Avery v. Koch Foods et al

Filing 33

MEMORANDUM OPINION AND ORDER- The complaint names two defts: Koch Foods and Koch Foods of Gadsden LLC; The proper deft is Koch Foods of Gadsden LLC; The Clerk is DIRECTED to TERM "Koch Foods" as a party to this matter. Signed by Magistrate Judge Staci G Cornelius on 3/3/20. (MRR, )

FILED
2020 Mar-03 AM 08:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GLENDA AVERY,
Plaintiff,
v.
KOCH FOODS OF GADSDEN, LLC, 1
Defendant.

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Case No.: 2:17-cv-01927-SGC

MEMORANDUM OPINION AND ORDER 2
Plaintiff Glenda Avery initiated this matter, alleging employment
discrimination on the basis of her race, gender, and age. (Doc. 1). The complaint
asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq. (“Title VII”), 42 U.S.C. §§ 1981 and 1981(a) (“§ 1981”), and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (the “ADEA”).
(Doc. 1). Presently pending is the motion for summary judgment as to all claims
filed by Defendant Koch Foods of Gadsden, LLC. (Doc. 23). The motion is fully

1

The complaint names two defendants: Koch Foods and Koch Foods of Gadsden, LLC. (Doc.
1). In its answer, Koch notes: (1) there is no legal entity named Koch Foods; and (2) Koch
Foods of Gadsden, LLC, is the proper defendant because it was the plaintiff’s employer. (Doc. 6
at 1; see Doc. 7 at 1). The plaintiff has not disputed these contentions. Accordingly, the Clerk of
Court is DIRECTED to TERM “Koch Foods” as a party to this matter.
2

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 12).

briefed and ripe for adjudication. (Docs. 24-25, 27-28, 30). As explained below,
the motion for summary judgment is due to be granted in its entirety.
I.

SUMMARY JUDGMENT STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, 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(e)
requires the non-moving party to go beyond the pleadings and by his own
affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing there is a genuine issue for trial. See id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. See 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
2

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.
II.

SUMMARY JUDGMENT FACTS
Plaintiff, an African American woman born in 1956, began working in a

Gadsden, Alabama poultry processing plant (the “Plant”) in 1974. (Doc. 27 at 4-5;
Doc. 1 at 1). The Plant changed ownership over the years until Koch bought it in
2007. (Doc. 24 at 4). Plaintiff worked at the Plant in various positions for fortytwo years until Koch terminated her in 2017. (Doc. 27 at 5). At all relevant times,
Koch had in place anti-discrimination policies and Rules of Conduct. (Doc. 24 at
3). Among the Rules of Conduct were: (1) Rule No. 5, prohibiting theft of
property, including Koch’s property; and (2) Rule No. 14, prohibiting job
abandonment—the unauthorized departure from a work shift.

(Id. at 3-4).

Breaking either of these rules, even on a first offense, could result in immediate
termination. (Id.).
At the time of her termination, Plaintiff was working as a lead (“Lead”)
employee in the chiller rehang department (“Chiller Rehang”). (Doc. 27 at 5).
Plaintiff began working in that role in September 2016, when the department in
which she had been working as Lead was eliminated. (Doc. 24 at 4-5). In Chiller
Rehang, workers remove chicken from the chiller and hang it from shackles
3

moving overhead. (Id. at 5). As Lead, Plaintiff was an hourly employee, but she
was responsible for monitoring the work of other hourly employees and keeping
the line moving. (Id. at 4; Doc. 27 at 5). Plaintiff did not work on the line unless
another employee needed her to step in. (Doc. 27 at 5). During Plaintiff’s time as
Chiller Rehang Lead, she had a succession of three supervisors: Johnny
Williamson, Noel Balcazar, and Johnny Chacon.

(Id.).

