Ali v. Education Corp of America

Filing 36

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 10/31/12. (SAC )

FILED
2012 Oct-31 AM 10:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
RAHEEM H. ALI,
Plaintiff,
v.
EDUCATION CORPORATION OF
AMERICA
d/b/a Virginia College On-Line,
Defendant.

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4:11-CV-2743-KOB

MEMORANDUM OPINION
This matter comes before the court on the Motion for Summary Judgment (doc. 26) filed
by Defendant Education Corp. of America (“The College”). Mr. Ali claims that the College
discriminated against because he is an African American and retaliated against him because he
opposed unlawful and discriminatory employment practices. The College argues that Mr. Ali’s
claims of racial discrimination and retaliation fail as a matter of law because he cannot establish
a prima facie case of either retaliation or discrimination. The court finds that no genuine issues of
material fact exist in this case and the parties only dispute interpretations and characterizations of
the record. Mr. Ali cannot establish an adverse employment action sufficient under the law to
establish a prima facie case of discrimination, and he cannot establish that he had a reasonable
belief that the College was engaged in an unlawful employment practice to establish a statutorily
protected activity for his claim of retaliation. Because of these reasons, the court will GRANT
the College’s motion for summary judgment, DISMISS Mr. Ali’s claims with prejudice, and will
simultaneously enter an order to that effect.

I.

STATEMENT OF FACTS
A.

