Clark v. Petnet Solutions Inc

Filing 32

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/31/2016. (AVC)

FILED
2016 Mar-31 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GERARD CLARK,
Plaintiff,
v.
SIEMENS MEDICAL SOLUTIONS
USA Inc., d/b/a/ PetNet Solutions,
Defendant.

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2:14-cv-1659-KOB

MEMORANDUM OPINION
This matter comes before the court on “Defendant Siemens Medical Solutions USA Inc.’s
Motion for Summary Judgment.” (Doc. 26). The Plaintiff sued his former employer, Siemens
Medical Solutions, under Title VII and 42 U.S.C. 1981. (Doc. 4). The Plaintiff alleges that
Siemens discriminated against him by (1) denying him training because of his race; (2) placing
him on a Performance Improvement Plan because of his race and/or because he had complained
of what he reasonably believed to be unlawful racial discrimination in employment; and (3)
terminating his employment because of his race and/or because he had complained of what he
reasonably believed to be unlawful racial discrimination in employment. (Doc. 4 at 6-9).
For the reasons discussed below, the court will GRANT the Defendant’s motion for
summary judgment as to all of Plaintiff’s claims.
I. STANDARD OF REVIEW
Summary judgment allows a trial court to decide cases when no genuine issues of
material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.
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R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must determine
two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the
moving party is entitled to judgment as a matter of law. Id.
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). In response, the non-moving party “must do
more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must
“go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)) (emphasis added).
The court must “view the evidence presented through the prism of the substantive
evidentiary burden,” to determine whether the nonmoving party presented sufficient evidence on
which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254. The
court must refrain from weighing the evidence and making credibility determinations, because
these decisions fall to the province of the jury. Id. at 255. Furthermore, all evidence and
2

inferences drawn from the underlying facts must be viewed in the light most favorable to the
non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274,1282 (11th Cir.
1999).
After both parties have addressed the motion for summary judgment, the court must grant
the motion only if no genuine issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.
II. FACTS
Gerard Clark, a black male, worked for Siemens Medical Solutions USA Inc. as a
production technician from October 8, 2012 until Siemens terminated his employment on April
12, 2013. Siemens is a pharmacy that produces radioactive pharmaceutical drugs, which are used
to diagnose diseased tissues. Siemens maintained a policy prohibiting race discrimination and
retaliation throughout Clark’s employment.
At the time Clark was hired on October 8, 2012, the pharmacy staff included the two
production technicians, one cyclotron engineer, and one pharmacy manager. Clark, a production
assistant, was responsible for general laboratory functions, quality control, production assistance,
documentation and product packaging. Brian Brooks, a Caucasian, also worked as a production
technician at the pharmacy during Clark’s employment. Mark Novack served as the pharmacy
manager, and Mike Mosley served as the Regional Operations Director. Siemens hired John
Simpson, a Caucasian, as a pharmacist on November 15, 2012.
Pharmacy Manager Novack left his employment with Siemens on December 31, 2012.
Following Novack’s departure, Mike Mosley served as the interim pharmacy manager until Lee
Hagan became the new pharmacy manager on January 14, 2013.
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Training
Siemens provides its employees access to web-based training following their hire and
subsequently provided instructor-led training. One of the web-based training programs is called
“Learn@Siemens.” Senior Manager of Technical Training Cinda Cippele, who works in the
training and documentation department for the PETNET group at Siemens, provides training
support for the PETNET group at Siemens. Pharmacy manager Novack provided Cippele with
notice of Clark’s hiring in October of 2012. However, because of an inadvertent oversight,
Cippele did not initially provide Clark with access to the Learn@Siemens system. (Doc. 30 at 7;
doc. 28-4 at 2).
Clark informed Jennifer Black, a regional physicist, and Christie Elam, a trainer, that he
did not have access to Learn@Siemens and had not attended OPS training during a meeting in
mid December. Clark informed Mosley that he did not yet have access to the Siemens network in
mid to late January of 2013. Mosley assured Clark that he would fix the problem. However,
Clark still did not have access to the Learn@Siemens program when Hagen became the
pharmacy manager in Birmingham on January 14, 2013. Hagen learned that Clark has not
completed the Learn@Siemens program around February 14, 2013.
