverse action; and (3) there
was a causal connection between the protected activity and the adverse action.” Kidd, 731 F.3d
at 1211. If the plaintiff establishes her prima facie case, the employer must articulate a
legitimate, nonretaliatory reason for the challenged action, and, if it does so, then plaintiff has the
burden to establish that the employer’s proffered reason for that action was pretext for retaliation.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
In the instant case, CRST challenges elements one and three.
Element One: Protected Activity
Brown argues that she engaged in two incidences of protected activity before her
termination: her October 10 email to Stastny; and her October 12 meeting with Stastny and
Oetken. As discussed previously, Brown’s October 10 email complained of differential
treatment but tied that treatment to Brown’s adherence to hiring guidelines instead of race and/or
gender discrimination. Further, Brown used the words “discrimination” and “retaliation” in her
October 12 meeting but, again, did not complain of unlawful discrimination and retaliation based
on race or gender. As discussed, she tied the differential treatment to her adherence to hiring
guidelines, not to her race and/or gender.
Recent decisions of the Eleventh Circuit, although unpublished, have provided instruction
on the level of specificity needed in the alleged protected conduct to ensure that it qualifies
under Title VII’s opposition clause. In Brown v. City of Opelika, the Eleventh Circuit addressed
a district court’s grant of summary judgment in favor of the employer on a Title VII retaliation
claim. At the district court level, the employee had asserted that she engaged in protected
30

conduct when she stated to a superior that she “wanted to make a complaint of ‘harassment.’”
No. 05-CV-236-W, 2006 WL 1515836, *4 (M.D. Ala. May 30, 2006). In affirming, the Court of
Appeals explained that “the record contained no evidence that Brown engaged in a protected
activity by making a complaint about racial discrimination or harassment. . . . Brown admitted
that she never mentioned the word ‘race’ when she complained about Kirby’s behavior, that she
had no knowledge of Kirby making any racially derogatory comments, and that Kirby took out
her anger on everyone, including the white office assistant.” Further, the employee “never
voiced a complaint that the City was engaged in an unlawful employment practice.” 211 Fed.
Appx. 862, 863-4 (11th Cir. 2006) (per curiam) (emphasis added).
In Jeronimus v. Polk Cnty. Opportunity Council, the Eleventh Circuit affirmed the
district court’s grant of summary judgment in favor of the employer, finding that the emails
plaintiff sent—one casually mentioning a “white boy” comment and another complaining that he
was being “‘singled out,’ was subjected to ‘a campaign of harassment,’ and was working in a
‘hostile environment’”—did not constitute protected activity. The Court of Appeals explained
that the “‘white boy’ comments were isolated, ephemeral, and ambiguous” and that in plaintiff’s
other complaints “he never suggested that this treatment was in any way related to his race or
sex.’” 145 Fed. Appx. 319, 326 (11th Cir. 2005) (per curiam).
Applying these decisions and their instruction regarding protected conduct, the court
FINDS that Brown’s communications of October 10 and 12 do not constitute protected conduct
because she never suggested that Kimball’s treatment was in any way related to her race and/or
gender.
Because Brown has not established that she engaged in protected conduct before her
31

termination, she has failed to meet element one of her prima facie case of retaliation, and the
motion for summary judgment is due to be GRANTED as to the retaliation claim brought
pursuant to Title VII and § 1981.
Element Three: Causal Connection
CRST also challenges Brown’s proof of a causal connection between the protected
conduct and her termination. Because of the court’s ruling on protected conduct element, the
court need not address other elements. However, in an abundance of caution, the court addresses
the causal connection element to provide the following ruling as an alternative means of granting
summary judgment on the retaliation claim.
In the recent decision of Univ. of Tex. SW Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct.
2517 (2013), the Supreme Court held that “a plaintiff making a retaliation claim under § 2000e3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse
action by the employer.” Id. at 2534. Nassar was a Title VII case, and thus, the “but-for”
standard of causation would apply to the Title VII claim of retaliation. Brown also asserts a
claim for retaliation under § 1981, and, as noted previously, the Eleventh Circuit has explained
that the analysis for Title VII and § 1981 retaliation claims are the same. See Goldsmith v.
Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). Although the Goldsmith decision
occurred before the Nassar decision, the Supreme Court’s reasoning in Nassar would favor
application of the “but-for” standard to the § 1981retaliation claim as well. The Court explained
that “absent an indication to the contrary in the statute itself,” but-for causation is “the default
rule[ ]” that Congress is presumed to incorporate into a statute creating an intentional tort unless
Congress specifies another causation standard, as it did in Title VII’s § 2000e-2(m) but not in its
32