Factual History

Mr. Ali is African American and does not practice or associate himself with any religion.
The College employed Mr. Ali as a full-time admissions associate from June 2009 through April
2010. As an admissions associate, Mr. Ali was responsible for contacting prospective students
and providing information to them about degrees and course offerings to assess whether the
College’s programs were the right fit for them. Mr. Ali was paid a $30,000 per year salary and
took law school and masters degree courses for two to four hours each night after work while he
was employed by the College.
Mr. Ali enjoyed working as an admission associate and was not interested in other open,
posted positions at the College. While Mr. Ali was working at the College, however, he did
forward his resume and “maybe a cover letter” to an employee of the College who coordinated
the adjunct professor positions, and he informally spoke to some managers at the College about
working as an adjunct professor some time after finishing his maters and/or law degree. (Doc.
28-1, at 81-82).
The College provides admissions associates with objective goals for job performance
within a certain period of time. The College evaluated the admissions associates based on various
performance metrics, including student retention percentages. The College expected Admissions
Associates to meet certain goals in the form of percentages of students who actually enrolled in
the College after the admissions associate spoke to them on an in-bound call. Mr. Ali understood
that he would be subject to discipline, including termination, if he did not meet these objective
performance goals.
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On or about November 20, 2009, Kim King, Mr. Ali’s African American supervisor,
issued a written reprimand to Mr. Ali for failure to achieve his goals for November. On or about
November 30, 2009, Mr. King also rated Mr. Ali’s performance as “substandard” on his
performance review.
On January 27, 2010, during a routine weekly meeting to discuss Mr. Ali’s thirteen week
report card, Scotty Smith, Manager of Admissions and Mr. Ali’s supervisor, and Daryl Coleman,
an African American Manager of Admissions, told Mr. Ali that his lead-to-application
conversion rate was overall substandard. The Managers also told Mr. Ali that he had failed to
produce any referrals for the entire week and that he had not reached his application goal for the
week. Mr. Smith told Mr. Ali that he had a pattern of low sit-rates for the previous three class
starts and that these low sit-rates generally indicated a failure either to set proper expectations for
prospective students or to properly follow up with prospective students.
The following day, Mr. Smith issued a last chance notice to Mr. Ali because Mr. Ali had
missed three of his four budgeted goals since he had been working as an admissions associate
and had never achieved his budgeted sit-rate. In this last chance notice, the College warned Mr.
Ali that if he failed to demonstrate “immediate and continued improvement in his performance,”
it could result in disciplinary action, including termination of his employment. (Doc. 28-2, at 35).
On the same day he received his last chance notice, Mr. Ali submitted a letter to William
J. Scott in the College’s Human Resources Department and Kenneth Macon, Associate Director
of Admissions, complaining of an alleged hostile work environment based on the January 27,
2010 meeting with Mr. Smith. In the letter, Mr. Ali stated that Mr. Smith said in the meeting, “I
don’t know why everybody likes Raheem- Maybe it’s the spiritual thing you got goin’ on,” and
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that Mr. Smith repeatedly told Mr. Ali to, “Be a man!” (Doc. 33-1). Mr. Ali alleges that he felt
Mr. Smith’s comments were based on religious, as well as racial and sexual grounds. The
College “looked into” Mr. Ali’s complaint and decided to move him to another team with a new
supervisor, Larry Sailes, in an effort to prevent any further issues between Mr. Ali and Mr.
Smith. (Doc. 28-4, at 28).
On April 17, 2010, Mr. Ali met with his new supervisor, Mr. Sailes, who was African
American, for a thirteen week review. Mr. Sailes informed Mr. Ali that he had not met the
prescribed application goal or referral goal for the past thirteen weeks. Mr. Ali alleges that Mr.
Sailes was incorrectly reviewing Mr. Ali’s performance under “Level III" when he should have
been reviewing him under “Level New.” (Doc. 28-4, at 65). Mr. Macon, Associate Director of
Admissions, however, testified that the Level III designation “has to be a typo-typographical [sic]
mistake. And I say that and can substantiate that because of his goals. The goals that are listed on
this report card . . . are, in fact, the goals for a level new.” (Doc. 28-4, at 39).
Mr. Macon, who is also African American, reviewed Mr. Ali’s history of poor job
performance, his November 20, 2009 written reprimand, his November 30, 2009 substandard
performance review, his last chance notice, and his April 17, 2010 thirteen week report card and
decided to terminate Mr. Ali’s employment with the College. Mr. Ali disputes that Mr. Macon
made the decision to terminate him and alleges that Mr. Macon’s testimony reveals that Christina
Eschelman, the Caucasian Director of Admissions, made the decision.
Mr. Macon’s testimony, however, does not address who made the decision to terminate
Mr. Ali. (Doc. 28-4, at 31-33). His testimony concerns who made the decision to move Mr. Ali
to Mr. Sailes team, and the testimony makes clear that while Ms. Eschelman “is the director, so
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every decision has to be made by her,” Mr. Macon actually made the decision to “move [Mr.Ali]
to [Mr.Sailes’] team.” Id. at 33.
On April 19, 2010, Mr. Macon met with Mr. Ali to inform him that due to his continued
poor job performance, the College was giving him the option of resigning or being terminated. If
Mr. Ali chose to resign, he would receive two weeks severance pay and would be eligible for
future employment at the College. Mr. Macon testified that Mr. Ali “actually physically handed”
Mr. Macon his letter of resignation on April 21, 2010. Id. at 56.
On July 8, 2010, Mr. Ali filed a sworn Equal Employment Opportunity Commission
charge claiming that he had been discriminated against “because of my religion (perceived)
Muslim, my race, Black, and my sex, male.” (Doc. 28-2, at 42). Mr. Ali confirmed that he
believed he was terminated “due to forms of discrimination, racial discrimination, and possibly
others” when he was questioned by his own counsel. However, when questioned by the College’s
counsel, Mr. Ali testified that he believed he was terminated because “Virginia College is just
ruthless” and because he was “[j]ust not liked very much.” (Doc. 28-1, at 199).
While he was still employed by the College, Mr. Ali sued Riverside Parc Apartments for
personal injuries sustained in a slip and fall accident. In that lawsuit, Mr. Ali testified that he
missed five days of work at the College to see a dentist and left work for an hour to ninety
minutes seventeen times to see a chiropractor. (Doc. 28-2, at 45-46). Mr. Ali claimed that the
injuries from the lawsuit “led to [him] eventually being discharge[d] from [his] job.” (Doc. 282,at 46). In the present case, Mr. Ali also testified that it had “entered his mind” that his time off
from work due to the injuries he suffered as a result of the slip and fall accident may have
contributed to his termination. (Doc. 28-1, at 200).
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B.

