Carroll v. Office Depot Inc
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/30/2015. (AVC)
2015 Mar-30 PM 04:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
OFFICE DEPOT, INC.,
Civil Action Number
DeWayne Carroll, an African-American who suffers from a disability,
claims that his former employer, Office Depot, Inc., discharged him because of his
race and disability and in retaliation for complaining about the alleged
discrimination, in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. 12101 et seq. Doc. 1. The issues in this case
center primarily on a new manager’s decision to place Carroll on a “Performance
Improvement Plan,” or a “PIP.” See generally docs. 29, 37, 40. Prior to working
with this new manager, Carroll had worked with Office Depot for 18 years,
primarily without any major performance issues. Doc. 28-2 at 30. When the new
manager arrived, he transferred Carroll laterally to a different department—an
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assignment Carroll hated—and purportedly started “nit-picking” Carroll’s
performance. Id. at 5, 10, 34. Ultimately, the new manager placed Carroll on a PIP
that required Carroll, among other things, to submit an “action plan” and identify
areas in which he needed additional training—which Carroll admitted he failed to
do, in part because he did not feel his performance was deficient. Docs. 28-2 at 2728; 35-5. Eventually, because of Carroll’s purported failure to meet the metrics
outlined in the PIP, Office Depot discharged Carroll based on the recommendation
of the new manager. Docs. 28-10 at 21; 28-12 at 68.
Before the court is Office Depot’s motion for summary judgment.1 Doc. 27.
Having reviewed the parties’ arguments and the evidence submitted, with respect
to the retaliation claims, based in part on the temporal proximity between Carroll’s
August 24, 2011 lawsuit in a different case and the PIP issued one week later on
September 1, 2011 (which led to Carroll’s discharge on January 18, 2012), the
court concludes that a jury should decide whether retaliatory animus (rather than
Carroll’s failure to comply with the PIP) purportedly motivated the decision to
discharge Carroll. Therefore, the motion for summary judgment on the retaliation
claim is due to be denied. As to the race discrimination claims, for the reasons
outlined below, the court concludes that summary judgment is proper.
Carroll’s Motion for Leave to File Excess Pages, doc. 36, is GRANTED.
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I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To support
a summary judgment motion, the parties must cite to “particular parts of materials
in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, interrogatory answers, or other
materials.” FED. R. CIV. P. 56(c). Moreover, “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to
“go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (citation and internal quotation marks omitted). A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from it
in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co.,
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398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable
inferences must be drawn in the non-moving party’s favor). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. FACTUAL BACKGROUND
Office Depot is a retail provider of office products and services. See doc. 283 at 65. Carroll, an African-American who suffers from a vision impairment that
renders him legally blind, joined Office Depot in 1993 as a part-time stocker, and
worked for Office Depot until his termination on January 18, 2012. Doc. 28-2 at 3.
Carroll became a full-time employee in 1999, earned a promotion to department
manager six years later in 2005, and ultimately hoped to become an assistant
manager. Id. at 4, 18, 32. Between 2005 and 2010, Carroll asked Office Depot to
consider him for two assistant manager positions, but both times the company
selected other candidates, one of whom was a Caucasian male with no disability.
Id. at 6, 15-16. Because Carroll believed that discriminatory animus motivated the
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selection decisions,2 he filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on October 25, 2010 alleging
race and disability discrimination, and a lawsuit on August 24, 2011.3 Docs. 35-1
at 2; 28-21 at 4-15.
In the meantime, Carroll continued working as a technology department
manager. In April 2011, shortly before Carroll entered a twelve week period of
family leave for the birth of his child, Office Depot hired a new store manager,
Rodney Williams, who ultimately recommended Carroll’s termination on January
18, 2012 due to performance and insubordination issues (which the court will
describe more fully below). Docs. 28-2 at 21; 28-12 at 28, 68. The events that
transpired once Williams became store manager culminated in Carroll filing this
present action. The essence of Carroll’s claim is that when he returned from family
leave, Williams began “nit-picking” Carroll’s performance and “setting Carroll up
to fail . . . because of his race and disability.” See doc. 37 at 44. As detailed below,
Carroll describes certain events that he believes demonstrate Williams’s
discriminatory intent, and maintains that the disciplinary actions that Williams
According to one of Carroll’s former store managers, his district manager at some point articulated that he
had concerns with Carroll becoming an assistant manager because of his eyesight. Doc. 35-23 at 5. Additionally,
another store manager later told Carroll that Office Depot was never going to promote him because of his disability.
