Ashford v. Danberry at Inverness

Filing 58

MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/6/2016. (AVC)

FILED
2016 Sep-06 PM 01:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BOBBY ASHFORD,
Plaintiff,
v.
DANBERRY AT INVERNESS; et al.,
Defendant.

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Case No.: 2:15-cv-00291-RDP

MEMORANDUM OPINION
I.

Introduction
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. #44),

filed February 29, 2016. The motion is fully briefed. (Docs. # 45, 51, 56). Plaintiff claims he was
the victim of a sexually hostile work environment and was discharged because of his sex.1
Defendant contends Plaintiff’s claims fail because he: (1) failed to report allegations of a hostile
environment or sexual harassment during his employment; (2) violated the attendance and
reporting policy by failing to report for scheduled work; and (3) has presented insufficient
evidence to survive summary judgment. After careful review, the court agrees and concludes that
Defendant’s Motion is due to be granted in part and denied in part.
II.

Relevant Undisputed Facts2
Plaintiff, who is an openly gay man3, was employed by Defendant Q Team Resources,
1

Although he included a race discrimination claim in his Amended Complaint (Doc. # 18), Plaintiff has
abandoned that claim by not addressing it in his opposition to summary judgment. (Doc. # 51; see Doc. # 56).
2

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

LLC (“Q Team”) as a Server in the Dining Department at Danberry at Inverness (“Danberry”)
from September 24, 2012, until his discharge on February 12 or 13, 2014.4 (Doc. # 51-1 at Ex. 1,
¶¶ 1-2; Doc. # 46-1 at ¶ 3). Plaintiff also worked as a Resident Assistant and Resident Sitter in
Danberry’s Healthcare Department from July 2013, until February 12 or 13, 2014. (Id.).
Danberry,

a

retirement

community

located

in

Hoover,

Alabama,

provides

living

accommodations, as well as fine dining and other activities, for elderly men and women. (Doc. #
46-12 at ¶ 3). As a Server at Danberry, Plaintiff reported to Dining Room Manager Daniel Vest
and Director of Dining Services Dave Wallingford. (Doc. # 51-1 at Ex. 1, ¶ 3; Doc. # 46-1 at ¶
4).
At the beginning of his employment, Plaintiff was informed of the attendance and
punctuality requirements stated in both Danberry’s Employee Handbook (“Handbook”) and
Attendance Policy (“Attendance Policy”). (Doc. # 46-1 at ¶ 8; Doc. # 46-3; Doc. # 46-5). The
Attendance Policy mandates a No Call/No Show attendance policy, stating that employees who
fail to report to work or call in for two consecutive workdays or on two separate occasions will
be considered to have voluntarily resigned or abandoned their jobs (unless that employee is
medically incapacitated). (Doc. # 46-1 at ¶ 7; Doc. # 46-4). The Attendance Policy further states
that an employee may be subject to discipline, up to and including termination, for neglecting to
report for work without calling in, even on a single day. (Id.). Specifically, the Handbook states
that “An absence of two (2) days without notice by the employee is considered Job
Abandonment. You will be subject to disciplinary action up to and including termination.”
(Doc. # 46-1 at ¶ 6; Doc. # 46-3 at p. 12). Throughout most of his employment at Danberry,

3

Plaintiff has alleged that he “is a homosexual,” and that “[d]uring [his] employment a male supervisor
made comments about his sexual orientation and sexual preference.” (Doc. # 18 at ¶ 10).
4

The parties’ evidentiary submissions do not clearly specify which date Plaintiff actually was discharged.

2

Plaintiff communicated with Vest or Wallingford regarding absences from work and tardiness.
(Doc. # 46-1 at ¶ 15; see also Doc. # 51-1 at Ex. 1, ¶ 3).
Plaintiff was also informed of Danberry’s anti-discrimination policies, as well as the
internal complaint procedures that should be followed if he or another employee was subjected to
sexual harassment or discrimination in the workplace. (Doc. # 46-1 at ¶ 20). Plaintiff twice
signed an acknowledgement of his receipt of the CRSA/LCS Employment Services, LLC
Harassment Policy (“Harassment Policy”). (Id. at ¶ 21; Doc. # 46-10; Doc. # 46-11). The
Harassment Policy provides that the “company has zero tolerance” for both harassment and
sexual harassment, “and will investigate any complaint of” either. (Doc. # 46-10 at p. 2). The
Harassment Policy also sets forth that:
Any employee, who becomes aware of an incident or harassment, whether by
experiencing it, witnessing the incident or being told of it, must report it. . . . You
are required to notify your supervisor or the Human Resources Director, President
or a member of Managing Committee immediately of any harassment, even if you
are not sure the offending behavior is considered harassment under this policy.
Any possible incidents of harassment must be immediately reported to a manager
or other management representative by anyone who may witness them.
(Id. at p. 3).
In December 2013, Plaintiff was involved in a playful altercation with another Danberry
employee. (Doc. # 51-1 at Ex. 1, ¶ 5; see also Doc. # 46-1 at ¶ 22). Plaintiff states a white male
co-employee struck him, and Plaintiff responded by striking him back. (Doc. # 51-1 at Ex. 1, ¶
5). The two then engaged in horseplay. (Id.). Vest was present and witnessed the horseplay.
(Id.). On January 13, 2014, Plaintiff attended a meeting with Karen Hebert, Danberry’s Human
Resources Director, who informed him that the individual with whom he engaged in horseplay
had filed a complaint of sexual harassment against him. (Doc. # 51-1 at Ex. 1, ¶ 6; Doc. # 46-1 at
¶¶ 2, 23). During this meeting, Plaintiff again signed and acknowledged the Harassment Policy.

3

(Doc. # 46-1 at ¶ 23; Doc. # 46-11; Doc. # 51-1 at Ex. 1, ¶ 6). He also denied having engaged in
any sexual harassment, and stated he wanted to meet with Vest, the complainant, and Danberry’s
Executive Director, Jaclyn Gardner. (Doc. # 51-1 at Ex. 1, ¶ 6). He claims that Hebert assured
him such a meeting would be scheduled, but Plaintiff never heard back from her about a meeting.
Effective August 6, 2013, Danberry initiated a Slip Resistant Footwear Program/Policy
(the “Footwear Policy”). Doc. # 46-1 at ¶ 9; Doc. # 46-6). The new Footwear Policy required
employees, for safety reasons, to wear slip-resistant shoes while working in the Dining Room.
(Id.). The policy required compliance by all employees on or before September 30, 2013. (Id.).
Plaintiff acknowledged his receipt of the Footwear Policy on September 13, 2013. (Doc. # 46-6).
In the past, and throughout his employment at Danberry, Plaintiff had worn Crocs, which
he viewed as slip-resistant shoes. (Doc. # 46-1 at ¶¶ 10, 12; Doc. # 51-1 at Ex. 1, ¶ 11).
However, in late January 2014, Vest informed Plaintiff that Crocs were inappropriate for work
because they had air holes on their sides. (Doc. # 51-1 at Ex. 1, ¶ 12).
On February 5, 2014, Plaintiff attended a server-wide Dining Services meeting, led by
Wallingford and Vest. (Doc. # 46-1 at ¶ 11; Doc. # 51-1 at Ex. 1, ¶ 13). At that meeting, among
other things, Wallingford reiterated the importance of the slip-resistant shoes policy. (Id.).
Wallingford stated, “If you don’t have the proper shoes by tomorrow, don’t bother coming into
work.” (Doc. # 51-1 at Ex. 1, ¶ 14). Following this meeting, Plaintiff went to work his shift on
Danberry’s Healthcare side without speaking to either Wallingford or Vest. (Id.).
Because he did not have proper shoes to wear, Plaintiff did not report to work as a Server
as scheduled at 10:30 a.m. on February 6, 2014. (Doc. # 51-1 at Ex. 1, ¶ 15; Doc. # 46-1 at ¶ 12).
The work schedule for the week of February 2-8, 2014, specifically instructed Servers: “If you
are running late then you must call and speak with [Wallingford] or [Vest]. . . . You have no

