Lavender v. Protective Life Corporation

Filing 111

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/31/2017. (KBB)

FILED
2017 Oct-31 PM 01:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY LAVENDER,
Plaintiff,

vs.
PROTECTIVE LIFE
CORPORATION,
Defendant.

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Civil Action Number
2:15-cv-02275-AKK

MEMORANDUM OPINION
Kimberly Lavender sued her former employer, Protective Life Corporation,
alleging that it discharged her because she is an African American, in violation of
Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e-2.

Doc. 1.

Protective moved for summary judgment, arguing that Lavender cannot establish a
prima facie case of discrimination, or, alternatively, cannot demonstrate that the
proffered reason for her termination is pretextual. Doc. 104. The motion is fully
briefed and ripe for decision. Docs. 108 & 110. After reading the briefs, viewing
the evidence, and considering the relevant law, the court grants the motion and
dismisses the case in its entirety.

I.

LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary

judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears
the initial burden of proving the absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (internal quotations 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).
At summary judgment, 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 255. Any factual disputes will be resolved in the non-moving party’s
favor when sufficient competent evidence supports the non-moving party’s version

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of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s
favor when that party’s version of events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (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 the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II.

FACTUAL BACKGROUND
Lavender, an African American woman, began her employment with

Protective Life in December 1999 and was eventually assigned to the Life and
Annuities Marketing Department in 2010. Docs. 1; 104 at 4-5; 108 at 2. The
relevant events here occurred in 2012 and 2013, beginning in March 2012 with
Teri Schultz’s appointment as Vice President of Marketing. Docs. 1; 104 at 4-5;
108 at 2.
After her appointment, Schultz restructured the department, which entailed,
in part, giving many of the employees under her supervision, including Lavender,
new job descriptions. Docs. 104 at 5; 108 at 2. As part of the restructuring,
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Schultz met with employees to discuss their new roles. Docs. 104 at 5; 108 at 2.
When Schultz met with Lavender, she discussed Lavender’s new position,
“Marketing Communications Specialist,” which involved the support of both life
insurance and annuities. Docs. 104 at 6; 108 at 2. Schultz and Lavender also met
on other occasions where Lavender had the opportunity to discuss her ongoing
work and interests. Docs. 104 at 7; 108 at 3.
Lavender’s annual performance reviews reflect that she performed well in
2009, 2010, and 2011.1 Doc. 105-1 at 108-28. Over time, however, Protective
grew increasingly frustrated with Lavender’s performance.

In January 2013,

Schultz gave Lavender an overall rating of “does not meet expectations” for the
2012 performance review period. Docs. 104 at 9; 108 at 4; 105-1 at 158-61. When
Schultz discussed the review with Lavender, she outlined the specific areas where
Lavender needed to improve2 and instructed Lavender to create a development
plan. Docs. 104 at 9-10; 108 at 4-5. Despite Schultz’s warning, problems with
1

In 2009 Scott Christie, Lavender’s then supervisor, rated Lavender as meeting
expectations for all categories of performance, except for “drive quality,” which he listed as
needing improvement. Doc. 105-1 at 108-14. In 2010 Christie listed Lavender as having met all
expectations, except for three. Doc. 105-1 at 115-22. However, two of these were attributable to
Protective’s inability to schedule training or seminars for Lavender. Doc. 105-1 at 117-18. And
in 2011 Lavender met all expectations. Doc. 105-1 at 123-28.
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Schultz told Lavender that she often left out key facts in her communications with
others, which would lead to misinterpretation problems; that she needed to improve her decisionmaking and judgment; that she sometimes passed along information without obtaining proper
perspective; that she demonstrated weak critical thinking; that she acted on requests without
obtaining accurate information; that she overlooked a variety of urgent requests; that she needed
improvement in her focus, ability to prioritize, initiative, job knowledge, and sense of urgency;
and that she had a tendency to focus on basic administrative tasks rather than embracing her new
role. Docs. 104 at 9-10; 108 at 4.
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Lavender’s performance persisted. For example, the accounts team reported that
they found Lavender’s marketing monthly update “more confusing than helpful.”
Doc. 105-1 at 162-63.

