Watkins v. EFP LLC

Filing 29

MEMORANDUM OPINION, as set out, re EFP's motion for summary judgment 14 . The motion is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to Watkins' Title VII and § 1981 claims for disparate treatment based on disciplin e for absences and the administration of the MCT. The motion is DENIED as to Watkins' Title VII and § 1981 disparate treatment and retaliation claims related to his termination. A separate order will be entered. Signed by Magistrate Judge John H England, III on 12/22/14. (CTS, )

FILED
2014 Dec-23 AM 08:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MILTON WATKINS,
Plaintiff,
v.
EFP, LLC,
Defendant.

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Case Number: 5:12-cv-02747-JHE

MEMORANDUM OPINION 1
Plaintiff Milton Watkins (“Watkins”) initiated this action against his former employer,
Defendant EFP, LLC (“EFP”), for alleged race discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and Section 1981 of
the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§1981”).

(Doc. 1). EFP seeks summary

judgment on Watkins’ claims. (Doc. 14). The motion is fully briefed and ripe for review.
(Docs. 15, 22, & 26). For the reasons stated below, EFP’s motion for summary judgment is
GRANTED IN PART AND DENIED IN PART.
I. Standard of Review
Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment is
proper “if the pleadings, the discovery, and disclosure materials on file, and any affidavits shows
that there is no genuine issue as to any material fact and that the movant is entitled to judgment
as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time

1

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

for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322, 106 S. Ct. 2548,
2552 (1986). The moving party bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323, 106 S. Ct. at 2553. The burden then shifts to the nonmoving
party, who is required to “go beyond the pleadings” to establish there is a “genuine issue for
trial.” Id. at 324, 106 S. Ct. at 2553. (citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S. Ct. 1598, 1608 (1970); see also Anderson, 477 U.S. at 255, 106 S. Ct. at 2514 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will
be resolved in Plaintiff’s favor when sufficient competent evidence supports Plaintiff’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court
is not required to resolve disputes in the non-moving party’s favor when that party’s version of
the events is supported by insufficient evidence). However, “mere conclusions and unsupported
factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. V.
Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be enough of a showing that

2

the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252, 106, S. Ct. 2512).
II. Factual Background
EFP operates a foam manufacturing plant in Decatur, Alabama. (Docs. 16-6 at ¶4). 2
EFP’s parent corporation is the John B. Poindexter Company (“JBPCO”). (Doc. 16-7 at 3-4
(8:16-9:5)). Watkins, a black male, worked at the Decatur plant as a “Warehouse B” employee
form October 19, 2010, until his termination on June 22, 2011. (Docs. 16-4 at 102, 16-5 at 3838). EFP employees are also referred to as “Team Members.” (Docs. 16-4 at 23). EFP assigned
Watkins to work second shift during his employment. (Doc. 16-1 at 10 (30:4-7)). At all times
relevant to this action, John Dunn (“Dunn”), a white male, was the second shift supervisor.
(Doc. 16-1 at 19-20 (69:17-70:4)). Dunn voluntarily resigned on July 21, 2011. (Doc. 71-1 at 9
(28:12-20)). When Dunn was absent, David Harvel, a white male, would sometimes fill in for
him. (Doc. 16-1 at 19-20 (69:22-70:4)).
Ronnie Cottles (“Cottles”), a white male, was EFP’s Production Manager from
approximately January 2011 through the end of Watkins’ employment. (Doc. 18-3 at ¶1). As
Production Manager, Cottles was responsible for production on all shifts, and the shift
supervisors reported to him. (Id. at ¶2). Cottles’ typical work day was from 5:00 a.m. until 4:00
p.m. (Id.). Although Cottles hours primarily covered first shift, he sometimes stayed on after the
start of second shift (starting at 4:00 p.m.) to communicate with second shift team members what
he needed done if necessary. (Doc. 17-1 at 38 (143:8-15)).
Beverly Thompson (“Thompson”), a white female, was EFP’s Human Resources

2

All citations to the record refer to document and page numbers as assigned by the
Court’s electronic filing system, except for citations to depositions, which also include a
parenthetical with the deposition page number(s) and line number(s).
3