4

excuse not to call when you are going to be late.” (Doc. # 46-7) (setting forth Vest’s phone
number). Plaintiff unsuccessfully attempted to call Vest’s office early in the morning of February
6, 2014, to inform Vest that he did not have the appropriate footwear. (Doc. # 51-1 at Ex. 1, ¶ 15;
see also Doc. # 46-1 at ¶ 15) (“[Plaintiff] did not text or call either [Vest or Wallingford] on
February 6, 2014 that he would be absent.”). Plaintiff then emailed Vest at 8:54 a.m. (a little
more than ninety minutes before his 10:30 a.m. shift was scheduled to begin), saying that he had
ordered non-slip shoes for work and that they would arrive in three days. (Doc. # 46-8). Plaintiff
did not explicitly state in the email that he would not be at work that day. (See id.). Defendant
alleges that, when a Server is not at work, the quality of service Danberry’s staff can provide to
its residents for both lunch and dinner is greatly affected. (Doc. # 46-12 at ¶ 3). Because Plaintiff
was absent, the Dining Service was short staffed, and Danberry’s service was hindered. (Doc. #
46-1 at ¶ 14).
On February 7, 2014, Plaintiff reported to work as a Resident Assistant in Danberry’s
Healthcare Department, where he worked a full shift from 6:48 a.m. until 3:00 p.m. (Doc. # 51-1
at Ex. 1, ¶ 17; Doc. # 46-1 at ¶ 16). Plaintiff passed by Wallingford’s and Vest’s office in order
to get to the Healthcare Department. (Doc. # 46-1 at ¶ 16). Plaintiff alleges he spoke to
Wallingford as he passed the Healthcare side, but that Wallingford did not respond. (Doc. # 51-1
at Ex. 1, ¶ 17). Defendant contends Plaintiff did not speak to Wallingford. (Doc. # 46-1 at ¶ 16).
While working his shift as Resident Assistant on February 7, Plaintiff noticed that his
name had been crossed off on the Server schedule for the following day (February 8, 2014).
(Doc. # 51-1 at Ex. 1, ¶ 18). Plaintiff’s shoes had come in on February 7, so he had planned to
work on February 8. (Id. at ¶ 19). After his shift on the Healthcare side ended, Plaintiff says he
approached Vest to ask about the work schedule for the remainder of the week. (Id. at ¶¶ 18, 20)

5

Plaintiff states that Vest told him that he was not sure why Plaintiff had been marked off the
schedule.5 (Id. at ¶ 20). Vest was the person responsible for scheduling all shifts. (Id.). Plaintiff
says he took this to mean that he was not to report to work on February 8, because in the past
when an employee’s day was marked off the schedule, that employee was not expected to report
to work. (Id.).
Plaintiff did not show up for his shift on February 8, 2014. (Doc. # 46-1 at ¶ 17; Doc. #
46-12 at ¶ 5). He did not call or text Vest or Wallingford to report that he would not be at work.
(Id.).
On February 10, 2014, Wallingford and Karen Hebert both called Plaintiff to discuss his
attendance, and left a voicemail stating that they needed to speak with him in the office. (Doc. #
46-1 at ¶ 18). The next day (February 11, 2014), Plaintiff arrived at Danberry and met with
Office Manager LaShaun Hicks and Wallingford. (Doc. # 46-1 at ¶ 18; Doc. # 51-1 at Ex. 1, ¶
22). Plaintiff states that Hicks acted as if she was unaware of the meeting and called Hebert, but
that Hebert asked Hicks to attend instead. (Doc. # 51-1 at Ex. 1, ¶ 22). Defendant contends
Plaintiff’s arrival was unannounced; Plaintiff disagrees. He contends that he received a call from
Hebert on February 11, 2014, informing him that Wallingford had been looking for him. (Doc. #
51-1 at Ex. 1, ¶ 21). Plaintiff further asserts he spoke with Hebert and had just seen Wallingford
on February 7, the date he noticed that he had been taken off the schedule to work on February 8.
(Id.). Plaintiff also claims that he requested a meeting with Wallingford and Hebert to discuss his
attendance issues from the preceding days. (Id.).

5

Defendant contends that Plaintiff did not speak with Vest, (Doc. # 46-1 at ¶ 16), but the court views this
evidence in the light most favorable to Plaintiff for purposes of this motion.

6

The events that transpired on February 11 are also disputed.6 According to Defendant,
Wallingford told Plaintiff it was unacceptable that he had missed his Dining shifts on February 6
and 8 without previously speaking with one of his managers. (Doc. # 46-1 at ¶ 18). However,
Plaintiff claims that Wallingford told him he had been marked off the schedule for February 8
because neither Wallingford nor Vest had heard from Plaintiff on February 6. (Doc. # 51-1 at Ex.
1, ¶ 23). Plaintiff contends he corrected Wallingford by reminding him that he had sent an email
to Vest stating that he was awaiting the arrival of his new slip-resistant shoes. (Id. at ¶ 24).
Plaintiff then asked to be put back on the schedule. (Id.). According to Plaintiff, Wallingford told
Plaintiff that he would speak with Hebert, Executive Director Gardner, and Director of
Healthcare Jeana Robinson, and get back to Plaintiff. (Id.). However, Defendant asserts that
Wallingford terminated Plaintiff’s status as a Server during this meeting due to his attendance
issues. (Doc. # 46-1 at ¶ 18). And while Plaintiff says his status as a Resident Assistant in the
Healthcare Department was not addressed during this meeting, (Doc. # 51-1 at Ex. 1, ¶ 24), to
the contrary, Defendant states that Plaintiff was told that more discussions would be held with
Hebert, Gardner, and Robinson concerning his continued employment with Danberry in the
Healthcare Department. (Doc. # 46-1 at ¶ 18).
What is undisputed is that Executive Director Gardner discharged Plaintiff, purportedly
for missing his Server shifts in the Dining Department on February 6 and 8, 2014. (Doc. # 46-12
at ¶ 7). Gardner reviewed Plaintiff’s attendance and prior discipline history before making her
decision. (Id.; see also Doc. # 46-1 at ¶ 19; Doc. # 46-9). With the exception of the December
2013 horseplay incident, Plaintiff was not the subject of any complaints of harassment from his
co-workers while at Danberry. (See Doc. # 46-1 at ¶ 19; Doc. # 46-9). Nor was he the subject of

6

The court acknowledges that the evidentiary submissions concerning the February 11, 2014 meeting
contain Plaintiff’s affidavit and Hebert’s affidavit. There are no affidavits or testimony from Wallingford or Hicks.

