Crutcher v. Millennium Nursing and Rehab Center, Inc.
MEMORANDUM OPINION AND ORDER that the defendant's 34 MOTION for Summary Judgment on plaintiff's discharge claim is GRANTED, trial on plaintiff's remaining claims will be set by seperate order; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/17/2012. (AHI)
2012 Apr-17 AM 08:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MILLENNIUM NURSING AND
REHAB CENTER, INC.,
Civil Action No. CV-09-S-1484-NE
MEMORANDUM OPINION AND ORDER
Plaintiff, Frederica Crutcher, commenced this action against her former
employer, defendant Millennium Nursing and Rehab Center, Inc., on July 24, 2009.1
Her initial complaint contained a claim for unpaid hours, including overtime, in
violation of the the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.2
Plaintiff amended her complaint on September 9, 2010, to add a claim for gender
discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”).3 Defendant moved for summary judgment on the Title VII
claim.4 Upon consideration of the motion, briefs, and evidentiary submissions, the
court concludes that the motion is due to be granted.
Doc. no. 1 (Complaint).
Id. ¶¶ 16-34.
Doc. no. 26 (Amended Complaint) ¶¶ 24-33.
Doc. no. 34.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).5 In other
words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
genuine issue of material fact ‘exists only if sufficient evidence is presented favoring
the nonmoving party for a jury to return a verdict for that party.’” Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (quoting Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1284-85 (11th Cir. 1997)).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul
of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that
the changes “will not affect continuing development of the decisional law construing and applying
these phrases.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2010 Amends.). Consequently, cases
interpreting the previous version of Rule 56 are equally applicable to the revised version.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). “[A]n inference is not reasonable
if it is only a guess or a possibility, for such an inference is not based on the evidence,
but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692
F.2d 1321, 1324 (11th Cir. 1983). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for
a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law”).
Plaintiff, Frederica Crutcher, worked as a certified nursing assistant (“CNA”)
for defendant, Millennium Nursing and Rehab Center, Inc. (“Millennium”), from
December of 2007 until her termination on June 10, 2009.6 Millennium is a nursing
facility, primarily serving elderly patients.7 At any given time, Millennium employs
Doc. no. 34-1 (Deposition of Frederica Crutcher), at 71-72 (hire); see id. at 178 (discharge).
Id. at 244-45.
approximately 115 people.8 Of that number, “typically 105 to 110 are female.”9
According to Crutcher, during her time at Millennium, “[m]aybe nine” employees
Crutcher testified that the male employees enjoyed preferential
treatment, because “men are more valuable in the healthcare profession than a
woman.”11 However, the sole basis of her gender discrimination claim is her
discharge; she does not assert a claim on the basis of disparate treatment in the
workplace or retaliation for the complaints she made about preferential treatment
afforded male employees.12 Crutcher’s supervisors at Millennium included Karen
Toney, Staffing Coordinator, Doris White, Assistant Director of Nursing, and Lisa
Rose White, Administrator.13
At the end of each month, the Staffing Coordinator is responsible for setting the
employee shift schedule for the following month.14 Before the schedule is made,
Doc. no. 34-4 (Declaration of Lisa Rose White) ¶ 6.
Deposition of Frederica Crutcher, at 75 (bracketed alteration supplied).
Id. at 254; see also id. at 199-216.
See doc. no. 26.
Deposition of Frederica Crutcher, at 75-76, 90; doc. no. 34-5 (Declaration of Karen Toney)
¶ 2. Although Toney is one of the principal actors in Crutcher’s discharge, she apparently was never
See doc. no. 34-3 (Deposition of Lisa Rose White), at 79-81.
employees have the opportunity to submit “request off” forms, indicating their desire
not to work on a particular day of the upcoming month.15 Prior to generating the
schedule for the month, the Staffing Coordinator notes which days which employees
have requested not to be scheduled, to ensure that employees are not scheduled for
days they have off.16 If an employee requests a day off after the schedule has been
made, the schedule can be modified to reflect the change.17
The monthly, or “master” schedule created by the Staffing Coordinator is
posted on a bulletin board.18 In addition to the master schedule, management
personnel at Millennium occasionally produce daily or weekly assignment sheets.19
However, the master schedule is modified to reflect any approved changes.20 In other
words, the master schedule always reflects the accurate state of shift scheduling, and
a daily sheet contradicting it does not supercede it. Only the master schedule is
considered the official schedule.21
“No call, no show”
Millennium gives all of its employees an employee handbook outlining the
Id. at 80.
