Freeman v. Marshall Durbin Food Corporation

Filing 33

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/20/2016. (YMB)

FILED
2016 Oct-20 PM 04:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES EDWARD FREEMAN,
Plaintiff,

v.
MARSHALL DURBIN FOOD
CORPORATION,
Defendant.

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Civil Action Number
2:15-cv-00136-AKK

MEMORANDUM OPINION
James Freeman’s second amended complaint, doc. 22,1 alleges claims under
the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a)(1), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 1981 of
the Civil Rights Act of 1866, 42 U.S.C. § 1981, against Marshall Durbin Food
Corporation (“Marshall Durbin”).

The court has for consideration Marshall

Durbin’s motion for summary judgment, which is fully briefed, docs. 29; 30; 31, 2
and ripe for review. For the reasons stated below, the court concludes that the
motion is due to be granted.

1

This pleading appears on the docket sheet as “Amendedment of Complaint,” but the
court will refer to this document as the “second amended complaint” for purposes of clarity.
2

Freeman filed a motion for leave to file a sur-reply. See doc. 32. The sur-reply
rehashes the same arguments he made in his primary brief, and does not advance any new
arguments. Still, because the court considered it — in large part to ensure that it considered all
of Freeman’s contentions —, the court will grant the motion for leave.

I.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), 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(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)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine dispute 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 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., 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
2

evidence supports that party’s version of the disputed facts. But see Pace v.
Capobianco, 238 F.3d 1275, 1276-78 (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 AND PROCEDURAL BACKGROUND

A. Factual Summary
Marshall Durbin hired Freeman, who is African-American, male, and over
forty years of age, on February 12, 2012, at its Jasper, Alabama poultry plant.
Docs. 1-1 at 3–4; 26-2 at 13; 30 at 3. Freeman worked on the ninth (and final) spot
of a deboning and marination line, which was physically located in the plant’s
cooler. Doc. 26-1 at 14–15. Freeman worked approximately ninety percent of the
time inside the cooler, id. at 29, which was technically part of the shipping
department, id. at 14. Within two months of his hire date, Freeman sought “cooler
3

pay,” which is a premium of $0.25 per hour that “[e]very single person” in the
shipping department received. Id. at 26, 29. The nighttime superintendent that
received Freeman’s request, identified only as “Big Hosea,” “told [Freeman] that
he couldn’t do it,” explaining that there “was a difference between them working
in the . . . shipping department and [Freeman] working in [the] marination
[department].” Id. at 26.
Shortly after Freeman’s request, after paying Freeman an undisclosed sum
for his hours in the cooler, Big Hosea shortened the deboning and marination line
to eight spots, obviating the need for any marination department employee to work
inside the cooler. Id. at 25, 27–28. As a practical consequence, however, the
change forced Freeman to perform the job duties of the eighth and his former ninth
spot without additional pay. Doc. 26-1 at 25, 31. As Freeman put it: “I work at
that substandard pay or they’re going to put me in here in retaliation. They’re
going to take this eighth guy out and put me in there to do his job and do mine
too.” Id.
Approximately a month after the change, Freeman requested a transfer or
promotion to the supply room, by submitting a written application to the Human
Resources Clerk, Bibiana Benson. Id. at 22. Benson testified that she does not
remember Freeman submitting an application but, if he did, she would have
submitted it to Alisa Hall, HR Manager, who, in turn, would have sent the
4

application to the pertinent supervisor after ensuring that Freeman met the
minimum criteria. Doc. 26-2 at 27–28. In any event, Marshall Durbin never
interviewed Freeman, and instead filled the vacancy with a “white woman off the
street.” Doc. 26-1 at 48, 57. Upset by this, Freeman requested a meeting with the
plant manager Mark Dean and Alisa Hall, during which Freeman complained
about the decision to select an outside candidate over a current employee like him.
Id. at 22, 42. In response, Dean informed Freeman that the supervisor who made
the decision told Dean that “nobody in the plant applied for the job.” Id. at 22.
Freeman believes that the supervisor never received his application because
Benson or Hall “trashed” his application out of “hate.” Id. at 20, 22–23.
In August of 2012, Freeman requested arbitration forms from Benson and
Hall, but refused to disclose which claims he sought to arbitrate. Id. at 17, 43–44.
Freeman never received the forms. Id. at 17. A few weeks later, on August 28,
2012, Marshall Durbin terminated Freeman pursuant to its absenteeism policy for
accruing more than the maximum of 10 absence “points.” Doc. 26-1 at 15; doc.
26-3 at 2.