anti-retaliation provision of § 2000e-3(a).
With this guidance in mind, the court applies the “but-for” causation standard to Brown’s
retaliation claim under § 1981 as well as the Title VII retaliation claim. This application is
consistent with decisions of district courts in the Eleventh Circuit that have addressed § 1981
claims after Nassar. See, e.g., Shumate v. Selma City Bd. of Educ., No. 11-00078-CG, 2013 WL
5758699, at *2-3 (S.D. Ala. Oct. 24, 2013); Parker v. Chilton Cnty. Bd. of Educ., No. 12-0650MEF, 2014 WL 116341 (M.D. Ala. Jan. 13, 2014).
CRST argues that Brown’s misconduct of threatening and boisterous conduct occurred
before the protected conduct, and that CRST had already begun its investigation into her
misconduct when she engaged in the alleged protected conduct. CRST further points the court to
the unreported decision of Smith v. Hyundai Motor Mfg. Ala., LLC, No. 06-966-ID, 2008 WL
1698207 (M.D. Ala. Apr. 9, 2008) in which a sister district court granted the employer’s motion
for summary judgment under similar circumstances in a retaliation case; the employee’s
misconduct resulting in termination occurred before the protected conduct “but also the wheels
for Plaintiff’s termination already had been set in motion by the time Plaintiff made his internal
complaint. The court found that the company “was not expected to halt or forego its disciplinary
proceedings imply because, on the heels of [the company’s] contemplated termination of
Plaintiff, Plaintiff screamed retaliation.” Id. at 12.
In the instant case, the court FINDS, as an alternative ruling, that Brown cannot show her
statements about “discrimination” and “retaliation” in the period of October 10-12, 2011 were
the “but-for” reason for her termination. Her complaints occurred after the investigation had
begun into her alleged misconduct on October 7 and after the company had obtained
33

investigative statements from the other witnesses. Like the fact scenario in Smith, the wheels for
her discipline had already been set in motion by the time Brown made her ambiguous assertions
that she now characterizes as protected conduct. As the Supreme Court of the United States
explained in Clark County School District v. Breeden, “[e]mployers need not suspend previously
planned [discipline] upon discovering that a Title VII suit has been filed, and their proceeding
along lines previously contemplated, though not yet definitively determined, is no evidence
whatever of causality.” 532 U.S. 268, 272 (2001). Even assuming arguendo that Brown’s
statements during the period of October 10-12, 2011 constitute protected conduct—and the court
does not hold that they do—she has not established evidence of causality, and she most certainly
has not established the but-for causality required for a prima facie case of retaliation.
For all of these reasons, the court FINDS that the motion for summary judgment is due to
be GRANTED as to Brown’s claims for retaliation, brought pursuant to Title VII and § 1981.
V. CONCLUSION
For the reasons stated below, the court FINDS that CRST’s motion for summary
judgment is due to be GRANTED in PART and DENIED in PART. More specifically, the court
FINDS
•

the motion is due to be DENIED as to the claims in Count One for discrimination based
race and/or gender, brought pursuant to Title VII;

•

the motion is due to be GRANTED as to the claims in Count One for hostile work
environment based on race and/or gender, brought pursuant to Title VII;

•

the motion is due to be DENIED as to the claims in Count Two for discrimination based
on race, brought pursuant to § 1981;
34

•

the motion is due to be GRANTED as to the claims in Count Two for hostile work
environment based on race, brought pursuant to § 1981;

•

the motion is due to be GRANTED as to the claims for retaliation brought pursuant to
Title VII and § 1981.
The court will enter a separate Order consistent with this Memorandum Opinion.
Dated this 17th day of August, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

35