Id. at 80-81.
Deposition of Frederica Crutcher, at 193.
Deposition of Lisa Rose White, at 84-85.
Id. at 85-86.
Declaration of Karen Toney ¶ 2.
company’s policies.22 The handbook lists violations of company policy that will lead
to discipline. Those actions classified as serious infractions “may result in immediate
dismissal without warning for the first offense.”23 Listed among those serious
infractions is “[n]ot reporting to work, as scheduled, without notifying your immediate
supervisor (no call no show).”24 The company supplemented the policy as stated in
the handbook with a memorandum stating that an employee who cannot make his or
her shift must call management at least two hours before the shift is scheduled to
begin.25 However, since Lisa Rose White became Administrator in May of 2008,
employees who have contacted management during their scheduled shifts have not
been classified as no call, no show, or discharged.26
At some point prior to June 9, 2009, Crutcher wrote a note to Karen Toney,
Staffing Coordinator, stating “I’m not going to be able to work 6/9/09.”27 Toney
See Deposition of Frederica Crutcher, at 77 (testifying that she received a copy of the
handbook when she began working at Millennium).
Doc. no. 34-2 (Exhibits to Deposition of Frederica Crutcher), at Ex. 1 (Employee
Handbook), at ECF 22.
Id. at ECF 23.
Deposition of Lisa Rose White, at Ex. 8 (Employee Absenteeism Memorandum, Jan. 26,
Deposition of Lisa Rose White, at 133-35.
Doc. no. 36-1 (Note of Frederica Crutcher).
wrote “you are off” on the note, signed it, and returned it to Crutcher.28 The master
schedule for June of 2009, prepared by Toney, lists Crutcher as assigned to work on
June 9th.29 For June 10th, the space next to Crutcher’s name is blacked out.30 The
record does not contain the daily schedule for June 9th, but Crutcher alleged in her
EEOC charge and amended complaint that she was not listed on the daily schedule for
Crutcher did not report to work on June 9, 2009.32 Karen Toney and Doris
White, Assistant Director of Nursing, stated that they attempted to contact her by
calling two cellular telephone numbers she had provided to the company.33 Crutcher
testified that she had removed one of the cellular numbers from the employee contact
list, because she no longer had that phone.34 She further testified that she had lost the
Id. The note is not dated, so it is unclear whether Toney approved the day off before or
after making the master schedule for June.
Deposition of Lisa Rose White, at Ex. 7 (Master Schedule).
Doc. no. 26 ¶ 28. Plaintiff made no mention of the note or the approved day off in her
EEOC charge or her complaint, both of which state that she missed work on June 9th because the
daily schedule listed her as off that day.
See, e.g., Deposition of Lisa Rose White, at Ex. 5 (Personnel Action, Frederica Crutcher,
June 10, 2009).
Deposition of Frederica Crutcher, at 179-80 (“They said they had tried to call me.”);
Deposition of Lisa Rose White, at 67 (“And [Toney] said, [‘]I called both of her cell phones, and
she did not answer either one[’]”) (bracketed alterations supplied); Personnel Action, Frederica
Crutcher, June 10, 2009 (stating that Crutcher “did not call or return calls”).
Deposition of Frederica Crutcher, at 180.
other phone on June 7th.35 On June 10th, Toney recommended to Lisa Rose White
that Crutcher be discharged for a no call, no show violation.36 Lisa Rose White
approved the recommendation.37
When Crutcher came into work on June 10, 2009, she met with Toney and
Doris White.38 During the meeting, Toney and White said that they had tried to call
Crutcher during her shift on the previous day, but were not able to reach her.39
Crutcher told them that she had received no call, message, or other indication that they
had tried to contact her.40 Crutcher told them that she was not supposed to be at work
Id. (“I lost it actually the Sunday before whatever date that happened.”). June 9, 2009 was
a Tuesday, therefore, the Sunday before was June 7th.
Deposition of Lisa Rose White, at 66.
