Morris v. Starwood Hotels & Resorts Worldwide Inc et al

Filing 48

MEMORANDUM OPINION that 37 MOTION for Summary Judgment is due to be granted. Signed by Judge Abdul K Kallon on 8/11/2015. (YMB)

FILED
2015 Aug-11 AM 07:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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RASHAD MORRIS,
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Plaintiff,
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v.
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STARWOOD HOTELS & RESORTS|
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WORLDWIDE, INC., et al.
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Defendant.
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Civil Action Number
2:13-cv-00588-AKK

MEMORDANDUM OPINION
Rashad Morris, an African American man diagnosed with ADHD and mild
mental retardation, pursues this lawsuit against his former employer, Winston
Hospitality Group, Inc. (“Winston”). Doc. 27. Morris alleges that during his
employment, his supervisor, Linda Foster, constructively discharged him by
subjecting him to a daily barrage of race- and disability-based discriminatory
conduct and a hostile environment. Id. at 3–4. Accordingly, Morris pursues claims
for alleged violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”), 42 U.S.C. § 1981, the Americans with Disabilities Act of 1990, 42
U.S.C. § 12112, et seq. (“ADA”), and the ADA Amendments Act of 2008
(“ADAAA”). Before the court is Winston’s motion for summary judgment. Doc.
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37. The motion is fully briefed, docs. 37, 44, 45, and ripe for review. For the
reasons stated below, primarily because Morris has failed to establish that Foster’s
harassment was based on his race or disability or that he utilized Winston’s
preventative procedures, the motion is due to be granted.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
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.” “Rule 56
[ ] 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) (alteration in original). 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 non-moving party, who is required to go “beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation
marks omitted). A dispute about 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).

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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., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 238 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). 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) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that a 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 & PROCEDURAL HISTORY
The following facts reflect an assessment of the record in the light most
favorable to Morris. Winston hired Morris as a houseman at the Aloft Hotel in
Homewood, Alabama in September 2011, with duties consisting of cleaning public
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areas of the hotel. Doc. 38-1 at 5–6. In January 2012, Foster allegedly began
harassing Morris. Id. at 8–9. Morris asserts that Foster spoke to him on a daily
basis “like he wasn’t even human,” threatened him about his job, 1 and attempted to
provoke him to hit her by moving in close to him and leaning her face towards
him. 2 Id. Based on Foster’s alleged mistreatment, Morris decided to resign. Id. at
14. However, Morris returned on the day after making this decision, during which
he again interacted with Foster. Among other things, Foster instructed Morris to
undergo retraining to improve the speed of his cleaning. Id. at 13–14. At the end of
the work day on June 14, 2012, Morris left a letter of resignation on Foster’s desk.
Id. at 13
III. ANALYSIS
Morris brings claims of race and disability discrimination under Title VII,
§ 1981, and the ADA. 3 In considering these claims, the court notes that “[a]
plaintiff may prove a claim of intentional discrimination through direct evidence,
circumstantial evidence, or through statistical proof.” Rioux v. City of Atlanta, 520
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Morris’ affidavit is unclear as to whether Foster ever threatened to discharge him.
Morris’ mother testified that he told her that Foster had called him “irresponsible,” “retarded,”
and “dumb.” Doc. 38-2 at 10. However, Morris did not testify to this effect, and his mother’s
statement in her affidavit is testimonial hearsay, which the court may not consider as evidence.
Crawford v. Washington, 541 U.S. 36, 68 (2004).
3
Morris’ ADAAA claim also contains allegations that Winston violated the Act by failing to
provide a reasonable accommodation, using standards that discriminated on the basis of
disability, and violating confidentiality. Doc. 27 at 6. However, Morris has not presented
evidence supporting these allegations and did not address these issues in response to the motion
for summary judgment. Accordingly, the court finds that Morris has abandoned these portions of
his ADAAA claim. McIntyre v. Eckerd Corp., 251 F. App’x 621, 626 (11th Cir. 2007).
2