7

any complaints from residents at Danberry. (Doc. # 51-1 at Ex. 1, ¶ 4). But Plaintiff had been
written up and disciplined six times for tardiness (on October 28, 2012, November 26, 2012,
February 18, 2013, March 28, 2013, July 24, 2013, and February 3, 2014), and one time for
failing to complete his shift (on June 12, 2013). (Doc. # 46-1 at ¶ 19; Doc. # 46-9). In addition to
that discipline history, Gardner considered input from Hebert, Wallingford, Vest, and Robinson.
(Doc. # 46-12 at ¶ 8). Gardner’s decision to terminate “was based strictly on [Plaintiff’s]
attendance issues in the Dining Room.” (Id.). Hebert told Plaintiff that his employment had been
terminated for two no-calls and two no-shows. (Doc. # 51-1 at Ex. 1, ¶ 25).
Plaintiff contends his termination is a result of discrimination based on his sexual gender
identity and sexual preferences. (Doc. # 18). He contends that he was subjected to a hostile work
environment because of his sexual orientation. (Id.). Plaintiff avers that throughout his tenure at
Danberry, Vest made several unwanted comments about Plaintiff’s sexual orientation and sexual
preferences, including, “are you a cross-dresser,” “do you dress in drag,” “are you a drag queen,”
and referred to the bag in which he stored his belongings as a “purse.” (Doc. # 51-1 at Ex. 1, ¶ 7).
Plaintiff claims that Vest would make these types of comments in front of Plaintiff’s co-workers,
and that the comments were motivated by Vest’s belief that Plaintiff did not conform to the
stereotype associated with the male gender. (Id. at ¶¶ 7-8.).
LaShunda Moore, a food runner for the Dining area at Danberry from December 2012 to
July 2014, states that she had heard Vest “pick on [Plaintiff] every day.” (Doc. # 51-1 at Ex. 2,
¶¶ 2, 5). Moore witnessed Vest call Plaintiff a “Drag,” and tell Plaintiff that “your butt is too big
for those pants.” (Id. at ¶ 4). She also confirms that “Vest would call [Plaintiff’s] bag a purse.”
(Id. at ¶ 3). Further, Moore claims that Vest allowed other dining room attendants to arrive to
work late without reprimanding them, but would openly reprimand Plaintiff. (Id. at ¶ 6).

8

Karonda Nelson, a Danberry dining room attendant, overheard Vest remark to Plaintiff
that the bracelet Plaintiff was wearing was a “girl’s bracelet” for “females and not for guys to
wear.” (Doc. # 51-1 at Ex. 3, ¶ 4). Nelson also states she witnessed Vest call Plaintiff a cross
dresser and ask Plaintiff “why are you carrying that purse” when referring to his lunch bag. (Id.
at ¶ 3). Additionally, she states that on Halloween 2013, when Danberry’s employees were
permitted to wear costumes to entertain the residents, Vest told Plaintiff he looked like a “drag
queen.” (Id. at ¶ 5).
When confronted with impermissible harassment, an employee is required to follow
Danberry’s internal complaint policies and procedures. Defendant contends that Plaintiff never
made any sort of internal complaint. (Doc. # 46-1 at ¶ 24). The parties disagree about the state of
the Rule 56 record on this issue and whether Plaintiff has pointed to sufficient evidence in the
summary judgment record to avoid judgment as a matter of law. Plaintiff states that he informed
Cynthia Crosby, who he (mistakenly) believed to hold the title of Head Nurse in the Healthcare
Department, of Vest’s harassment due to his gender identity and sexual preferences. (Doc. # 51-1
at Ex. 1, ¶ 9). He has not specified when he talked to Crosby. He has stated that because Vest’s
behavior continued, he assumed Crosby did not report it to any of her superiors. (Id.). In its
motion to strike, Defendant points out that Crosby is not, and never has been, “Head Nurse,” nor
was she a member of the Managing Committee.7 (Doc. # 57-2 at ¶ 3; see also Doc. # 56 at p. 2).
At various times during her employment (which lasted from September 2012 through July 15,
2014), she held the positions of Certified Nursing Assistant, Licensed Practical Nurse, and
Registered Nurse. (Doc. # 57-2 at ¶ 3, pp. 4-7).

7

The Second Declaration of Karen Hebert (Doc. # 57-2), included as an exhibit to Defendant’s motion to
strike, is a part of the record of this case. Therefore, the court may consider it for purposes of summary judgment.

9

Plaintiff also claims he informed Chuck Lanzi, who he (mistakenly) understood was the
Head of Housekeeping/Maintenance, of Vest’s prolonged harassment, but again assumed that
Lanzi never reported the harassment because it did not cease. (Doc. # 51-1 at Ex. 1, ¶ 10). Lanzi
has never been Head of Housekeeping/Maintenance, nor has he been a member of the Managing
Committee. (Doc. # 57-2 at ¶ 4; Doc. 56 at p. 2). Instead, between September 2012 and February
2014, Lanzi was employed as a Driver and a Porter. (Doc. # 57-2 at ¶ 4, pp. 8-12).
III.

Defendant’s Motion To Strike
As an initial matter, the court addresses Defendant’s motion to strike portions of

Plaintiff’s Declaration.8 (Doc. # 57). In that motion, Defendant argues that all references in
Plaintiff’s affidavit to Cynthia Crosby and Cuck Lanzi should be stricken because Plaintiff did
not identify those individuals in his Federal Rule of Civil Procedure 26 disclosures. The Federal
Rules of Civil Procedure provide that a “failure to identify a witness as required by [Rule] 26(a)
and (e) bars a party from offering that witness ‘to supply evidence on a motion, at a hearing, or at
trial, unless the failure was substantially justified or is harmless.’” Brantley v. Ferrell Elec., Inc.,
112 F. Supp. 3d 1348, 1357 (S.D. Ga. 2015) (quoting Fed. R. Civ. P. 37(c)(1)) (some emphasis
added, some emphasis in original). Here, Plaintiff refers to statements he made to Crosby and
Lanzi in his own affidavit. (See Doc. # 51-1 at Ex. 1, ¶¶ 9, 10). He has not submitted affidavits
from either individual. To be sure, there is an excellent argument that Plaintiff would be barred
from doing so, and would be unable to rely on their testimony at trial. See Fed. R. Civ. P.
37(c)(1). But Plaintiff is not precluded from referring to his own statements to individuals not on
the Rule 26 disclosures. Accordingly, Defendant’s motion to strike (Doc. # 57) is due to be
denied. Nonetheless, even considering that evidence along with the entire Rule 56 file, for the

8

Plaintiff had an opportunity but did not file a response.

10

following reasons, Defendant’s summary judgment motion is due to be granted in part and
denied in part.
IV.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and – by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file – designate specific facts showing that there is a genuine issue for trial.
Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts
about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See Id. at 249.

11

When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “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., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).

12

V.

Analysis
Plaintiff claims that Defendant violated Title VII’s protections against sex discrimination

by allowing a hostile work environment based on his sexual orientation and gender identity and
terminating him due to his sexual orientation and gender identity.9 Defendant contends Plaintiff’s
hostile work environment claim fails for two reasons. First, Defendant argues that Vest’s
comments regarding Plaintiff’s sexual orientation were not severe enough to create a hostile
work environment as required by Title VII. Second, Defendant asserts that Plaintiff neglected to
follow proper procedure as outlined within the Harassment Policy when bringing his complaint
about the alleged sexual harassment (and thus any alleged harassment is not attributable to
Defendant). Defendant also insists that Plaintiff’s termination claim fails as a matter of law
because he has provided no evidence that Danberry used his violations of the Attendance Policy
as a pretext for unlawful discrimination. The court addresses Plaintiff’s claims, and Defendant’s
summary judgment arguments against them, in turn.
A.