See Personnel Action, Frederica Crutcher, June 10, 2009.
Deposition of Frederica Crutcher, at 178.
Id. at 179-80.
Id. at 181. In her response brief, plaintiff states that the “cellular telephone in Plaintiff’s
possession indicated there was no record that she received a call from anyone at Millennium.” Doc.
no. 36 (Response in Opposition to Summary Judgment), at 2. However, that is not an accurate
characterization of the testimony, which is set out in full below.
And did you say to Ms. Toney, or Ms. Toney and Ms. White, well, [“]I lost
I lost one cell phone. The other phone on one of the phone lists, I had
marked that number out.
The phone that I was using, I lost it actually the Sunday before whatever date
that happened. I lost it.
Did you receive a message or indication that Millennium had attempted to
on June 9th, but because Toney and Doris White were yelling at her, she was unable
to explain that Toney had specifically given her the day off.41 As they were yelling
at her, she wrote a statement, which reads: “I really didn’t know [that] I was on to
report to work[,] in which I was wrong[,] but I never but suspended [sic] and there
have been times when people [were] NCNS [no call, no show] and nothing was
done[,] so I feel that I should have been giv[en] a chance.”42 Crutcher testified that
call you the day before?
Did you tell that to Ms. Toney and Ms. White?
That I — that I hadn’t —
That [“]I got no message, there was nothing on my phone that showed that,
you know, I received a call from this number,[”] anything?
You stated that to them?
Deposition of Frederica Crutcher, at 180-81 (bracketed alterations supplied). Crutcher did not ever
testify that she found her phone, much less that it specifically did not indicate any missed calls from
Millennium. She simply said “yes” (moments after answering “no”) in response to a question from
defendant’s counsel, which did not establish that she had regained possession of the phone by the
time of the meeting on June 10th, or at any other time.
Deposition of Frederica Crutcher, at 185.
Personnel Action, Frederica Crutcher, June 10, 2009 (bracketed alterations supplied).
she tried to argue that another CNA, Roy Daniels, had been a no call, no show on
several occasions without consequences, but Toney and Doris White yelled at her,
asking when Daniels had ever been a no call, no show.43 Rather than continuing to
argue with them, she let the subject drop.44 She was then walked out of the premises.45
Upon returning home, Crutcher searched for, and found, the note approving her
day off.46 She called Millennium’s corporate office to complain about her termination,
and faxed in a copy of the note, but the corporate representative told her she had to
raise the issue with Lisa Rose White.47 Crutcher did not return to Millennium to
attempt to show the note to Toney, because she felt Toney “set [her] up to be
terminated.”48 Crutcher testified that Toney was intent on firing her because she had
previously complained to corporate about favorable treatment given to male
employees.49 About four days after she was terminated, Crutcher met with Lisa Rose
White, who refused to discuss the decision or to acknowledge the note when Crutcher
Deposition of Frederica Crutcher, at 232.
Id. (“And Lisa started yelling, [‘W]hen was Roy a no call, no show? When was he a no
call, no show?[’] And I’m like — I said [‘F]orget it. You know he was no call, no show.[’]”)
(bracketed alterations supplied).
Id. at 197-98.
Id. at 186-89.
Id. at 199 (bracketed alteration supplied). See also id. at 186.
Deposition of Frederica Crutcher, at 219-20, 261, 265.
tried to show it to her.50 When Crutcher tried to tell White that Toney had approved
the day off in advance, White told Crutcher that she would talk to Toney and get back
to Crutcher.51 White never contacted Crutcher to follow up on their meeting.52 When
shown the note during her deposition, White admitted that, assuming the note was
genuine, Crutcher actually was not a no call, no show.53
Crutcher alleges that at least two male employees missed their shifts, failed to
contact management, and yet were not discharged under the no call, no show policy.
She does not allege that she was replaced by a male, and the record indicates that she
was replaced by a female.54
Stanley Townsend is a dietary aide at Millennium. On Friday, May 1, 2009, he
was scheduled to work, but did not come in.55 He did not call in advance to inform
management that he would be out.56 Management personnel asked other employees,
Id. at 186-88, 220-21.
Id. at 221-22.
Id. at 222.