Doc. 28-2 at 17.
Carroll’s first lawsuit also includes a claim for retaliation in violation of the Family and Medical Leave
Act. Doc. 28-21 at 4-15.
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initiated and that ultimately led to Carroll’s discharge were unfair and
A. Discriminatory intent
On April 12, 2011, just a few days after working with Carroll, Williams
filled out a Manager’s Record of Discussion form (“MRD”) in which he
summarized two incidences that day where Carroll mistakenly sold the wrong
product to a customer and misquoted the price of a product to another customer.
Doc. 35-18 at 3. In the MRD, Williams noted that Carroll “has a habit of holding
everything he reads very close to his eyes” and that “both issues should have been
avoided by thoroughly reading the labels” on the products. Id. While a manager
typically completes an MRD after a verbal discussion with an employee about
work performance to document the conversation, see doc. 28-12 at 16, Williams
“did not confront” Carroll because he wanted to wait to speak with someone in
higher management to “see if [they] were already aware of the disability,” doc. 3518 at 3. Carroll believes that Williams’s mention of his vision impairment in this
MRD demonstrates discriminatory animus. Doc. 37 at 43.
When Carroll returned from medical leave in July 2011, Carroll repeatedly
had encounters with Williams which Carroll believes demonstrate discriminatory
intent. For example, Williams transferred Carroll laterally with no loss in pay from
the technology department to the supplies department. Doc. 28-2 at 5. Carroll
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viewed the transfer as a less desirable assignment because he preferred the
technology department. Id. According to Williams, he transferred Carroll because
he believed Carroll’s tenure with the company “made him flexible” and “capable
of [managing] . . . any department,” whereas Carroll’s replacement in the
technology department, Adam Price, was “brand new” and more comfortable with
technology sales. Doc. 28-12 at 34. Carroll disagrees and contends that Price
actually had very little technology experience, and that Williams’s claim that Price
was “more comfortable” with technology is therefore suspect. See doc. 37 at 44.
Carroll believes instead that Office Depot hired Price because they wanted “to
have somebody in place . . . when they . . . [got] rid of [Carroll].” Doc. 28-2 at 6.
Additionally, Carroll describes that Williams began assigning Carroll to
more difficult overnight shifts, which kept Carroll from seeing his family,4 and that
Williams would “watch” him in a way that Carroll believed “singled” him out and
made him feel “picked on.” Doc. 28-2 at 10, 34. Carroll recounts one particular
instance that he described as “just ridiculous” and that he “would probably never
forget”: During a night shift assignment, Williams told Carroll that he had “missed
something” while “straightening the store.” Id. at 34. Apparently, Williams took a
photo of the item—a “little piece of cellophane, probably half an inch square
round”—printed the image out, and drew a red circle around the cellophane to
Williams explains he would sometimes “run overnight crews” to “fix the store” because “the store was a
mess” and they “didn’t have enough hours during the day.” Doc. 38-12 at 45.
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show Carroll. Id. Carroll and his coworker looked for the cellophane and could
only see it when Carroll “literally got down on [his] hands” and ran his hands
across the floor. Id. Carroll also describes another incident where Williams had a
“little smirk on his face” when he handed Carroll a document and asked him to
read it, stating “I know it’s small, it’s hard for you to see.” Id. at 19.
B. Disciplinary actions
Carroll also maintains that Williams subjected him to a series of unfair
disciplinary actions related to “new” performance standards without offering
proper training or counseling. See doc. 37 at 45. These disciplinary actions
occurred on July 15, 2011, August 1, 2011, August 15, 2011, August 16, 2011, and
August 17, 2011, when Williams spoke with Carroll and completed MRDs
regarding Carroll’s failure to follow company procedures for “working the store
stock balancing reports” and for failing to close the store properly by leaving
products out and leaving trash in the store aisles. Doc. 28-13 at 14-24. Based on
these infractions, on September 1, 2011, Williams initiated a formal disciplinary
“write up,” i.e., a PIP, which summarized the issues that Williams observed related
to the stock balancing reports and required that Carroll follow the proper
procedures or risk “further disciplinary action, up to and including termination of
employment.” Doc. 35-5 at 2. As part of the PIP, Williams required Carroll to
submit an “action plan” by September 5, 2011 identifying the steps Carroll would
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take toward improving his performance.5 Id. Carroll admittedly failed to do so by
the deadline and instead, one month later and after two discussions with Williams
about the action plan, Carroll wrote a letter to Williams and Human Resources
acknowledging that the “write [up] stated that [he] should do an action plan” but
asserting, “I do not feel that I was wrong due to the way I was trained and because
of these actions toward me. I feel that because I spoke with the U.S. Department of
Labor6 and my lawsuit against Office Depot that I am being retaliated against.”