Plaintiff’s Title VII Hostile Work Environment Claim.

By its plain language, Title VII protects individuals against employment discrimination
on the basis of race, color, national origin, sex, and religion. 42 U.S.C. § 2000e-2. In a Title VII
case, the burden is on a plaintiff to show by a preponderance of the evidence a prima facie case
of illegal discrimination. Lewis v. Smith, 731 F.2d 1535, 1537 (11th Cir. 1984). In order for
9

The parties do not dispute whether Plaintiff belongs to a protected group based on his claim of sex
discrimination. It is well-settled that Title VII’s protections against sex discrimination extend to a bar against
discrimination based on gender stereotyping. See Price Waterhouse v. Hopkins, 490 U.S. 229, 250-51, 258-61, 27273 (1989) (respectively, plurality opinion, White, J., concurring, O’Connor, J., concurring) (holding that Title VII
bars gender stereotyping), superseded on other grounds by statute. And, in the context of a Fourteenth Amendment
Equal protection challenge (filed pursuant to 42 U.S.C. § 1983), the Eleventh Circuit has recognized that gender
stereotyping can be viewed as sex discrimination. Glenn v. Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011). In this
case, Plaintiff asserts that Vest harassed him based on gender stereotypes. After reviewing the evidence in the Rule
56 record, the court agrees that Vest’s comments implicate stereotyping by gender. Compare Brumby, 663 F.3d at
1318 (prohibited gender stereotyping when a plaintiff “wear[s] jewelry that was considered too effeminate”) and
(Doc. # 51-1 at Ex. 3, ¶ 4) (Vest stated Plaintiff was wearing was a “girl’s bracelet” for “females and not for guys to
wear”). This opinion assumes that with respect to his harassment claim, Plaintiff is in a protected category.

13

Plaintiff to establish a hostile environment sexual harassment claim under Title VII, he must
show: (1) that he belongs to a protected group; (2) he has been subject to unwelcome sexual
harassment; (3) the harassment was based on his sex; (4) the harassment was severe or pervasive
to the extent that it altered the conditions of the employment; and (5) that there is a basis for
holding the employer responsible. Mendoza v. Borden Inc., 195 F.3d 1238, 1245 (11th Cir. 1999)
(en banc), cert. denied, 529 U.S. 1068 (2000). The parties do not dispute that Plaintiff belongs to
a protected group or that he was subjected to harassment based on his sex. The court likewise
assumes Plaintiff has satisfied his burden on these elements of a sexually hostile work
environment claim.10 The court addresses the remaining two elements below, in turn.
1.

Vest’s Harassment Was Not Sufficiently Severe or Pervasive to Alter
the Terms Or Conditions of Plaintiff’s Employment

Defendant argues that Plaintiff has not carried his burden of proving that Vest’s
harassment was severe or pervasive enough to alter the terms or conditions of his employment.
The court agrees.
“Sexual harassment constitutes sex discrimination only when the harassment alters the
terms or conditions of employment.” Mendoza, 195 F.3d at 1245. In the absence of “explicit”
discrimination (for example, that affecting “an employee’s expressed terms of employment, such
as salary or continued employment,” id.), “an employee must make some showing in order to
connect allegations of sexual harassment to a violation of Title VII.” Id. “[A]n employer’s
harassing actions toward an employee do not constitute employment discrimination under Title
10

See note 9, supra. Further, the nature of Vest’s statements in the summary judgment record suggest that
they are based on sexual stereotype. There is no indication that Plaintiff solicited and desired Vest’s comments. See
Henson v. Dundee, 668 F.2d 897, 903 (11th Cir. 1982) ( “The harassment must be unwelcome in the sense that the
employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or
offensive.”). Therefore, the court assumes without further analysis that, for purposes of Plaintiff’s sexually hostile
work environment claim, Plaintiff belongs to a protected group under Title VII (i.e., sexual stereotype, or sex) and
was subjected to unwelcome harassment based on his sex. But, as discussed in more detail below, even if Plaintiff
has satisfied these elements, his hostile work environment claim fails because he has not satisfied the remainder of
the elements.

14

VII unless the conduct is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id. at 1245-46 (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (internal quotations, brackets, and additional
citations omitted).
Establishing whether harassing conduct was sufficiently severe or pervasive so as to alter
an employee’s terms or conditions of employment involves both a subjective and an objective
inquiry. Mendoza, 195 F.3d at 1246 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“The employee must “subjectively perceive” the harassment as sufficiently severe and pervasive
to alter the terms or conditions of employment, and this subjective perception must be
objectively reasonable.” Id. “[T]he objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering ‘all the
circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting
Harris, 510 U.S. at 23).
The examination of the objective component is “somewhat fact intensive.” Mendoza, 195
F.3d at 1246. Nonetheless, the Supreme Court and the Eleventh Circuit have set forth four
factors that a district court should consider: (1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee’s job
performance. Mendoza, 195 F.3d at 1246 (citations omitted). The conduct must be examined in
context and not as isolated acts, and the court must determine under the totality of the
circumstances whether the harassing conduct is severe or pervasive enough to alter the terms or
conditions of a claimant’s employment and create a hostile or abusive working environment. Id.
Here, Plaintiff has stated that Vest’s comments were unwanted and unsolicited. (Doc. #

15

51-1 at Ex. 1, ¶ 7). Although Plaintiff has not plainly stated that he found those comments to be
hostile and abusive, the court assumes that he subjectively perceived them to be as such.
Similarly, the court need not assess the frequency of Vest’s comments because, based on
the evidence in the Rule 56 record, that would be a question for a jury question to decide. But
here, for other reasons, the harassment claim need not be presented to a jury, because Plaintiff
has not satisfied his Rule 56 burden regarding either the severity of the harassment or
interference with the conditions of his employment. The court examines each element below, in
turn.
a. Plaintiff Has Not Presented Rule 56 Evidence Showing Conduct
That Was Sufficiently Severe to Alter the Terms or Conditions of
Employment
In assessing the severity of an employer’s conduct, the Supreme Court has “made it clear
that conduct must be extreme to amount to a change in the terms and conditions of employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Indest v. Freeman
Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (“All of the sexual hostile environment cases
decided by the Supreme Court have involved patterns or allegations of extensive, long lasting,
unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work
environment.”). Title VII “does not operate as a general ban on . . . rude or offensive behavior.”
Leslie v. Cumulus Media, Inc., 814 F. Supp. 2d 1326, 1343 (S.D. Ala. 2011) (citation omitted);
see also Mendoza, 195 F.3d at 1245 (“Title VII is not a federal ‘civility code.’”). “‘[S]imple
teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788
(internal citation omitted).