Deposition of Lisa Rose White, at 70-71, id. at 77 (“Q: Would you agree that if Ms. Toney
in fact gave Ms. Crutcher the day off on June 9, 2009, that Ms. Crutcher was not a no call/no show
that day? A: Yes.”).
Declaration of Lisa Rose White ¶ 14.
Deposition of Lisa Rose White, at 116.
including Crutcher, if they knew where Townsend was.57 A co-worker called
Townsend to inform him that management was looking for him, and on the advice of
that co-worker, Townsend called in and asked his supervisor to find someone to cover
for him.58 He was also absent from work on the following Monday, May 4, 2009.59
There is no indication in the record that he called into work that day.60 It is unclear
whether he had arranged for someone else to cover his shift for May 4th.61 Townsend
was not discharged, even though he had previously been disciplined for tardiness and
failure to obey orders.62 On the personnel action form addressing the incident, it was
not classified as a no call, no show violation.63
Deposition of Frederica Crutcher, at 240.
Deposition of Lisa Rose White, at 111-12; id. at Ex. 14 (Personnel Action, Stanley
Townsend, May 1, 2009). Plaintiff submitted the declaration of Isabella Sheen, a nurse who was
employed at Millennium at the time of Townsend’s absence. Sheen stated that she “believe[s]
contact was finally made with him on the third day [of his absence], but . . . not on the first two
days.” Doc. no. 36-2 (Declaration of Isabella Sheen) ¶ 5 (bracketed alterations supplied). However,
Sheen’s declaration directly conflicts with the Personnel Action, which was made
contemporaneously with the events in question, and which indicates that Townsend was contacted
on May 1st, i.e., the first day. Of greater significance, plaintiff frames her arguments in her response
brief on the assumption that contact was made on May 1st. See doc. no. 36 (Response in Opposition
to Summary Judgment), at 11. For that reason, the court will also assume that Townsend called in
during the first day of his absence, May 1st.
Deposition of Lisa Rose White at 113-14.
Id. at 114. See also Personnel Action, Stanley Townsend, May 1, 2009.
Id. at 115 (“Q: Wouldn’t you agree, Ms. White, that she was saying he didn’t show up for
work on Monday? A: But if he found coverage to cover him then it was covered. Q: We just don’t
know that one way or the other? A: I don’t.”).
Deposition of Lisa Rose White, at Ex. 11 (Personnel Action, Stanley Townsend, May 19,
2008); id. at Ex. 12 (Personnel Action, Stanley Townsend, June 17, 2008).
Compare Personnel Action, Stanley Townsend, May 1, 2009 (classifying the violation as
“Other”) with Personnel Action, Frederica Crutcher, June 10, 2009 (classifying the violation as
The record regarding Roy Daniels’s failure to show up at work is less
developed than that regarding Townsend, and plaintiff makes no mention of his name
in her EEOC charge or amended complaint.64 Nor does plaintiff make any arguments
in her brief on the basis of her disparate treatment vis-a-vis Daniels. Roy Daniels, like
plaintiff, was a CNA.65 Plaintiff submitted the declaration of Isabella Sheen, a nurse
formerly employed at Millennium, in which Sheen stated that she once had to call
Daniels to find out why he failed to come into work or call in advance.66 Daniels, who
was listed on the master schedule as working that day, “said that he was watching a
football game, and was not coming in.”67 Lisa Rose White testified that she was
unaware of any no call, no show violations by Daniels.68
Where, as here, the plaintiff seeks to prove discrimination with circumstantial
evidence, the court must analyze the case using the burden-shifting analytical
See Deposition of Frederica Crutcher, at Ex. 11 (EEOC Charge); doc. no. 26.
Doc. no. 36-2 (Declaration of Isabella Sheen) ¶ 6.
Deposition of Lisa Rose White, at 125. Plaintiff did not dispute this fact when it was
included in defendant’s summary judgment brief. Thus, it is admitted for summary judgment
purposes. See doc. no. 8 (Uniform Initial Order).
framework first articulated by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and elaborated in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981).69 Under the McDonnell Douglas framework,
a plaintiff must first establish a prima facie case of intentional discrimination.
Establishment of the prima facie case creates a rebuttable presumption that the
employer unlawfully discriminated against the employee.
