Bowman v. ITW Sexton

Filing 18

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the motion for summary judgment is GRANTED and plaintiff's complaint is DISMISSED WITH PREJUDICE and costs are taxed to plaintiff; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/3/2012. (AHI)

FILED
2012 Oct-03 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JEWEL L. BOWMAN,
Plaintiff,
vs.
ITW SEXTON CAN COMPANY,
Defendant.

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Civil Action No. CV-10-S-2585-NE

MEMORANDUM OPINION
Plaintiff, Jewel L. Bowman, proceeding pro se, alleges that defendant, ITW
Sexton Can Company, engaged in race-based employment discrimination by failing
to retain her in the Quality Assurance Department and, instead, offering her a position
in the packing department.1 This case is before the court on defendant’s motion for
summary judgment,2 to which plaintiff has not responded. Upon consideration of the
brief on file and the evidence in the record, this court will grant the motion.
1

Doc. no. 3 (Complaint Filed November 9, 2010). While plaintiff’s handwritten complaint
does not specify the law that defendant allegedly violated, it appears from her charge against
defendant with the Equal Employment Opportunity Commission (EEOC) that she is proceeding
under Title VII, 42 U.S.C. § 2000e-2(a), which prohibits employment discrimination with respect
to the compensation, terms, conditions, or privileges of employment on the basis of race, color,
religion, sex, or national origin. See doc. no. 3-1 (Attachment to Complaint), February 4, 2010
EEOC Charge, at 3. (Because all of plaintiff’s evidence appears in the docket as one attachment,
all references to that evidence will be to a description of the evidence and to its page number in the
attachment.)
2

Doc. no. 55 (Defendant’s Motion for Summary Judgment).

I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 indicates 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).3 “[T]he
plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
In making this determination, the court must review all evidence and
make all reasonable inferences in favor of the party opposing summary
judgment.
The 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 [factfinder] to return a verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal
3

Rule 56 was recently amended in conjunction with a general overhaul of the Federal Rules
of Civil Procedure. The Advisory Committee was careful to note, however, that the changes “are
intended to be stylistic only.” Adv. Comm. Notes to Fed. R. Civ. P. 56 (2007 Amends.) (emphasis
supplied). Consequently, cases interpreting the previous version of Rule 56 are equally applicable
to the revised version.
2

quotations and citation omitted) (bracketed text suppled).
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).

The principle underlying this liberal

construction standard is “to give a pro se plaintiff a break when, although he stumbles
on a technicality, his pleading is otherwise understandable.” Hudson v. McHugh, 148
F.3d 859, 864 (7th Cir. 1998). However, such “leniency does not give a court license
to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading
in order to sustain an action.” GJR Investments, Inc. v. County of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998), overruled in part on other grounds (internal citations
omitted). Moreover, “a litigant’s pro se status in civil litigation generally will not
excuse mistakes he makes regarding procedural rules.” Thompson v. United States
Marine Corp., No. 09-16523, 2010 WL 3860578, at *3 (11th Cir. October 7, 2010)
(per curiam) (citing McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never suggested that procedural rules in ordinary civil litigation should be interpreted
so as to excuse mistakes by those who proceed without counsel.”)); Albra v. Advan,
Inc., 490 F.3d 829, 829 (11th Cir. 2007) (same).
On June 7, 2012, this court entered an order setting the deadline on defendant’s
motion for summary judgment, and stating that plaintiff’s response was due by June
3

28, 2012.4 Over three months have elapsed since this court’s deadline expired, and
still, plaintiff has not filed a response. Even so, a “district court cannot base the entry
of summary judgment on the mere fact that the motion was unopposed but, rather,
must consider the merits of the motion.” Trs. of the Cent. Pension Fund of the Int’l
Union of Operating Engrs. & Participating Emplrs. v. Wolf Crane Serv., 374 F.3d
1035, 1039 (11th Cir. 2004) (citing United States v. One Piece of Real Prop. Located
at 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004)).5
II. SUMMARY OF FACTS
Defendant operates a manufacturing facility in Decatur, Alabama, and receives
workers from Regal Employment, Inc. (“Regal”), an employment placement agency.6
In December of 2009, one of defendant’s Quality Assurance Technicians was on a
leave of absence, and there was a backlog of work.7 As a result, defendant needed to
hire a full-time Quality Assurance Technician and, also, to obtain temporary help to

4

That order does not have a number in the docket.