Doc. 35-6 at 2; 35-28 at 2. In response, by letter dated on October 28, 2011,
Williams informed Williams to submit an action plan within three days or risk
“further disciplinary action, up to and including termination.” Doc. 28-13 at 43.7
Two days after the deadline, Carroll submitted a letter which he titled,
“Action Plan,” that Williams apparently found unsatisfactory because, rather than
outlining “the appropriate steps [Carroll would] take to improve the performance
deficiencies noted in the PIP,” doc. 28-13 at 47, Carroll admitted to the actions
included in the PIP but stated that he did his job according to the way he was
taught, and that “if there is a new procedure please train me or instruct me on the
Whether to require an employee to complete an action plan to address a PIP is a matter that Office Depot
leaves to the discretion of the manager. Doc. 28-10 at 19.
The Department of Labor reference is presumably related to Carroll’s October 2010 EEOC complaint in
which he alleged race and disability discrimination in Office Depot’s decision not to promote Carroll to assistant
manager. See docs. 35-1 at 2; 28-21 at 4-15.
According to the employee handbook, failure to complete an action plan when required by a manager is
grounds for termination, as is a failure to follow instructions from a manager in general. Doc. 28-4 at 93, 96.
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new procedure,” doc. 35-7 at 2. As a result, on November 18, 2011, Williams
devised an action plan on Carroll’s behalf and required that Carroll follow “the
steps necessary to improve” outlined in the action plan and to “complete a list of
areas in which training is needed.” Doc. 28-13 at 47-48.
Carroll admittedly failed to comply with Williams’s action plan because he
“didn’t feel that [he] had done anything wrong . . . so why do an action plan,” and
because he believed that at least one task was “basically undoable” due to Williams
setting a deadline during “Christmastime, which is a busy [time of] year for retail.”
Doc. 28-2 at 27-28. Carroll also points out that the action plan included
performance issues that Williams failed to identify in the PIP relating to Carroll’s
time management skills and failure to complete certain assigned tasks. Id. at 27.
Moreover, despite his belief that Williams should train him on the “new”
procedures, Carroll did not comply with the action plan mandate to “complete a list
of areas in which training is required,” doc. 28-13 at 47-48, because Carroll
“[didn’t] know what [areas] . . . he lacked [training] on,” doc. 28-2 at 28.
Subsequently, Williams recommended to the human resources department
(specifically LaTonya Rampa and Bruce Hauberg) that Office Depot terminate
Carroll. Based on the information Williams provided, Rampa and Hauberg
discharged Carroll on January 18, 2012. Docs. 28-10 at 21; 28-12 at 68.