If a plaintiff establishes a prima facie case of discrimination, the defendant
employer must articulate a legitimate, nondiscriminatory reason for the challenged
employment action. If the employer is silent in the face of the presumption created
by the demonstration of a prima facie case, the court must enter judgment for the
plaintiff, because no issue of fact remains in the case.
If the defendant articulates one or more legitimate, non-discriminatory reasons
for its decision, however, the presumption of discrimination created by the
demonstration of a prima facie case is eliminated, and the plaintiff then has both the
obligation and opportunity to come forward with evidence, including the previously
produced evidence establishing the prima facie case, sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real reasons
for the adverse employment decision, but simply a pretext for an unlawful,
See also St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Cf. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 141-42 (2000).
discriminatory animus. If the plaintiff does not proffer sufficient evidence to create
a genuine issue of material fact regarding the credibility of each of the defendant
employer’s articulated reasons, the employer is entitled to summary judgment on the
plaintiff’s claim. See, e.g., Burdine, 450 U.S. at 254; Chapman, 229 F.3d at 1024-25;
Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
Prima Facie Case
The Eleventh Circuit has held that a plaintiff seeking to “make out a prima facie
case of disparate treatment discrimination” in the termination of employment “must
generally show that (1) plaintiff is a member of a protected class; (2) plaintiff suffered
an adverse employment action; (3) the employer treated similarly situated employees
outside of the protected class more favorably; and (4) plaintiff was qualified to do the
job.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002)
(citing McDonnell Douglas, 411 U.S. at 802; Crapp v. City of Miami Beach, 242 F.3d
1017, 1020 (11th Cir. 2001)); see also, e.g., Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997).
Here, defendant concedes that plaintiff has satisfied three of the four elements:
she is a member of a protected class (female), she suffered an adverse employment
action (discharge), and she was qualified to perform the duties of her job.70 Thus, the
Doc. no. 35 (Brief in Support of Summary Judgment), at 13.
only prima facie element in dispute is the third: whether plaintiff was treated less
favorably than a similarly situated male, i.e., Stanley Townsend.71 To establish that
she was treated less favorably than Townsend, plaintiff must demonstrate that her
conduct was nearly identical to his behavior.
[T]o determine whether employees are similarly situated, we evaluate
“whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways.” Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999) (citations and quotation marks
omitted). When making that determination, “[w]e require that the
quantity and quality of the comparator’s misconduct be nearly identical
to prevent courts from second-guessing employers’ reasonable decisions
and confusing apples with oranges.” Id.
Burke-Fowler v. Orange County, Florida, 447 F.3d 1319, 1323 (11th Cir. 2006).
“‘The most important factors in the disciplinary context are the nature of the offenses
committed and the nature of the punishments imposed.’” Maniccia, 171 F.3d at 1368
(quoting Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1311 (11th Cir.
The parties dispute the degree of similarity between the conduct of plaintiff and
Plaintiff will not be compared to Roy Daniels, because she did not make any arguments
regarding his alleged no call, no show in her EEOC charge, complaint, or brief, and because she did
not dispute defendant’s factual assertion that Lisa Rose White never knew of any no call, no show
incident involving Daniels.
In a footnote, designated as number 2 in the opinion, the Eleventh Circuit stated that it was
bound to follow the “nearly identical” standard of Maniccia, rather than a “similar misconduct”
standard used by a later panel. See Walker v. Mortham, 158 F.3d 1177, 1188-89 (11th Cir. 1998)
(applying an “earliest case” rule to resolve intra-circuit splits).
Townsend. Plaintiff argues that their conduct was identical: i.e., neither she nor
Townsend appeared when scheduled to work, and neither complied with the company
policy requiring them to phone management two hours in advance of their shifts.
Defendant argues that their conduct is distinguishable:
i.e., Townsend called
management during his shift, while Crutcher never called in, despite the fact that her
supervisors purportedly called her to ask where she was.
The no call, no show policy, as written in the employee handbook and
memorandum, does not contain any distinction between those employees who call in
during their absence and those who do not.73 However, Lisa Rose White testified that
she has consistently excused those employees who call management during their
shifts, not classifying them as no call, no show.74 “Title VII does not take away an
employer’s right to interpret its rules as it chooses, and to make determinations as it
sees fit under those rules.” Maniccia, 171 F.3d at 1369 (quoting Jones, 137 F.3d at
1311). Thus, there is nothing inherently improper in Lisa Rose White’s policy of
excusing employees from no call, no show discipline if they call in during their shifts.