Administrative and Procedural History

As discussed above, Mr. Ali filed a discrimination charge with the EEOC on July 8,
2010. The EEOC was “unable to conclude that the information obtained establishe[d] violations
of the statutes,” and Mr. Ali received a Notice of Right to Sue on May 4, 2011. (“Dismissal and
Notice of Rights” Doc. 1, at 16).
On August 1, 2011, Mr. Ali filed a Complaint in this court alleging five counts: (1) racial
discrimination; (2) religious discrimination; (3) age discrimination; (4) violation of 42 U.S.C.
§ 1981; and (5) retaliation. (Doc. 1). The College filed a Motion to Dismiss counts two, three,
and five, and the court held a hearing on the motion on December 21, 2011. (Doc. 5). The court
dismissed count two because Mr. Ali was not a member of a protected class for purposes of
religious discrimination, and the court dismissed count three because Mr. Ali failed to file an age
discrimination claim with the EEOC. (Doc. 15). The court denied the College’s Motion to
Dismiss count five because Mr. Ali had sufficiently pled a claim of retaliation at the motion to
dismiss stage, but the court specifically emphasized that “whether the plaintiff can show on
summary judgment that he objectively believed that the defendant’s conduct was unlawful is not
a foregone conclusion.” Id. at 2.
On July 24, 2012, Mr. Ali filed a First Amended Complaint alleging three counts: (1)
racial discrimination; (2) violation of 42 U.S.C. § 1981; and (3) retaliation. The College filed its
Motion for Complete Summary Judgment on August, 10, 2012, and the parties have fully briefed
the motion.

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II.

STANDARD OF REVIEW
Summary judgment allows a trial court to decide cases when no genuine issues of

material fact are present and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must
determine two things: (1) whether any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56©.
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322–23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) In responding to a motion for summary
judgment, the non-moving party “must do more than simply show that there is some
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metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324
(quoting Fed. R. Civ. P. 56(e)) (emphasis added). .
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain from weighing the evidence and making credibility
determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S.
at 255; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
Furthermore, all evidence and reasonable inferences drawn from the underlying facts
must be viewed in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282.
The nonmoving party “need not be given the benefit of every inference but only of every
reasonable inference.” Id. The evidence of the non-moving party “is to be believed and all
justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at 255. After both
parties have addressed the motion for summary judgment, the court must grant the motion if no
genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56.

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III.

LEGAL ANALYSIS
A.

Racial Discrimination

Mr. Ali alleges that the College engaged in unlawful race discrimination under Title VII
of the Civil Rights Act of 1984 in count I of his first amended complaint and alleges that the
College engaged in unlawful racial discrimination under 42 U.S.C. § 1981 in count II. Because
both counts allege unlawful racial discrimination and rely on the same prima facie case to show
discrimination, the court will consider them together. See Bryant v. Jones, 575 F.3d 1281, 1286
n. 20 (11th Cir. 2009) (“[D]iscrimination claims . . . brought under the Equal Protection Clause,
42 U.S.C. § 1981, or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, are subject
to the same standards of proof and employ the same analytical framework.”).
To prove a prima facie case of discrimination, Mr. Ali must show: “ (1) he belongs to a
racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly
situated employees outside his classification more favorably; and (4) he was qualified to do the
job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Mr. Ali is African American and
thus indisputably a member of a protected class. The College does not dispute that Mr. Ali was
qualified to serve as an admissions associate. However, the College asserts that Mr. Ali cannot
make out a prima facie case of discrimination because he did not suffer an adverse employment
action and was not treated any differently than similarly situated employees outside of his
protected class.
1.

Mr. Ali suffered adverse employment action

Mr. Ali asserts that he suffered adverse employment action because the College hindered
his chance to be promoted and subjected him to harsher performance reviews.
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a.