Manager from May 2007 through April 2012. (17-4 at 3-4 (8:3-9:7)). Her regular hours were
from 8:00 a.m. to 5:00 p.m. (Id.). In April 2012, Thompson left for another position and
Melonee Wilkerson, a white female, replaced Thompson as HR Manager while maintaining the
duties of her previous position, Quality, Health, and Safety Manager (“QHSM”). (Doc. 17-6 at 3
(6:22-8:10)). From October 2011 through April 2012, Wilkerson served as EFP’s QHSM. (Id.
(7:15-9:12)). From May 2011 through October 2011, Wilkerson was EFP’s Quality, Health, and
Safety Coordinator (“QHSC”), an interim training position created for the purpose of training
Wilkerson to replace the retiring QHSM. (Id. at 3-4 (8:6-9:12)). Wilkerson’s position prior to
May 2011, and at all time during Watkins’ employment (except for June 2011), was as Quality
Inspector, a bargaining unit position. (Id. at 4 (9:16-12:10)). All members of the bargaining
unit, 3 whether an actual member of the Union or not, are subject to the Collective Bargaining
Agreement (“CBA”), including being represented by the Union during grievances as well as
receiving a seniority date. (Doc. 16-6 at at ¶3).

While in the Quality Inspector position,

Wilkerson served as the Union recording secretary and shop steward. (Id.).
Jim Watts (“Watts”) was EFP’s Decatur plant manager from August 20, 2007 through
November 7, 2011. (Doc. 18-1 at 4-5 (11:14-17, 13:21-14:4)).
Around March 2011, Eric Yeager (“Yeager”), formerly the Vice President of Continuous
Improvement for JBPCO, became acting President of EFP Decatur and was physically present,
albeit periodically, at the Decatur plant beginning June 1, 2011. (Doc. 16-7 at 4-5 (9:3-7, 12:1814:16)). Yeager brought Buck Scalzo (“Scalzo”), a white male JBPCO employee, with him to
the Decatur plant during this timeframe to assist with soliciting employee engagement to
understand employee “problems and challenges.” (Id. at 10 (33:13-34:6)).
3

The Decatur plant’s bargaining unit is the United Steel Workers, Local 207A (the
“Union”). (Doc. 16-6 at ¶1).
4

Decatur Facility and Manufacturing Process
EFP Decatur makes foam packaging products for its customers. (Doc. 16-6 at ¶4). The
Decatur facility has one primary area and one secondary area where its products are formed by
industrial machines.

(Id.).

The primary area contains twelve industrial foam production

machines. (Id.). The secondary area contains five smaller machines, known collectively as
“thinwall,” which produces only foam cups. (Id.).
The Decatur plant is a large industrial building with extensive storage areas (“warehouse”
areas) where bundles are stacked and temporarily stored until shipped to customers. (Id. at ¶5, 8
(map of Decatur facility)). The area marked “Mezzanine” on the Decatur facility map is the
primary area where the twelve machines are located. (Id.). The area marked “thinwall cup area”
in the diagram is the secondary area where the thinwall machine is located. (Id.). The primary
warehouse storage area for bundles is approximately the size of a football field. (Id.).
The machines, or “presses,” produce different size and shapes of foam products
depending on a given order, (Docs. 16-1 at 19 (68:19-69:8) & 16-7 at 8 (25:1-7)), and the size
and shape of the product is affected by periodic, and sometimes daily, “mold” changes. (Doc.
18-3 at ¶4).

The molds are changed out by EFP’s “Mold Maintenance” and/or “Set-Up”

Positions to meet customer orders. (Doc. 16-6 at ¶ 7). Machines are periodically shut-down for
various reasons including mold changes, which results in machine downtime and reduces the
workload during periods of non-operation. (Docs. 18-3 at ¶4 & 16-1 at 48 (184:3-185:12)). The
size and shape of the products coming off a machine and the machine’s associated cycle times
affect a Warehouse B employee’s daily workload. (Doc. 16-1 at 19 (69:6-12)).
When the product leaves the individual machines, one of EFP’s “Packers” removes
finished parts from the machines, accounts for them, and then places them in a designated area, a