Plaintiff argues that, because Townsend only called Millennium during his
scheduled shift, his conduct and her own was “nearly identical.” Townsend received
Employee Handbook, at ECF 22-23.
Deposition of Lisa Rose White, at 133-35.
a phone call from a coworker alerting him to his need to call in to management.75 The
record indicates that Karen Toney and Doris White told Crutcher that they called her.76
However, neither Toney nor Doris White was deposed, and Crutcher’s testimony
suggests that those calls may not have actually occurred.77 Even assuming Toney and
Doris White did not call Crutcher, the record does not show that Townsend received
any preferential treatment from management. Townsend called in after a coworker,
not a supervisor, called him: i.e., he was not prompted by management.78 Crutcher
never called in.79 Thus, plaintiff’s argument that she and Townsend engaged in
“nearly identical” conduct stands on questionable footing. However, even assuming
plaintiff has satisfied her burden of demonstrating a prima facie case, she has failed
to demonstrate that defendant’s articulation of a legitimate explanation is pretext for
Deposition of Lisa Rose White, at 111-12; Personnel Action, Stanley Townsend, May 1,
Deposition of Frederica Crutcher, at 179-80.
See id. at 180-81. The significant question is not whether Crutcher received the calls, as
it is clearly not the fault of Millennium that she lost her phone, but whether management personnel
actually attempted to contact her.
Plaintiff does not allege that management called Townsend, and there is no evidence in
the record to suggest the existence of such a call. Thus, if Toney and Doris White did call Crutcher
during her shift, she actually received preferential treatment from management, as compared to
Of course, the court recognizes that she may not have been able to call in while her phone
was misplaced. However, there is no evidence in the record suggesting that management was aware
of the fact that she had lost her phone.
Legitimate Reason and Pretext
To rebut the presumption of intentional discrimination raised by a plaintiff’s
demonstration of a prima facie case, “the defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for the” contested employment
decision. Burdine, 450 U.S. at 255. “An articulation not admitted into evidence will
not suffice. Thus, the defendant cannot meet its burden merely through an answer to
the complaint or by argument of counsel.” Id. at 255 n.9. Further, “[t]he explanation
provided must be legally sufficient to justify a judgment for the defendant,” id. at 255,
even though “[t]he defendant need not persuade the court that it was actually
motivated by the proffered reasons.” Id. at 254.
Here, defendant has clearly articulated a legitimate, non-discriminatory reason
for its decision to discharge plaintiff: she did not report to work without calling
before or during her shift to inform management of her absence, in violation of the
company’s no call, no show policy. The company did not terminate Townsend
because, under the company’s policy as applied by Lisa Rose White, he avoided no
call, no show status by calling management during the shift he missed. Thus,
defendant has provided a legitimate, non-discriminatory explanation both for
Crutcher’s termination and Townsend’s retention.
Plaintiff may demonstrate pretext “by persuading the court that a discriminatory
reason more likely motived the employer,” or “by showing that the employer’s
proffered explanation is unworthy of credence” — that is, it is not believable. Jackson
v. Alabama State Tenure Commission, 405 F.3d 1276, 1289 (11th Cir. 2005); see also,
e.g., Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (per curiam)
(“[T]o avoid summary judgment [the plaintiff] must introduce significantly probative
evidence showing that the asserted reason is merely a pretext for discrimination.”)
In this final step of the analytical process, the plaintiff must be afforded the
opportunity to “come forward with evidence, including the previously produced
evidence establishing the prima facie case, sufficient to permit a reasonable factfinder
to conclude that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Combs, 106 F.3d at 1528 (citing Burdine, 450 U.S.
