Martin v. Gestamp Alabama LLC

Filing 44

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 6/3/2014. (AVC)

FILED
2014 Jun-03 AM 10:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DORIAN D. MARTIN,

)
)
)
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) CASE NO.: CV-12-BE-4062-S
)
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Plaintiff,
v.
GESTAMP ALABAMA, LLC,
Defendant

MEMORANDUM OPINION
This employment discrimination matter asserting race discrimination and retaliation is
before the court on “Defendant’s Motion for Summary Judgment” (doc. 31), which has received
thorough briefing (see docs. 32, 36, & 38), and Defendant’s “Motion to Strike” (doc. 43). For
the reasons stated in this Memorandum Opinion, the court FINDS that the motion to strike is due
to be DENIED; that the motion for summary judgment is due to be GRANTED as to the
disparate treatment claim based on race; and that the claim for retaliation based on race is due to
be DISMISSED as abandoned.
I. PROCEDURAL HISTORY
Plaintiff’s Second Amended Complaint (doc. 20) contains the following claims: (1) First
Cause of Action – race discrimination brought pursuant to Title VII and § 1981; (2) Second
Cause of Action – hostile work environment on the basis of race brought pursuant to Title VII
and § 1981; (3) Third Cause of Action – retaliation on the basis of race brought pursuant to Title
VII and § 1981; (4) Fourth Cause of Action – sex discrimination brought pursuant to Title VII;
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(5) Fifth Cause of Action – nonpayment of overtime in violation of the FLSA; and (6) Sixth
Cause of Action – retaliation/discrimination in violation of FLSA. On August 29, 2013, the
Plaintiff filed “Plaintiff’s Stipulation for Partial Dismissal of Claims,” (doc. 28), stipulating that
the following claims be dismissed: hostile work environment on the basis of race; sex
discrimination; nonpayment of overtime in violation of the FLSA; and retaliation/discrimination
in violation of FLSA. Based on that stipulation, the court dismissed those causes of action with
prejudice. (Doc. 30). Accordingly, the only claims that remain to be addressed at summary
judgment are as follows: the First Cause of Action – race discrimination brought pursuant to
Title VII and § 1981; and the Third Cause of Action – retaliation on the basis of race brought
pursuant to Title VII and § 1981.
II. MOTION TO STRIKE
Defendant Gestamp filed an eighteen page “Motion to Strike” complete with 29
footnotes. (Doc. 43). Many of the objections forming the basis of the motion would more
properly be stated in the section of the reply brief responding to Plaintiff’s facts, and the court
has already advised the Defendant of its concern that filing a separate, lengthy document styled
as a notice of objections or a motion to strike should not be an end-run around the page
limitations of the reply brief. (See doc. 42). In any event, this court may consider the substance
of the motion to strike without actually striking the evidence that the Plaintiff submitted. “Only
evidence that is admissible on its face or that can be reduced to admissible form and that
complies with Federal Rule of Civil Procedure 56(e) will be considered in deciding a motion for
summary judgment.” Johnson v. Gestamp Alabama, LLC, 946 F. Supp. 2d 1180, 1192 (N.D.
Ala. 2013) (quoting Stuckey v. Alabama Bd. of Pardons & Paroles, 2012 WL 3670644, *1 n.2
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(M.D. Ala. Aug. 27, 2012)). Accordingly, the court will DENY the motion to strike, but will
consider the substance of the motion to strike in deciding the motion for summary judgment.
III. FACTS
The court obtained the facts below from the statement of facts set out in the parties’
briefs, and the court’s examination of the evidentiary record. The court has resolved all
reasonable doubts regarding the facts in favor of the nonmoving party. See Info. Sys. & Networks
Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). Accordingly, the statement of
facts in this opinion reflects the facts for summary judgment purposes only.
From June 25, 2005 until his discharge in April of 2011, Plaintiff Dorian Martin, an
African American male, was an employee of Defendant, Gestamp Alabama, LLC. Defendant is a
stamping and welding facility that provides parts to automotive manufacturers such as MercedesBenz. Although Martin worked various shifts in various departments during his tenure with
Gestamp, at the time of the events made the basis of this suit, Martin was working on the second
shift with the Ultrasound Technology Group (“UT Group”). In that position on that shift, Curtis
Johnson, an African American, was Martin’s Team Leader, and Martin reported to the following
members of management: Maintenance Manager Mike Crawford, a Caucasian, from
approximately January 2008 until November 2010, and Quality Manager John Nelson, a
Caucasian, from November 2010 until Martin’s discharge the following April. From early 2008
through Martin’s termination, Marva Morgan, an African American female, held the position of
Gestamp’s Human Resources Manager, and Jamie Mitchell, a Caucasian, was the Plant Director.

