Evans v. EPC Inc

Filing 32

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/20/2018. (AFS)

FILED
2018 Sep-20 PM 03:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SONYA EVANS,
Plaintiff,
v.
EPC, INC.,
Defendant.

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Case No.: 2:17-cv-00183-JHE

MEMORANDUM OPINION1
Plaintiff Sonya Evans (“Evans”) initiated this action against Defendant EPC, Inc. (“EPC”)
alleging employment discrimination and retaliation claims pursuant to Title VII of the Civil Rights
Act of 1964, as amended, and 42 U.S.C. § 1981. (Doc. 1). Prior to the close of discovery, on
October 10, 2017, EPC moved for summary judgment. (Doc. 16). Evans filed a “Motion for
Continuance Pursuant to Fed. R. Civ. P. 56(d),” requesting the deadline to respond to the summary
judgment motion be extended to March 8, 2018 (after the close of discovery) because, inter alia,
depositions had yet to be completed. (Doc. 19). EPC opposed Evans’ motion. (Doc. 20). On
October 25, 2017, finding the interests of justice required Evans have an opportunity to depose
two individuals before a summary judgment motion is considered, the undersigned granted Evans’
Rule 56(d) motion and denied EPC’s motion for summary judgment without prejudice as
premature. (Doc. 21).
After completing the two outstanding depositions, EPC moved for summary judgment.
(Doc. 24). Evans filed a response in opposition to summary judgment (doc. 27), and EPC replied

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 11).
1

(doc. 29). The renewed motion for summary judgment is ripe for review. Based on the foregoing,
EPC’s renewed motion for summary judgment (doc. 24) is GRANTED.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). 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 there is a “genuine issue for trial.” Id. at 324. (citation and internal 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 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

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a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. v. Oliver, 836 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. Summary Judgment Facts
A. Evans’ Employment with EPC
EPC, or “Engineered Plastics Components,” is a plastic injection molding company that
produces interior automotive components and assemblies. (Doc. 26-1 at ¶ 3). On July 3, 2015,
Plant Manager Ben Weber (“Weber”) and Human Resources Director Pam Gillard (“Gillard”)
hired Evans as the third shift production supervisor for EPC. (Id. at ¶4; doc 26-2 at 23 (85:12-15,
86:4-12)). Evans went to work for EPC because she had previously worked with Gillard and
because she was excited to go work for Gillard again. (Doc. 26-2 at 23 (86:16-23)). Evans and
Gillard knew each other on a personal level and had been acquainted for approximately seventeen
years, as they both worked together at a previous employer. (Id. at 4-5, 13 (10:15-17, 13:11-14:11,
47:19-22)).
In her role as third shift production supervisor, Evans reported to Weber. (Doc. 26-2 at 23
(87:4-10)). From a management standpoint, Evans was the highest-ranking person in the facility
on third shift. (Id. (87:4-10)). Her shift typically lasted from 10:30 PM to 7:00 AM. (Id. (86:412)). As third shift production supervisor, Evans was responsible for ensuring the presses were
running on time, starting and stopping machinery, handling issues with the machines, making sure
the material was accurate, and making sure the employees were doing what they were supposed to
be doing. (Id. at 23-24 (88:10-89:1)).

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As part of the production process, paperwork is filled out for each mold produced at EPC.
(Doc. 26-2 at 24 (91:9-92:23)). Five to six employees have a responsibility for filling out a
different section of the paperwork and for signing their names to the section to verify the parts and
materials. (Id.). Evans was familiar with company policies and procedures. (Id. (89:2-4)). In
fact, it was Evans’ responsibility to discipline employees on her shift when they were not doing
their job properly, not signing their documents, or not following the proper process. (Id. (89:590:7)). Evans understood that, as a supervisor or manager, EPC was counting on her to enforce
its policies and procedures. (Id. at 27 (103:4-7)).
B. Evans’ Relationship with Korey Mendenhall
While working at EPC, Evans met Korey Mendenhall (“Mendenhall”). (Doc. 26-2 at 14
(51:13-19)). Mendenhall, who is African-American,2 worked as a material handler (an hourly
position); Evans supervised Mendenhall. (Id. at 10-11, 15 (54:2-4), 36:19-37:1)). According to
Evans, she and Mendenhall began dating several months after she started working at EPC. (Id. at
14 (51:20-23)).

Evans separated from her husband after beginning her relationship with

Mendenhall. (Id. (51:17-52:7)). Evans and Mendenhall took breaks together and ate their lunches
together, fixing each other’s lunches, making each other’s plates, and sitting down to eat together.
(Id. at 10, 14-15 (36:14-18, 52-21-53)). Evans believes her co-workers knew they were dating
based on these observations (id.), and because co-worker John Dodge (“Dodge”),3 a mold changer,
told Evans he couldn’t believe she would date a “nigger” and that he “didn’t like the fact a white
person would date a nigger.” (Id. at 11-12 (40:14-41:16)). Evans and Mendenhall did not engage
in romantic activities at work. (Doc. Id. at 14 52:11-17)).