at 256; McDonnell Douglas, 411 U.S. at 804). The plaintiff’s burden at this step of
the analysis is that of “cast[ing] sufficient doubt on the defendant’s proffered
nondiscriminatory reasons to permit a reasonable factfinder to conclude that the
employer’s proffered ‘legitimate reasons were not what actually motivated its
conduct’ . . . .” Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern
Railway Co., 37 F.3d 603, 605 (11th Cir. 1994)); see also Chapman, 229 F.3d at
1024-25. The plaintiff shoulders that burden by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont
de Nemours & Company, 100 F.3d 1061, 1072 (3d Cir. 1996)) (internal quotation
Whether Millennium’s explanation is unworthy of credence
Plaintiff argues that Lisa Rose White, testifying as defendant’s corporate
representative, “admit[ted] that Plaintiff’s day off was approved and the reason for
termination is not credible.”80 That statement misconstrues White’s testimony. White
simply admitted that, based on the note allegedly signed by Karen Toney that was
shown to her during the deposition by plaintiff’s counsel, Crutcher was not actually
a no call, no show on June 9, 2009.81 However, that admission does not show that the
reason for discharging Crutcher was “not credible.” To show pretext, the evidence
must allow the inference that the reason was not credible at the time of the discharge.
“‘An employer who fires an employee under the mistaken but honest impression that
the employee violated a work rule is not liable for discriminatory conduct.’” Hudson
v. Blue Cross Blue Shield of Alabama, 431 F. App’x 868, 869 (11th Cir. 2011) (per
Doc. no. 36, at 15.
Deposition of Lisa Rose White, at 77 (“Q: Would you agree that if Ms. Toney in fact gave
Ms. Crutcher the day off on June 9, 2009, that Ms. Crutcher was not a no call/no show that day?
curiam) (emphasis supplied) (quoting Damon v. Fleming Supermarkets of Florida,
196 F.3d 1354, 1363 n.3 (11th Cir. 1999)). Nothing in the record suggests that
White, who made the final decision to discharge Crutcher, knew that Crutcher actually
had the day off at the time she approved the discharge.82
The evidence shows that Karen Toney approved the day off, and thus should
have been aware of it. However, Crutcher did not say anything about the note during
her termination meeting, with Toney present.83 For reasons unknown, plaintiff chose
not to depose Toney. Thus, the evidence of Toney’s thought process is limited to her
declaration, and she was not directly questioned or forced to explain herself. It is
possible that she knew Crutcher had the day off, and deliberately ignored that
knowledge in labeling Crutcher as a no call, no show. It is also possible that she
simply forgot about the day off. In her deposition, plaintiff made conclusory
accusations that Toney was conspiring against her.84 However, she has produced no
evidence suggesting that Lisa Rose White, the decisionmaker, had reason to doubt that
Crutcher was a no call, no show.85 It is clear that Crutcher was scheduled to have the
The closest Crutcher comes to producing such evidence is her testimony that White refused
to discuss the discharge or look at the note when Crutcher tried to show it to her after the discharge
occurred. Deposition of Frederica Crutcher, at 221-22.
Id. at 185. Crutcher testified that she left the meeting, rather than further explaining her
absence, because she “couldn’t get a word in.” Id.
Id. at 186, 198-99.
Plaintiff has not articulated a so-called “cat’s paw” theory of liability, by which a plaintiff
can allege that the employee actually harboring discriminatory animus (Toney) manipulated a
day off, and was not actually a no call, no show. But the evidence does not suggest
that there is any reason to doubt that, contemporaneously with her decision to
terminate Crutcher, Lisa Rose White legitimately and honestly believed Crutcher had
been a no call, no show. Thus, the fact that Crutcher was not actually a no call, no
show does not demonstrate pretext.
The decision to terminate Crutcher as a no call, no show certainly appears to
have been a mistaken one. However,
[f]ederal courts “do not sit as a super-personnel department that
reexamines an entity’s business decisions. No matter how medieval a
firm’s practices, no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers, [federal employment law]
does not interfere. Rather our inquiry is limited to whether the employer
gave an honest explanation of its behavior.”
Chapman, 229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991)) (first bracketed alteration in Chapman, second bracketed
Deviation from policy
Plaintiff also argues that, by not classifying Townsend’s absence as a no call,
no show incident, defendant violated its own procedure. “An employer’s violation of
its own normal . . . procedure may be evidence of pretext.” Bass v. Board of County
supervisor (Lisa Rose White) into taking the adverse action. Nor would the evidence be likely to
support such a theory, as plaintiff has not produced any evidence, other than her personal suspicions,
to suggest that Toney was actually intent on firing her.