Promotions and Transfers

Failure to promote can be an adverse employment action giving rise to liability for
discrimination, but “when an employer has publicized an open position and requires a formal
application, a general interest in the position is insufficient to satisfy the application
requirement.” Williams v. Waste Management, 411 F. App’x 226, 228 (11th Cir. 2011) (citing
Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345-46 (11th Cir. 2003)). However, if an
employer uses informal hiring procedures, then “a plaintiff need only demonstrate that the
employer had some reason to know of his interest in the position.” Id. (citing Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005)).
In this case, Mr. Ali never formally applied for any open positions at the College.
Although he did express interest in a position as an adjunct professor in the future once he had
finished his Master’s and/or Law Degree, that possibility still lay in the distant future. So even
assuming the College knew about Mr. Ali’s interest in the position of adjunct professor, its
failure to promote him for a position he was not yet qualified for and had not formally applied for
is not sufficient to constitute an adverse employment action.
Similarly, Mr. Ali’s transfer to Mr. Sailes’ team does not qualify as an adverse
employment action because “to prove adverse employment action in a case under Title VII's
anti-discrimination clause, an employee must show a serious and material change in the terms,
conditions, or privileges of employment.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239
(11th Cir. 2001). Mr. Ali’s transfer to Mr. Sailes’ team did not affect his salary, responsibilities,
or performance standards. Mr. Ali’s “lateral transfer with full retention of benefits [cannot] be
described as an adverse employment action.” Njie v. Regions Bank, 198 F. App’x 878, 883 (11th
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Cir. 2006) (citing Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1452-53 (11th Cir. 1998)).
b.

Performance Reviews

Mr. Ali claims that he suffered adverse employment action because he “was subjected to
harsher performance reviews than his white co-workers [and] . . . was held to a higher
performance standard.” (Doc. 33, at 11). This claim is based on the April 17, 2010 thirteen week
report card that indicates Mr. Ali was being reviewed as a Level 3 employee when he was in fact
a Level New employee. (“13-Week Admissions Report Card,” Doc. 28-4, at 49). Mr. Macon
testified that the goals on the report card are the appropriate goals for a Level New employee and
that “Level 3" listed at the top of the evaluation was a typographical mistake.
Another thirteen week report card from March 31, 2010 lists Mr. Ali as a Level 0.81
employee and contains a note, presumably from Mr. Ali’s then-supervisor, saying that “As a
level new rep, it’s best that he achieve 20 leads per week.” (“13-Week Admissions Report Card,”
Doc. 28-4, at 48). The goals listed on this report card are the same as those listed on the April
17th report card, proving that Mr. Ali was subject to the performance standards of a Level New
employee despite the typographical error on the April 17th report card.2 The College also
provided a piece of evidence listing the “Minimum Average Standards” for all of the different
Level employees; the Level New average weekly referral goal is 2.5, the same goal listed on both
of Mr. Ali’s thirteen week report cards. Additionally, the April 17th report card has a note typed

1

The court interprets “0.8" as falling under the Level New category because it is
not yet Level 1, which is the category above Level New for performance review purposes.
2

Both thirteen week admission report cards list 1.9 as the average applications
goal; 1.4 as the average enrollment goal; and 2.5 as the average referral goal. (“13-Week
Admissions Report Card,” Doc. 28-4, at 48-49).
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on it: “Your lead/ appl[ication] goal for Level New is 13.2% law ECA Comp Plan.” The court
finds this evidence refutes any of Mr. Ali’s contentions that he was subjected to heightened Level
3 standards in his April 17th performance review. The reasonable interpretation of the
cumulative evidence is that “Level 3" was an error on the College’s part in transcribing and not
in reviewing Mr. Ali’s performance.
Because Mr. Ali cannot establish any adverse employment action that the College took
against him, he cannot establish a prima facie case of discrimination under Title VII or 42 U.S.C.
§ 1981. Because no genuine issues of material fact exist regarding Mr. Ali’s claims of
discrimination and because he cannot establish a prima facie case of discrimination, the court
will GRANT the College’s motion for summary judgment as to Counts I and II of Mr. Ali’s
Amended Complaint.
B.

Retaliation

Mr. Ali alleges that the College terminated him in retaliation for him opposing an
unlawful employment practice when he reported Mr. Smith’s comments to Mr. Macon and Mr.
Scott. An employee may not be retaliated against for having “opposed any practice made an
unlawful employment practice, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show: “(1)
that [ ]he engaged in statutorily protected conduct; (2) that [ ]he suffered adverse employment
action; and (3) that there is ‘some causal connection’ between the two events.” Alvarez v. Royal
Atlantic Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010) (citing McCann v. Tillman, 526
F.3d 1370, 1375 (11th Cir. 2008)).
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1.