Freeman challenges the points tally or, alternatively, asserts that

Benson’s actions caused him to accrue over 10 points. Doc. 26-1 at 39, 54–55.
For example, Freeman maintains that, on at least a few occasions, the “time clock
wouldn’t clock [him] in,” id. at 39, that he received pay for some of the days on
which the absentee calendar listed him as “absent,” id. at 48, and that Benson did
5

not allow him to work on some occasions to ensure that he accumulated absence
points, id. at 17, 52; see also doc. 30 at 7, 9. Freeman contends that Marshall
Durbin discharged him “because [he] was discriminated about getting [the supply
room] job. And when [he] decided to take the issue further [i.e., by asking for an
arbitration form], then [he] was terminated.” Doc. 26-1 at 43.
B. Procedural History
After obtaining his right-to-sue letter, Freeman timely initiated this action,
by filing an application under § 706(f) of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(f), for appointment of an attorney and authority to proceed in forma
pauperis.

See generally doc. 1.

The court denied Freeman’s request for an

attorney, conditionally granted the application to proceed in forma pauperis, and
directed Freeman to file an amended complaint. See doc. 4 at 1, 4. Freeman
timely filed an amended complaint, in which he alleged six claims: fraud (Count
I); age discrimination (Count II); retaliation (Count III); racial discrimination
(Count IV); hostile work environment (Count V); and wrongful termination (Count
VI). See doc. 6.
Marshall Durbin subsequently moved for dismissal, or alternatively, for
summary judgment, on the grounds that: (1) Freeman failed to plead his fraud
claim with particularity; and (2) Freeman’s Title VII claims were time-barred, due
to Freeman’s failure to (a) file a complaint within 90 days of receiving an EEOC
6

right-to-sue letter, and (b) file an EEOC charge within 180 days of the alleged
discriminatory conduct. Doc. 9. The court agreed that Freeman failed to state a
claim for fraud. Doc. 12 at 2. As to Marshall Durbin’s second contention, because
the judge previously assigned to this case had “treated [Freeman’s] application as a
complaint in its order denying the appointment of counsel and allowing [Freeman]
to proceed in forma pauperis,” the court concluded that Freeman had “timely filed
his complaint.” Id. at 3. Nonetheless, the court agreed that many of Freeman’s
claims fell outside the 180 day window allowed by Title VII3:
[Freeman] contends that Marshall Durbin engaged in (1) age
discrimination when it did not pay him at the same rate as younger
employees in April 2012, (2) racial discrimination when it declined to
hire him for a supply room position and later hired a white female to
fill the position in May or June 2012, and (3) disability discrimination
by creating a hostile work environment when it refused to make a
reasonable accommodation for his disability in June 2012. Doc. 1-1
at 9. . . . All of these contentions occurred prior to August 24, 2012 —
the 180 day cutoff under Title VII — and, as such are untimely.
Id. at 3–4.

Still, “because some of these incidents [formed] the basis for

[Freeman’s] alleged protected activity,” the court found that Freeman could “rely
on these acts to establish that he engaged in protected activity to support his
retaliation claim.” Id. at 4. In summary, the court granted the motion as to Counts
I, II, IV, and V, and denied the motion as to Counts III (retaliation) and VI

3

Freeman filed his EEOC charge on February 19, 2013. See doc. 1-1 at 3. The 180th
day preceding that filing was August 24, 2012. Thus, any claims that occurred prior to that date
are time-barred under 42 U.S.C. § 2000e-5-(e).
7