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Investigation of Alleged Misconduct and Termination
In early 2011, an African-American Team Leader advised Morgan that she was having
difficulty locating Martin’s UT Group during work hours, and Morgan relayed this information
to Nelson. The complaint was directed at Team Lead Johnson and the UT group in general, not
at Martin specifically, and Nelson began investigating the problem in January of 2011. As part
of this investigation, Nelson arranged for Quality Engineer Kenny Green1, who worked on the
second shift, to monitor the second shift UT Group for compliance with Gestamp policies and
procedures.
On February 3, 2011 Nelson forwarded to Morgan emails from Green, stating that Green
had observed Martin’s extended absence from his workstation on two occasions: an absence of
approximately one hour and fifteen minutes from his workstation on January 27, 2011; and an
absence of approximately one hour and fifteen minutes on February 1, 2011, with a total absence
for the day of over one hour and a half. Specifically, on January 27, 2011, Green had
documented that Martin was absent from his workstation at 8:45 PM, 9:30 PM and 9:45 PM, and
Green observed him walking in the door from the parking lot at 10:00 PM. Green similarly
documented Martin’s absence on February 1, noting Martin was observed walking out the door at
8:15 PM and he was observed returning at 9:30 PM as well as noting he was not at his work
station during intervals between those two times.
After receiving Nelson’s February 3 email, Morgan followed up with the second shift’s
senior Group Leader, Darrick Stallworth, an African American, asking him to observe Martin to

1

The briefs’ statements of facts do not reflect Green’s race, although the argument of the reply brief
identifies him as a Caucasian.

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determine whether Martin’s extended absences could be explained by his working away from his
usual workstation, or if his absence otherwise complied with company policy. On February 9,
2011, Stallworth sent an email to Morgan advising her that on the prior day (February 8, 2011),
Stallworth left Gestamp property at 9:30 PM and had observed Martin sitting in his car, and then,
after 10:30 PM, Stallworth had observed Martin still sitting in his car. Stallworth also
documented that Martin had entered the Gestamp building sometime after 10:30 PM and had
spoken to him upon re-entry, and that Group Leader Armen Weinrick2 had walked up and joined
the conversation. As the senior Group Leader on Martin’s shift, Stallworth would have been the
person on site to authorize Martin’s absence, but Stallworth had not.
Morgan also received an email from Weinrick, dated February 9, 2011, confirming some
of Stallworth’s observations. In that email, Weinrick confirmed the following facts: he received
a call from Stallworth advising that Martin was outside the plant, sitting in his car, and asking
Weinrick to observe when Martin returned to work; from 9:30 PM to 10:10 PM, Weinrick sat on
the patio where he could observe people returning to work from the parking lot and did not see
Martin return; at 10:30 PM, Weinrick observed someone sitting in Martin’s car, and, in an effort
to verify that the person in the car was Martin, Weinrick went by the UT Lab and confirmed that
Martin was not there. Weinrick also confirmed that about 10:45 PM, he saw Martin talking to
Stallworth inside the plant building, near the entrance from the parking lot.
Having confirmed that Martin had been absent more than an hour on February 8 without
Stallworth’s authorization, Morgan next checked with Quality Manager Nelson and Plant
Manager Mitchell and confirmed that they had not authorized Martin’s absence on that date,
2

The briefs’ statements of facts do not reflect Weinrick’s race.

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either. By February 10, 2011, Morgan concluded that Martin had violated Gestamp’s “Zero
Tolerance” rule prohibiting leaving the plant during work hours without permission. Because of
staffing considerations, she delayed discipline for this violation until Gestamp could find workers
to cover the second shift. She transferred Caucasian Kristopher Thompson from first to second
shift in March of 2011, and two other associates received UT Group skills training so that the
second shift could function smoothly after Martin’s termination.
On March 28, 2011, Morgan suspended Martin consistent with Gestamp’s procedure
calling for a period of suspension immediately prior to termination to ensure that paperwork was
in order. When Morgan called Martin into her office with management members to advise him
of the suspension, Martin testified that John Nelson told him that he was being suspended
because of “[b]reak, extended breaks and lunches and speculation of sleeping in a car. And I was
like – His exact words were: Somebody seen you sleeping in a car.”3 (Doc. 33-2, at 31 p. 121).
Martin gave Morgan a general denial of misconduct, stating “You know this is not accurate
because you know me.” (Doc. 33-2, at 31 p. 123). The briefs do not point the court to any
specific explanation or information Martin gave Morgan about who gave him permission to go
outside the plant for an extended break/lunch or the circumstances surrounding any such
permission.
During the suspension, Morgan re-verified the facts and reviewed documentation,
including matching time cards with the times he was observed away from his workstation. She
noted that his time records from January and February of 2011 showed that Martin was still