Statutorily Protected Conduct

Mr. Ali claims that he engaged in statutorily protected conduct when he complained
about the comments Mr. Smith allegedly made to him about his “sex and religion” in a letter to
Mr. Scott and Mr. Macon on January 28, 2010. (Doc. 30, at 17). To engage in statutorily
protected conduct by reporting an unlawful employment practice, Mr. Ali must show that he “had
a good faith, reasonable belief that the employer was engaged in unlawful employment
practices.” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (citing Little v.
United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).
Mr. Ali must show that he “‘subjectively (that is, in good faith)’” believed that the
College engaged in unlawful employment practices and that his belief was “‘objectively
reasonable in light of the facts and record presented.’” See Weeks, 291 F.3d at 1312 (quoting
Little, 103 F.3d, at 960). Mr. Ali “need not prove that the conduct he opposed was actually
unlawful, but the reasonableness of his belief that [the College] ‘engaged in an unlawful
employment practice must be measured against existing substantive law.’” See Howard v.
Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010) (quoting Clover v. Total Sys. Serv., Inc.,
176 F.3d 1346, 1351 (11th Cir. 1999)).
Mr. Ali claims that Mr. Smith’s comments offended him, and that he was “heightened to
the likelihood that these types of comments were not appropriate in an employment setting.”
(Doc. 30, at 18). In denying the College’s Motion to Dismiss Mr. Ali’s retaliation claim, the
court recognized that “a plaintiff conceivably could prevail on his retaliation claim
notwithstanding the fact that the practice he opposed was not unlawful under Title VII.” (Doc.
15, at 2 (quoting Little, 103 F.3d, at 960)). Mr. Ali has produced sufficient evidence to show his
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subjective belief that Mr. Smith’s comments were an unlawful employment practice. In light of
the facts of this case, however, the court finds Mr. Ali’s assertion that he reasonably believed Mr.
Smith’s comments to be a violation of Title VII to be implausible. Mr. Ali even admits that “he
didn’t know if Mr. Smith was attacking his sexuality, race, or religion.” Mere offense does not
rise to the level of reasonable belief that the College was engaging in an unlawful employment
practice. See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (“Title VII, we have
said, does not set forth a general civility code for the American workplace.”) (internal citations
omitted).
A.

Religious Discrimination

Mr. Ali claims that Mr. Smith’s comment about his “spiritual thing” deeply offended him
and was a form of religious discrimination. The court interprets Mr. Smith’s comment about Mr.
Ali’s “spiritual thing” as a compliment to his interpersonal skills and said in the context of
helping Mr. Ali improve his work ethic and production. The only case that Mr. Ali cites for the
proposition that a complaint for an allegedly discriminatory comment is a protected action for
purposes of establishing a prima facie showing of retaliation is distinguishable from this case.
See Greene v. Swain County Partnership for Health, 342 F. Supp. 2d. 442 (W.D. N.C. 2004). In
Greene, the plaintiff opposed her supervisor’s “discriminatory slurs” and a specific statement that
Cherokee Indians did not view teen pregnancy as a problem because the grandmothers often
cared for the children of teen pregnancies. Id. at 446. Mr. Smith’s comments are far from what
can reasonably be considered a “discriminatory slur” or even negative commentary on anything
but Mr. Ali’s work production and failure to meet the prescribed goals.
The evidence in Greene also clearly established that the plaintiff’s supervisors believed
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she was Native American because she informed them herself she was Native American. Id. at
451. Here, Mr. Ali has not produced any evidence showing that the College reasonably perceived
Mr. Ali to be of any particular religion or sexual orientation, and Mr. Ali admits that he does not
associate himself with any particular religion. Thus, Mr. Ali cannot have held a reasonably
objective belief that Mr. Smith’s comments about his “spiritual thing” were religiously
discriminatory and thus an unlawful employment practice.
B.