5

When a party did not respond to an opponent’s statement of undisputed facts, this Circuit
has repeatedly enforced local rules allowing a court to deem that failure to be an admission that no
material factual dispute exists, so long as those rules did not permit the granting of summary
judgment without a review of the record. See, e.g., Mann v. Taser Int’l, Inc., 588 F.3d 1291 (11th
Cir. 2009) (enforcing a local rule from the Northern District of Georgia); 5800 SW 74th Ave., 363
F.3d at 1103 (enforcing a local rule from the Southern District of Florida); Whitney Bank v.
Davis-Jeffries-Hunold, Inc., 2012 U.S. Dist. LEXIS 95247 (S.D. Ala. July 10, 2012) (enforcing a
local rule from the Southern District of Alabama). However, the Northern District of Alabama does
not appear to have such a rule.
6

Exhibit A (Affidavit of Ana Allen), at 1; Exhibit B, at 1.

7

Exhibit B (Affidavit of Brooke Barnes), at 1.
4

eliminate the backlog.8
Meanwhile, plaintiff, an African-American, applied for employment with Regal
in November of 2009.9 Two weeks later, Regal contacted plaintiff and informed her
about the Quality Assurance opening.10

After interviewing with Ana Allen,

defendant’s Human Resources Assistant, on December 1, 2009, plaintiff received a
temporary assignment in Quality Assurance based in part on her prior work
experience.11
Plaintiff’s first day of work for defendant was December 7, 2009.12 As
defendant is required to certify to its customers that its products meet their
specifications, both the testing and recording of the test results are important to its
business.13 Thus, plaintiff was assigned to train on Quality Assurance procedures and
protocols with Brooke Barnes, a Quality Assurance Technician.14 Further, plaintiff
received additional training from Lisa Lyons, another temporary employee already
working in the Quality Assurance Department.15 Plaintiff was informed that the
8

Id.

9

Exhibit C (Deposition Testimony of Jewel L. Bowman), at 19 (lines 19-23) and 20 (lines

1-4).
10

Exhibit C, at 23 (lines 22-23) and 25 (lines 1-10).

11

Exhibit A, at 1.

12

Id.

13

Exhibit B, at 1.

14

Id.; Exhibit B, at 1.

15

Exhibit B, at 1-2; Exhibit C, at page 31, lines 3-6.
5

training would take thirty days.16
Ms. Barnes observed that it was difficult for plaintiff to learn to use the gauges
to check defendant’s products and follow its Quality Assurance procedures.17 Further,
plaintiff asked Ms. Barnes so many questions that her productivity was below par, and
Ms. Barnes was unable to catch up on her paperwork as quickly as needed.18 Plaintiff
alleges, however, that she only heard positive responses, and was never informed of
any negative responses to her performance. On the other hand, plaintiff alleges that
she heard from other employees that “I wouldn’t be in that QA position long because
they don’t hire any blacks in the QA position.”19
After a little more than one week, Ms. Barnes told Ms. Allen that plaintiff was
not working out in the Quality Assurance Department,20 because she was having
trouble learning to perform the tests and follow the procedures.21 As a result of Ms.
Barnes’ report, Ms. Allen offered plaintiff the option of working as a packer for
defendant at the same rate of pay.22 During that conversation, plaintiff alleges that
Ms. Allen described the reassignment as a “demotion” and stated that plaintiff
16

Doc. no. 3-1, February 4, 2010 EEOC Charge, at 3.

17

Exhibit B, at 1.

18

Id.

19

Doc. no. 3-1, July 8, 2010 Information Regarding EEOC Charge, at 3

20

Id.

21

Exhibit A, at 1.

22

Id.
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“needed to be a packer before becoming a QA.”23 Plaintiff then informed her that she
did not want the job.24
Sometime before Ms. Barnes told Ms. Allen that plaintiff was not working out
in Quality Assurance, defendant offered a permanent position to Ms. Lyons,25 a white
female.26 As of February 4, 2010, the Quality Assurance Department had six
employees, and all of them were white.27
Ms. Barnes testified that she told Ms. Allen that plaintiff was not working out
in Quality Assurance because she had difficulty learning defendant’s quality assurance
procedures, not because of her race.28 Likewise, Ms. Allen testified that she decided
that plaintiff was not working out in Quality Assurance, and that she should be
reassigned to packing, on the basis of her performance, not her race.29 Plaintiff
believes, nonetheless, that her “race is the reason, the employer did not want [her] as
a QA.”30
Plaintiff filed an EEOC charge of race-based discrimination against defendant

23

Doc. no. 3-1, February 4, 2010 EEOC Charge, at 3 (alteration supplied).

24

Exhibit A, at 1.

25

Exhibit B, at 2.

26

Doc. no. 3-1, February 4, 2010 EEOC Charge, at 3.

27

Id.

28

Id.

29

Exhibit A, at 1-2.