(wrongful termination). Id. Freeman filed a motion for reconsideration, doc. 17,
which the court denied, doc. 18.
Freeman later filed a motion for leave to amend his pleadings, doc. 20,
which the court granted, doc. 21. The second amended complaint sets forth the
following claims:

disparate treatment under the ADEA (Count I); retaliation

(Count II); race discrimination under Title VII (Count III); wrongful termination
under Title VII (Count IV); intentional deprivation of participation in an
employment dispute resolution program under Title VII (Count V); and hostile
work environment (Count VI). Doc. 22. The court addresses Marshall Durbin’s
motion for summary judgment as to these claims, doc. 26, below.
III. ANALYSIS
Marshall Durbin correctly notes that the second amended complaint merely
reiterates many of the claims this court previously dismissed. Doc. 29 at 4; see
also doc. 12. Accordingly, the court will first address the timeliness of Freeman’s
present claims. The court will then address the merits of any remaining claim(s).
A. Freeman’s Untimely Claims
Freeman concedes that the claims he asserts in the second amended
complaint simply “reaffirm[]” claims this court previously dismissed (see doc. 12),
with the exception of the fraud claim, which Freeman now recasts as a deprivation

8

of his right to arbitrate in violation of Title VII. See doc. 26-1 at 14.4 Indeed,
Amended Count 1 restates previous Count 2, Amended Count 2 restates previous
Count 3, and Amended Count 3 restates previous Count 4. See doc. 22 at 3–5.
Amended Count 5 is a recast of previous Count 1, and states a new claim relating
to his alleged deprivation of participation in Marshall Durbin’s arbitration
program. See id. at 9–10. Finally, Amended Count 6, previous Count 5, restates
and elaborates on his claim of a “hostile work environment.” See id. at 10.
As the court stated in its previous order of dismissal, these claims are
untimely due to Freeman’s failure to file an EEOC charge within 180 days of the
events underlying those claims. See doc. 12 at 4. Moreover, even though Freeman
has changed the legal vehicle through which he seeks recovery for the failure to
allow him to arbitrate from common law fraud (old Count I) to Title VII (new
Count V), the underlying events, which remain unchanged, still occurred prior to
the 180-day cutoff of August 24, 2012.

To get around the timeliness issue,

Freeman argues that this “new” claim is not time-barred because Marshall
Durbin’s arbitration policy “compelled [him] to remain bound by [that] agreement
even after termination of employment.” Doc. 30 at 11 (emphasis added); see also
4

When asked in deposition, “[w]hat claims do you think you bring in the [second]
amended complaint,” Freeman responded: “I reaffirmed my original claim and altered the claim
in regards to the company’s employment dispute program. I also brought — although I had
presented it earlier, I don’t think I have filed it within the court about the hostile work
environment.” Doc. 26-1 at 14.
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doc. 17 at 13, 16. This argument is unavailing, in part, because the record contains
no evidence of actions or omissions by Marshall Durbin employees after
Freeman’s request for arbitration forms in July of 2012 (such as giving Freeman
the “run around” or directly refusing to give Freeman an arbitration form) that
could support this claim. Moreover, the court cannot accept Freeman’s argument
that he can file an EEOC charge related to arbitration any time “after termination
of employment,” as this period is too indefinite. Accordingly, Counts I, II, III, V,
and VI are due to be dismissed as untimely.
B. Freeman’s Remaining Claim (Count IV)
The court turns next to the merits of Freeman’s sole remaining claim. In
Count IV, Freeman states a Title VII claim regarding his termination. Because it is
unclear whether Freeman is asserting racially discriminatory discharge or
retaliatory discharge,5 the court will analyze the merits of both claims.

5

Count IV states, in full:

The plaintiff contends that his discharge resulted from a racially discriminatory
employment practice in violation of section 703(A)(1), Title Civil Rights Act of
1964.
The defendants’ [sic] contends, however that the plaintiff’s employment
was terminated because of his excessive absences. See, plaintiff’s exhibit ‘E’
(hand written attendance notification of the plaintiff provided by Ms. Bibiana
Benson, Nightshift HR Supervisor).
To begin with, an accurate account of the plaintiff’s attendance record
should have shown no more than four absences as of August 18th 2012. For
example, the plaintiff’s pay was corrected for the absences listed on April 15th,
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1. Racially discriminatory discharge
Title VII makes it unlawful for an employer to “discharge any individual . . .
because of such individual’s race, color, religion, sex, or national origin . . . .” 42
U.S.C. § 2000e-2(a)(1).