Chacon became the

supervisor in January 2017, and occupied the position when Plaintiff was
terminated two weeks later. (Id.). Chacon, who is twenty-six, was hired directly
out of college as a supervisor. (Id.). Plaintiff testified Chacon: (1) asked her how
old she was; (2) told her “you’ve been here long enough, before I was born”; (3)
called her “old-fashioned” and “old-school”; and (4) asked her when she was going
to retire. (Id. at 5-6).
Workers in Chiller Rehang, including Leads, are required to take two
unpaid, thirty-minute breaks per shift. (Doc. 24 at 5). Plaintiff understood she and
other Koch employees were required to clock-out before unpaid breaks and to
clock-in before returning to work. (Doc. 25-1 at 15). When the majority of
workers took their scheduled unpaid breaks, a “Floor Person” would stay on the
clock and wash down and sanitize equipment. (Doc. 24 at 5). These tasks took
approximately 30 minutes, and the Floor Person would take an unpaid break after
the other workers returned to the line. (Doc. 27 at 6). The Lead was responsible
4

for making sure the other workers returned and the line was running smoothly after
a scheduled break, so each of Plaintiff’s unpaid breaks were scheduled after the
other workers returned to the line. (See id.; Doc. 24 at 6).
When the majority of workers went on break, Plaintiff would retrieve any
birds from the floor, clean and cover the wash station, put lids on products, and
make sure everything was covered up.

(Doc. 27 at 6).

These tasks took

approximately five to ten minutes; after finishing them, Plaintiff didn’t have
anything to do until the line workers’ break ended. (Id. at 7). Accordingly,
Plaintiff would often go to the parking lot, retrieve a cigarette from her car, and sit
in the smoking area with other employees. (Id.). Plaintiff would then return to the
Plant in preparation for the other workers’ return to the line. (Id.). Johnny
Williamson—Plaintiff’s first supervisor in Chiller Rehang—knew Plaintiff was
taking breaks without clocking out. (Doc. 27 at 7). When the line was up and
running after a scheduled break, Williamson would tell her to take her unpaid
break. (Doc. 27 at 7). During the time Plaintiff was supervised by Noel Balcazar,
he told her to continue doing her job as she had. (Id.). Chacon’s supervisor, Brian
Graves, repeatedly told Plaintiff she was doing a good job prior to her termination.
(Id. at 5).
In September 2016, Koch installed turnstiles outside the Plant. (Doc. 24 at
6). To enter the Plant from the parking lot, Koch employees had to swipe an
5

access card through a digital card reader. (Id.). This data gave Koch the ability to
run a “Swipe Report” identifying each time an employee entered the plant through
the turnstiles. (Id.). Exits from the Plant area are not recorded, so a Swipe Report
would not capture the times at which an employee left. (Doc. 27 at 8).
On January 30, 2017, Plaintiff learned her son’s wife was in labor; Chacon
gave her permission to leave work and go to the hospital. (Doc. 24 at 7). Plaintiff
forgot to clock-out when she left the Plant and did not clock-in when she returned
later that day. (Id.; Doc. 27 at 8). Among Chacon’s daily duties is completing
payroll, which includes ensuring employees’ timecards have the correct number of
punches. (Doc. 24 at 7). While completing payroll on January 30, 2017, Chacon
realized Plaintiff had forgotten to clock-out when she went to the hospital. (Id.).
In order to accurately determine the times at which Plaintiff left and returned to
work, Chacon spoke with a Plant safety manager about reviewing security camera
footage. (Id. at 8). The Plant safety manager suggested it would be more efficient
to review a Swipe Report. (Id.). Managers at the Plant did not routinely review
Swipe Reports, and Chacon had not done so previously. (Id.). Chacon agreed to
the suggestion and reviewed Plaintiff’s weekly Swipe Report. (Id.).

6

Upon reviewing the Swipe Report, Chacon noticed Plaintiff entered the
Plant more often than he anticipated on a daily basis. (Doc. 24 at 8-9).3 Chacon
completed payroll and returned to the production floor during one of the line
workers’ unpaid breaks; on his way back to Chiller Rehang, he encountered
Plaintiff reentering the plant. (Id. at 9). Chacon asked the Floor Person if Plaintiff
stayed in Chiller Rehang during the line workers’ unpaid breaks. (Id.). The Floor
Person responded negatively, stating “she’s never been out here. She usually goes
on break.” (Id.). Chacon was concerned by this state of affairs because he knew
Plaintiff took an unpaid break after the line workers returned from each of their
breaks. (Id.). Chacon relayed this information to his supervisor, Brian Graves.
(Id.). In response, Graves modified the schedule so that Plaintiff’s unpaid breaks
overlapped with that of the line workers. (Id.; Doc. 27 at 8). Chacon informed
Plaintiff of the schedule change on February 1, 2017, and Plaintiff complied with
the new break times. (Doc. 27 at 8).
Chacon also met with Cindy DeBerry, a Koch human resources manager,
and informed her that Plaintiff had been: (1) taking breaks with the line workers
without clocking out; and (2) taking her unpaid breaks after the line workers
returned to Chiller Rehang. (Doc. 24 at 9-10). Chacon and DeBerry reviewed two
3

Plaintiff notes she typically arrived at the Plant early and entered through the turnstiles to eat
breakfast. (Doc. 27 at 6). After eating, Plaintiff would typically exit the Plant to retrieve items
from her car before re-entering to begin her shift. (Id.). This explanation accounts for one
additional turnstile swipe per workday.