3

As confirmation that the initial reason given was not limited to sleeping in his car, Martin testified at
another point shortly thereafter in his deposition, “See, originally they told me it was extended lunch and breaks.
And the primary was that I got – somebody caught me sleeping in the car.” (Doc. 33-2, at 33, p. 129).

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clocked in at the time he was observed to be absent for an excessive time away from his
workstation; in other words, Martin was still “on the clock” and getting paid when he was away
from his workstation. Because the documentation re-confirmed her conclusion that Martin had
violated Zero Tolerance offenses, Morgan made the decision to terminate Martin effective April
1, 2011 “because he left Gestamp’s facility during work hours without permission and was
absent from his workstation without permission for excessive periods during the workday in
violation of Gestamp’s ‘Zero Tolerance’ policy.” (Doc. 33-1, at 13).
Morgan made the decision and terminated Team Leader Johnson for the same offense at
approximately the same time as Martin’s termination. (Doc. 37, Ex. 1, pp. 73).
The “Coaching and Counseling Form,” dated April 1, 2011, states in part:
It was concluded that Dorian Martin did violate the standards of conduct by exceeding
the authorized length of break periods, leaving the plant during work hours without
permission, and excessive unauthorized absence from the workstation during the
workday. Dorian, because you exceeded the authorized 30 minutes for lunch on several
occasions, you were paid for time not worked. As an Associate, it is your responsibility
to return from lunch on time. Leaving the plant during work hours without permission
and excessive unauthorized absence from your workstation during the workday is a
violation of the Zero “0" Tolerance Approach Policy which is subject to disciplinary
action up to and including immediate termination. Because you violated this policy you
are being terminated effective April 1, 2011.
Martin signed the document with a date of April 7, 2011, writing below his signature: “I am not
agreeing with the charge/violations,” but he did not specify the basis of his disagreement. (Doc.
33-4, at 60).
Although Martin generally disputes in his brief and deposition testimony that he ever left
Gestamp’s facility during work hours without permission for excessive periods, elsewhere in his
deposition testimony, he stated that he did not have any specific recollection of those three dates