16

Plaintiff has stated that Vest made comments regarding his sexual orientation, including
“are you a cross-dresser,” “do you dress in drag,” and calling his personal bag a purse. (Doc. #
51-1 at Ex. 1, ¶ 7). Moore likewise witnessed Vest call Plaintiff a “Drag” and say that Plaintiff’s
“butt is too big for those pants.”11 (Doc. # 51-1 at Ex. 2, ¶ 4). And, Nelson heard Vest say to
Plaintiff that his “bracelet is for females and not for guys to wear,” that his lunch bag a “purse,”
and that he looked like a “drag queen” when dressing up for Halloween. (Doc. # 51-1 at Ex. 3, ¶¶
3-5). Plaintiff asserts other such statements were made but has not specifically listed them.
Viewing this evidence in the light most favorable to Plaintiff, the court concludes that Vest’s
comments were not objectively severe enough to alter Plaintiff’s terms or conditions of his
employment.
“Many decisions throughout the circuits have rejected sexual-harassment claims based on
conduct that is as serious or more serious than the conduct at issue in this [case].” Mendoza, 195
F.3d at 1246-47 (collecting cases). Although Vest’s comments may have been humiliating and
degrading to Plaintiff based on his sex, he simply has not presented sufficient evidence to survive
summary judgment on the issue of severity or pervasiveness. Compare Leslie, 814 F. Supp. 2d at
1343 (alleged harassment was not severe enough when plaintiff presented four “offhand” and
“isolated” offensive comments, and one instance of co-worker sending sexually suggestive email
photograph), and Howard v. City of Robertsdale, 168 Fed. Appx. 883, 885 889-90 (11th Cir.
2006) (holding that supervisor’s offensive comments about employees’ bodies and sex lives and
sexual jokes made in front of other employees on a regular basis did not rise to the level of
objectively severe or pervasive harassment), with Reeves v. C.H. Robinson Worldwide, Inc., 594
F.3d 798, 812 (11th Cir. 2010) (evidence supported plaintiff’s complaint that employer’s

11

The court acknowledges that Moore has stated she witnessed Vest making these statements on February
14, 2014—a date after Plaintiff was terminated. (Doc. # 51-1 at Ex. 2, ¶ 4)

17

offensive conduct occurred “every single day” and consisted of multiple derogatory terms aimed
at women, vulgar sexual discussions, and the presence of pornographic images in the workplace,
and could allow a jury to draw a reasonable inference of pervasive harassment).12 The court
determines that, based upon the evidence in the summary judgment record, a reasonable jury
would not be able to infer from the comments by Vest that his conduct was sufficiently severe to
change the terms or conditions of Plaintiff’s workplace.
b. Plaintiff Has Presented No Evidence That Vest’s Comments
Interfered with His Job Performance
Even if Plaintiff had presented enough evidence demonstrating that Vest’s comments
were severe or pervasive (and, to be sure, he has not), he has not presented evidence that the
“cumulative effect” of Vest’s conduct “unreasonably interfered” with Plaintiff’s job
performance. Mendoza, 195 F.3d at 1248. Again, Vest’s comments may have bothered Plaintiff
or been humiliating, but more is required in order for Plaintiff to make a showing that those
comments were so severe or pervasive that Plaintiff’s terms or conditions of employment were
altered. And, in this regard, nothing in the record indicates that Vest’s conduct impaired
Plaintiff’s job performance. Rather, Plaintiff has stated that he “never had any complaints lodged
against [him] by any of the residents at Danberry,” and claims he “was never written up for any
performance issues.” (Doc. # 51-1 at Ex. 1, ¶ 4). Indeed, the first hint of any problem with
Plaintiff’s job performance was when he was told he had non-compliant shoes, (and believed he
was not to attend work until he obtained different ones), but there is no evidence that his being
told to get new shoes was a form of harassment or conduct concerned with any sexual stereotype.
12

Although Moore reported in her affidavit that Vest “picked on Plaintiff every day” (Doc. #51-1 at Ex. 2),
“picking on” someone simply does not rise to the level of impermissible harassment under Title VII. The court
acknowledges that some of these instances of “picking on” likely included statements similar to those implicating
gender stereotypes. Nevertheless, there is insufficient evidence in the Rule 56 record to conclude that the alleged
daily “picking on” involved harassing statements focused on Plaintiff’s sex and gender stereotypes made on a
sufficiently severe or pervasive basis.

18

Because the record is devoid of any evidence that Vest’s conduct “unreasonably interfered” with
Plaintiff’s job performance, Plaintiff has not satisfied his burden that Vest’s conduct was severe
or pervasive enough to alter the terms of employment, and Defendant is entitled to summary
judgment on Plaintiff’s hostile work environment claim.
2.

Because Plaintiff Did Not Utilize the Procedures in Defendant’s
Harassment Policy, There Is No Basis for Holding Defendant
Responsible for the Vest’s Harassment

Even if Plaintiff had been subjected to severe and pervasive harassment (and to be clear,
he was not), Defendant argues that Plaintiff’s hostile work environment claim against Defendant
nevertheless fails because he did not utilize Defendant’s internal complaint procedures to report
it. The court agrees.
As the Eleventh Circuit has observed, there is an affirmative defense to an employer’s
liability for a supervisor’s sexual harassment, “which the Supreme Court [recognized] in
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998).” Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1292 (11th Cir.
2007). The Faragher-Ellerth “defense has two halves, one of which focuses on the employer’s
responsibility to prevent or correct workplace harassment, and the other of which focuses on the
employee’s responsibility to protect [him]self and others from harassment by using the
procedures the employer has in place to promptly report it.” Id. For an employer to prevail under
the Faragher-Ellerth defense, the “employer must show not only that it fulfilled its
responsibility, but also that the employee failed to fulfill [his].” Id. Stated otherwise, an employer
avoids liability if: (1) it “exercised reasonable care to prevent and correct promptly any sexually
harassing behavior;” and (2) the employee “unreasonably failed to take advantage of any
preventative or corrective opportunities [the employer] provided.” Faragher, 524 U.S. at 807;

19

Ellerth, 5224 U.S. at 765. The employer bears the burden of establishing both of these elements.
Baldwin, 480 F.3d at 1303.
Here, the evidence on this issue is undisputed and Defendant has met its burden. The
parties do not dispute, and the court agrees, that Defendant has satisfied the first prong of the
affirmative defense. The Rule 56 evidence shows that Defendant’s Harassment Policy is
“comprehensive, well-known to employees, vigorously enforced, and provides alternate avenues
of redress.” Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997). There is no
dispute Plaintiff twice signed an acknowledgment that he read and received the Harassment
Policy. (Docs. # 46-10, 46-11). The Harassment Policy is by its plain language comprehensive.
(See Doc. # 46-10). Further, the Rule 56 evidence shows that the policy has been enforced.
Indeed, Plaintiff had been subject to redress and internal counseling under it on a previous
occasion. Thus, Defendant has satisfied the first prong of the Faragher-Ellerth defense.
Defendant also argues that Plaintiff failed take advantage of the procedures set forth in
the Harassment Policy. However, Plaintiff contends in this instance that a material dispute of fact
exists as to whether Plaintiff reported the harassment to two management-level employees -Crosby and Lanzi -- who took no action. After careful review, the court determines that the Rule
56 record supports Defendant’s position and that it has carried its burden on the second prong of
the Faragher-Ellerth defense.
Although Defendant has the burden of establishing that Plaintiff unreasonably failed to
take advantage of its Harassment Policy,13 Plaintiff as “a victim of coworker harassment must
13

The Harassment Policy provides that:

You are required to notify your supervisor or the Human Resources Director, President or a
member of Managing Committee immediately of any harassment, even if you are not sure the
offending behavior is considered harassment under this policy. Any possible incidents of
harassment must be immediately reported to a manager or other management representative by
anyone who may witness them.