7

to three months of Swipe Reports showing the times when Plaintiff entered the
Plant area. (Doc. 27 at 8). Chacon and DeBerry met with Plaintiff on February 3,
2017, to discuss the situation; during the meeting, Plaintiff admitted she would
leave the Plant area without clocking out. (Doc. 24 at 10). Plaintiff stated she
would go to the parking lot and either sit in her car or retrieve cigarettes and go to
the smoking area. (Id.). Review of the Swipe Reports revealed Plaintiff had been
leaving and reentering the Plant without clocking out on a nearly twice-daily basis
for approximately two months. (Id. at 11). Plaintiff notes: (1) during the times
when she took breaks without clocking out, she had already completed her
assigned tasks and did not have any work to do; (2) Chacon never complained that
Plaintiff failed to complete tasks during the production workers’ unpaid breaks; (3)
her previous supervisors knew she was taking paid breaks and did not object; and
(4) Chacon never told Plaintiff she should stay in Chiller Rehang to assist the Floor
Person. (Doc. 27 at 4, 6-7). Nevertheless, Plaintiff was suspended for three days
at the conclusion of the February 3, 2017 meeting. (Id. at 8-9).
Koch’s investigation of the matter continued during Plaintiff’s suspension.
(Doc. 24 at 11).

DeBerry consulted Bobby Elrod, a Koch human resources

director, in making the decision to terminate Plaintiff for stealing time and
abandoning her work station. (See Doc. 27 at 9). DeBerry informed Elrod of
Plaintiff’s age, gender, and race. (Id.). Koch informed Plaintiff of her termination
8

via a February 8, 2017 telephone call.

(Id.).

Koch’s Disciplinary Action

Notification form states Plaintiff “has been leaving her work area for an hour each
day while on the clock.

– Stealing time.”

(Doc. 25-6 at 77).

During her

deposition, DeBerry testified Plaintiff was spending approximately fifty minutes
per day outside the Plant area without clocking out (Doc. 25-3 at 19). Notes from
the investigation suggest Koch thought Plaintiff was taking two paid breaks a day,
each lasting 20 to 25 minutes. (Doc. 25-6 at 78-79). Plaintiff testified she spent
only ten to fifteen minutes on each paid break, for a total of 25 to 30 minutes each
day. (See Doc. 25-1 at 43). Shon Estel replaced Plaintiff after her termination;
Estel is a white male and was twenty-six when he was hired as Chiller Rehang
Lead. (Doc. 27 at 9).
DeBerry testified that, prior to the situation with Plaintiff, she was not aware
of the capability to run Swipe Reports. (Doc. 25-3 at 9). DeBerry also testified
she had not reviewed the Swipe Reports for all Leads or other Plant employees to
compare their conduct to Plaintiff’s but had at times reviewed Swipe Reports for
individual employees at the request of supervisors. (Id. at 10). During these ad
hoc reviews, DeBerry testified she had not encountered another employee who
exited and entered the Plant as often as Plaintiff did. (Id.).
From December 2016 through January 2017, Plaintiff averaged 5.2 swipes
per shift. (Doc. 28-1 at 3). Plaintiff points to other Leads who had similar
9