5

“staging area,” of Warehouse B employees. (Doc. 18-7 at 74). The size and shape of the
product affect the heaviness and rate of production of each product. (Doc. 16-1 at 19 (69:6-12)).
During Watkins’ employment Decatur employees generally worked two shifts and would
only periodically operate a third shift. (Doc. 16-6 at ¶2). The first shift started at 8:00 a.m. and
ended at 4:30 p.m., and the second shift started at 4:00 p.m. and ended at 12:30 a.m. (Doc. 18-3
at ¶2).
Work Assignments and Job Duties
Cottles deferred to his shift supervisors, including Dunn, regarding work assignments,
including whether to assign machines to each Warehouse B employee and which machines to
assign. (Doc. 17-1 at 21-11 (77:18-81:19), 39 (146:15-147:23)). Cottles entrusts his supervisors
to enforce (and their subordinates to follow) the rules, including the April 2011 bundle-stacking
rule, to be discussed infra. (See doc. 17-1 at 48 (184:12-21)). Dunn was responsible for
structuring work assignments for Warehouse B employees on second shift. (Docs. 17-1 at 18
(63:23-64:21), 16-1 at 19 (69:13-19)).
Watkins, along with two other employees, was assigned to second shift Warehouse B.
(Doc. 16-1 at 19 (67:1-18), 48 (183:12-13)).

Jason Mullins (“Mullins”), a black male, and

David Russell (“Russell”), a white male, filled these positions from April 8, 2011 until Watkins’
termination. (Doc. 16-1 at 19 (67-1-18)). Other warehouse employees subject to the bundlestacking policy included Patrick Malone, DeShaun Smith, Zachary Pirtle, Antonio Lee, Terrence
Jones, Jimmy Reid, Milton Malone, and Jonathan Ray. (Doc. 20-25 at 2).
After the products are placed in staging areas by each machine, Warehouse B employees
must “strap and wrap” the product into bundles, which are then stacked on wheeled “buggies”
and transported by hand to the warehouse, where the bundles, still stacked, are slid off the buggy

6

into the location where they will be stored in the warehouse. (Docs. 16-6 at ¶8, doc. 16-1 at 18
(64:1-19), & 17-1 at 45 (172:2-6), 46 (174:14-19)). All second shift Warehouse B employees
were responsible for ensuring the product was strapped, wrapped, and moved during their shift.
(Docs. 16-1 at 18 (64:13-22) & 17-1 at 39 (146:3-20)). Following a reduction in Warehouse B
staffing on second shift, (doc. 16-1 at 48 (183:10-184:2)), Dunn generally assigned Watkins and
Mullins five machines each. (Id. at 19 (67:13-68:11), 24 (86:8-10)). Russell was typically
assigned two particular machines that allegedly “ran way slower” than Watkins’ five machines,
resulting in an easier workload for Russell according to Watkins. (Id.). The three of them
rotated on thinwall. (Id. at 24 (88:7-17)).
EFP Decatur Promotion and Testing Program
The CBA in effect during Watkins’ employment, completed and signed in August 2009,
includes information concerning promotions as well as a non-discrimination clause. (Doc. 17-5
at 24, 29). Past practices between the Union and EFP, including job requirements, were not
necessarily memorialized in the CBA. (Doc. 17-4 at 6-7 (20:15-21:20)).
Generally, notices of job openings at EFP are posted on a bulletin board at the Decatur
facility, and EFP employees are allowed to “bid” on the job internally. (Doc. 16-6 at ¶9). To
bid, an employee need only to sign the posting. (Doc. 16-6 at ¶9). Openings are filled based on
an employee’s qualifications for the position and his or her seniority, irrespective of whether the
employee is a member of the Union. (Id.).
To be eligible for certain advanced positions at the Decatur facility, generally Mold
Maintenance and Set-Up positions, employees must take and pass a Mechanical Comprehension
Test (“MCT”).

(Doc. 17-4 at 5 (13:4-19)).

At all times during Watkins’ employment,

Thompson was responsible for administering and grading the MCT. (Docs. 17-5 at 2-21 & 18-1