2
3

Evans is Caucasian.
Dodge was not a decision-maker in Evan’s termination. See infra.
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Gillard began receiving complaints from employees about Evans and Mendenhall as well
as complaints that people on Evans’ shift took longer break times. (Doc. 26-2 at 41 (159:1-16011)). Evans understood that employees were not supposed to take extended lunches or breaks.
(Id. at 26-27 (100:19-101:8)). Evans testified that Gillard told her that, because she was a manager
and Mendenhall was an hourly employee, they should not be dating. 4 (Id. at 12-13, 27 (43:2144:4, 45:17-22, 101:9-13)). There was no written rule against dating at EPC. (Doc. 26-4 at 9
(31:1-7)).

According to Evans, Gillard told Evans that people were complaining to her about

Evans and Mendenhall’s relationship on a daily basis, and Gillard did not say that these complaints
had anything to do with race. (Doc. 26-2 at 12 (43:6-16)). EPC had an “open door policy” and
Gillard had no control over what complaints were made. (Id. at 39 (151:3-8)). However, during
this conversation Gillard also told Evans that Evans’ parents would “not be proud” of her for dating
Mendenhall, that her parents “would not agree [with] it.” (Id. at 13 (45:23-46:7)). Evans’ testified,
“our conversation was because he was black” (id. (46:20-21)), and that “[Gillard] said something
about birds of a feather flock together.” (Id. (48:2-9)). Evans understood this comment to be
referring to Mendenhall’s race. (Id. (48:10-17)). Gillard testified that interracial dating is “not an
issue’ to her. (Doc. 26-4 at 10 (33:17-19)).

Evans described the conversation as talking about

how her parents would feel, then talking about Gillard’s children and Gillard’s feelings. (Id. (48:29)).
According to Evans, no one made comments to Mendenhall about his relationship with
Evans. (Doc. 26-2 at 14 (50:12-20)). And, Mendenhall was never disciplined or had any other

According to Evans, during this conversation, Gillard also told her that she shouldn’t
date a “subordinate” or someone she was supervising because she was management, and Evans
admitted she knew that. (Doc. 26-2 at 13 (47:2-10)). Gillard also told Evans that a manager
dating an hourly employee didn’t “set a good example.” (Id. at 12 (43:21-44:4)).
4

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issues at EPC. (Id. at 15 (54:9-19)).
Evans alleges two other EPC employees, Paul Klem (“Klem”) and Bethany Cross
(“Cross”), were in a relationship and that they were never disciplined for taking long lunches.
(Doc. 26-2 at 27-28 (103:19-105:16)). Cross was a Quality Auditor who reported to Alisa
Washington. (Doc. 26-1 at ¶ 18). Cross and Klem were in a romantic relationship, but Cross did
not report to Klem. (Id.). EPC only prohibits involvement between a supervisor or manager and
his or her direct reports. (Id.). Gillard spoke with Klem about his relationship with Cross and told
him he must be professional with his behavior in the work place. (Id.). Klem was a first shift
supervisor, an equivalent management position to Evans. (Doc. 26-2 at 10 (35:7-9)).
C. Evans’ Complaints About Race-Based Comments
Evans’ reported Dodge’s comment to Weber on March 24, 2016. (Doc. 26-2 at 12, 31
(42:3-14, 118:3-120-22)). Evans and Mendenhall met with Weber and informed him that people
were starting to make racial comments and were treating them differently, that it had been going
on for several days, and that they were tired of it and wanted it stopped. 5 (Id. at 31 (118:10-22)).
Evans told Weber that she and Mendenhall were coming to him because he was her direct
supervisor and she didn’t know how Gillard would take it if they were talking about racial
discrimination. (Id.). Weber reminded Evans that she was a supervisor and had authority to
discipline any employee on third shift who was causing problems.6 (Doc. 26-3 at ¶ 10).

Evans

did not discipline any of her subordinate employees for problems of the type she was complaining