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F.3d 1269, 1274 (11th Cir. 2008). Where, as here, Morris offers only
circumstantial evidence, he bears the initial burden of establishing a prima facie
case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). To do so,
Morris must show 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 [his] protected class more favorably; and (4) [he] was
qualified to do the job.
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)). 4 “The
successful assertion of a prima facie case then creates a rebuttable presumption that
the employer unlawfully discriminated against the plaintiff.” Rioux, 520 F.3d at
1275 (internal citations and quotation marks omitted). The burden then shifts to the
employer to produce evidence that it had a legitimate non-discriminatory reason
for the challenged action. Id. If the employer satisfies its burden, the burden shifts
back to the plaintiff to show “that the proffered reason really is a pretext for
unlawful discrimination.” Id. (internal citations and quotation marks omitted).
4

“Title VII and 42 U.S.C. § 1981 have the same requirements of proof and utilize the same
analytical framework.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n. 14 (11th Cir.
2011). While the Eleventh Circuit has not decided whether the ADA provides a cause of action
for disability-based harassment, other Circuits that have held it does apply the same framework
used in Title VII hostile work environment claims. See, e.g., Shaver v. Indep. Stave Co., 350 F.3d
716, 720 (8th Cir. 2003); Flowers v. S. Reg’l Physician Servs, Inc., 247 F.3d 229, 235 (5th Cir.
2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 175 (4th Cir. 2001). The ADAAA does not
modify the analytical framework applied to ADA claims. Beatty v. Hudco Indus. Products, Inc.,
881 F. Supp. 2d 1344, 1351 (N.D. Ala. 2012). Accordingly, the court will not distinguish
between Title VII and the other statutes in addressing the merits of Morris’ claim.
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Only the last two prongs of the prima facie case are in dispute. According to
Winston, Morris cannot show that he suffered an adverse employment action or
that Winston treated a similarly situated employee outside his protected class more
favorably. The court will address each argument in turn.
A. Morris Cannot Show the Existence of a Hostile Environment That is
Sufficient to Support a Constructive Discharge Claim
Morris contends that Foster’s harassing conduct created an unbearable
workplace that forced him to resign.
A constructive discharge can result when the employer deliberately makes
an employee’s working conditions so intolerable that the employee is forced
into an involuntary resignation . . . . If the intolerable working conditions are
the result of a hostile environment caused by . . . harassment, then the
constructive discharge violates Title VII[, § 1981, and the ADA].
Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 905 (11th Cir. 1988)
(internal quotation marks omitted) (citing Henson v. City of Dundee, 682 F.2d 897,
907 (11th Cir. 1982); Young v. Sw. Savs. & Loan Assoc., 509 F.2d 140, 144 (5th
Cir. 1975)). The hostile work environment must be from harassment that is “based
on a protected characteristic of the employee” and it must be “sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment.” Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
Also, and relevant here, a constructive discharge claim requires the plaintiff
to show that the “working conditions [became] so intolerable that a reasonable
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person in the employee’s position would have felt compelled to resign[.]” Pa. State
Police v. Suders, 542 U.S. 129, 141 (2004) (emphasis added). The parties are at
odds regarding the relevant standard for what constitutes a “reasonable person.”
Morris argues, based on Atkins v. Virginia, 536 U.S. 304 (2002), that he need only
show that a reasonable person with his mental disability would have resigned to
satisfy this objective test. Doc. 44 at 8. This contention is unavailing for several
reasons. First, Atkins dealt specifically with the moral culpability of criminal
defendants with mental disabilities, Atkins, 536 U.S. at 305 (“[Symptoms of mental
retardation] do not warrant an exemption from criminal sanctions, but they do
diminish [defendants’] personal culpability”), and contains no language that offers
support for reducing the standard for a civil plaintiff with mental disabilities in the
constructive discharge context. Indeed, Morris has failed to direct the court to any
cases that have extended Atkins to civil cases.