numbers of swipes per shift during the same two-month period of time: (1) Jamar
Clay, an African-American male born in 1987, averaged 5.2 swipes per shift,
including multiple shifts with six to nine swipes; (2) Michael Mayhall, a White
male born in 1978, averaged 5.5 swipes per shift, including four days with ten
swipes; (3) Kenneth Moore, an African-American male born in 1968, averaged 5.3
swipes per shift, including multiple shifts with six to nine swipes; and (4) Luis
Sebastian, a Hispanic male born in 1975, averaged 4.4 swipes per shift, including
multiple shifts with six to nine swipes. (Doc. 27 at 11). Additionally, Plaintiff
testified Chacon allowed Estel—her replacement as Chiller Rehang Lead—to take
smoke breaks for thirty to forty minutes. (Id. at 12). Plaintiff also notes three
maintenance employees did not clock out before leaving for lunch but were not
terminated. (Id.; Doc. 25-3 at 13-15).
Plaintiff subsequently applied for Social Security Disability Insurance
(“SSDI”) primarily due to chronic back pain, listing her disability onset date as
February 3, 2017—the same day Koch suspended her. (Doc. 25-1 at 7; Doc. 25-8
at 5). Plaintiff testified she had worked at the Plant for years with this pain and
could still perform her job there because it did not require much lifting. (Doc. 25-1
at 8, 57). The Social Security Administration ultimately granted Plaintiff benefits
and determined her disability onset date was October 4, 2017. (Doc. 28-3 at 2).

10

III.

DISCUSSION
Plaintiff asserts claims on the basis of her race, gender, and age. While these

claims arise under various statutes, all of her claims—which are based on
circumstantial evidence—are analyzed under the familiar McDonnell Douglas
burden-shifting framework. E.g. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1087 (11th Cir. 2004); Porter v. Am. Cast Iron Pipe Co., No. 09-0845-AKK, 2010
WL 11507904, at *15 (N.D. Ala. May 28, 2010); Smith v. Vestavia Hills Bd. of
Educ., No. 16-0842-VEH, 2018 WL 1408537, at *1 (N.D. Ala. Mar. 21, 2018),
aff'd, No. 18-11626, 2019 WL 5700747 (11th Cir. Nov. 5, 2019). After a plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the employment decision. E.g. Clark v.
Coats & Clark, Inc., 990 F.2d 1217, 1227 (11th Cir. 1993). This burden involves
no credibility determination, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509
(1993), and has been characterized as "exceedingly light," Perryman v. Johnson
Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). As long as the employer
articulates "a clear and reasonably specific" non-discriminatory basis for its
actions, it has discharged its burden of production. Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258 (1981).
After an employer articulates one or more legitimate, nondiscriminatory
reasons for the employment action, the plaintiff must show the proffered reason
11

was a pretext for illegal discrimination. Chapman v. AI Transp., 229 F.3d 1012,
1025 (11th Cir. 2000).

If the proffered reason is one that might motivate a

reasonable employer, a plaintiff cannot recast the reason but must "meet that
reason head on and rebut it." Id. at 1030. To demonstrate pretext, the plaintiff
must show the proffered reason was false and that discrimination was the real
reason for the employer's action. Brooks v. Cty. Comm'n of Jefferson Cty., 446
F.3d 1160, 1163 (11th Cir. 2006).
A.

Plaintiff’s Claims Are Not Barred By Her Disability Application

Koch contends Plaintiff cannot satisfy her prima facie case as to any of her
claims because she cannot prove an element common to each claim: her
qualification to perform her job. (Doc. 24). Koch’s arguments in this regard rely
on Plaintiff’s application for SSDI, which listed her disability onset date as
February 3, 2017, the same day Koch suspended her. Koch cites Cleveland v.
Policy Mgmt. Sys. Corp., in which the Supreme Court held a plaintiff asserting
claims under the Americans with Disabilities Act (“ADA”) must show her inability
to work—alleged in an SSDI application—was consistent with her ability to
perform the essential functions of her job, as required under the ADA. 526 U.S.
795, 805 (1999). A plaintiff with the burden of showing she was qualified to
perform a job cannot “simply ignore the apparent contradiction” and must provide
a “sufficient explanation.” Id. at 806.
12

A sufficient explanation is one:
sufficient to warrant a reasonable juror's concluding that, assuming the
truth of, or the plaintiff's good-faith belief in, the earlier statement, the
plaintiff could nonetheless “perform the essential functions” of her
job, with or without “reasonable accommodation.”
Id. at 807. The Court also noted:
if an individual has merely applied for, but has not been awarded,
SSDI benefits, any inconsistency in the theory of the claims is of the
sort normally tolerated by our legal system. Our ordinary Rules
recognize that a person may not be sure in advance upon which legal
theory she will succeed, and so permit parties to “set forth two or
more statements of a claim or defense alternately or hypothetically,”
and to “state as many separate claims or defenses as the party has
regardless of consistency.”
Id. at 805.
Here, Plaintiff’s claims are not barred under the rationale of Cleveland.
First, Plaintiff has sufficiently explained why her alleged disability onset date does
not contradict her contention that she was qualified to do her job. Specifically,
Plaintiff notes she had been suffering from back pain for years while working at
the Plant, but she could perform her job because it did not require heavy lifting.
(Doc. 25-1 at 8, 57).