30

Doc. no. 3-1, February 4, 2010 EEOC Charge, at 3 (alteration supplied).
7

on February 4, 2010,31 and an EEOC investigator conducted a pre-determination
interview on July 27, 2010.32 During the interview, the investigator advised plaintiff
that the EEOC lacked jurisdiction to assist her because she was an employee of Regal,
not defendant. Plaintiff acknowledged that she was paid by Regal, not defendant, and
that she had been employed by defendant conditionally, on a ninety-day trial basis.33
The EEOC closed its file on plaintiff’s charge on August 5, 2010, because there was
no employer/employee relationship between plaintiff and defendant.34
III. DISCUSSION
Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an
employer “to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
The Supreme Court held in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), that the plaintiff has the burden of establishing a prima facie case of
discrimination. If the plaintiff does so, the burden then shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason” for its action. Id.
This court will grant defendant’s summary judgment motion on two separate
31

Id.

32

Id., July 27, 2010 Pre-Determination Interview, at 4.

33

Id.

34

Id., August 5, 2010 Dismissal, at 1.
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grounds: first, that plaintiff cannot establish a prima facie case of race-based
employment discrimination; and second, that defendant had a legitimate,
nondiscriminatory reason for failing to retain her in the Quality Assurance
Department.
A.

Prima Facie Case
To establish a prima facie case of employment discrimination, plaintiff must

show (1) that she is a member of a protected class, (2) that she was qualified to do the
job, (3) that she was subject to adverse employment action, and (4) that her employer
treated similarly situated employees outside that class more favorably. McDonnell
Douglas, 411 U.S. at 802; see also McCann v. Tillman, 526 F.3d 1370, 1373 (11th
Cir. 2008). As defendant only asserts that plaintiff cannot establish the last two
elements, this court will confine its analysis to just those elements.
1.

Adverse employment action

The courts have interpreted the Title VII prohibition on discrimination with
respect to the “compensation, terms, conditions, or privileges of employment” to
require the plaintiff to establish an “adverse employment action.” Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) (citing Merriweather v.
Alabama Dept. of Pub. Safety, 17 F. Supp. 2d 1260, 1274 (M.D. Ala. 1998), aff’d, 199
F.3d 443 (11th Cir. 1999)). To meet that standard, plaintiff must show a “serious and
9

material” change in the terms, conditions, or privileges of her employment. Id.
“Although the statute does not require proof of direct economic consequences
in all cases, the asserted impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff’s employment.” Davis, 245 F.3d at 1239. “In a vast
majority of instances . . . a change in work assignments, without any tangible harm,
will be outside the protection afforded by Congress in Title VII’s anti-discrimination
clause .” Id. at 1245.
As plaintiff has submitted no response in opposition to defendant’s motion for
summary judgment, this court’s analysis of relevant cases will necessarily be brief.
In Davis, an African-American police officer asserted a claim of racial discrimination
after he was temporarily removed as the designated Officer-in-Charge based on two
corrective job performance memos. 245 F.3d at 1234. The court concluded that the
memos did not have a material impact on the terms and conditions of plaintiff’s
employment, id. at 1240, because the Officer-in-Charge designation was not
permanent, and did not offer an increase in salary, an increase in benefits, or unique
advancement opportunities. Id. at 1244.
Similarly, in Cantrell v. Jay R. Smith Manufacturing Company, 248 F. Supp.
2d 1126 (M.D. Ala. 2003), the plaintiff asserted a claim of retaliation after
experiencing:
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(1) a change in her duties to include clerical work, (2) modification of
her position because she no longer reported directly to [her original
supervisor], but instead, reported directly to [someone else], (3) failure
to adequately train or provide the tools for her Corel presentations, (4)
failure to receive certain software, (5) adverse treatment in matters
relating to sick leave, and (6) placement of negative job performance
memoranda in her personnel file.
Id. at 1137 (alterations supplied). The court dismissed her claim on the grounds that
[a] materially adverse employment action “must be more disruptive than
a mere inconvenience or an alteration of job responsibilities.” Crady v.
Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993). Thus,
even if Plaintiff proved that her job responsibilities were altered to
include clerical work and she was directed to report directly to [one
supervisor], instead of [another], such actions do not rise above mere
“alterations of job responsibilities” when the actions are unaccompanied
by any tangible harm, and thus do not constitute an adverse employment
action.
Id. (alterations and emphasis supplied).
Upon terminating plaintiff’s employment in the Quality Assurance Department,
Ms. Allen immediately offered plaintiff the option of working as a packer for
defendant at the same rate of pay.35 According to plaintiff’s EEOC charge, Ms. Allen
stated that plaintiff “needed to be a packer before becoming a QA,”36 which suggested
that the reassignment was not permanent. Plaintiff has provided no evidence that the
Quality Assurance position offered better hours, an increase in benefits, or unique
advancement opportunities. In fact, she has produced no explanation for rejecting the
35

Exhibit A, at 1.