Clark had completed the Learn@Siemens training courses that were applicable to newly
hired production technicians by February 21, 2013. After completing the Learn@Siemens
training, Clark attended “OPS I” training in Knoxville, Tennessee on March 5-8, 2013. Although
Clark had previously been scheduled to attend OPS I training in January of 2013, his training was
rescheduled to allow pharmacist Simpson to attend training during the January session.
Simpson’s training took priority over Clark’s training because only a limited number of
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employees can attend each session, and Simpson needed to be named on the pharmacy’s
Radioactive Materials license.
Access to the Learn@Siemens web-based training is the only training that Clark claims
was delayed because of his race. Clark believes that delay in access to the Learn@Siemens
training was based on his race because his white co-workers had access to the training materials,
while he did not. He also believes that Brooks and Simpson made comments that contained racial
undertones. Brooks once said that Clark was “a black man doing a white man’s job,” and John
Simpson laughed. Brooks and Simpson also made comments regarding the 2012 presidential
election, and Brooks made a comment that Clark’s “people” were not getting themselves
educated and also said “look at you, you did what you needed to do. You’ve done a lot of good
things in your life. Why don’t your people do more than that instead of asking for concessions?”
Lee Hagen was present in the break room when Brooks and Simpson were talking about the
presidential race.
Neither Brooks nor Simpson had any involvement in Clark’s access to the
Learn@Siemens training.
Clark told Novack and the Director of Human Resources Veronica Smith that he believed
his delay in training was because of his race, but Clark never told Hagen or Mosley that he
believed his race was the reason his training was delayed. Further, Hagen and Mosley were not
aware of Clark’s conversation with Novack and Smith.
Plaintiff’s Performance
Before leaving the employment of Siemens on December 31, 2012, Mark Novack
expressed concerns to Michael Mosley about Clark’s performance since the beginning of his
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employment at Siemens. (Doc. 28-3 at 1). While Mosley was working as the interim pharmacy
manager, he was also concerned about Clark’s work performance. Mosley was concerned that
Clark did not understand the production schedules. Although Mosley’s term as interim pharmacy
manager did not begin until after December 31, 2012, Mosley was concerned that Clark had not
appeared for work on the evening of a day on which the pharmacy had been closed for Christmas.
Mosley was also concerned that Clark had been in a restricted area without proper supervision.
Although Clark disputes he was in a restricted area, he admits that Mosley believed he was in a
restricted area without supervision. Similarly, although Clark took paid time off for his missed
shift in December, Mosley believed that Clark had improperly missed scheduled work. (Doc. 281 at 20).
On January 8, 2013, Mosley sent Clark an email addressing his concerns regarding
Clark’s performance. Then, shortly after Hagen took over the position as pharmacy manager on
January 13, 2013, he became concerned about Clark’s work performance. Hagen believed that
Clark failed to correctly perform basic aspects of his job and repeatedly failed to perform explicit
directions. Hagen met with Clark on February 7, 2013 to provide him with a Performance
Improvement Notice (“PIP”).1 The PIP noted that Clark failed to follow proper procedures and
failed to successfully complete several required qualifications. It noted that Clark failed to
successfully complete qualifications for Final Product Vial Setup, Filtration, Dilution, and
Sampling of FDG and Sodium Flouride, Final Product Vial Assembly, and inventory cycle count,
which Clark was required perform on a regular basis as a production technician. The PIP also
1

The Plaintiff and Defendant both refer to the Performance Improvement Notice as a
“PIP” or “Performance Improvement Plan.” For purposes of this opinion, the court will refer to
the notice as a “PIP.”
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noted that Clark failed to follow explicit instructions, including failing to properly dispose of
needles and syringes in designated containers as required by federal law, state law, and company
policy; disregarding instructions to make needed chemicals for production on several occasions;
and causing an unnecessary exposure to radiation that resulted in a stop-work order. Hagen stated
in the PIP that further performance problems would lead to further discipline, including possible
termination.