7

at 33 (126:19-127:2)). The MCT was administered in connection with job openings, as needed,
for open positions, or upon the employee’s request, subject to a potential objection by the Union.
(Doc. 17-4 at 5 (13:20-14:19), 8 (26:19-28:6)).
Based on past practice with the Union, EFP contends it was standard practice to require
an employee to wait six months between failing the MCT and retaking it. (Doc. 17-4 at 6
(18:22-19:2)). While the CBA contemplates the MCT, this practice was not reduced to writing
in the 2009 CBA. (Id. at 7 (22:13-23:7)). An employee promoted into a position requiring the
MCT, including Set-Up, was then eligible to advance further within the position depending on
their score on a Level Test related to the position. (Doc. 17-4 at 7 (23:14-19)). Under the CBA,
an employee who failed the Level Test had to wait four months before being eligible to retake it.
(Doc. 17-4 at 7 (23:14-19)).
Watkins does not understand how the Level Tests are administered or the associated
timeframe between failing a Level Test and being eligible to retake it. (Doc. 16-1 at 58 (222:22223:5) & 59 (227:18-23)). Watkins testified another employee was able to retake the MCT four
months after failing it. (Doc. 16-1 at 60 (230:6-17)). Watkins contends another employee, Josh
Proctor (“Proctor”), a white male, was permitted to take the MCT in October 2010 and again in
February 2011.

(Doc. 16-1 at 60 (230:6-17)).

There is no evidence other than Watkins’

testimony regarding what Proctor told him, inadmissible hearsay, 4 that Proctor took the MCT in

4

Hearsay evidence may be considered on a motion for summary judgment if the
statement could be reduced to an admissible form at trial and the statement would be admissible
at trial for some purpose. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). “For
example, the statement might be admissible because it falls within an exception to the hearsay
rule, or does not constitute hearsay at all (because it is not offered to prove the truth of the matter
asserted), or is used solely for impeachment purposes (and not as substantive evidence). Id.at
1323-24. Watkins’ testimony regarding what Proctor told him about the test in October 2010 is
offered to prove the truth of the matter asserted and is thus inadmissible and will not be
considered in ruling on EFP’s motion for summary judgment. See e.g., Jernigan v. Dollar
8

October 2010. The cover sheets from Proctor’s August 2010 and February 2011 MCTs are in
the record. (Doc. 17-5 at 5-6). No cover sheet for any October 2010 MCT was provided.
Watkins’ testimony that, at one point, Thompson told him he could retake the test four months
after he failed it, not six, is also inadmissible hearsay. (Doc. 16-1 at 59 (226:21-227:17)).
Because EFP required Watkins to wait at least six months to retake the MCT, Watkins was not
permitted to retake the test prior to Anthony Parker (“Parker”), a white male with less seniority,
being awarded the Set-Up position. (Docs. 25-15 at 15 & 16-5 at 43).
EFP’s Policies and Discipline Process
The CBA, along with the Employee Handbook, govern employee discipline at EFP.
(Docs. 16-1 at 51 (195:13-22) & 16-4 at 23-65, 66-85). The Employee Handbook does not
replace or override the CBA, but rather complements it. (See e.g.,, doc. 16-4 at 25).
The CBA contains EFP’s attendance policy and contains progressive discipline for
employee “occurrences” or points under the system. (Doc. 16-4 at 84-85). Subject to past
practice discussed infra, the CBA prescribes attendance discipline for occurrences within a
twelve month period as follows: Two points, oral or “verbal” warning; four points, written
warning; six points, three day suspension; eight points, “automatic discharge.” (Doc. 17-5 at
41). Points will be removed from the employee’s record after one year. (Id.). Employees can
also earn back half a point for every thirty calendar days of perfect attendance. (Id.).
The Employee Handbook policies prohibit discrimination, harassment, and retaliation. 5

General Corp., No. 2:11-cv-01448-WMA, 2013 WL 452820, *8 (N.D. Ala. Jan. 31, 2013);
Bridges v. City of Americus, No. 1:09-cv-56, 2014 WL 1315339, *3 n.1 (M.D. Ga. March 31,
2014). Watkins has offered no argument to the contrary.
5
Watkins contends the handbook contains no procedure for reporting “discrimination” as
opposed to “harassment.” (Doc. 22 at 6). While it is true EFP’s Policy and Prohibition Against
Harassment outlines specific procedures for reporting harassment, (doc. 16-4 at 30-31), EFP’s
general “Open Door Policy,” is not limited to harassment, (id. at 28).
9

(Doc. 16-4 at 29-31).

The Employee Handbook also contains an “Open Door Policy”

prescribing a procedure for employee complaints as well as a non-retaliation policy, which
includes EFP’s policy that, in response to an employee complaint of discrimination, EFP will
investigate the relevant facts and take prompt and preventative action where necessary. (Id.).
The policy also notifies employees that false allegations of harassment will be dealt with in
similar disciplinary actions as engaging in objectionable conduct.