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and did not know of any reason he needed to be outside the plant building for over an hour on
those dates other than being on break. (Doc. 33-2, at 29 pp. 111-12). Morgan states in her
affidavit that “[a]t no time did Mr. Martin deny being away from his workstation for multiple
times of more than an hour each time nor deny reports of him being outside the building for these
extended periods, and at no time did he offer any explanation for these extended absences.”
(Doc. 33-1, at 12).
Martin testified that, at the time of Martin’s termination, no Caucasians worked on the
second shift, and no African Americans worked on the first shift, although based on Morgan’s
testimony, she had just transferred Kristopher Thompson to the second shift.
EEOC Charge
On April 4, 2011, Martin filed an EEOC Charge. He checked the boxes for
discrimination based on race and sex but did not check retaliation. He relates the following
discrimination: (1) being given the “run around” when he attempted to return to work on the day
shift, which, at the time, was staffed with Caucasians only while the night shift was staffed with
African Americans only; (2) being threatened by assistant plant director with losing his job when
Martin wanted to file a complaint about the bogus charges that a Caucasian Group Leader
asserted against him for supposedly harassing a white female employee; (4) being suspended and
terminated, although he had never received previous disciplinary action, for taking extended
breaks, taking excessive lunch breaks, not clocking out for lunch and sleeping in his car on lunch
breaks when white or female employees who committed company policy violations were not
suspended or terminated. The Charge lists the dates of discrimination as between 2-1-11 and 41-11.
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Gestamp Policies and Procedures
At Gestamp, employees are known as “associates.” The Associate Handbook, which
Martin received, sets out Gestamp’s company policies and procedures, and the relevant ones are
discussed below.
Breaks/Lunch
The Associate Handbook allows time off during each shift for a 20-minute paid break; an
additional 10-minute paid break for work days exceeding 9 hours; and an unpaid 30-minute meal
period. Thus, for a work day of 9 hours or less, the maximum time off work during each shift
would be 50 minutes and for a work day of more than 9 hours, the maximum time off work
during each shift would be 60 minutes.
“Zero Tolerance” Violations
In her affidavit, Morgan explained that Gestamp deems certain violations to be “Zero
Tolerance” because of the severity of the violation to the continuous staffing of the production
process. Pages 37-38 of the Associate Handbook contain the following provision:
The following infractions will be subject to Gestamp Alabama’s Zero “0" Tolerance
approach Policy which will be subject to disciplinary action up to, and including
immediate termination:
***
Sleeping during work hours without permission
***
Leaving the plant during work hours without permission.
***
Violation of Gestamp Alabama’s Sexual or Other Forms of Impermissible
Harassment Policy. Unlawful discrimination and/or illegal harassment
Insulting Language or Inappropriate Behavior
***
Threatening, intimidating or coercing with other associates
***
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Excessive unauthorized absence from workstation during the workday
(Doc. 33-1, at 57-58, pp. 37-38). Morgan testified that “[d]iscrimination in any form is a
zero tolerance infraction.” (Doc. 37, Ex. 1, pp. 61).
Other Provisions of Associate Handbook
The “Standards of Conduct” provision of the Gestamp Associate Handbook, which is a
separate section than the “Zero Tolerance” section, provides in relevant part as follows:
STANDARDS OF CONDUCT
The following infractions or any combination herein will be subject to the progressive
corrective [discipine] action:
Wasting time or loitering on any Gestamp Alabama property during working hours
Horseplay, distracting attention of others or causing a disturbance
***
Unacceptable performance and/or inappropriate conduct/behavior
***
Repeated failure to swipe (punch) in or out, including leaving property during unpaid
breaks
***
Excessive tardiness and/or absenteeism
Exceeding the authorized length of break periods
(Doc. 33-1, at 56-57).
Comparator
Workers Exceeding Combined Breaks/Lunch
In his deposition, Martin testified that, at the time of his termination, everyone on the day
shift was Caucasian and everyone on the night shift was African American, so comparators at the
time of termination could only come from the day shift. However, earlier in his tenure at

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Gestamp, Martin had worked on the day shift, and he testified that everyone on day shift had
combined lunch periods and breaks,4 and had exceeded the time allotted for those combined
periods on more than three occasions without permission but had not been disciplined. He
named the following workers who had exceeded the combined periods without permission:
Kevin Childers (Team Leader- first shift), Greg Lucas (UT Tech - first and second shift), David
Thompson (UT Tech - first shift), Herb Mayo (UT Tech - first and second shift), Darrell Savage
(UT Tech - first shift), “Randy” (UT Tech - first shift). All these workers were presumably
Caucasian. At another point in the deposition, Martin testified that, to his knowledge, no one left
the plant to get breakfast for the group without obtaining the permission of Team Leaders Stuart
Norwood or Childers. Further, Martin testified that Childers and David and Kris Thompson, all
of whom are Caucasian, exceeded breaks regularly because they were smokers, and they also
went outside to smoke at times that were not scheduled break or lunch times, but were not
disciplined.
Martin acknowledged that he never reported this misconduct to Morgan and does not
know if anyone reported to Morgan that any employees exceeded their breaks. Morgan stated in
her affidavit that “[n]o one reported first shift employees Kevin Childers ... David Thompson ...
and Greg Lucas, ... nor any retained employee, for what I considered a Zero Tolerance
violation–let alone what Dorian Martin did.” (Doc. 33-1, at 14 ¶ 15).

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A dispute exists about whether Gestamp allowed associates to combine lunch and breaks so that they
could have one long 50 minute period off work on regular work days or a 60 minute period for work days exceeding
9 hours. Martin and other associates provide evidence that they combined lunch and breaks routinely with
management’s knowledge. However, on the three occasions of extended absence from work forming the basis of
Martin’s termination, his period off work exceeded 60 minutes.