Where, as here, Freeman is attempting to prove

and April 23rd, 2012; and the tardiness listed on May 27th, 2012. See plaintiff’s
exhibit ‘G’, pages 1–3.
In addition, the defendants’ attendance record credits the plaintiff with two
(2) absences for June 19th, and June 20th, 2012, while under the same doctor’s
slip.
Thus, after it was revealed that the plaintiff would be seeking more
answers in regards to his having been deliberately by-passed for the
promotional/job transfer opening of supply room clerk, through their arbitration
system concerning employment resolutions, see plaintiff’s exhibit ‘A’; the
plaintiff clearly became subjected to the arbitrary and capricious actions of the
defendants’ [sic].
For when the plaintiff reported to work on August 21, 2012, with a
doctor’s slip, he was forbidden to work because his doctor’s slip didn’t specify
that he could work without restrictions. See, plaintiff’s exhibit ‘J’ at 3,
(Attached). The plaintiff was sent home, by Ms. Biviana Benson. The same Ms.
Benson, who allegedly lost the plaintiff’s application for promotion/transfer job
opening for the supply room clerk. See defendants’ exhibit 1, page 1, lines 6–7.
When the plaintiff returned to work on August 22, 2012, with a doctors’
slip specifying that he could return to work “without any restrictions” he was
again sent home by Ms. Benson, because his doctor’s slip did not cover August
21, 2012. And until he was able to produce such a fraudulent excuse specifying
that he was under a doctor’s care when he clearly was not, the plaintiff would be
forbidden to work for the defendants’ [sic]. See, plaintiff’s exhibit ‘L’, pages 1–
2. The defendants’ insistence of this fraudulent doctor’s excuse was merely a ruse
to cover-up their deliberate by-pass of the plaintiff’s request for the
promotional/job transfer opening in the supply room. See, Wright v. West, 505
U.S. 277, 296, Supreme Court (1992).
Doc. 22 at 5–8.
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intentional discrimination through circumstantial evidence,6 the court utilizes the
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), burden-shifting
method of proof. Under this method, Freeman bears the burden of establishing a
prima facie case of racial discrimination. See Burke-Fowler v. Orange County,
Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citation omitted). If Freeman satisfies
his initial burden, “then [Marshall Durbin] must show a legitimate, nondiscriminatory reason for its employment action.” Id. (citation omitted). “If it
does so, then [Freeman] must prove that the reason provided by [Marshall Durbin]
is a pretext for unlawful discrimination.” Id. (citation omitted). However, “[t]he
ultimate burden of persuading the trier of fact that [Marshall Durbin] intentionally
discriminated against [Freeman] remains at all times with [Freeman].” Springer v.
Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1347 (11th Cir. 2007)
(citation omitted).
a. Freeman cannot establish a prima
discrimination.

6

facie

case

of race

The record contains no direct evidence of racial discrimination. When asked what
Benson’s alleged manipulation of Freeman’s absentee points “[had] to do with [Freeman’s]
race,” Freeman replied: “Well, you tell me what it has to do with it.” Defense counsel said,
“I’m asking you.” Freeman replied: “I mean, why else would you do that?” Doc. 26-1 at 61.
Later, when asked to identify the “racially discriminatory employment practice” Marshall Durbin
engaged in with regard to his discharge, Freeman replied: “Yeah. Yeah. That I was terminated
because I — I sought a promotion. And as a result of seeking that promotion, I was
discriminated against further for — for seeking a second [i.e., meeting with Mark Dean and Alisa
Hall] and third [requesting arbitration forms] resolution in regard to that. That’s my point.” Id.
at 60.
12