(Id.at 31). The Employee

Handbook also proscribes violations of safety rules (“Rule 10”) and provides “[t]he severity of
the [safety] violation determines the level of disciplinary action” up to and including termination.
(Doc. 16-4 at 58).
Employees must be present at work to receive discipline. (Doc. 16-6 at ¶10). Under the
CBA, EFP’s past practice dictated that employees must receive the next step of attendance
discipline upon returning to work, even if having accrued sufficient points to receive a higher
level of discipline. (Doc. 17-4 at 30 (115:23-117:20)). For example, if an employee previously
received a verbal warning, had accrued three points, then was absent for three days, but called in
every day while absent prior to the start of his shift, upon his return he would have six points;
however, he would only receive a written warning, the next level of discipline, and not a
suspension. (Id.; see doc. 16-6 at ¶12).
EFP contends when Cottles or shift supervisors observe an employee violating a work
rule, they write down notes on what they observe and pass it on to HR, usually by dropping it in
a little back box. (Doc. 17-1 at 32-33 (120:23-122:11), 47(179:10-23, 181:13-17), 50 (193:23194:8)). EFP further contends Cottles and shift supervisors have no involvement in what level of
discipline, if any, HR and/or the Plant Manger imposes after the written notes are turned in, (id.
at 47 (181:13-17)), and that this procedure was followed in the events leading to Watkins’

10

termination, (id. at 50 (193:23-194:8)). Watkins disputes this procedure was followed during the
events leading up to his termination, contending Watts (plant manager) testified that he conferred
with Cottles (production manager), Dunn (supervisor), and Thompson (HR) prior to deciding
what level of discipline to impose.

(Doc. 22 at 6 (citing doc. 18-1 at 23 (86:3-88:13)).

According to Watts’ testimony, he had separate conversations with Cottles, Dunn, Thompson,
and Yeager. (Doc. 18-1 at 23 (86:3-14)). Watts testified he asked Dunn about the details of the
incident, and Dunn verbally told him what he had written. (Id. (86:15-19)). Watts further
testified Cottles, who had actually witnessed the incident, told him such, but did not tell him
anything other than what he had written down. (Id. (86:22-87:15)). These facts indicate Watts
conferred with Cottles and Dunn about the incident prior to Watkins’ receiving any discipline.
Watkins also contends Cottles testified supervisors always have the option of not writing an
individual up for a safety violation, (doc. 22 at 6 (citing doc. 17-1 at 7-9 (20:6-29:8)), but the
testimony he cites to support this assertion does not support it. (Doc. 17-1 at 7-9 (20:6-29:8))
(Cottles testimony discussing management and supervisors generally).
Shift supervisors are tasked with delivering the written discipline to employees on their
shifts in the presence of a Union shop steward. (Doc. 18-3 at ¶7).
For willful or “gross” safety violations, those safety violations that are a conscious
decision to do something that an employee has been trained not to do (as opposed to an
unconscious violation) that could result in bodily harm, employees are subject to automatic
discharge. 6 (Docs. 17-4 at 16 (57:23-59:20) & 18-1 at 12 (42:20-22), 22 (81:4-5)). This

6

Although Watkins contends this is not EFP’s policy, (doc. 22 at 6), the evidence he cites
in support does not support his contention. (See doc. 18-1 at 13 (45:15-46:16)). Watkins’ cites
Watts’ testimony explaining there is no blanket rule requiring the termination of an employee
who commits a safety violation that could lead to injury. (Id.). Nowhere in the cited testimony
11

included violations of the “April bundle-stacking rule” at the center of this action. 7 (Docs. 18-1
at 22 (83:3-11) & 18-2 at 19). Cottles testified he told Warehouse B employees anyone who
violated the April bundle-stacking rule would be doing so at his own risk because if he got
caught, he’d be disciplined. (Doc. 71-1 at 47 (180:3-21)). Watkins contends Cottles instructed
the warehouse employees to “do what we’ve got to do” to keep up with production goals after
the new policy was in place, contending this instruction suggested they to break the rule if they
needed to.