5

Weber testifies he does not remember speaking to Evans and Mendenhall together.
(Doc. 26-5 at 8 (28:5-7)).
6
Weber testifies that he does not remember Evans reporting anyone using the “n-word,”
but that Evans reported employees making “rude remarks.” Specifically, Weber testifies that he
does not remember the exact “rude remarks” Evans reported employees making, but that he
asked Evans if she was “timid about writing someone up if they’re getting in a supervisor’s face”
and told her to “please go do your job.” (Doc. 26-5 at 8 (27:5-7, 15-23)).
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about to Weber. (Id.). According to Evans, Weber also told her he would investigate the behavior
and put a stop to it. (Doc. 26-2 at 31 (118:3-120:2)). Weber instructed Evans to write down her
specific problems in a notebook for him, and Evans believed this would be used as part of Weber’s
investigation into her complaint. (Id. at 32 (121:20-122:19)). Evans testified she was satisfied
with Weber’s response and that she would “give him a few days, and then, if things didn’t change[]
that we would be readdressing it with both him and [Gillard].” (Id. at 31 (120:13-18)).
According to Weber, he spoke with Gillard regarding Evans’ complaints that employees
were “mouthing back.” (Doc. 26-5 at 9 (34:15-23)). When he spoke to Evans the next day, Weber
told her he and Gillard were addressing the issues. (Doc. 26-2 at 31 (120:3-12)).
D. EPC’s Training
On March 24, 2016, Evans attended a pre-planned, plant-wide training that addressed the
recurring problems of employees taking extended lunch and break times and of employees signing
documents with another employee’s number. (Doc. 26-2 at 26-27 (99:2-102:9), 58-60; doc. 26-1
at ¶ 8). The training made clear to all employees that signing documents with another employee’s
number is fraud and is cause for immediate termination. (Doc. 26-2 at 27 (102:7-17); doc. 26-1 at
¶ 8; doc. 26-3 at ¶ 4). Following this meeting, Evans understood she was not supposed to sign for
other people and that she was not supposed to take or permit employees to take breaks for personal
reasons. (Doc. 26-1 at 26 (97:17-98:1, 100:17-23); doc. 26-1 at ¶ 7).
E. Evans’ Termination
Within four days after the training session that addressed the issues of extended breaks and
falsification of documents, Evans falsified another employee’s signature and took an extended
lunch break. (Doc. 26-1 at ¶ 9). On March 25, 2016, Evans and Mendenhall took an extended
lunch and left the facility to go to Wal-Mart and pick up a grill. (Doc. 26-1 at 32 (123:4-7)). Given

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the prior warning, EPC decided to discipline Evans. (Doc. 26-1 at ¶ 11). The written warning was
prepared on March 28, 2016, but Evans was not available to meet until March 30, 2016. (Id. at
¶12).
Meanwhile, on March 28, 2016, Evans signed Rudy Juran’s (“Juran”) name on a company
document. (Doc. 26-2 at 34-37 (129:4-131:23), 72). According to Evans, Juran was several hours
behind on his work, and while he was standing on top of a machine, she asked him if he wanted
her to sign off for him and he said yes. (Doc. 26-2 at 25 (94:5-95:21)).

On March 29, 2016,

Gillard interviewed Juran, who denied giving Evans permission to sign his name. (Doc. 26-1 at ¶
14, 11; doc. 26-2 at 37 (141:10-14)).
At that point, Weber and Gillard felt like they had no choice but to let Evans, a manager,
go for violating the policy immediately after the plant-wide training. (Doc. 26-1 at ¶15; doc. 263 at ¶ 6). On March 30, 2016, Gillard and Weber met with Evans and showed her the start-up
sheet and approval checklist at issue and asked her whether she signed Juran’s name. (Doc. 26-2
at 34 (129:4-131:23), 72; doc. 26-3 at ¶ 7). Evans admitted she signed both Juran’s name and her
own name on both sheets.

(Doc. 26-2 at 34 (129:4-131:23)). Following Evans’ admission, she

had signed Juran’s name, Gillard and Weber reread the policy to Evans that she had signed days
earlier and informed Evans her employment was being terminated because she falsified
documents. (Doc. 26-2 at 34, 36 (132:5-7, 140:5-10; doc. 26-3 at ¶ 7). No race-related comments
were made to Evans during her termination meeting. (Doc. 26-2 at 38 (145:18-22)). Following
Evans’ termination, she sent a text message to Gillard stating as follows:
Pam, You know I need my job but I did not sign his name to be malicious. I did it
only to ensure that we did not forget about the paperwork and to help Rudy and
myself because we were so busy running between both buildings. I know those
were signed by me and I asked him if he wanted me to sign and he said yes but will
probably not admit it thinking he will get in trouble. Thank you.