Clark replied to the PIP on February 7, 2013 and admitted that he made some “very
concerning mistakes and after hearing about them in a formal setting, a few of those mistakes
concerned him too.” (Doc. 28-1 at 99). In his response, Clark also noted he did not have an
opportunity to receive the training that most new employees would receive and that he had only
one opportunity to sit down and talk with Hagan. Although Clark admitted making “very
concerning mistakes” in his response to the PIP, he does not believe he actually made any
mistakes. Instead, he wanted to be transparent with his boss; he wanted to “have accountability
and a good attitude.” (Doc. 28-1 at 22).
Clark’s PIP did not result in any reduction in pay or demotion. Additionally, Clark does
not believe that Hagen issued the PIP because of Clark’s race; he does not know why Hagen
issued the PIP. Hagen says that he issued the PIP because he believed Clark had a number of
performance issues – issues that Clark believes resulted from his failure to receive
Learn@Siemens training or OPS I training. However, Hagen continued to find that Clark’s work
was substandard even after Clark completed the Learn@Siemens web-based training in February
of 2013 and OPS I training in March of 2013.
On April 8, 2013, Hagen learned that Clark had scanned a wrong serial number into
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batch records for sodium fluoride on March 20, 2013. Clark scanned a serial number for a bottle
of nitrogen that was not in use rather than scanning the correct serial number for the bottle
actually used to produce the sodium fluoride in the batch for which he was generating records;
Clark mistakenly scanned a “cheat sheet” made by Clark’s co-worker Brooks. The “cheat sheet”
included the serial numbers for all tanks, including a reserve tank of nitrogen that Clark
mistakenly scanned.
The FDA requires Siemens to accurately document each step of the manufacturing
process. All controlled materials in the manufacturing process, like nitrogen, have specific serial
numbers, which are used to track their use in production. Each bottle of nitrogen has a unique
serial number, and this number must be scanned into the batch records.
The serial number that Clark entered into the batch records was for a tank of nitrogen that
had never been used and was located in a storage room. Hagen believed that Clark intentionally
scanned the incorrect bottle of nitrogen, which constitutes falsification of records. Siemens
considers falsification of records to be an “extremely serious violation,” which may result in
immediate termination. (Doc. 28-1 at 89-90). Hagen and Clark met on April 8, 2013 to discuss
Clark’s scanning of the incorrect serial number. Then Hagen decided to terminate Clark’s
employment after communicating with Mosley and human resources personnel. Hagen
terminated Clark because of his ongoing performance issues and his belief that Clark knowingly
falsified batch records.
Clark proffers Bryan Brooks as a comparator in this case. Clark notes that Bryan Brooks
made mistakes in the quality control process, and Hagen would allow Brooks an opportunity to
correct his mistakes. Bryan Brooks made more mistakes during the quality control process than
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Clark. When either Brooks or Clark made mistakes, the mistakes were logged in Siemens’
“Agile” system. Although Hagen terminated Clark because he believed Clark falsified batch
records, Clark knows of no other employee that has falsified company records and was not
terminated. Hagen terminated a Caucasian employee for falsifying company records on April 30,
2014.
III. Analysis
Plaintiff alleges that Siemens discriminated against him on the basis of his race in
violation of Title VII and 28 U.S.C. § 1981 by denying him training, placing him on a
Performance Improvement Plan, and terminating his employment. (Doc. 4 at 6-9). Title VII and
§ 1981 “have the same requirements of proof and use the same analytical framework, therefore
[the court] shall explicitly address the Title VII claim with the understanding that the analysis
applies to the § 1981 claim as well.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th
Cir. 1998).
One way to establish a claim of racial discrimination is through direct evidence. Burrell
v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997). If the plaintiff cannot
prove discrimination by direct evidence, as in this case, the plaintiff must establish his prima
facie case through the burden shifting analysis articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Nevertheless, the “ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated . . . remains with the plaintiff.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 251-52 (1981).