To establish a prima facie case of race discrimination, Freeman must show
that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he
was subjected to an adverse employment action; and (4) Marshall Durbin treated
similarly situated employees outside of Freeman’s protected class more favorably.
See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Although Freeman
can establish the first three elements, he cannot satisfy the fourth, as he has failed
to identify any person outside of his protected class that Marshall Durbin failed to
discharge who received more than 10 absence points.
b. Freeman’s claim also fails because he cannot rebut Marshall
Durbin’s legitimate, nondiscriminatory reason.
Alternatively, because “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
because] the plaintiff’s failure to produce a comparator does not necessarily doom
the plaintiff’s case,” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th
Cir. 2011), the court will assume that Freeman can make a prima facie case.
Therefore, the next step in the McDonnell Douglas framework is for Marshall
Durbin to articulate a legitimate, nondiscriminatory reason for Freeman’s
discharge. See Burke-Fowler, 447 F.3d at 1323. Marshall Durbin has met its
burden through its contention that it discharged Freeman because of excessive
absences. See Wills v. Postmaster Gen., 300 F. App’x 748, 752 (11th Cir. 2008)
13

(excessive absences are a legitimate, nondiscriminatory reason for an adverse
employment action).
Consequently, the burden shifts to Freeman to prove that Marshall Durbin’s
reason is pretext for unlawful race discrimination. See Burke-Fowler, 447 F.3d at
1323. Unfortunately, Freeman has failed to meet his burden. Even accepting as
true Freeman’s assertion that he only accumulated 10 absentee points because
Benson manufactured, or caused, some of the points in order to procure Freeman’s
termination, Freeman’s claim fails for several reasons.

First, as Freeman

acknowledges, John Carden — not Benson — made the decision to discharge
Freeman, see doc. 26-1 at 39, and Freeman has no reason to believe that Carden
doubted the accuracy of the attendance records Benson presented to him, see id. at
58. Second, even if Carden acted based on inaccurate attendance information that
Benson created out of purported racial animus because, as Freeman puts it, “I
mean, why else would [she] do that?,” doc. 26-1 at 61, Carden discharged Freeman
pursuant to a good faith belief that Freeman had violated Marshall Durbin’s
absenteeism policy. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1363 n. 3 (11th Cir. 1999) (“An employer who fires an employee under the
mistaken but honest impression that the employee violated a work rule is not liable
for discriminatory conduct.”); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.
1989) (“The law is clear that, even if a Title VII claimant did not in fact commit
14

the violation with which he is charged, an employer successfully rebuts any prima
facie case of disparate treatment by showing that it honestly believed the employee
committed the violation.”); Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53
(11th Cir. 1987) (“[I]f the employer fired an employee because it honestly believed
that the employee had violated a company policy, even if it was mistaken in such
belief, the discharge is not ‘because of race.’”). Third, Freeman has not presented
any evidence that Carden “knew” or “suspected” that Benson had “manipulated”
his absence points.

Finally, Freeman must show more than just falsified

attendance records because “[a] reason cannot be pretext for discrimination unless
it is shown both that the reason was false, and that discrimination was the real
reason,” Blue v. Dunn Constr. Co., Inc., 453 F. App’x 881, 884 (11th Cir. 2011)
(emphasis in original). Unfortunately for Freeman, facts, rather than speculation or
unfounded allegations that Carden must have acted because of Freeman’s race, are
needed to defeat a motion for summary judgment. See Cordoba v. Dillard’s, 419
F.3d 1169, 1181 (11th Cir. 2005) (“[U]nsupported speculation . . . does not meet a
party’s burden of producing some defense to a summary judgment motion.
Speculation does not create a genuine issue of fact; instead, it creates a false issue,
the demolition of which is a primary goal of summary judgment.”) (quoting
Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995)) (ellipsis and
emphasis in Cordoba, internal quotation marks omitted). Other than Freeman’s
15

own belief that race had to be the reason for his discharge, see supra note 6, the
record simply contains no evidence of race discrimination.
In light of the foregoing, Marshall Durbin is entitled to summary judgment
as to any claim of racially discriminatory discharge.
2. Retaliatory discharge
To establish a prima facie case of retaliation, Freeman must show that: (1)
he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is a causal relation between the two events. See
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (quoting
Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994)) (internal
citations omitted).