(Doc. 22 at 6 ¶33 (citing doc. 17-1 at 38 (141:22-147:2))), However, Cottles

testimony illustrates he instructed the warehouse employees to stack bundles two high (according
to the rule), which may mean more trips and he explained that his instruction “to do what we’ve
got to do” meant “you have to put them two on a buggy and take them back, and if takes more is
what you have to do.” (Doc. 17-1 at 37-38 (141:6-142:6)).
Watkins’ Work History From October 19, 2010 through April 29, 2011
EFP hired Watkins on or about October 19, 2010, as a Warehouse B employee. (Doc.
16-4 at 102-03). This is Watkins’ seniority date for Union bidding purposes. (Doc. 16-6 at ¶3).
On December 15, 2010, Watkins took EFP’s Mechanical Comprehension Test (“MCT”) in
connection with bidding on a higher-paying, albeit temporary position. (Docs. 16-1 at 67 (220:914, 16-5 at 2). Watkins scored 44%. (Doc. 17-5 at 4). At the time, a score of 50% was required
to pass. (Doc. 17-4 at 5 (16:2-9)). On or about December 19, 2010, Watkins received a raise.
(Doc. 16-4 at 104).
On January 28, 2011, Watkins incurred 2.5 points under EFP’s attendance policy for
absenteeism and received a verbal warning. (Doc. 16-5 at 7). On March 4, 2011, Watkins
does Watts mention a policy regarding violations involving a conscious decision to do something
that an employee had been trained not to do, as opposed to an unconscious violation. (See id.).
7
This rule, explained more fully below, prohibiting employees from stacking bundles
more than two high by hand for safety reasons. (Docs. 18-1 at 21 (79:9-80:10) & 18-2 at 19).
12

incurred 5.5 points under the policy for absenteeism and received a written warning. (Id. at 8).
On March 22, 2011, Watkins incurred 6.0 points under the policy for absenteeism and was
suspended. (Id.). Watkins was present at work each time he was disciplined. (Doc. 16-1 at 54
(208:2-11), 55 (212:4-7)).
On April 15, 2011, Watkins injured his back attempting to lift a bundle and stack it three
high. (Docs. 16-1 at 20-22 (70:5-80:3) & 16-4 at 11-16). Watkins violated no rule or policy
when he injured his back, but was performing his job as he had been trained. (Doc. 18-1 at 32
(121:21-122:8). Watkins received medical treatment for his back strain, including a trip to the
emergency room the night of the injury, (doc. 17-4 at 10-11 (36:13-40:18)), and wore a back
brace while at work for some time after the injury, (doc. 16-1 at 22 (80:1-3)).
Following Watkins’ injury, Watts and members of the safety committee, including Union
members, decided to implement a new rule prohibiting employees from stacking bundles more
than two high by hand, referred to as the “April bundle-stacking rule.” (Docs. 18-1 at 21 (79:980:10) & 18-2 at 19). The rule became effective April 18, 2011, (doc. 18-2 at 19), and required
employees to take three trips to the warehouse to transport the same number of bundles they used
to be able to transport in two trips, (doc. 17-1 at 37 (139:20-140:10). No new Warehouse B
employees were added after the rule change, and the Warehouse B employees were expected to
keep up with production and not let the machines get shut down because bundles were backing
up. (Id. at 37-38 (139:20-142:21). Watkins, along with all Warehouse B employees on both
shifts, signed a written acknowledgment of this rule. (See id.). Watkins understood the new rule
related to his recent back injury stacking bundles and felt EFP took his back injury seriously.
(Docs. 16-1 at 13-14 (44:1-46:8) & 16-2 at 13 (284:22-285:2)). Other Warehouse B employees
know the Rule was put into place because of Watkins’ injury and were annoyed by it because it

13

would take longer for them to perform their job duties. (Doc. 18-4 at 24 (89:3-20)).
Around the time the rule was implemented, Dunn allegedly told Watkins he was to “keep
doing the job the way you’ve been doing the job” and “we’re just signing the paper to satisfy the
higher-ups so they can have something in writing.” (Doc. 16-1 at 13 (43:5-44:19), 14 (47:7-14)).
On at least one other occasion, Dunn told Watkins to “keep on doing the job the way you’ve
been doing the job,” and “something to the point, we ain’t F-ing going to be here all night every
night.” (Id. at 14 (47:15-22), 17 (60:3-5)). Watkins recalls no witnesses to these alleged
conversations. (Id. at 14 (47:15-22), 17 (60:3-5)). No other person at EFP told Watkins to
ignore the April bundle-stacking rule, including Cottles. (Docs. 16-1 at 15 (53:5-12), 18 (62:1963:4) & 16-2 at 17 (298:1-18)). Cottles, Thompson, and Watts had no knowledge of Dunn’s
alleged comments about ignoring the rule. (Docs. 17-1 at 49 (186:20-187:1); 17-4 at 18 (67:168:4); & 18-1 at 23 (88:2-9)).