Under the McDonnell Douglas framework, the plaintiff “must carry the initial burden
under the statute of establishing a prima facie case of racial discrimination.” 411 U.S. at 802. “To
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establish a prima facie case for disparate treatment in a race discrimination case, the plaintiff
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 of [his]
protected class more favorably than [he] was treated; and (4) [he] was qualified to do the job.”
Burke-Fowler v. Orange County, 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)).
“[T]o prove adverse employment action in a case under Title VII . . . an employee must
show a serious and material change in the terms, conditions, or privileges of employment.”
Butler v. Ala. Dept. of Transp., 536 F.3d 1209, 1215 (11th Cir. 2008) (internal citations,
quotation marks, and emphasis omitted). The United States Supreme Court has found that
changes in employment status “such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits”
constitute adverse employment actions. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761
(1998).
“To make a comparison of the plaintiff’s treatment to that of non-minority employees, the
plaintiff must show that he and the employees are similarly situated in all relevant respects.”
Hollifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “Indeed, ‘[t]he comparator must be
nearly identical to the plaintiff to prevent courts from second-guessing a reasonable decision by
the employer.’” Embry v. Callahan Eye Found. Hosp., 147 Fed. Appx. 819, 829 (11th Cir. 2005)
(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004)). Once the plaintiff
establishes his prima facie case, “[t]he burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411
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U.S. at 802.
Once the employer shows a legitimate, nondiscriminatory reason for its decision, the
employee must “be afforded a fair opportunity to show that [the employer’s] stated reason . . .
was in fact pretext.” McDonnell Douglas, 411 U.S. at 804. To survive summary judgment, the
employee must show “such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable
factfinder could find them unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725
(11th Cir. 2004).
“Requiring an employee to perform [his] job is not a change in the terms, conditions, or
privileges of [his] employment.” Butler, 536 F.3d at 1215. As the Eleventh Circuit has stated,
a Title VII discrimination claim ‘rarely may be predicated merely on employer's
allegedly unfounded criticism of an employee's job performance, where that criticism
has no tangible impact on the terms, conditions, or privileges of employment. An
employee who receives criticism or a negative evaluation may lose self-esteem and
conceivably may suffer a loss of prestige in the eyes of others who come to be aware
of the evaluation. But the protections of Title VII simply do not extend to everything
that makes an employee unhappy.’
Butler, 536 F.3d at 1216 (quoting Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th
Cir. 2001)).
As the Eleventh Circuit has noted, federal courts “do not sit as a super-personnel
department that reexamines an entity’s business decisions.” Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1470 (11th Cir. 1991).
A. Discrimination Claims
1. Delay in training
Siemens argues that Clark cannot prove the prima facie case for his claim that Siemens
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discriminated against him on basis of race by delaying him access to the Learn@Siemens webbased training because the delay in receiving the Learn@Siemens training was not an adverse
employment action. Further, Siemens asserts that the delay in providing Clark training was
caused by an inadvertent error, and Clark offers no evidence to rebut the non-discriminatory
reason as pretext.
As noted “to prove adverse employment action in a case under Title VII . . . an employee
must show a serious and material change in the terms, conditions, or privileges of employment.”
Butler v. Ala. Dept. of Transp., 536 F.3d 1209, 1215 (11th Cir. 2008). “An adverse employment
action based on a denial of training is actionable only if the Plaintiff can establish that the
employer denied material training opportunities to him.” Johnson v. Gestamp Ala., LLC., 946 F.
Supp. 2d 1180, 1202 (N.D. Ala. 2013) (citing Turlington v. Atlanta Gas Light Co., 135 F.3d
1428, 1435 n. 16 (11th Cir. 1998)).
In the present case, Clark argues that he was not provided the training materials that all
new employees typically receive within 30 days of employment. However, Clark does not allege
that the delay in training resulted in a change of compensation, duties, or benefits of employment.
Instead, Clark appears to argue, without citation to any evidence in the record, that he later faced
unsatisfactory performance evaluations related to tasks upon which he did not receive proper
training. However, a more serious complaint about his work occurred when he scanned an
incorrect serial number on March 20, 2016, after he had already received both Learn@Siemens
and OPS I training. Although additional training at the start of his employment might have been
helpful, the court is unable to conclude that the four-month delay in receiving Learn@Siemens
training establishes “a serious and material change in the terms, conditions, or privileges of
12

employment.” Accordingly, the court finds that Clark failed to establish that he suffered an
adverse employment action.