While Freeman unquestionably suffered an adverse

employment action (termination), his claim fails because he did not engage in
statutorily protected expression. The record is clear that Freeman complained
about the decision not to select him for the supply room position, doc. 26-1 at 22,
and that he requested arbitration papers, id. at 43, presumably to challenge the
decision. However, on both occasions, Freeman never mentioned discrimination.
In fact, when he requested arbitration forms, Freeman never even suggested to
Alisa Hall, Bibiana Benson, or any other person at Marshall Durbin that he
believed discriminatory animus factored in the selection process. See id. at 17 (Q:
“Did you tell Ms. Benson why you wanted an arbitration form? A: “No, I didn’t
16

tell her what I wanted it for.”); 43 (Q: “Did you tell Alisa Hall what claims you
wanted to arbitrate?” A: “No. That wasn’t her business.”); id. (Q: “Did you tell
Lynn Nolan what claims you wanted to arbitrate?” A: “That wasn’t her business.”);
44 (Q: “Did you tell John Carden that you wanted to arbitrate?” A: “Nobody. I
told nobody the claims I was going to arbitrate.”). Likewise, there is no evidence
that Freeman suggested to Dean or Hall during the June 21, 2012 meeting that he
believed race factored into the decision to select someone from outside the
company for the supply room position. See also doc. 26-3 at 59–60 (“Admit . . .
that you did not complain that race was a motivating factor in the decision to hire
someone outside of the company” for the supply room position.”); 89–90 (“[N]o, I
did not mention[] race.”).
Freeman obviously had the right not to disclose why he wanted the
arbitration forms or why he questioned the selection of an outside candidate
instead of a current employee. However, in order to engage in statutorily protected
activity, he must “oppos[e] any practice made an unlawful employment practice
by” Title VII. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir. 2000)
(quoting 42 U.S.C. § 2000e-3(a)). Simply stating that a decision was unfair does
not qualify, because “Title VII addresses discrimination . . . Title VII is not a
shield against harsh treatment at the workplace . . . and an employer may fire an
employee for a good reason, a bad reason, a reason based on erroneous facts, or for
17

no reason at all, as long as its action is not for a discriminatory reason.” Nix v.
WLCY, 738 F.2d 1181, 1187 (11th Cir. 1984) (quotations and citations omitted,
emphasis in original).
Finally, even if the court found that Freeman’s request for arbitration papers
or his questioning of the hiring decision is protected activity, his retaliation claim
still fails because he has no evidence that the decision maker knew that he had
engaged in such conduct.

Specifically, John Carden, the supervisor who

discharged Freeman, doc. 26-1 at 39, was not present for Freeman’s June 21, 2012
meeting with Mark Dean and Alisa Hall, id. at 42, and Freeman never told Carden
he wished to arbitrate, id. at 44.

Carden’s only involvement in Freeman’s

termination was “simply his reliance on [the attendance points] information
provided to him by Bibiana Benson.” Id. at 58. See McCann v. Tillman, 526 F.3d
1370, 1376 (11th Cir. 2008) (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
590 (11th Cir. 2000)) (a retaliation claim “requires a plaintiff to demonstrate that
‘the decision-maker[s] [were] aware of the protected conduct, and that the
protected activity and the adverse action were not wholly unrelated’”) (alterations
in original, some internal quotations omitted). In short, there is no evidence that
Carden discharged Freeman in retaliation for any statutorily protected expression.
Accordingly, Marshall Durbin is entitled to summary judgment as to any
claim of retaliatory discharge.
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IV. CONCLUSION
Because Counts I, II, III, V, and VI are time-barred, and because Count IV
fails on the merits, Marshall Durbin’s motion for summary judgment is due to be
granted, and Freeman’s claims dismissed with prejudice. The court will enter a
separate order consistent with this opinion.
DONE the 20th day of October, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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