Next, while SSA ultimately granted Plaintiff’s SSDI

application, it determined her disability onset date was October 4, 2017, eight
months after her alleged onset date and the date of her termination. (Doc. 28-3 at
2). Accordingly, regarding Plaintiff’s ability to perform her job at the time of her
termination, “any inconsistency in the theory of the claims is of the sort normally
13

tolerated by our legal system.” Cleveland, 526 U.S. at 805. However, because
Plaintiff’s claims fail under the McDonnell Douglas burden-shifting analysis, the
court need not consider any impact of her disability onset to her damages.
B.

Plaintiff Cannot Establish Pretext as to Any of Her Claims

Koch asserts it had a legitimate reason for terminating Plaintiff: her
admitted, months-long practice of taking two breaks per shift without clocking out.
(Doc. 24 at 15). This satisfies Koch’s "exceedingly light" burden. Perryman, 698
F.2d at 1142. In response, Plaintiff contends comparator evidence shows Koch’s
rationale for terminating her is merely pretext for discrimination on the basis of
gender, race, and/or age.

(Doc. 27 at 17).

Additionally, Plaintiff relies on

Chacon’s “ageist” remarks to carry her burden as to the ADEA claim. (Id. at 24).
As explained below: (1) Plaintiff’s proposed comparators are not similarly
situated; and (2) Chacon’s remarks are insufficient to establish pretext for age
discrimination.
1.

Plaintiff Has Not Identified a Suitable Comparator

Plaintiff points to four younger, male Koch employees working as Leads in
different departments with an average number of daily swipes similar to Plaintiff’s:
(1) Jamar Clay; (2) Michael Mayhall; (3) Kenneth Moore; and (4) Luis Sebastian.
(Doc. 27 at 17).

Additionally, Plaintiff notes Mayhall and Sebastian were a

different race than Plaintiff; they are White and Hispanic, respectively. (Id.).
14

Plaintiff notes these proposed comparators were not terminated as a result of their
excessive daily swipes.
In order to show pretext through comparator evidence, a plaintiff must
present comparators who are “similarly situated in all material respects.” Lewis v.
City of Union, Ga., 918 F.3d 1213, 1224 (11th Cir. 2019).

The unrebutted

evidence shows Sebastian and Clay are not suitable comparators because they were
Leads in the Maintenance and Shipping Departments, respectively.

As a

Maintenance Lead, Sebastian entered and left the plant through the turnstiles as
part of his job duties. (See Doc. 25-7 at 5). Accordingly, Sebastian’s average 4.4
swipes per shift does not suggest he was taking unauthorized breaks without
clocking out. Similarly, as a part of his regular work duties as a Shipping Lead,
Clay would often leave the Plant through the Shipping dock and re-enter the Plant
through the turnstiles to avoid walking through the entire Plant.

(See id.).

Accordingly, Clay’s average 5.2 swipes per shift does not indicate he was taking
unauthorized breaks without clocking out. Because Clay’s and Sebastian’s job
duties differed from Plaintiff’s—often requiring them to pass through the turnstiles
while working—they are not similarly situated to Plaintiff with regard to the
number of swipes per shift.

Accordingly, Neither Clay nor Sebastian is an

appropriate comparator for Plaintiff.

15

Plaintiff’s attempt to use Mayhall and Moore as comparators also fails,
albeit on different rationale. Plaintiff attempts to establish pretext by noting that
Swipe Reports for Mayhall and Moore showed them entering the Plant: (1) more
frequently per shift than would be expected; (2) at a similar average daily rate to
Plaintiff; (3) on some days, up to nine or ten times—a greater frequency than
DeBerry testified would be excessive. (Doc. 27 at 17). In the context of prima
facie claims for disparate treatment, the Eleventh Circuit has held that less severe
discipline for the conduct of a proposed comparator is only relevant if the
employer knows about the comparator’s misconduct. Jones v. Gerwens, 874 F.2d
1534, 1542 (11th Cir. 1989). In Jones, the plaintiff was an African American
police officer disciplined for unauthorized personal use of a departmental truck.
On appeal, the plaintiff relied on evidence that white officers had also misused the
truck. In affirming the trial court’s grant of summary judgment on the plaintiff’s
claim for racially disparate treatment, the Eleventh Circuit held the plaintiff’s
prima facie case required him to show his supervisors were “aware of prior uses of
the Unit truck by white officers for personal business or prior instances in which
unauthorized persons had been permitted to ride in the truck, and that the known
violations were consciously overlooked.” Id. The court further noted “previous
tolerance of Unit truck use for personal business would be relevant only if it could
be shown that either [decision maker] knew of such practices and did not act to
16