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Other Conduct Potentially Falling under Zero Tolerance
In 2008, according to Martin, a Caucasian ultrasonic tester named Randy pulled a knife
on Martin, and called Martin and his coworkers “niggers.” Martin reported the knife incident to
Stuart Norwood, his Group Leader at the time. No evidence exists that anyone relayed the knife
incident to Morgan, and Morgan denied knowing about it.
However, Martin also claims that he complained directly to Morgan about Randy’s
calling the African American workers “niggers.” Carlos Simon, an African American, confirms
in his affidavit that Martin, Toyer, and he reported to Morgan the ultrasonic tester’s racial slur.
Morgan testified that she was unfamiliar with any Gestamp employee named Randy but
acknowledged that she received a complaint from Toyer that a Caucasian associate named
Ronald Redmond had made inappropriate race-related comments about him, and she further
acknowledges that Martin may have accompanied Toyer in presenting the complaint, although
she does not specifically recall his involvement. The Gestamp “Coaching and Counseling Form”
for Ronald Redmond is dated May 21, 2008 and sets May 20, 2008 as the date for the associate
complaint about Redmond’s inappropriate race-related comments. According to Simon’s
affidavit, a few days after the complaint, Morgan called Martin, Toyer, and Simon into her office
and told them that they needed to stop complaining about the tester and try to avoid him,
indicating that if they did not do so, their jobs would be in danger.
Morgan investigated that complaint, and she explained that she had concluded that
Redmond did not use racial slurs like “nigger,” but that he did use “racially inappropriate and
unprofessional speech.” Accordingly, she characterized the misconduct as “inappropriate
conduct/behavior” warranting progressive corrective action but not “insulting language or
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inappropriate behavior” falling within the “Zero ‘O’ Tolerance” Approach Policy. The
“Coaching and Counseling Form” dated May 21, 2008 and signed by Ronald Redmond states:
On Tuesday, May 20, an associate come to HR to file a formal complaint on
Ronald Redmond for inappropriate race related comments made about the
associate. HR investigated the complaint and found that Ronald Redmond did
in fact make racial related comments and has in the past made comments that
were offensive in nature pertaining to race. It was also revealed in the
investigation that Ronald Redmond conducted himself unprofessionally in the
work place by consistently getting upset with associates using profanity and
even going as far as to say that he knew where certain employees lived. This
conduct is unacceptable and will not be tolerated in the work place under any
circumstances. This is a violation of the standards or conduct “inappropriate
conduct/behavior.”
As the form reflects, Morgan testified that Redmond was suspended but was not terminated.
Rather, an “x” mark is next to “Decision Making Leave/Last Chance Agreement.” (Doc. 33-1, at
97).
IV. ANALYSIS
Martin’s two claims that remain to be addressed at summary judgment are for race
discrimination and for retaliation based on race, both brought pursuant to Title VII and § 1981.
A. Race Discrimination
Martin asserts a claim of race discrimination, alleging that Gestamp discriminated against
him in discharging him for his violation of the “zero tolerance” policy when it did not discharge
similarly-situated Caucasian employees.
Both Martin and Gestamp analyze this claim as one of circumstantial evidence under the
McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Because discrimination based on race asserted under both § 1981 and Title VII have the
same requirements of proof and the same analytical framework, Standard v. A.B.E.L. Servs., Inc.,
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161 F.3d 1318, 1330 (11th Cir. 1998), the court will address them together. To establish a prima
facie case of disparate treatment in a race discrimination case under that framework, a plaintiff
must prove the following elements: that “(1) [he] is a member of a protected class; (2) [he] was
subjected to an adverse employment action; (3) [his] employer treated similarly situated
employees outside of [his] protected class more favorably than [he] was treated; and (4) [he] was
qualified to do the job.” Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.
2006). If the plaintiff establishes his prima facie case, the employer must articulate a legitimate,
non-discriminatory reason for its employment action, and, if it does so, then the plaintiff must
prove that its reason was pretext for race discrimination. Id.
Gestamp challenges the third element, asserting that Martin cannot show that the same
decisionmaker treated him more harshly than an appropriate comparator. The Eleventh Circuit
has explained that, in addressing this element,
we evaluate “whether the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.” When making that
determination, “[w]e require that the quantity and quality of the comparator’s
misconduct be nearly identical to prevent courts from second-guessing
employers’ reasonable decisions and confusing apples with oranges.”

Id. (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (internal citations
omitted)); see also Stone & Webster Const., Inc., v. U.S. Dept. of Labor, 684 F.3d 1127, 1135
(11th Cir. 2012) (resolving a conflict in favor of Maniccia’s “nearly identical” standard and
against the language in Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001) stating that
the plaintiff need not prove that the comparator’s conduct was the same or nearly identical).