Also, Lavender disregarded specific instructions from

Schultz and worked on the Church Life project. 3 Doc. 105-1 at 41.
A month after Schultz initially provided the directive for a development
plan, she reiterated the request that Lavender build out a plan to “close the gaps in
her performance . . . in order to sufficiently fulfill” her duties. Doc. 105-1 at 166.
When Lavender finally complied, Schultz expressed her disappointment,
explaining that Lavender’s “plan” consisted “simply [of] some generic goals” and
that it failed to address the performance deficiencies that Schultz had raised. Doc.
105-1 at 167.
Around the same time, Schultz hired Dan Sheehan as 2nd Vice President of
Marketing Communications. Docs. 104 at 6; 108 at 2. In this capacity, Sheehan
directly supervised Lavender. Docs. 104 at 6, 11; 108 at 2, 6. At Schultz’s
instruction, Sheehan began working with Lavender on her development plan.
Docs. 104 at 11; 108 at 6. On April 15, 2013, Schultz had Sheehan deliver to
Lavender a written warning which detailed multiple performance deficiencies and
placed Lavender on notice that failure to improve would result in further

3

Lavender alleges that an “account manager” instructed her to work on the Church Life
project. Doc. 108 at 5. But it is undisputed that this account manager was not her supervisor and
that none of her supervisors gave her permission to work on the project. Doc. 105-1 at 41, 164.
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disciplinary action, including termination. Docs. 104 at 11; 105-1 at 44; 108 at 6;
110 at 4. Lavender understood after meeting with Sheehan and receiving the
written warning what Protective expected of her and knew that her job was in
jeopardy. Docs. 104 at 12; 108 at 6. Thereafter, Sheehan met with Lavender
weekly until he resigned in July 2013. Docs. 104 at 12; 108 at 6.
Based on her belief that Lavender had failed to improve, Schultz issued
Lavender a final warning in late July. Docs. 105-1 at 50-53, 180-92; 105-1 at 19394. The warning detailed performance deficiencies, outlining fourteen specific
problems with examples of each. Doc. 105-1 at 193-94. Schultz gave Lavender a
month to improve.

Doc. 105-1 at 193-94.

Schultz met with Lavender

approximately a week later and discussed Lavender’s performance problems,
explaining that Lavender reverted too easily to administrative tasks, demonstrated
a lack of urgency, did not maintain good office hours, did not write well, and
demonstrated a lack of critical thinking. Docs. 104 at 13; 108 at 7.
Lavender’s final infraction occurred about a month later when she falsely
informed Select Quote, a major client of Protective, that Protective no longer sold
term insurance policies. Docs. 105-3 at 21; 105-1 at 55-56, 96. When Aaron
Seurkamp, Protective’s Senior Vice President of Life Sales, received Lavender’s
inaccurate communication from Select Quote, he forwarded it to Schultz. Docs.
104 at 14; 105-1 at 95; 108 at 7. Schultz, in turn, reported the incident to Mark

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Huffman, one of Protective’s human resources partners, stating that “[t]his is a
situation where [Lavender] used very poor judgment that could impact this
relationship and our business.” Docs. 104 at 14; 105-1 at 95; 108 at 7; 105-2 at 35. Based on this incident and the issues outlined in the final warning, Schultz and
Huffman discharged Lavender. The termination resulted in this lawsuit, in which
Lavender asserts a single claim of race discrimination.4 Doc. 1.
III.

ANALYSIS

Where, as here, Lavender concedes that she does not have any direct
evidence of discrimination, see docs. 104 at 8; 108 at 3, she must prove her claim
using the circumstantial evidence method. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010). Under this method, courts utilize the
burden-shifting framework created in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248
(1981). Relevant here, a plaintiff establishes a prima facie case of discrimination
typically “by showing that she was a qualified member of a protected class and
was subjected to an adverse employment action in contrast to similarly situated
employees outside the protected class.” Alvarez, 610 F.3d at 1264. However, each
4