Second, in focusing on what constitutes a reasonable person, Morris ignores
that, to show a constructive discharge, he must first establish the existence of a
hostile work environment by showing that Foster’s harassment was sufficiently
severe to alter the terms of his employment. Factors to consider in evaluating the
severity of an allegedly hostile environment include “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
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with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993). While Morris does allege that the harassing conduct occurred on a daily
basis, doc. 38-1 at 9; see Dees v. Johnson Controls World Servs., Inc., 168 F.3d
417, 418 (holding “almost-daily abuse” was sufficiently frequent), the only
specific harassment he alleges consists of verbal reprimands relating to his work
and body language meant to provoke him into striking Foster, doc. 38-1 at 8.
These contentions are insufficient because a supervisor’s criticism of an
employee’s work performance rarely rises to the level of objective severity
necessary to sustain a constructive discharge claim. In fact, “a constructive
discharge claim based solely on evidence of close supervision of job performance
must be critically examined so that [Title VII, § 1983, and the ADA are] not
improperly used as a means of thwarting an employer’s nondiscriminatory efforts
to insist on high standards.” Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1234
(11th Cir. 2001) (quoting Clowes v. Allegheny Hosp., 991 F.2d 1159, 1162 (3d Cir.
1993)). Consequently, while the court is sympathetic to Morris’ subjective feeling
that Foster treated him in a way that made him feel “like he wasn’t even human,”
doc. 38-1 at 8, this factor alone is insufficient because there are no facts suggesting
that discriminatory animus motivated the verbal reprimands Foster issued other
than inadmissible hearsay, see supra n. 2, or that Foster’s conduct was so
objectively severe that it would have caused any reasonable employee to resign.
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Moreover, while Foster’s alleged attempts to provoke Morris to hit her fall
significantly short of effective supervision, the Eleventh Circuit has held much
more invasive physical contact insufficiently severe to create a hostile work
environment. See Holder v. Nicholson, 287 F. App’x 784, 792 (11th Cir. 2008)
(holding that co-worker slapping plaintiff’s arm and snatching phone away from
her was not sufficiently severe to create a hostile work environment); Henderson v.
Waffle House, Inc., 238 F. App’x 499, 502–03 (11th Cir. 2007) (holding that
restaurant manager pulling plaintiff’s hair was not sufficiently severe or pervasive
to alter terms of employment); Mendoza v. Borden, Inc., 195 F.3d 1238, 1248
(11th Cir. 1999) (holding that supervisor brushing hip against plaintiff’s hip,
making sniffing sounds at her groin area, and constantly following her did not
create sex-based hostile work environment).
Additionally, even if Foster’s alleged conduct was objectively severe or
pervasive, the affirmative defense outlined in Faragher and Ellerth would shield
Winston from liability for the alleged constructive discharge. 5 See Faragher v. City
of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc., v. Ellerth, 524 U.S.
742 (1998). This affirmative defense applies when an employer shows “(1) that it
had installed a readily accessible and effective policy for reporting and resolving
complaints of . . . harassment, and (2) that the plaintiff unreasonably failed to avail
5

Morris does not address this asserted defense or dispute the facts on which it is based in his
reply brief.
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[himself] of the employer-provided preventative or remedial apparatus.” Pa. State
Police, 542 U.S. 129 at 134. It is undisputed that Winston’s employee manual
details a non-discrimination and non-harassment policy that provides employees
with an avenue to report alleged harassment, and that Morris received, read, and
signed the employee handbook given to him. Docs. 38-1 at 23–24, 38-4 at 8–10,
38-6. It is likewise undisputed that, because of generalized fears of retaliation,
Morris never reported Foster’s conduct to Winston. Docs. 38-1 at 9–11, 38-3 at 2.6
However, generalized fears of job loss do not justify a failure to take advantage of
preventative anti-harassment procedures. See Baldwin v. Blue Cross/Blue Shield of
Ala., 480 F.3d 1287, 1307 (11th Cir. 2007). Accordingly, Winston cannot be held
liable for the alleged harassment even if Morris is able to show that he suffered an
adverse employment action or that Winston constructively discharged him.