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Office Depot contends that Carroll cannot establish a prima facie case of
discrimination, or, alternatively, that Office Depot’s proffered reason for
discharging Carroll was pretextual. The prima facie case argument is based on
Carroll’s failure to identify “a similarly situated individual who [Office Depot]
treated more favorably” than Carroll. Doc. 29 at 23. Office Depot is correct that,
generally, when a plaintiff attempts to prove a discrimination claim by
circumstantial evidence, he must satisfy the McDonnell Douglas framework by
showing that (1) he belongs to a protected group, (2) he was subjected to adverse
job action, (3) his employer treated similarly situated employees outside his
classification more favorably, and (4) he was qualified to do the job. Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973)). The only issue here is third element—i.e.,
whether Carroll’s failure to identify a comparator employee “involved in or
accused of the same or similar conduct” as Carroll but who Office Depot treated in
a more favorable way, see id., 8 dooms Carroll’s discrimination claims, or whether,
The court agrees with Office Depot that Carroll has not identified a similarly situated individual that
Office Depot treated less favorably. Carroll asserts that Office Depot “admits that all department managers in the
[E]astwood store since Carroll’s termination . . . are Caucasian” and “Price, who replaced [Carroll as technology
department manager], was not disabled [and is Caucasian].” Doc. 37 at 39. Carroll also points out that Williams
never disciplined Price “despite his lying to Williams . . . [by saying] that he had completed his job duties when in
fact he did not.” Id. at 49. These contentions miss the mark because, to the extent Carroll is suggesting that Office
Depot treated him less favorably than similarly situated employees by hiring a non-disabled Caucasian man to
replace him or by employing Caucasian managers, the court notes that Carroll has failed to establish that Office
Depot did not discharge Price or any other employee who was “involved in or accused of the same or similar
conduct” as Carroll. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“In determining whether
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as Carroll contends, he can survive Office Depot’s motion even without identifying
a comparator. Indeed, as Carroll points out, this Circuit has held that “establishing
the elements of the McDonnell Douglas framework is not, and never was intended
to be, the sine qua non for a plaintiff to survive a summary judgment motion in an
employment discrimination case . . . [and] the plaintiff’s failure to produce a
comparator does not necessarily doom the plaintiff’s case.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Rather, “where the plaintiff
presents circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent—the essential element of a claim for
discrimination—the plaintiff will always survive summary judgment.” Jones v.
Water Works Bd. of the City of Birmingham, No. 2:10-CV-1323-AKK, 2012 WL
2856651, at *10 (N.D. Ala. July 5, 2012) (citing Lockheed-Martin, 644 F.3d at
1328) (internal quotation marks omitted).
employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether
the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.”).
Alternatively, if Carroll is suggesting that Price’s lying to Williams is the “same or similar” to Carroll’s performance
issues, this contention is insufficient because Carroll has presented no evidence to support this position. See id.
(plaintiff must come forth with “sufficient affirmative evidence to establish that the non-minority employees with
whom he compares his treatment were similarly situated in all aspects, or that their conduct was of comparable
seriousness to the conduct for which he was discharged”). While the record establishes that lying to a manager at
Office Depot is “pretty serious,” doc. 28-17 at 26, the record contains no evidence as to the context of the incidence
of lying, the number of times it happened, deposition testimony from Williams as to how he handled the issue with
Price, etc. Basically, Carroll has presented no affirmative evidence to enable the court to make the relevant
comparison. See Spriggs v. Mercedes Benz USA, LLC, No. CV 213-051, 2014 WL 4808852, at *13 (S.D. Ga. Sept.
26, 2014) (rejecting similar argument where record was “unclear . . . how [the] supervisors’ handling” of plaintiff’s
situtaion was different from other employees).
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In attempting to demonstrate such a “convincing mosaic of circumstantial
evidence,” Carroll maintains that “the totality of the circumstances shows
sufficient circumstantial evidence from which a jury could infer [Office Depot]
displayed a racially [and disability based] discriminatory animus toward [Carroll].”
Doc. 37 at 41-42. Specifically, Carroll maintains that a jury could infer
discrimination because (a) “a manager who was seeking to enforce new standards
would make the standards clear and provide training to employees who were
subject to them, which Williams did not do,” id. at 45, and (b) Williams’s actions
toward Carroll demonstrate pretext for discrimination, id. at 41-48. The court
addresses each contention in turn.
A. Lack of training as an alleged “convincing mosaic of circumstantial
As this court stated in Jones, “a triable issue of fact exists if the record,
viewed in the light most favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination.”
Jones, 2012 WL 2856651, at *10 (citation and internal quotation marks omitted).
In attempting to demonstrate such a “convincing mosaic of circumstantial
evidence,” Carroll maintains that “a jury could determine that a manager who was
seeking to enforce new standards would make the standards clear and provide
training to employees who were subject to them, which Williams did not do . . . .
Yet, [Carroll] was disciplined . . . . [T]his is all evidence that Williams was setting
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Carroll up to fail because of his race and disability.” Doc. 37 at 45. Carroll’s
reliance on Jones misses the mark because, rather than establishing the necessary
convincing mosaic from which a jury could infer discrimination, the evidence that
Carroll relies on, at best, establishes that Office Depot acted unfairly by
discharging Carroll despite Williams’s failure to properly counsel or train Carroll
regarding the “new standards” which Williams purportedly implemented and
which Carroll admittedly failed to follow. See id. However, anti-discrimination
laws do not prohibit employers from treating employees unfairly. See Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1267 (11th Cir. 2010) (employee’s
“burden is to show not just that [the employer’s] proffered reasons for firing her
were ill-founded but that unlawful discrimination was the true reason”) (citation
omitted); Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir.