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The Eleventh Circuit has also explained that a plaintiff must show that he and the
identified comparator(s) are “similarly situated in all relevant respects.” Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). “The most important factors in the disciplinary context are the
nature of the offenses committed and the nature of the punishments imposed.” Stone & Webster,
684 F.3d at 1135 (quoting Maniccia, 171 F.3d at 1368). Accordingly, the court must determine
whether Martin has presented a Caucasian comparator whose alleged misconduct was similar in
all relevant respects, and where the quality and quantity of the misconduct was nearly identical,
and yet the comparator was treated more leniently that Martin.
Comparators: First Shift Caucasian Workers who Exceeded Combined Lunch & Break
without Permission
In his deposition testimony, Martin stated that while he was working on day shift, he
observed Kevin Childers, David Thompson, Herb Mayo, Darrell Savage, Randy somebody, and
Greg Lucas—in essence, the whole shift5—exceed their combined lunch and breaks more than
three occasions without permission. Thus, he presents the Caucasian first shift workers as
comparators. Gestamp argues that Martin’s assertion is not supported by evidence because he
acknowledges that he did not use a watch to time their absence. However, the court finds that he
has testified to his personal knowledge as a co-worker observer on first shift at that time, and the
failure to calculate time by his watch does not render his testimony inadmissible. A jury may
certainly consider the fact that he did not time the absences as a consideration about the
reliability of the testimony. Gestamp also objects to a lack of foundation, but Martin’s presence

5

In Martin’s Statement of Facts, he stated that “Everyone on day shift was Caucasian” (doc. 36, at 4 ¶ 16 &
9), and in his brief, he specifically identifies Kevin Childers, David Thompson, Greg Lucas as Caucasian (doc. 36, at
9). To the extent “Randy” was Ron Redmond, he is identified as Caucasian (doc. 36, at 10 & 13).

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as a co-worker observer on first shift provides sufficient foundation for these purposes. He could
also testify to the custom and practice of combining lunch and breaks, and of exceeding without
consequence the combined periods.
Further, Gestamp argues that Martin’s testimony, taken as a whole, is that first shift
workers had permission for their absences, or, to the extent that he attempts to testify that they
did not, that testimony conflicts with his other testimony that they did indeed have permission
from Group Leaders. Martin testified that Norwood and/or Childers gave first shift workers
permission to leave the plant for the purpose of purchasing breakfast for shift members, and that
no one left the plant to purchase breakfast without permission. That testimony does not
necessarily contradict his other testimony that first shift workers exceeded their combined lunch
period and break without permission. Logically, workers could obtain permission to leave the
premises to purchase breakfast for the group, but fail to obtain permission to take a combined
personal lunch period and break that exceeded their allotted time; one statement does not
necessarily exclude the other. Accordingly, for the purposes of summary judgment, the court
accepts Martin’s testimony that these Caucasian first shift workers committed the same offense
as he did.
However, evidence that first shift workers committed the same offense as Martin is not
enough: Martin must also establish that the decisionmaker had notice of their committing the
same offense. Martin acknowledges that he never notified Morgan, the decisionmaker who made
the decision to terminate him, about the first shift members exceeding their combined lunch and
break, and further acknowledges that he did not know if anyone else reported this conduct to
Morgan. (Doc. 33-2, at 37, pp. 141-42). Martin presented no evidence that Morgan received
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notice of this particular offense, and Morgan specifically denied that she received notice that the
Caucasian workers committed that offense. Rather, she testified that she terminated every
worker who committed this offense about which she received notice.
Evidence that the decisionmaker—here, Morgan—had notice of these offenses by the
proffered comparators is crucial to Martin’s prima facie case. See Jones v. Gerwens, 874 F.2d
1534, 1541-42 (11th Cir. 1989) (stating that the motives of the decisionmakers who disciplined
the plaintiff were at issue and the failure to “adduce evidence of knowledge on the part of”
decisionmakers regarding comparators’ misconduct meant that the plaintiff had “failed to make
out a prima facie case of disparate treatment”). Martin’s failure to provide such evidence means
his prima facie case fails as to those comparators.
Comparators: Workers who Exceeded Breaks
Martin provides evidence that numerous associates exceeded their breaks or left their
work stations to smoke outside of breaks. His statement of facts presented to the court does not
clarify how many minutes the other associates exceeded their breaks and whether they took their
smoke breaks off campus or in some designated on-campus smoking area. In her affidavit,
Morgan explained that she considered exceeding breaks as different from the offense for which
she terminated Martin—exceeding combined lunch and break periods without permission on
three separate occasions. Further, she characterized the offense of exceeding breaks as falling
outside zero tolerance offenses, and indeed, “exceeding the authorized length of break periods” is
listed under a different page in the associates’ handbook than the Zero Tolerance offenses. This
court finds that the other workers who merely exceeded breaks or smoked outside of breaks did
not commit offenses that were similar in all relevant respects to the offenses for which Martin
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was terminated, and that the quality and quantity of the misconduct were not nearly identical;
therefore, those other workers are not appropriate comparators.
As an alternative ruling, to the extent, if any, that the misconduct of exceeding breaks or
smoking outside of breaks is similar in all relevant respects to the offenses for which Martin was
terminated, the court finds that Martin presented no evidence that Morgan received notice that
the Caucasian presented as comparators committed this misconduct, and Morgan specifically
denied that she received notice that they committed a zero tolerance offense. Martin’s failure to
receive notice of the alleged comparator’s offenses means that Martin fails to establish his prima
facie case as to those alleged comparators.
Comparator: Ronald Redmond a/k/a “Randy”
The final comparator proffered was a Caucasian ultrasonic tester whom Martin identified
as “Randy” and whom Gestamp identified as Ronald Redmond. Martin claimed that this
associate pulled a knife on him and called Martin and African American co-workers “niggers.”
Gestamp asserts that this conduct is not similar in all relevant respects to the offense for which
Martin was terminated, and that Morgan only had notice of the complaint of the racial slur, of
which she found he was not guilty, and of Redmond’s use of other inappropriate language, of
which she found he was guilty.
Martin responds that the ultrasonic tester’s conduct fell within the “Zero Tolerance” list,
claiming that (1) he violated the harassment and discrimination policy by calling co-workers
“niggers” and otherwise using “racial related comments” that were insulting and inappropriate;
(2) he threatened co-workers and, thus, violated the provision about “threatening, intimidating or
coercing with other associates”; and (3) his use of profanity and offensive comments in the past
18