20

show either actual knowledge on the part of the employer or conduct sufficiently severe and
pervasive as to constitute constructive knowledge of the employer.” Miller v. Kentworth of
Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). The court has determined above that
Plaintiff has failed to present sufficient evidence establishing severe and pervasive conduct, and
thus cannot show Defendant had constructive knowledge of harassment.14 Accordingly, Plaintiff
must prove that Defendant had actual notice of sexual harassment. “Actual notice [or, stated
differently, actual knowledge] is established by proof that management knew of the harassment.”
Id.
The court determines that Plaintiff has not established actual knowledge of the alleged
harassment. The court assumes Plaintiff reported Vest’s allegedly harassing statements to “Head
Nurse” Cynthia Crosby and “Housekeeping/Maintenance Supervisor” Chuck Lanzi. (Doc. # 511 at Ex. 1, ¶¶ 9, 10). He did not complain to Wallingford, Hebert, Gardner, anyone on the
Management Committee, or anyone else at Danberry. Plaintiff has not provided any statements
or testimony from Crosby or Lanzi (and, at least arguably, could not have validly done so). (See
Doc. # 57 (arguing Plaintiff did not include Crosby or Lanzi in his Rule 26 disclosures)). Nor
does Plaintiff set forth what he actually said to them, or when. Instead, Plaintiff states he
“expressed” to Crosby and Lanzi that “Vest was harassing [him] because of his gender identity
and sexual preferences.” (Doc. # 51-1 at Ex. 1, ¶¶ 9, 10). Those averments are not only
conclusory. And, just as importantly, Plaintiff’s “complaints” were not made to persons
authorized by the policy to receive a complaint. Thus, Plaintiff cannot rely on conclusory
(Doc. # 46-10 at p. 3). To be sure, that language, on its face, is unclear. It is not clear that the phrase “manager or
other management representative” in the second sentence is limited to members of the Managing Committee, or
encompasses other positions employed by Defendant.
14

To be clear, although Vest was one of Plaintiff’s supervisors, the court has determined that the evidence
in the summary judgment record is insufficient to establish that Vest objectively subjected Plaintiff to sexual
harassment.

21

allegations and assertions alone to demonstrate actual knowledge (or, for that matter,
constructive knowledge) of complaints of alleged harassment to Danberry’s management. See
Gargiulo, 131 F.3d at 999. Plaintiff is instead required to present “concrete evidence in the form
of specific facts.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). This
Plaintiff has failed to do. It is undisputed on this record that he unreasonably failed to take
advantage of the Harassment Policy.
Defendant’s Harassment Policy, in plain language, instructs an employee who has been
harassed to report that fate to “your supervisor or the Human Resources Director, President or a
member of the Managing Committee immediately…, even if you are not sure the offending
behavior is considered harassment under this policy.” (Doc. #46-10 at p. 3). On the other hand,
those who witness harassment are to immediately report that to a manager or other management
representative. Thus, the language of the policy sets out two tracks for reporting harassment: one
for those who are harassed, and one for those who witness harassment. Defendant’s policy
obviously contemplates supervisor harassment and recognizes that when someone is harassed by
a supervisor, it may be ill advised to report that to the supervisor. Here, Plaintiff perceived
harassment, and therefore was obliged to report that fact to the “Human Resources Director,
President, or a member of Managing Committee immediately.…” (Doc. #46-0 at p. 3).
Plaintiff’s reported complaints to Crosby and Lanzi15 were not reasonable under the

15

Crosby and Lanzi do not work in the Dining Department. There is no indication in the Rule 56 evidence
that Lanzi ever worked in the Healthcare Department. Again, Plaintiff does not state when he complained to Crosby
and Lanzi. Cf. Mangrum v. Republic Indus., Inc., 260 F. Supp. 2d 1229, 1254 (N.D. Ga. 2003) (plaintiff’s failure to
report alleged harassment to employer for almost a month after the incident and the fact that her “report” came in the
form of demand letter from her attorney and not from her directly as required by the policy were not reasonable
under circumstances). And, although title alone is not indicative of whether an employee acts in a managerial
capacity, Plaintiff has submitted no facts to demonstrate that Crosby or Lanzi held any type of supervisory or
managerial position during his time of employment. In addition, Plaintiff has not set forth what he said to them.
Without knowing what was said (and putting aside the fact that Plaintiff’s averments about the complaints are
conclusory), the court cannot determine that a jury may draw a reasonable inference that Plaintiff reasonably utilized
Defendant’s Harassment Policy. See Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364-66 (11th Cir. 1999)

22

circumstances and did not trigger Defendant’s policy. Plaintiff did not work as a nurse or in
housekeeping. He was a Server and Resident Assistant and Sitter. The supervisors and directors
of Dining and Healthcare Departments were Vest, Wallingford, and Robinson. And the summary
judgment evidence shows that while Plaintiff frequently spoke with Hebert and Wallingford, he
never complained to them about any alleged harassment by Vest.
For all these reasons, the court finds that Defendant has established it is entitled to
judgment as a matter of law on its Faragher-Ellerth defense, and Plaintiff, furthermore, has
fallen short of pointing to any basis to hold Defendant liable for the alleged harassment.
B.

Plaintiff’s Termination Claim

Plaintiff asserts he was terminated because of his sex, but the exact contours of his sex
discrimination claim are somewhat unclear. Thus, in addressing whether Plaintiff has presented
a prima facie case of discrimination, the court must distinguish between two distinct theories: (1)
discrimination based upon sexual orientation; and (2) discrimination based upon gender
stereotyping. After careful review, the court concludes that Plaintiff has established a prima
facie case based on gender stereotyping, but any assertion of discrimination based upon sexual
orientation does not state a claim under Title VII. See Fredette v. BVP Mgmt. Associates, 112
F.3d 1503, 1510 (11th Cir. 1997) (concluding that discrimination based on sexual orientation is
not actionable under Title VII, although gender discrimination may present an actionable claim
under Title VII); Fitzpatrick v. Winn-Dixie Montgomery, Inc., 153 F. Supp. 2d 1303, 1306 (M.D.
Ala. 2001) (finding “sexual orientation is not a protected class under Title VII”); Glenn v.
Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) (string citing cases for the proposition that under

(plaintiff did not make “reasonable sufficient use of the channels created by [the] policy” where attempts to report
harassment involved unclear statements or notice to the managers and supervisors required under her employer’s
harassment policy because employer was not put on sufficient notice).

23

Title VII “[a]ll persons… are protected from discrimination on the basis of gender stereotype”).
As explained below, Plaintiff has successfully set forth a prima facie case of gender stereotyping;
therefore, the court must also analyze Defendant’s articulated reason for terminating Plaintiff and
decide if there is sufficient evidence that reason is a pretext for discrimination.
1.