1984) (noting that an employer’s “stated legitimate reason . . . does not have to be
a reason that the judge or jurors would act on or approve” and concluding that
employer’s reason was not based on discriminatory animus even though the reason
“might seem unfair . . . to the outside observer”) (citation omitted). In that respect,
even accepting that Williams implemented “new standards” (although no record
evidence supports this assertion), evidence that an employer did not adequately
train an employee is not the sort of conduct that demonstrates the convincing
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mosaic for a jury to infer that race or disability animus motivated the decision to
discharge that employee.
B. Alleged pretextual reasons for discharge
As further evidence of the convincing mosaic, Carroll argues that Office
Depot’s proffered reason for his discharge is pretextual. Doc. 37 at 47. See also
Jones, 2012 WL 2856651, at *10 (citing Evans v. McClain of Ga., Inc., 131 F.3d
957, 963 (11th Cir.1997)) (finding jury could infer discriminatory intent where the
employer’s human resources records “painted two distinct pictures” based on the
record as to the reason for plaintiff’s termination, suggesting that employer’s
proffered reason was pretextual). Basically, Carroll takes issue with Office Depot’s
claim that it discharged Carroll for the performance issues summarized in the
September 1, 2011 PIP and corresponding action plan, and asks this court to infer
that “Williams fabricated the alleged performance deficiencies against Carroll” for
the following reasons: (1) Williams mentioned Carroll’s disability in the April 12,
2011 MRD for reasons “unrelated to the underlying MRD”; (2) Williams
“transferred and demoted” Carroll to the technology department; (3) the MRDs
were in written form and Carroll never saw them or knew about them; and (4) the
supplies department was “in a state of disarray,” and Williams transferring Carroll
to supplies and then “nit-picking his performance” was Williams’s way of “setting
Carroll up to fail.” Doc. 37 at 43-45. The court addresses these contentions
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sequentially below, and as explained below, declines to make the inference Carroll
requests because the facts belie Carroll’s contentions.
First, the contention that Williams mentioned Carroll’s disability in the April
2011 MRD for reasons “unrelated to the underlying MRD” is inconsistent with the
text of the MRD itself, which includes Williams’s observation that the
incidences—Carroll misquoting the price of a product to a customer and selling the
wrong product to another customer—“should have been avoided by thoroughly
reading the labels,” as well as Williams’s opinion that Carroll’s error may have
been due to Carroll’s vision impairment based on several employees telling
Williams that Carroll was legally blind. However, Williams pointed out that he had
no knowledge of the accuracy of the reports, and that he was “wait[ing] until he
could partner with [Rampa] . . . to see . . . if she [was] aware of a disability.” Doc.
35-19 at 3. Second, notwithstanding Carroll’s “preference” for the technology
department, it is undisputed that Carroll was not “demoted” to supplies department
manager. In fact, Carroll admitted that the reassignment was a lateral move with
the same compensation and status. See doc. 28-2 at 5. Third, while Carroll may not
have seen the actual MRDs at issue in paper form, this fact does not establish
pretext because the primary purpose of an MRD is to document a verbal discussion
a manager had with an employee, and the employee typically does not see the
MRD. See doc. 28-12 at 16. Moreover, Carroll admitted to the various
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performance deficiencies included in the September 1, 2011 PIP, which
summarized some of the information in the MRDs. See doc. 28-2 at 82, 86. In
other words, Carroll has failed to establish that the failure to see the MRDs
impacted him adversely.
Finally, it is clear to the court that the crux of Carroll’s discrimination claim
is based on his belief that he performed his work exceptionally. Indeed, the court
has no doubt that Carroll did his job according to “the way [he] was taught,” and
that he did so successfully under prior managers. See id. at 86. Carroll’s beliefs,
however, are irrelevant on the pretext inquiry. As the Eleventh Circuit aptly put it:
[T]he fact [an employee] thinks more highly of [his] performance than
[his] employer does is beside the point. The inquiry into pretext
centers on the employer’s beliefs, not the employee’s beliefs and, to
be blunt about it, not on reality as it exists outside of the decision
maker’s head . . . The question is whether [his] employers were
dissatisfied with [him] for these or other non-discriminatory reasons,
even if mistakenly or unfairly so, or instead merely used those
complaints . . . as cover for discriminat[ion].