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(Id. at 37 (143:12-144:8), 73). During the meeting, Evans was also given a verbal warning
regarding taken a long lunch and picking up a grill with Mendenhall. (Id. at 32 (123:1-9), 70).
EPC does not dispute that the decision to terminate Evans employment was unrelated to the breaks.
(Doc. 26-5 at 19 (72:11-14); doc. 26-4 at 32 (121:3-122:5)).
F. Evans’ Alleged Comparators
Evans contends Alden Johnson (“Johnson”), an hourly employee, signed her initials on a
part the same week Evans was terminated. (Doc. 26-2 at 35 (134:5-136:13)). Johnson signing
Evans’ initials in this way would have been a violation of policy. (Doc. 26-5 at 11 (37:15-38:9)).
Johnson was a quality inspector auditor and was an hourly employee, not a manager. (Doc. 26-2
at 9 (29:5-1); doc. 26-1 at ¶ 16). Evans did not learn that Johnson had signed her initials until
after she was terminated. (Doc. 26-2 at 9 (30:2-12)). On either March 31, 2016 or April 1, 2016,
Evans called Gillard to tell her and talk to her about it, but Gillard told Evans that she did not want
to discuss another employee with Evans. (Id. at 9, 35-36 (30:2-12, 136:14-20, 139:10-140:2)).
Gillard did not inform Weber about Evans’ allegations, did not ask Johnson about the allegations,
and did not investigate the allegations until after Evans’ deposition in this case. (Doc. 26-4 at 1516 (55:21-57:21)). Management did not have knowledge of any other employees signing or
initialing documents in contradiction to the March 24, 2016 training between the time of the
training and Evan’s termination. (Doc. 26-2 at 35-36 (134:5-137:6); doc. 26-1 at ¶20; doc. 26-3 at
¶ 8).
Evans also offers her own testimony and a declaration from Mendenhall contending an
employee named “Debra” affixed other employee’s numbers on parts and stickers, and that
Mendenhall reported this to Gillard. (Doc. 26-2 at 6-7 (20:5-21:9); doc. 28-2 at 2). Evans’
testimony is hearsay, and, notwithstanding that fact, neither her testimony nor Mendenhall’s

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affidavit provide when this happened so that it can be properly assessed.
Evans contends Kelm and Cross, who are both Caucasian, were treated differently than she
and Mendenhall were treated, noting they were affectionate on the floor and took long lunches.
(Doc. 26-2 at 28-29 (106:2-107:5, 109:11-15)). Neither Kelm nor Cross was formally disciplined
for this behavior (doc. 27 at 4); however, Evans does not know what Weber or Gillard told them
about their relationship. (Doc. 26-2 at 29 (109:16-21)). Evans complained to Weber and Gillard
about the extended breaks she thought Kelm and Cross were taking together. (Id. at 33 (126:17128:8)). Gillard talked to Kelm and Cross about taking extended lunch breaks, telling them not to
do it anymore, and, according to Gillard, they stopped. (Doc. 26-4 at 30 (115:7-21)). Although
Cross did not directly report to Kelm, as a supervisor on first shift, Kelm had the authority to
discipline Cross. (Doc. 26-5 at 13 (45:9-18); doc. 28-1 at 2). Weber testified that, to his
knowledge, Kelm and Cross were not breaking any rules by dating (doc. 26-5 at 12 (45:6-8)), and
that his only concern with them dating was that they were spending too much work time together.
(Id. at 20 (73:5-74:4)).
Other employees, including floor associates, were written-up for taking extended breaks
for personal reasons. (Doc. 26-2 at 33 (126:12-16)).
G. The Decision-Makers
Evans testified that she never witnessed Gillard mistreat an African-American person or
mistreat a Caucasian person for associating with an African-American person. (Doc. 26-2 at 23
(85:16-22)). Although Evans believes Gillard is “somewhat” racist, she does not believe Gillard
would treat someone poorly because of race. (Id. (149:17-150:3)). While at their previous
employer, Evans never had problems with Gillard, she believed Gillard to be truthful in her
dealings, and Evans never heard Gillard express an opinion on biracial dating during that time.

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(Id. at 5 (13:11-14:11). At EPC, Evans worked with Gillard in disciplining the employees on her
shift. (Id. at 24 (14-91:8)). As to these dealings with Gillard, Evans testified that Gillard was
always reasonable and was never unprofessional or inappropriate. (Id.).
Evans testifies that Weber did not “do anything or act any different way” to make her think
he was racist, but that she has a “gut instinct” that he is racist. (Doc. 26-2 at 39 (149:10-16)).
Weber relied on Gillard to investigate the allegation Evans had signed Juran’s name; anything he
knew about the incident came from her. (Doc. 26-5 at 13 (48:5-49:8)). According to Weber, he
let Gillard handle the situation and did not have direct involving other than sitting in on the
termination meeting. (Id.).
III. Analysis
Evans asserts EPC wrongfully terminated her employment because she was in an
interracial relationship and/or in retaliation for complaining about discrimination. (See doc. 1).
A. Discriminatory Termination
Title VII7 prohibits an employer from “discriminat[ing] against any individual with respect
to . . . compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Such discrimination
claims are typically categorized as either based on a mixed-motive or single-motive theory. Quigg
v. Thomas Ctny. Sch. Dist., 814 F.3d 1227, 1235 n.4 (11th Cir. 2016).