However, Watkins contends Cottles was present in the

warehouse on a nearly daily basis, and white warehouse B employees continued to stack bundles
three high after the rule was implemented. (Doc. 16-2 at 18 (303:18-304:4), 43 (401:4-402:20)).
Even though Watkins was recently injured stacking bundles three high, he was not concerned
about Dunn’s alleged statements concerning the rule. (Doc. 16-1 at 13 (44:16-19)).
On or about April 15, 2011, Watkins bid on another job requiring the MCT. (Doc. 16-5
at 4). Around this time, he was informed he had to wait six months after failing the MCT before
retaking the test. (Doc. 16-1 at 61-62 (234:9-238:6)). On or about April 19, 2011, Watkins
received another raise. (Doc. 16-4 at 105).
Watkins’ Work History From April 20, 2011 through June 22, 2011
Sometime in late April or early May 2011, Watkins spoke with Watts, Thompson, and
Wilkerson about the timeframe for retaking the MCT. (Doc. 16-1 at 61 (234:9-23)). According

14

to Watkins, EFP’s Handbook reflected, and the “general consensus” of other employees was, the
correct amount of time was not six months, but four months between an MCT failure and being
eligible to retake the test. (Id. at 61 (236:5-14)). Neither the handbook nor the CBA contain any
express mention of the MCT or the timeframe for retaking it, (doc. 16-4 at 23-65, 66-90);
however, the CBA contains express language regarding “Level Test[s]” stating: “TEAM
MEMBERS WILL BE ALLOWED TO RETAKE THE LEVEL TEST EACH FOUR (4)
MONTHS.” (Id. at 69). Thompson and Watts told Watkins that employees were eligible every
six months for the MCT. (Doc. 16-1 at 61 (235:7-11)).
During May and June 2011, Watkins complained to Dunn, Cottles, Thompson, Watts,
Scalzo (a JBPCO employee), and Yeager about what he felt was race discrimination in workload
on second shift among Warehouse B employees because he felt Russell had a lighter workload
than he and Mullins.8 (Docs. 16-1 at 19 (67:1-18), 45-46 (173:16-174:23) & 16-2 (266:9-13)).
Watkins also complained to Dunn, Harvel, Watts, and Yeager about the lack of fans in the
workplace because of the hot temperatures in the plant.

(Docs. 16-1 at 16 (55:17-56:3)).

Watkins testified he believed his pushing to get fans was part of the reason he was terminated.
(Id. at 16 (9-13), 23 (84:9-10)).
Watkins claims he was “basically brushed off” by Dunn, Thompson, and Cottles. (Doc.
16-2 at 9-10 (268:1-270:10). Watts told Watkins “we’ll look into it,” (doc. 16-2 at 11-12
277:18-178:7), and, on two occasions, Yeager addressed Watkins’ complaints with him, (doc.
16-2 at (268:1-271:15)). During the first discussion, Yeager told Watkins he agreed with him
about the fans and, as to Watkins’ concerns about uneven workload, he needed to observe the

8

While Watts and Yeager recall Watkins complaining about uneven or unequal
workload, they do not recall allegations of race discrimination. (Docs. 18-1 at 15 (54:11-56:8) &
16-7 at 6-7 (20:2-21:14)).
15