Alvarez, 610 F.3d at 1266. Relevant here, Carroll admittedly failed to do his job
according to his then-manager Williams’s standards, or comply with the action
plan through which Williams explained his expectations and offered training. See
id. at 27-28. While Carroll genuinely believes that Williams “set him up” to fail by
sending him to a department that was in disarray, unfortunately for Carroll, there is
nothing in the record to support his contention that race or disability animus
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motivated the transfer, or any of the actions Williams initiated.9 See id; see also
Nix, 738 F.2d at 1187.
Contrary to Carroll’s contentions, this case simply does not fit into the
parameters outlined by the Lockheed-Martin court to excuse the failure to identify
a similarly situated employee. See Lockheed-Martin, 644 F.3d at 1328. Ultimately,
while Carroll is correct that the court must draw all reasonable inferences in his
favor, see Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011), the court cannot
ignore the undisputed record evidence here that Carroll failed to meet several
requirements related to the PIP, including multiple deadlines for submitting an
To the extent Carroll argues that the fact that his replacement in the technology department, Adam Price,
had little experience in technology sales establishes that Williams’s reason for transferring Carroll to supplies is
pretextual, see doc. 37 at 44, the court notes that this fact, even if true, does not contradict Williams’s explanation
that Price was “more comfortable” with technology than supplies, doc. 28-12 at 34, because being “more
comfortable” in one department is not synonymous with being more “experienced” in that department.
Along those lines, Carroll maintains that Office Depot changed its explanation for why it transferred
Carroll to the supplies department. Specifically, in its June 22, 2012 letter to the EEOC, Office Depot explains that
“the supplies area of the store was suffering at the time and Mr. Williams decided to transfer Mr. Carroll to
supervise the supplies area of the store because of his expertise at Office Depot, and with the hope that Mr. Carroll
could turn it around.” Doc. 35-20 at 12. Carroll maintains that this explanation is inconsistent with Williams’s
deposition testimony that “one of the reasons” he transferred Carroll was that Price was “brand new” and more
comfortable with technology sales, whereas Carroll’s tenure with the company made him capable of managing any
department. Doc. 28-12 at 33-34.
The court disagrees with Carroll’s contention that these explanations are contradictory because both the
June 22, 2012 letter and Williams’s testimony point to Carroll’s experience and expertise with company as part of
the reason for his transfer, and the letter does not include any statement contradicting Williams’s account of Price’s
level of comfort with technology sales. Doc. 28-12 at 33-34; 35-20 at 12. Furthermore, to the extent Carroll is
arguing that Williams did not actually hope that Carroll could “turn around” the supplies department, the court notes
that Williams stated plainly in his deposition that he did in fact hope that that Carroll could “turn it around.” Doc.
28-12 at 133. As such, Carroll’s contention that Office Depot’s statements to the EEOC are “false” is not supported
by the record.
Significantly, as it relates to Carroll’s discharge, Office Depot’s June 22, 2012 letter to the EEOC is in
relevant part consistent with and contains the same information as the September 1, 2011 PIP. See doc. 35-5 at 2;
35-20 at 5-8. Specifically, the PIP describes three instances where, according to Williams, Carroll failed to “follow
the proper procedure related to . . . store stock balancing reports.” Doc. 35-5 at 2. Consistent with the PIP, Office
Depot’s letter to the EEOC recounts these incidences relating to stock balancing reports, and explains that Williams
issued Carroll a PIP and action plan, and that Carroll failed to develop an action plan or comply with the action plan
that Williams devised (all of which is undisputed). Doc. 35-20 at 5-8.
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action plan—which alone is grounds for termination under Office Depot’s policies,
see doc. 28-4 at 93, 96.10 Moreover, even when a plaintiff makes a prima facie
case, to survive summary judgment, the plaintiff must present “sufficient evidence
for a reasonable jury to find that the employer’s asserted non-discriminatory reason
was not the actual reason and that the employer intentionally discriminated against
[him].” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)).