36

Doc. no. 3-1, February 4, 2010 EEOC Charge, at 3 (alteration supplied).
11

packer position at all. On this record, it appears that the transfer would have been, at
best, a “mere inconvenience,” and at worst, simply an “alteration of job
responsibilities.” See Cantrell, 248 F. Supp. 2d at 1137. Thus, plaintiff has not
shown that she suffered a “serious and material” change in the terms, conditions, or
privileges of her employment.
2.

More favorable treatment of similarly situated employees

Plaintiff must also show that defendant treated a similarly situated employee
who was not a member of her protected class more favorably. McDonnell Douglas,
411 U.S. at 802; see also McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).
When a claim alleges discriminatory discipline, to 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, “we 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. (citation omitted)[.]
Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006) (alteration
supplied; footnote omitted).
In asserting her claim of discrimination, plaintiff argues that defendant made
an offer of permanent employment to Ms. Lyons, a white female.37 However,

37

Doc. no. 3, at 3.
12

although both plaintiff and Ms. Lyons were temporary employees working in the
Quality Assurance Department,38 it appears that the similarity ends there. First, by the
time that plaintiff received her temporary assignment, Ms. Lyons was already working
in the Quality Assurance Department.39 Second, there is no evidence that Ms. Lyons
had trouble learning to perform the tests and follow the procedures. Indeed, Ms.
Lyons helped Ms. Barnes train plaintiff to do that work.40 As plaintiff and Ms. Lyons
clearly did not engage in “nearly identical” conduct, plaintiff cannot show that
defendant treated a similarly situated employee who was not a member of her
protected class more favorably.
B.

Legitimate, Non-Discriminatory Reason
Even assuming that plaintiff had borne her burden of establishing a prima facie

case of discrimination, defendant can “articulate some legitimate, nondiscriminatory
reason” for its action. McDonnell Douglas, 411 U.S. at 802. If defendant is
successful, the burden shifts back to plaintiff to show that defendant’s stated reason
“was in fact pretext.” Id. at 804.
“To show pretext, a plaintiff must ‘come forward with evidence, including the
previously produced evidence establishing the prima facie case, sufficient to permit

38

Exhibit B, at 1-2; Exhibit C, at page 31, lines 3-6.

39

Id.

40

Id.
13

a reasonable factfinder to conclude that the reasons given by the employer were not
the real reasons for the adverse employment decision.’” Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (citing Chapman v. AI Transp.,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc); Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997)).
However, “a reason cannot be proved to be ‘a pretext for discrimination’ unless
it is shown both that the reason was false, and that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). “Provided that the
proffered reason is one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030 (citing
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000)). Further,
“Title VII addresses discrimination.” Ferguson v. Veterans
Administration, 11 Cir.1984, 723 F.2d 871, 872. “Title VII is not a
shield against harsh treatment at the workplace.” Jackson v. City of
Kileen, 5 Cir.1981, 654 F.2d 1181, 1186. Nor does the statute require
the employer to have good cause for its decisions. The employer may
fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason. Megill v. Board of Regents, 5 Cir.1976, 541 F.2d
1073, 1077; Sullivan v. Boorstin, 1980, D.D.C., 484 F. Supp. 836, 842.
Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)
(emphasis in original).
14

According to defendant’s statement of uncontested facts, Ms. Barnes observed
that it was difficult for plaintiff to learn to use the gauges to check defendant’s
products and follow its Quality Assurance procedures.41 Further, plaintiff asked Ms.
Barnes so many questions that her productivity was below par and that Ms. Barnes
was unable to catch up on her paperwork as quickly as needed.42 When an employee
entrusted with training a worker notifies the employer that the worker is having
trouble learning the requirements of her position and is becoming a distraction to
defendant’s other employees in the process, it is obvious that this “might motivate a
reasonable employer” to transfer that worker to another department. See Chapman,
229 F.3d at 1030. Because plaintiff has produced no evidence to show that Ms.
Barnes’ observations were false, or that defendant was actually motivated by animus
against African-Americans, she has not rebutted defendant’s legitimate, nondiscriminatory reason for the transfer.
IV. CONCLUSION
Inasmuch as plaintiff cannot establish a prima facie case of race-based
employment discrimination, and as defendant had a legitimate, nondiscriminatory
reason for failing to retain her in the Quality Assurance Department, the motion for
summary judgment is GRANTED, and plaintiff’s complaint is DISMISSED WITH
41

Exhibit B, at 1.

42

Id.
15

PREJUDICE. Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 3rd day of October, 2012.

______________________________
United States District Judge

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