Protective’s motion addresses a potential “failure to train” claim out of “an abundance
of caution.” Doc. 104 at 18. Lavender cannot pursue any such claim because, first, she
conceded in her deposition that Protective sufficiently trained her for her position, docs. 104 at 7;
105-1 at 12-14; 108 at 3; 110 at 2, and, second, she failed to brief the elements of such a claim in
her response brief, and, as such, forfeited the claim, see Greenlaw v. United States, 554 U.S. 237,
244 (2008).
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comparator must be “similarly situated in all relevant respects.” Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997). Id. This entails ascertaining “whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999).
The Eleventh Circuit mandates that “the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” 5
Id. While the plaintiff and the comparators must have operated under the same
workplace rules or policies, Lathem v. Dep’t of Children & Youth Servs., 172 F.3d
786, 793 (11th Cir. 1999), “differences in job ranks between a plaintiff and another
employee are not, in and of themselves, dispositive as to whether the two
individuals may be compared for purposes of evaluating a discrimination claim.”
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008). Rather, it is
the alleged misconduct or performance deficiency that led to the adverse
employment action that must be “nearly identical.” Maniccia, 171 F.3d at 1368.
The most salient factors courts look to are the seriousness of the alleged
misconduct, id. at 1369, and the frequency of the alleged misconduct, see Maynard
v. Bd. of Regents of Div. of Univ. of Florida Dep’t of Educ. ex rel. Univ. of S.
5

“[N]early identical” does not mean “exactly identical” and “[a] range of comparators
may satisfy this standard.” McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008).
8

Florida, 342 F.3d 1281, 1289-90 (11th Cir. 2003).

In some circumstances,

however, the “plaintiff’s failure to produce a comparator does not necessarily
doom her case,” as long as she can present a “triable issue of fact” through “a
convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011).
Turning to the specifics here, Lavender claims that Protective treated
similarly situated white employees more favorably by (1) failing to discipline them
after they adversely impacted her ability to timely deliver a project and for which
Protective disciplined her, docs. 108 at 11; 105-1 at 59; and (2) favoring them in
deciding how to assign projects and who would attend certain training conferences,
docs. 108 at 11; 105-1 at 59. In response, Protective contends that none of the
alleged comparators are similarly situated to Lavender.6 See generally docs. 104 at
20-30; 112 at 7-12. The court now considers each set of comparators in turn.

6

Protective also argues that Lavender’s claim fails because “[a]fter Lavender’s
employment was terminated . . . [it] hired African-American female Faith Ferguson to assume
Lavender’s duties.” Docs. 104 at 16. However, because a plaintiff can successfully prove a
discrimination claim even if the employer replaced her with a member of her same race, the
court will focus on Protective’s comparator argument instead. See Connecticut v. Teal, 457 U.S.
440, 455 (1982) (“It is clear that Congress never intended to give an employer license to
discriminate against some employees on the basis of race or sex merely because he favorably
treats other members of the employees’ group.”); O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 312 (U.S. 1996) (“The fact that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has lost out because of his age.”).
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A. Jeremy Hoffman, Beth Williams, and Brion Greer
Lavender first argues that, unlike her, Protective allowed Jeremy Hoffman,
Beth Williams, and Brion Greer to attend training and product development
meetings at Protective’s main office in Cincinnati, Ohio and assigned them more
favorable projects. Docs. 108 at 11, 12; 105-1 at 62. However, the record belies
Lavender’s contentions. As an initial matter, it seems even Lavender does not
believe she is similarly situated to these three individuals, who held higher graded
positions as “consultants.” Docs. 104 at 6, 15; 108 at 2, 8. As Lavender conceded
in her deposition, her “area of concern would be very different from the
consultants.” Doc. 105-1 at 65. To the extent these employees received more
favorable assignments and conference invites, their higher pay grades and
responsibilities may well be the reason for the purportedly disparate treatment.
In any event, Lavender has failed to identify the purportedly more favorable
assignments these employees received or the conferences they attended that
Protective refused to let her attend. Doc. 105-1 at 65-66. In fact, the record shows
that Protective only denied Lavender a single request to attend a conference, and
on that occasion, Schultz, the department head, was the only member of Marketing
who attended. Docs. 104 at 7-8; 105-1 at 14; 108 at 3; 110 at 2. Significantly,
Lavender concedes that Schultz was in a better position to determine what