Based on a careful review of the record, which from a discrimination standpoint,
contains no evidence of “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in Office Depot’s articulated reason for
discharging Carroll,11 the court concludes that Carroll has not established “the
Carroll contends that one task on the action plan was “undoable” because “Christmastime . . . is a busy
[time of] year for retail.” Doc. 28-2 at 27-28. The court rejects this argument because “so far as discrimination law is
concerned, [an employer] is within [his] rights . . . to set unreasonable or even impossible standards, as long as she
did not apply them in a discriminatory manner.” Alvarez, 610 F.3d at 1267.
Along the same lines, the fact that Williams did not discharge Price for lying about completing tasks does
not establish pretext because Carroll has not presented evidence that Price’s insubordination was “under similar
circumstances.” Specifically, while the Eleventh Circuit in Alvarez recognized that an employer applying the same
standard in a discriminatory manner—i.e., by disciplining a person of a particular race but not disciplining persons
outside of that race—can be evidence of pretext, the court in Alvarez looked for evidence as to whether the employer
acted for the “same reason.” Id. Similarly, the Eleventh Circuit in Addison v. Ingles Markets, Inc., 515 F. App’x 840,
843 (11th Cir. 2013), looked to evidence of whether all employees violating the exact same policy were fired
Here, the record establishes at best that Price at least once lied to Williams about completing a task, and
lying (according to a different manager, Jamin Laney) is a “pretty serious” offense. Doc. 28-17 at 26-29. (At some
point after the lying incident, Price transferred to a different store and no longer worked under Williams’s
supervision. Id.) Perhaps the comparison is partly valid if both Carroll and Price did not complete a task per
Williams’s standards. Even assuming this, the court finds the evidence insufficient to establish that Williams treated
Price and Carroll differently because Carroll has presented no evidence that Price’s failure to follow Williams’s
standards justified a PIP and action plan, that Price failed to complete an action multiple times, that Price failed to
follow an action plan that Williams devised—and then, after all of this, was not discharged.
As an apparent inconsistency, Carroll takes issue with the fact that Office Depot apparently sent a
different version of the November 18, 2011 letter (in which Williams explained that Carroll had not submitted a
satisfactory action plan and provided the action plan that Williams devised) and claims that the differences in the
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pretextual nature—i.e., potential falsity—of each proffered justification for [his]
discharge.” Alvarez, 610 F.3d at 1265; Jones, 2012 WL 2856651, at *10.
Therefore, Carroll’s failure to identify a comparator employee dooms Carroll’s
prima facie case of discriminatory discharge, and the court will accordingly grant
summary judgment on Carroll’s discrimination claims. See Jones, 2012 WL
2856651, at *10.
For the reasons stated above, Office Depot’s motion for summary judgment
is due to be granted with respect to the discrimination claims and denied with
respect to the retaliation claims. The court will enter a separate order consistent
with this opinion.
DONE the 30th day of March, 2015.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
letters “speak for themselves” and establish pretext. Doc. 35-27 at 2; 35-28 at 2, doc. 37 at 49-40. To this effect,
Carroll points out that, in the letter that Williams gave to Carroll, Carroll’s “request for training is acknowledged”
and “Williams also commits to follow up with Carroll on a regular basis” regarding the plan, whereas the letter
“which was submitted to the EEOC neither acknowledges the request for training nor states that Williams will meet
with Carroll to follow up with him.” Doc. 37 at 39-40. The court initially notes that the letter to the EEOC in fact
acknowledges Carroll’s request for training explicitly by stating that the action plan includes steps “necessary to
improve . . . that are directly relate[d] to the PIP as well as the concerns you expressed regarding training.” Doc. 3527. Furthermore, while the letter sent to the EEOC does not state that Williams would follow up with Carroll on a
regular basis, the court is not convinced that this omission has much significance since following up is seemingly
inherent to the process of issuing a PIP and action plan and the action plan itself includes a listed follow-up date for
each of the items in the plan. See doc. 28-4 at 141. Ultimately, while it is unclear from the record why Office Depot
sent a different letter to the EEOC, the two letters are not substantively inconsistent as to demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in Office Depot’s proffered reason
for discharging Carroll. See Alvarez, 610 F.3d at 1265.
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