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Morris concedes that Foster never made any statements threatening to discharge him if he
reported her to Winston. Doc. 38-1 at 11. Instead, he testified that he concluded that Foster
would terminate him if he reported her based on Foster’s statement to his mother that she had a
friend who wanted to work for Winston. Id. However, in his response brief, Morris asserts that
Foster did threaten him with termination if he complained about his treatment, doc. 44 at 4,
which contradicts his testimony at his deposition, as noted in Winston’s motion disputing the
facts presented in Morris’ brief, doc. 46 at 2. Even ignoring that statements in briefs are not
evidence, Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980), the court denies
credence to this assertion because it is belied by Morris’s deposition testimony, Scott v. Harris,
550 U.S. 372, 380 (2007) (“When opposing sides tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adapt that version of facts for purposes of ruling on a motion for summary judgment”).
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B. Morris Fails to Show That Foster Discriminated Against Him Because of
His Race or Disability
Morris contends also that Foster discriminated against him because of his
race and disability. In support of this contention, Morris points to Jennifer Lane, a
Caucasian female who also suffers from a disability, doc. 38-1 at 12, and who was
employed in the Aloft Hotel’s laundry department, doc. 38-3 at 2. Although Foster
verbally disciplined Lane for incidents involving Lane lying and walking off the
job, Morris takes issue with Foster’s failure to discharge Lane, and contends that
Foster treated him differently. Doc. 38-1 at 11–12. Morris’ reliance on Lane to
prove disparate treatment fails for two reasons. First, Lane cannot be a proper
comparator for the disability discrimination claim because she is also disabled,
doc. 38-1 at 12, and thus not outside Morris’ protected class for purposes of the
ADA claim. See Burke-Fowler, 447 F.3d at 1323 (disparate treatment plaintiff
must show that “[his] employer treated similarly situated employees outside [his]
protected class more favorably) (emphasis added). Second, Lane was not treated
more favorably than Morris. The adequacy of the comparators is crucial, and the
court must consider whether the employees were, in fact, similarly situated and
more favorably treated. See Marshall v. W. Grain Co., 838 F.2d 1165, 1168 (11th
Cir. 1998); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (“To make a
comparison of the plaintiff’s treatment to that of non-minority employees, the
plaintiff must show that he and the other employees are similarly situated in all
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respects.”) (internal citations and quotation marks omitted). Basically, Morris takes
issue with Foster’s decision to issue verbal reprimands to Lane and contends that
Foster should have discharged Lane for lying to Foster and walking off the job on
multiple occasions. Doc. 38-1 at 12. The court is not charged with dictating to
employers the manner in which to discipline their employees. See Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“We do not sit as a
‘super-personnel department,’ and it is not our role to second-guess the wisdom of
an employer’s business decisions—indeed the wisdom of them is irrelevant—as
long as those decisions were not made with a discriminatory motive.”) (quoting
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Rather, the court is
tasked solely with ascertaining whether Morris has established that his employer
treated him differently than a similarly situated employee because of race or
disability. Id. Morris has not made such a showing because the evidence is
unequivocal that Foster treated Lane and Morris similarly, i.e. she only verbally
reprimanded them, and neither Morris nor Lane ever received a disciplinary write
up. Doc. 38-3 at 2.
IV. CONCLUSION
For the reasons fully explained above, Morris failed to meet his burden of
establishing a prima facie case of discrimination. Consequently, Winston’s motion

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for summary judgment is due to be granted. The court will enter a
contemporaneous order consistent with this opinion.
DONE the 11th day of August, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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