Plaintiff Has Established a Prima Facie Case of Discrimination Based
Upon Gender Stereotyping But Not Sexual Orientation

In the usual case, in order to make a prima facie case for wrongful termination through
circumstantial evidence, an employee must making a showing what is known as the McDonnell
Douglas framework that he: (1) he is a member of a protected class; (2) he suffered an adverse
employment action; (3) he was qualified for the job; and (4) that his employer treated similarly
situated employees outside his classification more favorably. Wilson, 376 F.3d at 1092 (citations
omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Here, it is
undisputed that Plaintiff’s employment at Danberry was terminated and that he suffered an
adverse employment action. Likewise, the parties do not dispute that Plaintiff was qualified for
the job.
a. Plaintiff Has Not Shown Direct Evidence
An employee may establish a prima facie claim of impermissible discriminatory
termination through either direct evidence or circumstantial evidence. See Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004) (citation omitted). Plaintiff argues that
there is direct evidence that discrimination on the basis of gender stereotypes was a motivating
factor behind his termination. Defendant argues that there is no direct evidence of a
discriminatory motive as related to Plaintiff’s termination. The court agrees.
Direct evidence of discrimination is “evidence which reflects ‘a discriminatory or
retaliatory attitude correlating to the discriminat[ory] or retaliate[ory] [act] complained of by the
24

employee.’” Wilson, 376 F.3d at 1086 (citations omitted). It is “evidence that, if believed, proves
[the] existence of [a] fact without inference or presumption.” Burrell v. Bd. of Trustees of Ga.
Military College, 125 F.3d 1390, 1393 (11th Cir. 1997) (citations omitted). “[D]irect evidence
can mean nothing other than evidence from which a trier of fact could conclude, more probably
than not, that the defendant discriminated against the plaintiff in regard to the contested
employment decision on the basis of a protected personal characteristic.” Wright v. Southland
Corp., 187 F.3d 1287, 1306 (11th Cir. 1999). “[O]nly the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of some impermissible factor
constitute direct evidence of discrimination.” Wilson, 376 F.3d at 1086 (citations and internal
quotations omitted). In other words, there must be “a statement that (1) is by the employer (i.e.,
by the decisionmaker), (2) reflects a discriminatory attitude, and (3) ties the discriminatory
attitude to the relevant employment decision.” Wright, 187 F.3d at 1294. “If the alleged
statement suggests, but does not prove, a discriminatory motive, then it is circumstantial
evidence.” Wilson, 376 F.3d at 1086 (citing Burrell, 125 F.3d at 1393).
Here, Plaintiff contends there is “significant ‘direct evidence’ that a motivating factor in
[his] termination was information provided by a decisionmaker who was biased against him
because of his non-conformity to gender stereotypes of what a man or woman should act like.”
(Doc. # 51 at p. 20). In particular, Plaintiff argues that Defendant is liable under the so-called
“cat’s paw” theory of liability because it relied, in part, on Vest’s input in deciding to terminate
Plaintiff,16 (id. at p. 20, n. 3), and Plaintiff asserts, Vest made discriminatory comments to him.
16

“The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679,
and injected into United States employment discrimination law by [Judge] Posner in 1990.” Staub v. Proctor Hosp.,
562 U.S. 411, 415 n. 1 (2011) (citing Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)).
In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the
cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and
leaves the cat with nothing. A coda to the fable (relevant, only marginally, if at all, to employment

25

(Id.). As already noted, in order for Vest’s “comments” to be direct evidence, Plaintiff would
have to show that (1) he is a decision maker, (2) his comments directly evidence a discriminatory
intent, and (3) the statements that discriminatory intent to the decision challenged, i.e., the
decision to terminate Plaintiff’s employment. In essence, here, Plaintiff attempts to graft two
separate concepts – direct evidence and the cat’s paw theory – into one evidentiary formula, and
argues that Vest’s comments are direct evidence of a discriminatory discharge decision. The
court disagrees and finds Plaintiff’s theory is fatally flawed for the following reasons.
Under any view of the applicable law, Vest’s comments cannot be characterized as direct
evidence. That is, while his comments may suggest he gender stereotyped Plaintiff, they are not
in any way related to the decision to discharge Plaintiff. An inference is required to be drawn
before it can be said these comments suggest a discriminatory motive to terminate Plaintiff (e.g.,
because he gender stereotyped Plaintiff, Vest would push for his termination). In other words,
Vest’s remarks, even if fully credited, suggest – but do not prove – that he may have had a
discriminatory motive. “By definition, then, [this] is circumstantial evidence.” Burrell, 125 F.3d
at 1393-94 (citation omitted).
In any event, for Plaintiff’s direct evidence/cat paw theory to pass muster, he must show
direct evidence that Vest’s alleged discriminatory actions against his protected status was a
motivating factor in Gardner’s decision to fire him.17 Vest’s statements to Plaintiff alone provide
no direct evidence that Defendant (that is, Gardner) “relied on, took into account, considered, or
conditioned its decision on that consideration.” Coffman, 411 F.3d at 1238. All Plaintiff can rely

law) observes that the cat is similar to princes who, flattered by the king, perform services on the
king’s behalf and receive no reward.
Id.
17

“A motivating factor does not mean that it had to be the sole cause of the employment action. Instead, it
is one of the factors that a truthful employer would list if asked for the reasons for its decision.” Coffman v. Chugach
Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005) (citations and internal quotations omitted).

26

on is circumstantial evidence of discriminatory motive. See id. Thus, Plaintiff has failed to
present direct evidence that he was terminated for discriminatory reasons.
b. Analysis of Plaintiff’s Prima Facie Case
The court turns next to whether Plaintiff has established a prima face case through
circumstantial evidence. After careful review, the court determines he has done so in connection
with his gender stereotyping claim, but not his sexual orientation assertion.
As Defendant has noted, Plaintiff has not presented any evidence of Defendant’s
treatment of similarly situated employees (i.e., comparators). But Plaintiff’s claim does not rise
and fall only on such a showing (or lack thereof). See Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997) (“If a plaintiff fails to show the existence of a similarly situated employee,
summary judgment is appropriate where no other evidence of discrimination is present.”). This is
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. Accordingly, 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). “Rather, the plaintiff will always survive summary judgment if he
presents circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent.” Smith, 644 F.3d at 1328 (citations omitted); see also Holifield, 115 F.3d
at 1562 (declaring that, where plaintiff cannot establish a prima facie case, summary judgment is
only “appropriate where no other evidence of discrimination is present.”). The Eleventh Circuit
has instructed that “[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 by the decisionmaker.’” Smith, 644 F.3d at 1328 (quoting

27

Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir. 2011)). The determination of whether a
plaintiff has presented sufficient circumstantial evidence of intentional discrimination is a
flexible one. See id. (“[N]o matter its form, so long as the circumstantial evidence raises a
reasonable inference that the employer discriminated against the plaintiff, summary judgment is
improper.”).
In this case, Plaintiff points to the fact that Vest was consulted about the decision to
terminate him, and that there is Rule 56 evidence that Vest made allegedly discriminatory
statements. The question remains whether Vest’s views (i.e., those views that can be inferred
from his gender stereotypical comments made to Plaintiff) played any part in the decision to
discharge Plaintiff. In order for his cat paw theory to pass muster, Plaintiff must show that
Vest’s alleged discriminatory attitude was a motivating factor in Gardner’s decision to fire him.
In other words, under the cat’s paw theory, an employee must show that “the decisionmaker
acted in accordance with the harasser’s decision.” Llampallas v. Mini-Circuits, Lab, Inc., 163
F.3d 1236, 1249 (11th Cir. 1998). As explained more fully below, it is for a jury to determine if
Vest influenced Gardner’s decision to discharge Plaintiff for discriminatory reasons. Gardner
undisputedly was the decisionmaker who terminated Plaintiff. (Doc. # 46-12 at ¶ 7, 8). But in
making her decision, she considered input from Vest, among others.18 (Id. at ¶ 8).
In addition, Plaintiff had previously asked Vest why he was taken off the schedule to
work on February 8, 2014 (Doc #51-1 at Ex. 1 ¶ 21). Vest told Plaintiff he was not sure why that
had occurred. (Id. At ¶ 20). Yet, Plaintiff has presented evidence that Vest was the one
responsible for scheduling the shifts. (Id.) Plaintiff also claims he had unsuccessfully attempted
18