Although the court finds that the delay in receiving training is not an adverse employment
action, out of an abundance of caution, the court also notes that Clark fails to rebut Siemen’s
legitimate non-discriminatory reason for the delay in training as pretext. An unintentional
oversight may serve as a nondiscriminatory reason for an employer’s actions. See Smith v. Boyd
Bros. Transp., Inc. 406 F. Supp. 2d 1238, 1245 (M.D. Ala. 2005) (noting that defendant’s
proffered reason, that it “simply made a mistake, meets [the] ‘exceedingly light’ requirement” to
produce a legitimate nondiscriminatory reason).
Here, Clark notes that Novack provided notice to Cippele of Clark’s hire, and Clark
agrees that “due to an inadvertent oversight, Cippele didn’t initially provide Clark with access to
the Learn@Siemens system.” (Doc. 30 at 7). Clark seems to agree that Cippele’s mistake was
the reason for the delay in training. After Hagen learned that Clark had not received training,
Clark had Learn@Siemens training within the following week and attended OPS I training in
Knoxville, Tennessee on March 5-8, 2013.
Clark argues that “there is no evidence that supports the reason for the delay in providing
Clark access to training was not a pretext for race discrimination.” (Doc. 30 at 28). Importantly,
because Siemens stated a legitimate non-discriminatory reason for the delay in training, Clark
bears the burden of establishing that the delay was pretext. In other words, Clark must show
“such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the
employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.” Cooper, 390 F.3d at 725. Clark merely points to the fact that he
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told Novack, Black, Elam, Mosely, and Hagan that he had not yet received training. Although,
Clark told a number of his co-workers, they were not involved in providing Clark training. The
uncontradicted fact is that Novack provided Cippele notice of Clark’s hire, and Cippele, who
provides training support for Clark’s group, made a mistake in failing to promptly schedule
Clark’s training. Further, Cippele did not know Clark’s race at the time of the mistake.
Clark points to a conversation between Brooks and Simpson that contained racial
undertones in an effort to establish pretext. Hagen was present in the room during that
conversation; however, Brooks and Simpson were not involved in arranging Clark’s training.
Additionally, Hagen arranged for Clark to receive training within one week of learning that he
had not received “Learn@Siemens” training. Simply put, Clark’s proffered evidence fails to
establish that Siemens’ non-discriminatory reason for the delay in training was pretext for race
discrimination, particularly when he recognized the delay was caused by Cippele’s initial
inadvertent oversight.
2. Performance Improvement Plan (PIP)
Plaintiff also alleges that Siemens discriminated against him on the basis of race by
placing him on a Performance Improvement Plan. Hagen issued Clark a PIP because Hagen
perceived that Clark’s work performance was unacceptable. The PIP notice highlighted perceived
inadequacies of Clark’s work performance, outlined corrective steps to improve his performance,
and informed Clark that additional discipline would result if Clark did not improve his
performance within 30 days. Siemens argues that Clark’s prima facie claim for discrimination
regarding the PIP fails because Clark was not subjected to adverse employment actions when
Hagen issued the PIP. The only argument that Clark makes that the PIP constituted an adverse
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employment action is that Siemens references the PIP “throughout all court documents as a way
to depict Clark’s performance to be unsatisfactory which resulted in a negative impact.” (Doc. 30
at 19).
“Employer criticism, like employer praise, is an ordinary and appropriate feature of the
workplace.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir. 2001). Because
Congress “has expressly limited the types of employer actions which may give rise to a Title VII
discrimination claim, such a claim rarely may be predicated merely on [an] employer’s
unfounded criticism of an employee’s job performance, where that criticism has no tangible
impact on the terms, conditions, or privileges of employment.” Id. As explained by the Eleventh
Circuit, “[e]xpanding the scope of Title VII to permit discrimination lawsuits predicated only on
unwelcome day-to-day critiques or assertedly unjustified negative evaluations would threaten the
flow of communication between employees and supervisors.” Id. At best, the PIP simply
provided a notice of deficiencies and warning that Clark would face additional discipline and
possible termination, if his work performance did not improve.