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conferences were appropriate for each team member to attend. Docs. 104 at 7-8;
105-1 at 14; 108 at 3; 110 at 2.
Second, as to alleged differences in discipline, Lavender has failed to
establish that these subset of comparators were similarly situated in all relevant
respects and treated differently for nearly identical misconduct or performance
deficiencies. See Holifield, 115 F.3d at 1562; Maniccia, 171 F.3d at 1368. For
example, Lavender has not cited, nor can the court find, any evidence in the record
that these three comparators had disciplinary records similar to Lavender’s, and
she concedes that none of the three were on a performance development plan.
Docs. 104 at 15; 108 at 8. Accordingly, because Hoffman, Williams, and Greer
did not have “nearly identical” disciplinary records as Lavender, they are not
similarly situated for purposes of Title VII. See Maniccia, 171 F.3d at 1368.
B. Alisha Reed, Beth Esterkamp, and Sarah Kasel
Lavender next argues that Protective failed to discipline Alisha Reed, Beth
Esterkamp, and Sarah Kasel when they delivered a portion of the “Center of
Influence” project late to Lavender, resulting in Protective disciplining Lavender.
Docs. 108 at 11; 105-1 at 68-69. Despite her contention of purportedly disparate
treatment in discipline, Lavender conceded in her deposition that these subset of
comparators worked on a different phase of the project and that she does not know
if Protective disciplined them for missing their deadlines. Doc. 105-1 at 68-70.
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These concessions alone foreclose Lavender’s ability to prove that these
employees are similarly situated. See Holifield, 115 F.3d at 1562; Maniccia, 171
F.3d at 1368. However, even if Lavender is correct that Protective failed to
discipline these three employees, this fact would not establish that they are
similarly situated to Lavender.

Unlike these subset of comparators whom

Lavender contends engaged only in this single instance of alleged misconduct, the
record shows multiple infractions by Lavender that led to reprimands, including
disobeying the directive related to the Church Life project and jeopardizing
Protective’s relationship with Select Quote by furnishing incorrect information to
that company. Docs. 105-3 at 21; 105-1 at 41, 55-56, 96, 164. Therefore, because
Lavender’s work record contains multiple infractions, she has failed to establish
that Reed, Esterkamp, and Kasel have “nearly identical” disciplinary records and
are similarly situated to her. See Maynard, 342 F.3d at 1289-90.
C. Katherine Thomas and Jason Jackson
Finally, Lavender argues that Katherine Thomas and Jason Jackson
“developed and implemented a marketing tool that did not work properly and cost
[Protective] thousands of dollars but were not terminated.” Doc. 108 at 12. This
contention also does not help Lavender because she concedes that she never
worked on a project similar to the marketing pilot tool and that she does not know
whether Protective reprimanded Thomas and Jackson for their role on this project.
12

Doc. 105-1 at 68-70. Also, Lavender again cites to only a single instance of
misconduct by these two employees. Unfortunately for Lavender, the “nearly
identical” test is an exacting standard, and merely pointing to individual project
failures is insufficient to prove that the comparators are similarly situated in all
relevant respects. See Holifield, 115 F.3d at 1562; Maniccia, 171 F.3d at 1368. As
a result, Thomas and Jackson are also not similarly situated comparators.
CONCLUSION
Even viewing the evidence in the light most favorable to Lavender, she
cannot demonstrate that Protective treated any similarly situated employees of a
different race more favorably and thus cannot establish a prima facie case of
disparate treatment under Title VII.7 For these reasons, and because there is no
7

Alternatively, Lavender’s claim fails because Protective has articulated a legitimate,
nondiscriminatory reason for her termination, i.e. her repeated failure to obey instructions and
meet expectations. Burdine, 450 U.S. at 253-55. Lavender maintains the burden of persuasion at
all times, and she must prove that either Protective’s proffered reason is unbelievable – which it
is not – or that racial discrimination was a more likely explanation for her termination. Id.
Though Lavender disputes that she disobeyed directives and failed to meet Protective’s
expectations, doc. 108 at 2-9, Title VII is not concerned with “whether [plaintiffs] are, in fact,
good employees.” Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). As the Eleventh
Circuit aptly put it:
The inquiry into pretext centers on the employer’s beliefs, not the employee’s
beliefs and, to be blunt about it, not on reality as it exists outside of the decision
maker’s head. . . . The question is whether her employers were dissatisfied with
her for these or other non-discriminatory reasons, even if mistakenly or unfairly
so, or instead merely used those complaints about [the employee] as cover for
discriminating against her because of her [protected status].
Alvarez, 610 F.3d at 1266. Because the record supports Protective’s good faith belief of
misconduct, including correspondence with its client Select Quote, Lavender has failed to rebut
Protective’s reason for her termination. Therefore, her claim fails separately for this reason.
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“convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination,” see Lockheed-Martin, 644 F.3d at 1328, there is
no genuine dispute as to any material fact. Accordingly, Protective is entitled to
judgment as a matter of law, and its motion is due to be granted. The court will
issue a separate order dismissing the case.
DONE the 31st day of October, 2017.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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