fell within the Zero Tolerance category of “insulting language or inappropriate behavior.”
Martin claims that Redmond/Randy’s violation of three Zero Tolerance policies means that his
conduct was similar to Martin’s or constituted even more serious violations, and those violations
prove that Morgan and Gestamp treated Caucasian violators of the “Zero Tolerance” offenses
differently than they treated him.
The court finds that Redmond’s offenses about which Morgan had notice and found to
have occurred—the use of racial language (but not the insulting word “nigger”) and using
profanity and verbal threats to co-workers—were not similar in all relevant respects to those
offenses Martin committed, and the quality and quantity of the misconduct were not nearly
identical. Therefore, Redmond is not an appropriate comparator to Martin, and Martin fails to
meet his prima facie case using Redmond as a comparator.
Alternatively, to the extent, if any, that committing any “Zero Tolerance” offense
represents a similar offense to the offense committed by Martin, the court notes that Morgan
specifically found in May of 2008 that Redmond’s conduct did not fall within the “Zero
Tolerance” list; she recorded that finding in Redmond’s “Coaching and Counseling Form.”
Martin disagrees with Morgan’s characterization of Redmond’s conduct as falling outside “Zero
Tolerance” offenses. However, Morgan made this decision years before the termination of
Martin, and thus, the decision that Redmond’s offense fell outside “Zero Tolerance” could not
have been an attempt to distinguish it from the decision for Martin by placing the offenses in
different categories.
As Martin has failed to show any appropriate comparator, he has failed to meet his
burden of demonstrating a prima facie case of disparate treatment based on race regarding his
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termination. The court recognizes that Martin believed his termination to be unfair and
discriminatory because of his lack of prior discipline and because he saw, but did not report, with
one exception, others committing violations of company policies. However, Martin’s
termination decision was made by an African American Human Resources Manager based in part
on an African American senior Group Leader’s carefully documented record of Martin’s
violations. Martin has not provided an appropriate Caucasian comparator who committed a
similar violation that was reported to the decisionmaker. Because Martin does not provide an
appropriate comparator, he, in essence, is asking the court to act as a “super-personnel
department” and to re-examine the employer’s business judgments and second-guess whether
they were fair and appropriate, a role that the Eleventh Circuit has found to be inappropriate. See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (quoting Lee v. GTE Fla,
Inc., 226 F.3d 1249, 1254 (11th Cir. 2001)). Rather, this court’s role is to determine whether the
termination, unfair or not, was discriminatory, and a plaintiff’s burden is to provide an
appropriate comparator who is similar in all relevant aspects. Here, Martin has not met his
burden. Consequently, as to the first cause of action stated in the Amended Complaint,
Gestamp’s motion for summary judgment is due to be GRANTED; summary judgment is due to
be entered in favor of Gestamp and against Martin on the disparate treatment claim brought
pursuant to both Title VII and § 1981.
As an alternative ruling, the court finds that even if Martin had met his prima facie case,
Gestamp has articulated a legitimate, non-discriminatory reason for his discharge—commission
of a Zero Tolerance offense by exceeding his combined lunch and breaks on more than three
occasions without permission—and Martin has not met his burden to provide evidence that the
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reason was pretext for discrimination. See Burke-Fowler, 447 F.3d at1323. The Eleventh
Circuit has explained that in asserting pretext, a plaintiff “must confront the employer’s
seemingly legitimate reason for not promoting [him] ‘head on and rebut it.’ Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1206 (11th Cir. 2013) (quoting Chapman v. AI Transp., 229 F.3d 1012,