To prove unlawful

discrimination based on a mixed-motive theory, an employee-plaintiff must show that an illegal
bias “was a motivating factor for” the adverse employment action, “even though other factors also

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Both Title VII and § 1981 have the same requirements of proof and use the same
analytical framework. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Therefore, the undersigned will expressly address the Title VII claims with the understanding the
analysis applies to the § 1981 claims unless indicated otherwise.
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motivated” the action.8 Id. at 1235 (citing 42 U.S.C. § 2000e–2(m); Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Under either theory, a party can establish its
claim with direct or circumstantial evidence. Id.
When evaluating a mixed-motive discrimination claim9 based on circumstantial evidence
at summary judgment, a court is only required to ask whether the plaintiff has offered evidence
sufficient for a reasonable jury to conclude, by a preponderance of the evidence, that: (1) the
defendant took an adverse employment action against the plaintiff; and (2) a protected
characteristic was a motivating factor for the defendant’s adverse employment action. Quigg, 814
F.3d at 1239-40 (adopting the framework articulated in White v. Baxter Healthcare Corp., 533
F.3d 381 (6th Cir. 2008)). Given that there is no dispute that EPC’s decision to terminate Evans’
employment constitutes an adverse employment action, the only remaining question is whether
Evans has presented sufficient evidence from which a reasonable jury could conclude that her
interracial relationship10 was a motiving factor in EPC’s decision to terminate Evans’ employment.

Single-motive claims, or “pretext’ claims, require a showing that bias was the true
reason for the adverse action. Quigg, 814 F.3d at 1235 (citing Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 251–53 (1981) (considering a single-motive, gender-based discrimination
claim)).
9
Evans argues EPC “had not moved for summary judgment on [Evans’] ‘mixed motive’
claim . . .” and that it cannot “do so in a reply brief to which [Evans’] would not have the
opportunity to respond.” (Doc. 27 at 12-13). Although EPC framed its summary judgment
argument based on the McDonnel Douglas framework in its opening brief, EPC did not limit its
argument to a “single motive” theory analysis. Regardless of how the parties characterize their
arguments, the question is “if the circumstantial evidence is sufficient to raise ‘a reasonable
inference that the employer discriminated against the plaintiff.’” Robinson v. RockTenn CP,
LLC, 986 F. Supp. 2d 1287, 1304 (N.D. Ala. 2013). Additionally, while a movant should not
raise new legal issues in its reply brief, to the extent there was anything in EPC’s reply brief
Evans wanted to address, she was free to file a timely motion for leave to file a sur-reply. She
did not.
10
See Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986)
(recognizing discrimination based on an interracial relationship is race-based discrimination and
cognizable under Title VII); Tomczyk v. Jocks & Jills Restaurants, LLC, 198 F. App’x 804, 809
(11th Cir 2006) (acknowledging Title VII protects persons in interracial relationships).
8

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Evans argues that a reasonable jury could find Gillard was “the primary moving force” (or
primary decision-maker) behind her termination and that Gillard’s “animus regarding [Evans’]
interracial relationship ‘remain[ed] a causal factor’ in the ultimate adverse employment action.”
(Doc. 27 at 13-14).
1. Gillard’s Counseling and “Birds of a Feather” Comment
In support of her discrimination claim, Evans first argues that, while EPC had no policy
forbidding dating in the work place, “Gillard repeatedly spoke to [Evans] about her interracial
relationship in racially tinged terms, telling [Evans] her parents would not be proud of her.” (Doc.
27 at 14). This assertion overstates the evidence and conflates several different aspects of Gillard
and Evans’ interactions, where the evidence shows only one part of a more personal conversation
touched on race. Specifically, Evans testified that Gillard came to her and told Evans other
employees were complaining about her and Mendenhall as well as people on Evans’ shift taking
longer breaks. (Doc. 26-2 at 41 (159:1-160-11)). Gillard did not say these complaints had
anything to do with race. (Id. at 12 (43:6-16)). According to Evans, Gillard told her that because
she was a manager and Mendenhall was an hourly employee, they should not be dating and that
“[i]t didn’t set a good example.” (Id. at 12-13, 27 (43:21-44:4, 45:17-22, 101:9-13)). However,
Evans testifies that during the conversation she wanted to be open and honest with Gillard, whom
she had known for years, because she had not really talked with anyone about her relationship with
Mendenhall. (Id. at 13 (45:17-46:7)). At that point, when Evans opened up about her relationship
for the first time, Evans testifies, Gillard told Evans that Evans’ “parents would not be proud of
[her] for that” and that “[t]hey would not agree to it.” (Id.). Evans agreed (about her parents’
sentiments). (Id. (46:5-17)). Evans also testifies that they talked about Gillard’s feelings and her
children, and that Gillard “said something about birds of a feather flock together,” which she