Commissioners, 256 F.3d 1095, 1108 (11th Cir. 2001) overruled on other grounds by
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). Deviation from policy, on its
own, does not demonstrate discriminatory animus; “[t]o establish pretext, a plaintiff
must show that the deviation from the policy occurred in a discriminatory manner.”
Rojas v. Florida, 285 F.3d 1339, 1344 n.4 (11th Cir. 2002) (citing Brown v. American
Honda Motor Co., 939 F.2d 946, 952 (11th Cir. 1991)).
discriminatory intent is shown if ‘an employer applies a rule differently to people it
believes are differently situated.’” Hudson, 431 F. App’x at 870 (quoting Nix v.
WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir. 1984)).
Plaintiff argues that defendant deviated from its policy in a discriminatory
manner. The company’s written policy on no call, no show violations does not
include an exception to the rule for employees who call management during their
shifts.86 However, Townsend was not classified as no call, no show, because he made
such a call.87 Thus, plaintiff argues, defendant deviated from its written policy to the
benefit of a male employee, allowing him to keep his job.
Conversely, defendant argues that any deviation from the company’s written
policy was uniformly applied. In essence, defendant argues, Lisa Rose White created
Employee Handbook, at ECF 22-23.
Personnel Action, Stanley Townsend, May 1, 2009; see also Deposition of Lisa Rose
White, at 111-12.
a modified policy, under which those who called in during their shifts would not be
classified as no call, no show, and she applied that policy consistently to all
employees, male and female. Defendant contends that the evidence does not
demonstrate any deviation from that policy, under which Crutcher and Townsend
were viewed as differently situated, because Crutcher did not call in during her shift.
Based on the evidence in the record, defendant’s is the better view. Lisa Rose
White testified that, under her supervision, employees who contact Millennium during
their shifts are not classified as no call, no show.88 Plaintiff has neither produced nor
identified any evidence that casts any doubt on that testimony. Instead, she merely
points to the fact that the written policy does not make such a distinction.89 However,
mere deviation from the written policy does not equate to pretext. See Rojas, 285 F.3d
at 1344 n.4. The only evidence in the record suggests that a policy, albeit not identical
to the written one, was consistently applied.
Finally, plaintiff has failed to produce any evidence that suggests that her
termination was actually based on discrimination. Springer v. Convergys Customer
Management Group, Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (“[A] reason is not
Deposition of Lisa Rose White, at 133-35.
Doc. no. 36, at 5 (“Disputed: Defendant’s written policy regarding no-call, no-show
occurrences does not make a distinction in regard to whether or not the employee does or does not
answer a phone call from the employer.”).
pretext for discrimination ‘unless it is shown both that the reason was false, and that
discrimination was the real reason.’”) (quoting Brooks v. County Commission of
Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting in turn St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 515 (1993))) (emphasis in St Mary’s Honor
Center). The evidence of gender discrimination in the record consists of Crutcher’s
conclusory assertions that men are more valuable (or at least more valued) in the
healthcare profession than women, and that Toney was intent on firing her in
retaliation for her earlier complaints regarding favorable treatment of male
employees.90 Her accusation of retaliation, even if true, does not support a claim for
gender discrimination, which is the only claim at issue here. Cf. Chambliss v.
Louisiana-Pacific Corp., 481 F.3d, 1345 1348 (11th Cir. 2007) (“Thus, proof that
Louisiana-Pacific violated the FMLA is irrelevant to the inquiry into whether
Louisiana-Pacific discriminated against her based on her protected traits.”); Young v.
Honeywell Technology Solutions, Inc., No. 1:06CV563-SRW, 2008 WL 901441, at
*4 n.9 (M.D. Ala. March 31, 2008) (citing Chambliss, 481 F.3d at 1348, and holding
that alleged violations of Privacy Act do not undermine employer’s articulation of
Deposition of Frederica Crutcher, at 200, 254.
IV. CONCLUSION AND ORDER
In consideration of the foregoing, defendant’s motion for summary judgment
on plaintiff’s discharge claim is GRANTED. Trial of plaintiff’s remaining claims will
be set by separate order.
DONE and ORDERED this 17th day of April, 2012.
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