Plaintiff points to undisputed evidence that vest had the power to issue, and did issue, written and verbal
reprimands. (Doc. # 46-9 at pp. 7, 8). So did other supervisors, who also reprimanded Plaintiff. (Doc. # 46-9 at pp. 3,
4). These reprimands were due to Plaintiff’s attendance issues and did not relate to his appearance. Vest’s
comments, however, concern Plaintiff’s appearance.

28

to communicate with Vest about missing the February 6 shift. (Id. at ¶16). He followed up with
an email to Vest at 8:54 a.m. that day, a little more than ninety minutes before he was scheduled
to start his shift. (Id. at ¶ 16). The evidence shows that Vest, and others, gave input to Gardner
(who also reviewed Plaintiff’s disciplinary history) when she decided to terminate Plaintiff for
missing two days of work. (Doc. # 46-12 at ¶¶ 7-8). Under these facts, a reasonable jury could
conclude that Vest, for discriminatory reasons, orchestrated certain events leading to (and gave
input about) Plaintiff’s termination. At a minimum, there is sufficient circumstantial evidence to
raise an inference that Vest’s gender stereotyping of Plaintiff was a factor in the decision to
terminate Plaintiff.
2.

Plaintiff Has Raised a Triable Issue as to Whether Defendant’s
Articulated Reason for Terminating Him is Pretextual

In response to Plaintiff’s prima facie case, Defendant has articulated legitimate,
nondiscriminatory reasons (absence from work and violations of the Attendance Policy) for
discharging Plaintiff. “To survive summary judgment, Plaintiff must come forward with
evidence that Defendant’s articulated legitimate, nondiscriminatory reason is merely a pretext for
unlawful discrimination.” Nowlin v. Jones Intercable, Inc., 102 F. Supp. 2d 1364, 1371 (S.D. Ga.
2000) (citing Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
There is no dispute that Plaintiff missed his scheduled shifts on February 6 and 8, 2014.
The Handbook states that “An absence of two (2) days without notice by the employee is
considered Job Abandonment. You will be subject to disciplinary action up to and including
termination.” (Doc. # 46-1 at ¶ 6; Doc. # 46-3 at p. 12). Likewise, the Attendance Policy
provides that employees who fail to report to work or call in for two consecutive workdays or on
two separate occasions will be considered to have voluntarily resigned or abandoned their jobs.
(Doc. # 46-1 at ¶ 7; Doc. # 46-4).
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Nevertheless, Plaintiff disputes that he was a no call/no show, and asserts he did not
violate the Attendance Policy or the Handbook. He claims that Wallingford told Servers on
February 5, 2014, that if they did not have the appropriate shoes, they should not bother coming
to work the next day. (Doc. # 51-1 at Ex. 1, ¶ 14). Vest had previously told Plaintiff in late
January 2014 that he did not have the appropriate shoes, so Plaintiff determined he was not to
attend work on February 6. (Id. at ¶¶ 12, 15). Plaintiff claims he unsuccessfully tried to call Vest,
and, when he could not reach him, sent this email to Vest ninety-six minutes before the
beginning of his shift. (Id. at ¶¶ 15, 16; Doc. # 46-8).
I remember at the meeting yesterday that Dave said we need our non slip work
shoes by today. Mine are on order. I understand the proper safety shoe policy and
know that I need them. I do not have the proper work shoe at this time. They
should be here in 3 days.
(Id.). Plaintiff also claims that when he worked in the Healthcare Department on February 7,
2014, he noticed his name had been marked off the Dining Department work schedule for his
shift on February 8, 2014.19 (Doc. # 51-1 at Ex. 1, ¶ 19). He claims he spoke with Vest, but Vest
told Plaintiff he did not know why Plaintiff’s name was marked off the schedule. (Id. at ¶ 20).
Plaintiff understood that the marking out of his name indicated he was not required to report for
work on February 8, 2014, and for that reason he did not report to work that day. (Id.; Doc. # 461 at ¶ 17).
It is undisputed that Plaintiff did not report to work on February 6, and Defendant
contends he did not give express notice that he would not be at work. But, in light of other
evidence about Vest and his attitude toward Plaintiff, it is for a trier of fact to decide whether
Vest was aware Plaintiff had given notice that he would not report on February 6, and (in light of

19

According to Plaintiff in his opposition brief, because he had been marked of the schedule on February 7,
2014, it indicates that Defendant had already decided to terminate him. (Doc. # 51 at p. 22).

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whatever input Vest provided about the discharge decision) whether Defendant had a good faith
basis to conclude that Plaintiff violated its attendance policy.
“[T]he ultimate question in a disparate treatment case is not whether the plaintiff has
established a prima facie case or demonstrated pretext, but whether the defendant intentionally
discriminated against the plaintiff.” Nix v. WLCY Radio/Rahall Commc’s, 738 F.2d 1181, 1184
(11th Cir. 1984). It follows, therefore, that an employee “will always survive summary judgment
if he presents circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
On the issue of pretext, in his brief in opposition, Plaintiff argues as follows:
Defendant’s non-discriminatory reason for terminating Ashford is also not worthy of
belief. First, Ashford was not a no call/no show as the Defendant alleges. The
undisputed testimony is that it was the Defendant who informed Ashford and the other
Servers that they should not report to work if they did not have the proper shoes. The day
Ashford was to report to work on the Dining side of Danberry he emailed Mr. Vest that
he had ordered the proper shoes and his understanding that he was not to report to the
Dining side if he did not have them. The Defendant never responded to Ashford’s email
or acknowledged its content.
Ashford saw both of his Dining department supervisors on February 7th which was the
day he was working on the Healthcare side of Danberry and neither one of them made
mention to him of any problem with him not showing up for work on February 6, 2014.
Furthermore, on February 7, 2014, Ashford had already been marked off the schedule for
February 8, 2014, which indicates that the Defendant had already made its mind up to
terminate him before the following week as it is now alleging. See Bechtel Constr. Co.
v. Sec’y of Labor, 50 F.3d 926 (11th Cir. 1995), and Howard v. BP Oil Co., Inc., 32 F.3d
520, 525 (11th Cir. 1994). In sum, this evidence raises a jury question as to whether
Ashford was terminated at least in part due to his gender non-conformity.
(Doc. #51 at 21-22).

The court agrees.

The issues presented with respect to Plaintiff’s

termination must be decided by a jury.

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VI.

Conclusion
For all these reasons, Defendant’s Motion for Summary Judgment is due to be granted in

part and denied in part. The court will enter a separate order.
DONE and ORDERED this September 6, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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