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understood to relate to race. (Id. (48:1-13)).
Viewing this testimony in the light most favorable to Evans, it appears that, during a workrelated conversation between Evans, the employee/supervisor, and Gillard, the HR Manager, the
two, who had known each other for years, had a more personal exchange. After Evans confided
in Gillard about her relationship, Gillard brought up her concern about what Evans’ parents would
think, concerns with which Evans agreed. To the extent Evans argues the conversation was about
Gillard’s feelings, the only comment that can be attributed to Gillard is that “she said something
about birds of a feather flock together.” (Doc. 26-2 at 13 (48:6-9)). It is reasonable to infer that
this comment related to race.
Citing several Eleventh Circuit cases, Evans argues for the proposition that a
discriminatory animus or motive can be inferred from a broad, derogatory statement and, because
of the breadth of the statement, that evidence may obviate the need for inferences about the
speaker’s motivation. (Doc. 27 at 15). In EEOC v. Alton Packaging Corp., the Eleventh Circuit
held that general racially discriminatory statements made by two decision makers constituted
direct evidence of those decision makers’ failure to promote black employees for discriminatory
reasons. 901 F.2d 920, 924 (11th Cir. 1990). One decision maker had allegedly said that, if it
were his company, he would hire no black people. Id. The other person allegedly told a black
employee that “you people can’t do a thing right.” Id. Evans’ proposition is correct, that “[w]hen
employers . . . without concern for particulars, make broad, derogatory statements about a gender
or a race and, thus, demonstrate a general discriminatory animus toward that protected group, the
scope of that evidence can be as broad as the broad statements.” Burrell v. Bd. of Trustees of Ga.
Military College, 125 F.3d 1390, 1394 n.7 (11th Cir. 1997).

However, the Burrell court also

recognized that discriminatory statements that are “narrowly tailored to a particular event” other

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than the event in question do not rise to the level of direct evidence as discussed in Alton
Packaging. Id. While Gillard’s comment can be construed as her not favoring interracial
relationships, it does not relate to any employment decision and is “narrowly tailored to a particular
event.” See Burrell, 125 F.3d at 1397 n.7. While this statement is not direct evidence, it remains
a piece of circumstantial evidence, and therefore the court must consider the statement, as a well
as the exchange about Evans’ parents, when read in conjunction with the entire record. See Ross
v. Rhodes Furniture, 146 F.3d 1286, 1292 (11th Cir. 1998).
Other comments about race or interracial relationships, such as Dodge’s comment, were
made by non-decisionmakers and therefore are not relevant to this analysis.
2. Verbal Warning for Long Breaks and Lunches
Next, Evans points to the verbal warning she received during her termination meeting for
taking a long lunch and picking up a grill with Mendenhall as evidence of Gillard’s discriminative
motive.11 (Doc. 27 at 16-17). Evans contends EPC failed to discipline Kelm and Cross, who were
both Caucasian, for taking long lunches together. (Id.). Despite Evans’ generalized comparison
of the two situations, the evidence does not support the assertion that Kelm and Cross were treated
more favorably. To the contrary, Gillard also counseled Kelm and Cross about taking extended
lunch breaks, telling them not to do it anymore, and they stopped. (Doc. 26-1 at ¶ 18; doc. 26-4 at
30 (115:7-21)). There is no evidence that Kelm and Cross continued to take long breaks after
being counseled on the issue or after the March 24, 2016 training session. To that end, there is no
evidence Kelm and Cross were treated more favorably than Evans and Mendenhall.
3. Comparator Evidence

11

It is undisputed that the verbal write-up Evans received during her termination meeting
was not a factor in the termination decision. (Doc. 26-5 at 19 (72:11-14); doc. 26-4 at 32 (121:3122:5)).
15

Evans also asserts that two other employees – Johnson and Debra – falsified an employee’s
signature or employee number but were not terminated. (Doc. 27 at 17-20). Evans argues this
“comparator” evidence shows differential treatment and that a reasonable jury could infer there
was another motivating factor for her termination, i.e., her interracial relationship, since Johnson
and Debra were not terminated. (Id.). Generally, “[i]n a comparator analysis, the plaintiff is
matched with a person or persons who have very similar job-related characteristics and who are in
a similar situation to determine if the plaintiff has been treated differently than others who are
similar to h[er].” MacPherson v. Univ. of Montevello, 922 F.2d 766, 774 n.16 (11th Cir. 1991).
The court must evaluate the qualifications of the purported comparators as well as their conduct
and the context in which they acted to determine if they are similarly situated to the plaintiff. See
Nix v. WLCY, 738 F.2d 1181, 1186 (11th Cir. 1984); Burke-Fowler v. Orange Cty, Fla., 447 F.3d
1319, 1325 (11th Cir. 2006).12 The burden is on Evans “to show a similarity between [her] conduct
and that of [other] employees who were treated differently and not on [EPC] to disprove their
similarity.” Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (citations omitted).
EPC argues Johnson and Debra are not proper comparators because, at the time of Evans’
termination, Gillard and Weber were not aware of Johnson or Debra’s alleged violations, and