Clark’s only argument that the PIP resulted in a “negative impact” of any kind is that
Siemens refers to the PIP in court documents in this case. However, Clark fails to make any
showing how reference to the PIP after his termination had any impact on his employment at the
relevant time, while he was employed by Siemens. The PIP and its warning did nothing to affect
Clark’s terms, conditions, or privileges of employment. See Apodaca v. Sec. Dept. of Homeland
Sec., 161 Fed. App’x 897, 900-01 (11th Cir. 2006) (finding that a plaintiff’s claims that an
unsatisfactory annual performance evaluation and additional performance evaluations containing
unsatisfactory comments did not materially alter the terms and conditions of Plaintiff’s
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employment). Accordingly, the court finds that the issuance of the PIP was not an adverse
employment action, and Clark fails to establish his prima facie case on this discrimination claim.
Although Siemens correctly argues that Clark could not establish his prima facie case, the
court notes that Clark’s claims also would fail because Siemens’ proffered a legitimate
nondiscriminatory reason for issuing the PIP, and Clark fails to rebut it as pretext. Siemens
asserts Hagen’s belief that Clark’s work performance was unacceptable as a nondiscriminatory
reasons for Hagen issuing the PIP. Clark fails to rebut Siemens proffered reason as pretext.
Instead, Clark confirms that he does not believe that Hagen issued the PIP because of his race.
(Doc. 28-1 at 36). In fact, Clark’s own deposition testimony confirms that Hagen’s proffered
reason for issuing the PIP was not pretextual. Accordingly, summary judgment is due to be
granted on both grounds asserted by Siemens.
3. Termination from Employment
Clark also claims that Siemens discriminated against him on the basis of race by placing
terminating his employment. To prove a claim of discriminatory discharge under Title VII and §
1981, Clark must first establish a prima facie case that (1) he is a member of a protected class;
(2) he was qualified for the job he held; (3) he suffered an adverse employment action, here that
he was terminated; and (4) he was replaced by someone outside his protected class or that
similarly situated employees outside his protected class received more favorable treatment. See
Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002). In the present case,
Clark fails to present evidence of any comparator who is “similarly situated in all relevant
aspects” who received more favorable treatment. See Hollifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997).
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Clark proposes Bryan Brooks as his comparator because “Brooks and others made errors
in production assistance.” (Doc. 30 at 32). Clark asserts that Hagen would give Brooks an
opportunity to correct errors in batch records; however, Clark provides no evidence that Brooks
is an appropriate comparator in all relevant ways. Clark provides no evidence that Hagen ever
suspected Brooks of falsifying batch records, and Hagen testified he never suspected Brooks of
falsifying documents. (Doc. 28-2 at 12). Clark points to no other employee who was not
terminated after management suspected him of intentionally falsifying records. Instead, neither
Clark, Hagen, nor Mosley knew of any employee who falsified company records but was not
terminated. (Doc. 28-1 at 43; doc. 28-2 at 11; doc. 28-3 at 4). Simply put, Clark fails to identify
anyone from outside his protected class that received more favorable treatment than he or to
identify anyone outside his protected class that replaced him. Accordingly, Clark fails to
establish his prima facie case regarding his termination claim.
B. Retaliation Claims
Clark also asserts that Siemens retaliated against him in violation of Title VII and 42
U.S.C. § 1981 by placing him on the PIP and terminating his employment after he complained
about what he perceived as racial discrimination.
The also court analyzes claims of retaliation for engaging in a protected activity under the
McDonnell Douglas burden-shifting framework. See Bernard v. SSA Security, Inc., 299 Fed.
App’x 927, 929 (11th Cir. 2008) (citing Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.