discipline rule violators.” Id. Because the plaintiff failed to produce evidence of
this knowledge, the Eleventh Circuit affirmed the grant of summary judgment. Id.
Courts in this circuit, including courts sitting in this district, have interpreted
Jones as requiring plaintiffs alleging disparate treatment to produce evidence
showing decision makers imposed lighter discipline for the same conduct of
proposed comparators. Summers v. City of Dothan, Ala., 444 F. App'x 346, 348
(11th Cir. 2011) (“proffered comparators' actions are only relevant if it is shown
that the decision maker knew of the prior similar acts and did not discipline the
rule violators. . . . Knowledge of a prior act cannot be imputed on a decision
maker, because ‘discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.’”) (citing Jones, 874 F.2d at 1542, and
quoting Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001)
(alteration incorporated)); Amos v. Tyson Foods, Inc., 153 F. App’x. 637, 647 (11th
Cir. 2005) (“Employees are not ‘similarly situated’ if management is aware of
one’s improper conduct, but not aware of the others' conduct.”); Moore v. Jimmy
Dean/Sara Lee Foods, Inc., 520 F. Supp. 2d 1359, 1368 n.28 (N.D. Ala. 2007)
(granting summary judgment to employer where decision maker offered unrebutted
testimony that she was unaware of proposed comparator’s misconduct); see also,
e.g., Moreland v. Miami-Dade Cty., 255 F. Supp. 2d 1304, 1313 (S.D. Fla. 2002);

17

Wyant v. Burlington N. Santa Fe R.R., 210 F. Supp. 2d 1263, 1283 (N.D. Ala.
2002).
Here, the unrebutted evidence shows DeBerry, the Koch decision maker
who terminated the plaintiff, was unaware Mayhall and/or Moore exited and
entered the Plant at a greater-than-expected frequency per shift. DeBerry testified
that, prior to the situation with Plaintiff, she was unaware of the capability to run
Swipe Reports. (Doc. 25-3 at 9). While DeBerry has subsequently reviewed
Swipe Reports for individual employees at the request of their supervisors, she
testified she has not undertaken a comprehensive review of Swipe Reports for all
Plant employees or Leads. (Id. at 10). DeBerry further testified that, of the Swipe
Reports she has reviewed on this ad hoc basis, she has not encountered another
employee who exited and entered the Plant as often as Plaintiff did.

(Id.).

Similarly, while Chacon—Plaintiff’s direct supervisor who discovered the issue
and brought it to DeBerry’s attention—was not a decision maker regarding
Plaintiff’s termination, his unrebutted testimony shows he was unaware of Koch’s
ability to run Swipe Reports until he did so to accurately record Plaintiff’s time for
the day she forgot to clock out to attend the birth of her grandchild. Because the
unrebutted evidence shows Koch decision makers did not know about Mayhall’s
and/or Moore’s excessive entries into the Plant, they are not suitable comparators
for Plaintiff: (1) about whom the Koch decision makers did know; and (2) who
18

admitted she had been taking multiple breaks per shift without clocking out for
months.
Finally, even if Koch knew of Mayhall and Moore’s conduct, the plaintiff
has still not proffered enough evidence to show they are similarly situated. The
plaintiff relies exclusively on the average number of swipes per shift. However,
the unrebutted evidence shows the plaintiff admitted to taking two paid breaks a
day for months. The plaintiff has not pointed to evidence of the circumstances
surrounding Mayhall’s and Moore’s Swipe Reports, much less that they made
similar admissions to taking paid breaks for months.4 For the foregoing reasons,
Plaintiff has failed to identify a suitable comparator and thus cannot show pretext
via comparator evidence.
Plaintiff attempts to show pretext by arguing DeBerry’s testimony regarding
her review of Swipe Reports was evasive. (Doc. 27 at 21). Plaintiff also contends
the fact DeBerry was aware of her age, race, and gender creates a genuine issue of
material fact regarding her motivations for terminating Plaintiff. (Id. at 21-22).
Each argument is addressed in turn.
4