Racial Discrimination

In his brief, Mr. Ali does not specifically claim that Mr. Smith’s comments were racially
discriminatory, but in his letter to Mr. Macon and Mr. Scott, he claims that Mr. Smith’s
comments were racist epithets. Thus, the court considers whether Mr. Ali objectively believed he
was opposing the unlawful employment practice of racial discrimination when he opposed this
practice.
The only other case besides Greene that Mr. Ali cites in his brief as supporting his claim
that he engaged in statutorily protected activity is Berman v. Orkin Exterminating Co., 160 F.3d
697 (11th Cir. 1998). Mr. Ali cites Berman for the proposition that a plaintiff is not required to
show his employer actually engaged in an unlawful employment practice. While the proposition
is true in isolation, Berman is inapposite in this instance because its facts are so different from
the case at hand. In Berman, the plaintiff’s supervisor told the plaintiff that the reduction in his
commission was because he was Jewish, and the plaintiff heard several of his supervisors refer to
him as “the Jew.” Id. at 699. The plaintiff filed EEOC charges alleging religious discrimination,
and although he was ultimately unsuccessful, he had a “reasonable belief that an unlawful
employment practice was occurring.” Id. at 705.
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Mr. Smith’s comment that Mr. Ali needed to “be a man” does not rise to the level of
blatant discrimination evident in Berman; no clearly discernable negative implication exists in
Mr. Smith’s statement. The court does not require that Mr. Ali prove that the College actually
engaged in an unlawful employment practice but just that it was reasonable in light of all the
facts and circumstances to believe that the College was engaging in an unlawful employment
practice.
Mr. Ali’s claim that “be a man” “injects into [his] mind” that Mr. Smith was referring to
him as “‘BOY’ in every sense of racist epithets possible without saying BOY” is not enough to
prove racial discrimination and is simply not reasonable. (See Doc. 33-1. At 2). The leap from
Mr. Smith saying “be a man” to Mr. Ali interpreting Mr. Smith as calling him “boy” is a very
large one, and one that a reasonable person would not take. “Be a man” is not a racial epithet, and
Mr. Ali’s interpretation of it as a racial epithet is not reasonable in the eyes of the court. Mr. Ali’s
belief that Mr. Smith’s comment telling him to “be a man” was racially discriminatory and an
unlawful employment practice is not objectively reasonable. Thus, Mr. Ali cannot have held a
reasonably objective belief that Mr. Smith’s comment was racially discriminatory and thus an
unlawful employment practice.
C.

Sex Discrimination

Mr. Ali claims that he was unclear about how exactly he was being discriminated against,
whether it was because of his religion, sexuality, or race. In his brief, Mr. Ali claims that he was
retaliated against for comments Mr. Smith made about his “sex and religion.” The court cannot
find a reasonable interpretation of either of Mr. Smith’s comments that would lead to an
objective belief that an unlawful employment practice of sex discrimination was occurring at the
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College.
Simply because Mr. Ali was offended by Mr. Smith’s comments and felt they were
inappropriate for the workplace does not create an objectively reasonable belief of an unlawful
employment practice sufficient to establish a prima facie case of statutorily protected conduct.
Because Mr. Ali cannot produce evidence sufficient to show he engaged in statutorily protected
conduct, his claim of retaliation fails, and the court need not examine the remaining elements to
establish a prima facie case of retaliation.
Even if Mr. Ali were able to establish that he engaged in statutorily protected conduct, the
College has shown legitimate business reasons for his termination. Mr. Ali continually failed to
meet the prescribed objective goals set for admission associates after being warned of his poor
job performance metrics and having several meetings with his supervisors. Mr. Ali’s record and
pattern of poor job performance show that the College had a legitimate reason to terminate Mr.
Ali. Further, Mr. Ali produces no evidence that the College’s given reasons for his termination
are a pretext for retaliation.
Because Mr. Ali cannot produce sufficient evidence to show he engaged in statutorily
protected conduct, and even if he could, cannot produce any evidence of pretext in the College’s
legitimate business reasons for terminating him, the court will GRANT the College’s motion for
summary judgment on Count III of Mr. Ali’s Amended Complaint.
IV.

CONCLUSION
The parties do not dispute any material facts in the case, and Mr. Ali cannot establish a

prima facie case of either discrimination or retaliation against the College. Because of these
reasons, the court will GRANT the College’s motion for summary judgment, will DISMISS Mr.
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Ali’s claims WITH PREJUDICE and will simultaneously enter an order to that effect.
DONE and ORDERED this 31st day of October, 2012.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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