1997)); E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564 (11th Cir. 1993). Under the
McDonnell Douglas framework, the plaintiff “must carry the initial burden under the statute of
establishing a prima facie case” of retaliation. 411 U.S. at 802. In the present case, Clark’s
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retaliation claims related to the PIP fail because the issuance of the PIP was not an adverse
employment action, and Clark fails to prove any causal connection between his alleged protected
activity and the issuance of the PIP. Similarly, Clark’s retaliation claim related to his
termination also fails because Clark did not establish a causal connection between his complaint
of racial discrimination and his termination.
To establish a prima face case of retaliation under Title VII, “a plaintiff must show that
(1) [h]e engaged in statutorily protected expression; (2) [h]e suffered an adverse employment
action; and (3) there is a causal connection between the two events.” Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000) (internal quotation marks
omitted). To constitute “statutorily protected expression,” a plaintiff need not establish an
underlying discrimination claim; instead, the plaintiff must show only that he had a “good faith,
reasonable belief” that he was the victim of an unlawful employment practice. Lipphardt v.
Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1187 (11th Cir. 2001).
As noted above, Hagen’s issuance of the PIP did not constitute an adverse employment
action because Clark makes no showing that the PIP had any material affect on his employment.
Accordingly, like his discrimination claim, Clark’s retaliation claim related to the issuance of the
PIP also fails. Additionally, even if the PIP adversely affected his employment, Clark’s claim
also fails because he cannot prove a causal connection between Hagan’s issuance of the PIP and
any statutory protected expression. “In order to establish the requisite ‘causal link’ required as
part of a prima facie case, a plaintiff need only establish that ‘the protected activity and adverse
action were not wholly unrelated.’” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.
1993) (citing E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571 (11th Cir. 1993)). “At
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a minimum, a plaintiff must generally establish that the employer was actually aware of the
protected expression at the time it took adverse employment action.” Goldsmith, 996 F.2d at
1163. Clark never told Hagen or Mosley that he believed the delay in training was because of his
race. Absent knowledge by the decision maker of his claims that he was denied training based on
his race, Clark’s retaliation claim fails to demonstrate a causal link. Accordingly, the court turns
to Clark’s retaliation claim related to his termination from employment.
Siemens does not dispute that Clark engaged in statutory protected expression when
Clark complained to Novack and Veronica Smith, a human resources representative, that he
thought the delay in training was because of his race. However, Siemens correctly argues that
Clark has shown no causal connection between Clark’s complaints to Novack and Smith and
Hagen’s decision to terminate him.
Generally, “close temporal proximity between the employee's protected conduct and the
adverse employment action is sufficient circumstantial evidence to create a genuine issue of
material fact about a causal connection,” but to satisfy this showing, a plaintiff must establish
“that the decision maker was aware of the protected conduct at the time of the adverse
employment action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)
(emphasis added). As an alternative to knowledge by the decision maker, a plaintiff may
establish causation in a retaliation case where the decision maker followed a biased
recommendation without independent investigation, such that the decision maker was “a mere
conduit . . . to give effect to the recommender’s discriminatory animus.” Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999).
In this case, Clark never told Hagen or Mosley that he believed the delay in receiving
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training was because of his race. Neither Hagen nor Mosley knew about Clark’s complaints to
Novack and Smith. Simply put, the decision maker was not aware of Clark’s complaints of racial
discrimination. Additionally, Hagen was not blindly following a biased recommendation from
anyone. Even if the investigation did not satisfy Clark, Hagen conducted his own investigation
regarding the incident on March 20, 2013 when Clark scanned the incorrect serial number for a
tank of nitrogen. After talking with Clark on April 8, 2013, Hagen concluded that he believed
Clark falsified records, and discussed Clark’s termination with human resources personnel.
Because Clark has not made a showing that Hagen was aware of Clark’s protected activity, the
his prima facie case for retaliation regarding his termination fails.
IV. CONCLUSION
In summary, Clark fails to establish the prima facie case regarding his discrimination and
retaliation claims. Therefore, Clark’s case cannot survive summary judgment. For the reasons
stated above, the court finds that Defendant’s motion for summary judgment is due to be
GRANTED as to all of Plaintiff’s claims.
DONE and ORDERED this 31st day of March, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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