Although unclear, Plaintiff may also rely on three other male maintenance employees who left
the Plant to get lunch without clocking out in September 2016. (Doc. 27 at 12). However, as
Koch notes, these employees were not similarly situated to Plaintiff because their unauthorized
absence was a one-time occurrence, not an ongoing practice. (Doc. 24 at 17). Similarly, it is
unclear whether Plaintiff relies on Estel as a comparator; her statement of facts states Chacon did
not discipline him for taking smoke breaks, but her brief’s discussion does not return to this fact.
(Doc. 27 at 12). To the extent Plaintiff relies on Estel as a comparator, he is not similarly
situated; at the time of the events giving rise to Plaintiff’s claims, Estel was a line worker—not a
Lead.

19

Plaintiff points to the following portions of DeBerry’s deposition, when
Plaintiff’s counsel asked if she had reviewed Swipe Reports for other Leads at the
Plant:
Q.
. . . I’m talking about the period before Ms. Avery got fired.
Have you ever looked at anybody’s records before Ms. Avery got
fired. Have you ever looked at anybody’s records before Ms. Avery
got fired to determine whether they were also leaving the plant during
times that were not their break times?
A.
No. I can’t recall before Ms. Avery’s situation that this even
was a situation that we were aware of. As we said, that turnstile
record was not available until . . . maybe the last week of September.
So we were not that familiar with even the capability of looking at
such records and did not realize that this was something that we
needed to follow up with until this became evident that it was an
issue.
Q.

And that became evident in February of 2017 with Ms. Avery?

A.

Yes, sir.

Q.
Did you go back and look at anybody else’s records at that
point?
A.

That particular day, I did not.

Q.
Well, around the time period that Ms. Avery was fired or after
that time period, did you go back and check the period from
September until February to see who else was doing the same thing, if
anybody?
MS. AHNERT: Object to the form.
A.
I don’t know that that was a purposeful project that I did at that
time. I have checked on several occasions when supervisors would
come to me and ask can we get a report and it would be for any
particular employee. I don’t necessarily know that their job title
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would be lead, so that again, is another thing that I have pause with,
trying to determine if I can remember the job title of the people that
we’ve checked. There have been some that we have checked, but I’m
not certain if their job title is lead.
Q.
Well, I mean, the only thing you would have to look at would
be the swipe report and to see if they got more than, you know, three
punches during a day. You could just run your finger down it like you
did with Ms. Avery and see who’s got that.
A.

But to answer the question, has that happened.

Q.

Right.

A.
Then, that would be the answer. I’m not certain the job title of
the people that they’ve had us run a report on and that we’ve checked.
The job title of lead is not necessarily the only place that you might
have a problem that you sometimes need to check.
(Doc. 25-3 at 9-10; see id. at 8). Plaintiff’s counsel then broadened his question,
asking whether DeBerry had reviewed Swipe Reports for any employees at the
Plant, regardless of their position. (Id. at 10). DeBerry responded affirmatively,
that she had checked reports of “some” employees. (Id.).
Q.
Have you found some where they have gone -- been leaving the
plant more than they should?
A.
I can tell you that we have not found anybody that was -- had
the excessive amounts of turnstile swipes that we had to deal with in
February of 2017 with Ms. Avery.
***
Q.
Okay. Have you searched the records to see if anybody else has
done that, is all I’m asking. Done an across-the-board search?
A.

No, sir. I have not done an across the board search.
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(Doc. 25-3 at 10).

Later, Plaintiff’s counsel returned to the same line of

questioning, asking whether DeBerry had reviewed Swipe Reports for other Leads:
A.

As I said before, I’m not certain of the job titles.

Q.

It’s just when somebody brings it up?

A.

Yes. If somebody asks me to look at something, I do.

Q.
Looking at it, you have decided that there were some
anomalies, but none was as excessive as Ms. Avery’s?
A.

None were excessive as Ms. Avery’s.

(Doc. 25-3 at 19-20).
The foregoing passages from DeBerry’s deposition testimony do not reveal
evasive answers. DeBerry unequivocally testified she had not reviewed any Swipe
Reports prior to February 2017, when she reviewed Plaintiff’s. DeBerry also
testified she had never performed a Plant-wide review of employees’ Swipe
Reports.