12

As noted, because Evans is proceeding under a mixed-motive theory of discrimination,
she is not required to identify a similarly-situated comparator who was not in an interracial
relationship and who was treated differently under the prevalent McDonnell Douglas framework.
However, even under a single-motive theory of discrimination, if a plaintiff “presents
circumstantial evidence that creates a triable issue concerning the employer's discriminatory
intent,” she “will always survive summary judgment.” Smith v. Lockheed–Martin, 644 F.3d
1321, 1328 (11th Cir.2011). See Quigg, 814 F.3d at 1239-40 (adopting the framework
articulated in White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008)). Thus, while a
“comparator” is not required for this claim to survive summary judgment, such differential
treatment can be circumstantial evidence to consider when determining if there is a reasonable
inference that the employer discriminated against the plaintiff. See Lockheed–Martin, 644 F.3d
at 1328.
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because neither Johnson nor Debra is “similarly situated” to Evans because they were not
supervisors. (Doc., 24 at 16-18; doc. 29 at 13-14).
The day after she was terminated, Evans contacted Gillard and told her Johnson had signed
her (Evans’) initials and that she wanted to talk about it. (Doc. 26-2 at 9, 35-36 (30:2-12, 136:1420, 139:10-140:2)). As to Debra, it appears the alleged violation took place nearly a year after
Evans’ termination.

(Doc. 26-2 at 6-7 (20:5-21:9); doc. 28-2 at 2). Although, at the time of

Gillard and Weber’s decision to terminate Evans’ employment they did not know about these other
alleged violations, the fact that they learned of the alleged violations later and took no disciplinary
action may support an inference that there were other considerations involved in Evans’
termination. The court must look to the remainder of the evidence to see if there is evidence those
“other considerations” were discriminatory.
While the parties agree all employees were subject to the policy forbidding falsification of
employee signatures and employee numbers, there are many other factors to consider.

For

example, the Eleventh Circuit has found that an employee who may have broken a rule but was
not caught was not similarly situated to one who had been caught. See Bogle v. Orange Cnty. Bd.
of Cnty. Comm’rs, 162 F.3d 653, 658-59 (11th Cir. 1998). Likewise, the Eleventh Circuit has held
an employee who admitted to improper conduct was not similarly situated to one who did not.
Abel v. Dubberly, 210 F.2d 1334, 1339 (11th Cir. 2000). Evans, unlike her purported comparators,
admitted to the falsifications after being caught.
As Evans argues, “[t]he relevant inquiry is not whether the employees hold the same job
titles, but whether the employer subjected them to different employment policies.” (Doc. 27 at 1718); Lathem v. Dept. of Children and Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999). However,
as another court in this Circuit has recognized, although the same rule may apply to all employees,

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“[h]igher level employees are expected to set standards for lower-level employees, and therefore
it is entirely reasonable for an employer to tolerate certain misconduct from lower-level employees
that it would not tolerate from higher-level employees.” Thompson v. Tyson Foods, Inc., 939 F.
Supp. 2d 1356, 1367 (M.D. Ga. 2013).
Unlike Evans, neither Johnson nor Debra were a supervisor with direct reports. Evans was
the highest-ranking person in the facility on third shift (doc. 26-2 at 23 (87:4-10), and it is not
unreasonable for EPC to hold Evans to a higher level of responsibility, professionalism, standards
of behavior, and performance expectations than other non-supervisor/non-management
employees. See Thompson, 939 F. Supp. 2d at 1367-68. Evans herself testified that, as third shift
supervisor, she was responsible for making sure the employees were doing what they were
supposed to be doing. (Doc. 26-2 at 23-24 (88:10-89:1)). Notably, Evans (as well as all other
employees) had been trained on this issue four days earlier. Evans was caught violating policy
and admitted to the violation. In this situation, it was not unreasonable for an employer to expect
Evans to lead the way following a policy she was recently trained on, especially since she was
responsible for making sure other employees did what they were supposed to. (See id.).
Thus, based on the foregoing, the probative value of the alleged differential treatment of
Evans and her purported comparators is limited. Although, assuming Evans and her purported
comparators committed a similar infraction, but the purported comparators were not terminated
(or otherwise disciplined), there are many non-discriminatory reasons supporting EPC’s decision
to terminate Evans’ employment. While those reasons alone do not disprove bias or animus as a
motivating factor, there is scant evidence that such differential treatment was because Evans was
in an interracial relationship. Mendenhall, who was also in an interracial relationship (with Evans),
was never disciplined, terminated, or otherwise discriminated against at EPC. (Doc. 26-2 at 15

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(54:5-19)).

Moreover, Evans testified that she never witnessed Gillard mistreat an African-

American person or mistreat a Caucasian person for associating with an African-American person.
(Doc. 26-2 at 23 (85:16-22)). Although Evans testifies that she believes Gillard is “somewhat”
racist, she does not believe Gillard would treat someone poorly because of race. (Id. (149:17150:3)). While at their previous employer, Evans never had problems with Gillard, she believed
Gillard to be truthful in her dealings, and Evans never heard Gillard express an opinion on biracial
dating during that time. (Id. at 5 (13:11-14:11)). At EPC, Evans worked with Gillard in
disciplining the employees on her shift. (Id. at 24 (14-91:8)). As to these dealings with Gillard,
Evans testified that Gillard was always reasonable and was never unprofessional or inappropriate.
(Id.).
Having reviewed the evidence, and construing any disputes in Evans’ favor, Evans has not
presented sufficient evidence from which a reasonable jury could conclude that her interracial
relationship was a motiving factor in EPC’s decision to terminate Evans’ employment. EPC,
specifically Gillard with approval from Weber, decided to terminate Evans’ employment when she
learned Evans – a supervisor with the responsibility to make sure others followed policy – falsified
another employees signature on a work document four-days after being retrained on this policy.
Although a jury could reasonably interpret Gillard’s “birds of a feather” comment as indicative of
Gillard disapproving of interracial relationships, there is no support that any such belief played
any role in Gillard’s work-place decisions, specifically the decision to terminate Evans’
employment.