1030 (11th Cir. 2000) (en banc)). To do so, he 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)). He 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)).
Martin attempts to establish pretext three ways: (1) by arguing that Caucasian Ron
Redmond committed violations of greater severity but was not terminated; (2) by arguing that
Morgan’s explanation shifted regarding when and how she made the termination decision; and
(3) by arguing that Gestamp changed the offense for which Martin was disciplined. These
arguments are unavailing. As to the first argument, the court notes that Morgan’s discipline
decision regarding Redmond occurred almost three years before the incident with Martin and,
given the differences in the time as well as the nature of the offenses causing discipline, that
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disciplinary action involving Redmond has not cast sufficient doubt on the defendant’s proffered
reason to permit a reasonable factfinder to conclude that the employer’s action was
discriminatory. Even if Morgan made a bad judgment in 2008 when she determined that
Redmond’s conduct was not a Zero Tolerance violation, the court’s role is not to second-guess
the fairness of Morgan’s business judgments when nothing ties the judgment to discrimination.
As to the second and third arguments, Martin mischaracterizes the evidence; a careful
reading of the evidence does not support the existence of shifting and inconsistencies in the
timing of the discipline determination or in the offense for which Martin was disciplined.
Rather, Morgan’s testimony consistently set February of 2011 as the month she concluded that
Martin had violated a Zero Tolerance Rule, followed by a period during which she attempted to
staff Martin’s shift before terminating him. The date she created the paperwork for counseling
and termination does not necessarily have to be the date that she determined Martin had
committed the terminable offense, and the only shifting the evidence reflects was Morgan’s
shifting people to the night shift to ensure it was fully staffed. Further, Martin’s own testimony
reflects that at the time he was advised he was being suspended, the reason given was not limited
to sleeping in his car but also included “extended lunch and breaks,” consistent with the reasons
given on his Coaching and Counseling Form: “exceeding the authorized length of break periods,
leaving the plant during work hours without permission, and excessive unauthorized absence
from the workstation during the workday.” (Docs. 33-2, at 31 p. 121 & at 33, p. 129; 33-4, at
60).
For these reasons, Martin has not met his burden of establishing pretext on the disparate
treatment claims brought pursuant to Title VII and § 1981.
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B. Retaliation based on Race
Although Gestamp’s brief addressed the retaliation claim, Martin’s response does not
address that claim, but focuses entirely upon the claim of disparate treatment based on race.
Accordingly, the court finds that Martin has abandoned the retaliation claim based on race.
See, e.g., Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301,
1326 (11th Cir. 2000) (“failure to brief and argue this issue during the proceedings before the
district court is grounds for finding that the issue has been abandoned”); Lyes v. City of Riviera
Beach, Fla., 126 F.3d 13808, 1388 (11th Cir. 1997) (noting that “‘the onus is upon the parties to
formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment
are deemed abandoned’”), reh’g granted and vacated by, 136 F.3d 1294 (1998), reinstated by
166 F.3d 1332, 1336 (11th Cir. 1999) (en banc). That claim, the third cause of action stated in
the Amended Complaint, is due to be DISMISSED WITH PREJUDICE.
V. CONCLUSION
For the reasons discussed above, the claim for retaliation based on race is due to be
DISMISSED WITH PREJUDICE because it was abandoned, and Gestamp’s motion for
summary judgment is due to be GRANTED as to the only remaining claim, the claim for
disparate treatment based on race.
Dated this 3rd day of June, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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