Rather, DeBerry only reviewed Swipe Reports at the request of

supervisors regarding individual employees. Finally, DeBerry testified that none
of the Swipe Reports she reviewed on this ad hoc basis demonstrated the excessive
number of trips through the turnstiles revealed by the Plaintiff’s Swipe Report.
The court finds DeBerry’s testimony in this regard was straightforward. Moreover,
Plaintiff’s counsel never inquired whether DeBerry had reviewed Swipe Reports

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for Mayhall or Moore, Plaintiff’s proposed comparators.

Accordingly, no

inference of pretext or discriminatory animus arises.
As to DeBerry’s knowledge and discussion of Plaintiff’s protected
characteristics, she testified that she informed Bobby Elrod of Plaintiff’s race,
gender, and date of birth. (Doc. 25-3 at 7). Plaintiff contends this creates an
inference of pretext and discrimination. (Doc. 27 at 21-22) (citing Carter v.
Decisionone Corp., 122 F.3d 997 (11th Cir. 1997)). In Carter, the Eleventh
Circuit affirmed summary judgment for the defendant where the decision maker
was unaware of the plaintiff’s protected characteristics when the decision was
made to terminate the plaintiff. 122 F.3d at 1002-03. Here, Koch has not argued it
was unaware of Plaintiff’s protected characteristics when it terminated her.
Accordingly, Carter is irrelevant. Even under the summary judgment standard,
simply knowing a plaintiff belongs to a protected group or noting her protected
characteristics does not constitute evidence of pretext or discrimination.
2.

Chacon’s Statements Do Not Show Pretext

Finally, Plaintiff relies on several statements made by Chacon to support her
age discrimination claim under the ADEA. Specifically, Plaintiff relies on her
deposition testimony that Chacon: (1) asked how old she was; (2) stated she had
been working at the plant “long enough, before [he] was born”; (3) called the
Plaintiff “old-fashioned” and “old-school”; and (4) asked her when she was going
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to retire.

(Doc. 27 at 5, 24-25).

As an initial matter, Plaintiff testified she

interpreted Chacon calling her old-fashioned and old-school to refer to her
performance of her duties as Lead, including ensuring the line workers were back
from breaks on time and that she “was just very good at [her] job.” (Doc. 25-1 at
16). Accordingly, even under the summary judgment standard, it would be a
stretch to consider these statements to be evidence of age-based discrimination.
Next, and more importantly, all of Chacon’s statements described by
Plaintiff constitute isolated remarks by a non-decision maker. Porter, 2010 WL
11507904, at *15 (finding comments or jokes regarding plaintiff’s retirement plans
did not demonstrate age discrimination and listing examples of remarks that do not
give rise to an inference of age discrimination: (1) “brief, stray remarks unrelated
to the termination decisional process”; and (2) “inquiries into an employee's
retirement plans”) (citations omitted)); see Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1329 (11th Cir. 1998) (without context, manager’s statement that “older
people have more go wrong” was not probative of discriminatory animus); see also
Minton v. Am. Bankers Ins. Group, Inc., No. 02-12942, 2003 WL 21303330, at *1
(11th Cir. Feb. 6, 2003) (per curiam) (employer's statements the company needed
“fresh new blood” and “it was about time the older employees stepped aside” in
favor of younger employees, coupled with questions about plaintiff’s retirement
plans, did not constitute direct evidence of age discrimination). Accordingly,
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Chacon’s age-related statements are insufficient to show pretext regarding the
plaintiff’s ADEA claim.
Finally, considering all of the Plaintiff’s evidence, she has not presented
“circumstantial evidence that creates a triable issue concerning the employer's
discriminatory intent” because, even viewed in the light most favorable to Plaintiff,
she has not demonstrated “a 'convincing mosaic' of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decision maker."
Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (footnote
and quotation marks omitted); see Hamilton v. Southland Christian School, Inc.,
680 F.3d 1316, 1320 (11th Cir. 2012).
IV.

CONCLUSION
For all of the foregoing reasons, there are no genuine issues of material fact,

and Koch is entitled to judgment as a matter of law. Accordingly, Koch’s motion
for summary judgment is GRANTED in its entirety, and Plaintiff’s claims are due
to be dismissed with prejudice. (Doc. 23). A separate order will be entered.
DONE this 3rd day of March, 2020.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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