Evans’ testimony supports the fact that Gillard was fair and non-biased in

administering discipline. Likewise, there are no teeth to Evans’ argument that management treated
Kelm and Cross differently, as both couples were counseled against taking extended breaks and
lunches, and the evidence shows Kelm and Cross stopped once counseled. Finally, to the extent

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Evans’ purported comparators show differential treatment, the evidence establishes they were not
similarly situated. Evans was a supervisor with direct reports who was caught violating a policy
on which she was recently retrained and admitted to the violation.
There is insufficient circumstantial evidence to raise a reasonable inference that Evans’
interracial relationship was a motiving factor in EPC’s decision to terminate Evans’ employment.
EPC is due summary judgment on this claim.
B. Retaliatory Discharge
Title VII's anti-retaliation provision makes it unlawful for an employer to discriminate
against an employee “because [s]he has opposed any practice made an unlawful employment
practice . . . , or because [s]he has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this subchapter.” McCann v. Tillman, 526 F.3d
1370, 1375 (11th Cir.2008) (alterations in original) (citing 42 U.S.C. § 2000e–3(a)). Under the
McDonnell Douglas framework,13 a plaintiff may establish a prima facie case of retaliation under
Title VII by showing that: (1) she engaged in statutorily protected activity; (2) she suffered an
adverse employment action; and (3) a causal link exists between the adverse employment action
and protected activity. Brush v. Sears Holdings Corp., 466 Fed. App'x 781, 786 (11th Cir. 2012).
Close temporal proximity between protected activity and an adverse action is sufficient to show a
causal relationship. Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir.
2002). The awareness by the decision-maker of protected conduct, in conjunction with temporal
proximity of adverse employment action to protected conduct, is sufficient to create a factual issue
about the causal link requirement. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163-1164

13

Although she argues McDonnell Douglas framework is not the only way a plaintiff can
prove her case (doc. 27 at 20 n.8), Evans fails to otherwise demonstrate a “triable issue of fact.”
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(11th Cir. 1993). Only once a prima facie case is established, does the court need to turn to the
burden-shifting inquiry, i.e., articulation of some legitimate, non-retaliatory reason for the
employment action by the defendant and plaintiff’s showing of pretext regarding the defendant’s
statement reasons for the employment action. Bush, 466 Fed. App’x at 786 (citing McDonnell
Douglas, 411 U.S. at 802-04).
Here, although there is close temporal proximity between Evans’ complaints of
discrimination and her subsequent termination, any inference of a causal connection between those
two events is broken by Evans’ intervening policy violation – falsifying another employee’s name.
Such intervening misconduct severs the causal connection (if any) between Evans’ complaint of
discrimination and EPC’s decision to terminate her employment. See Hankins v. AirTran Airways,
Inc., 237 Fed. App’x 515, 520-21 (11th Cir. 2007); see e.g., DeLeon v. ST Mobile Aerospace Eng’r,
Inc., 684 F. Supp. 2d 1301, 1326 (S.D. Ala. 2010); Wu v. Southeast-Atlantic Bev. Corp., 321 F.
Supp. 2d 1317, 1337 (N.D. Ga. 2004). Accordingly, Evans cannot state a prima facie case for
retaliation. To the extent she argues she has otherwise presented evidence to raise a reasonable
inference of intentional retaliation (doc. 27 at 20 n.8), Evans’ argument fails.

In addition to

arguing close temporal proximity, Evans points to purported comparators, discussed supra. (Doc.
27 at 22-25). The same analysis applies here, as applied to her discrimination claim. Neither
Johnson nor Debra, the purported comparators, admitted to violating the no falsification policy
after being caught four days after retraining on the policy. Likewise, neither Johnson nor Debra
were supervisors with direct reports entrusted to make sure other employees did what they were
supposed to.
Evans fails to state a prima facie case for retaliation because there is insufficient evidence
from which a reasonable jury could find a causal connection, as her intervening policy violation

21

severed any such connection. Likewise, Evans has shown no triable issue of fact. EPC is due
summary judgment on this claim.
IV. Conclusion
There being no genuine issue of material fact, EPC is entitled to judgment as a matter of
law as to Evans’ discrimination and retaliation claims.
DONE this 20th day of September, 2018.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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