Decatur facility operations to determine how to address the complaint. (Doc. 16-7 at 7 (21:1522:8)). Yeager then investigated by observing plant operations and also speaking with Cottles on
two occasions about how the workload is scheduled for warehouse employees. (Id. at 7-8 (22:928:5)). Cottles told Yeager about the processes in the plant, including the frequency of mold
changes and that he deferred to his supervisors regarding division of workload. (Id.).
About a week later, Watkins and Yeager spoke again, and Watkins asked Yeager what he
had found out. (Doc. 16-7 at 8 (27:23-28:11)). Yeager informed Watkins he had ordered fans to
be installed and it was his understanding from his investigation the workload depended on the
output of individual machines. (Id. at 8-9 (28:6-30:15)). Yeager also told Watkins that, because
he was not at the plant the previous week, he would “continue to observe” and verify the
accuracy of what Cottles told him. (Id.). Yeager believed Watkins was very thankful for his
investigation. (Id. at 9 (29:19-30:1)). According to Watkins, on June 21, 2011, Yeager and
Scalzo told him they were going to have a meeting the next day to further discuss his complaints
about his workload and the fans. (Doc. 16-1 at 23 (84:6-86:7)).
Also on June 21, 2011, Cottles, while assisting other employees loading trucks on the
loading dock, saw Watkins with bundles nearby. (Docs. 17-1 at 39-40 (148:4-150:16), 42
(158:5-20) & 25-7 at 2). Although Watkins purports to dispute whether it was possible for
Cottles to see him stacking the bundles, (doc. 16-2 at 14-15 (289:22-291:8), he admits that when
Cottles confronted him he admitted to stacking bundles three high by hand, (id.at 14 (289:17-21),
16 (294:14-296:22), 32 (359:5-14)). Watkins never told Cottles about Dunn’s alleged comments
about ignoring the rule, (doc. 16-1 at 15-16 (53:13-55:5)), and did not tell Thompson or Watts
about the alleged comments, (docs. 17-4 at 20-21 (75:20-79:4) &18-1 at 23 (88:2-6)). Cottles
wrote down what transpired, put the note in HR’s black box without speaking to Thompson

16

about it, and went home. (Doc. 17-1 at 47 (179:5-23)). Thompson received the note, and
brought it with her to discuss with Watts. (Doc. 18-1 at 22-23 (83:14-82:2)). Watts discussed
the write-up with Thompson, Cottles, Dunn, and Yeager. (Id. at 18-19 (68:8-69:20), 23 (86:314)). Dunn told Watts his only knowledge of the incident was what Cottles had written on the
page, although he may have been working in the warehouse at the time. (Id. at 23 (86:7-88:6)).
Cottles told Watts he witnessed Watkins violate the rule, restating what he had written in the
original note. (Id.). Based on the information he had, Watts decided Watkins’ violation was a
“gross violation” of Rule 10 and decided to terminate Watkins’ employment for the willful
violation of the Rule. (Doc. 18-1 at 22 (81:19-82:17)). Watts testified Watkins’ race had
nothing to do with his decision to terminate his employment. (Id. at 34 (129:3-7)).
Had Watkins informed Watts of Dunn’s alleged comments about ignoring the rule, Watts
would have investigated and the results of the investigation may have affected his decision to
terminate Watkins’ employment. (Doc. 18-1 at 24 (89:1-90:1)). Additionally, Watts would have
terminated Dunn’s employment if he knew Dunn had told employees to disregard the rule. (Id.
at 23 88:7-13)).
Dunn presented Watkins with the termination notice, per standard procedure, along with
Vickie Vickery, a Union representative. (Doc. 16-5 at 38-39). The Union grieved Watkins’
termination, as it does all terminations. (Docs. 18-1 at 14 (52:8-11) & 16-5 at 40-41).

The

Union’s Executive Board, which included two black members, accepted EFP’s decision to
terminate Watkins’ employment and did not appeal the grievance past the initial stage. (Doc. 176 at 8 (26:20-28:19)).
Various Remarks
On one occasion, Dunn allegedly told Watkins “we still tar and feather y’all around here

17

for making a fuss.”

(Doc. 16-1 at 46 (174:1-3)).

Watkins considered this to be racially

derogatory and related to his alleged complaint of race discrimination in work assignments and
his complaint about lack of fans. (Id. at 45 (171:4-20)). Although Cottles heard about a tar and
feather comment through the grapevine, he did not know who said it. (Doc. 17-1 at 27 (98:18100:18)). Thompson also heard about the tar and feather comment but did not know who said it.
(Doc. 17-4 at 22-23 (122:19-125:4)). At another point, Dunn allegedly told Watkins something
about having plenty of guns in his car “to take you out if you keep raising a fuss” or something
like that. (Id. at 52 (199:17-200:19)). No one else at EFP, management, Union, or otherwise,
said anything to Watkins he considered racially discriminatory or derogatory based on his race.
(Id. at 52-53 (201:19-202:3); doc. 16-2 at 10 (273:1-16), 13 (283:23-284:6), 29 (347:20-348:4)32
(361:5-8)).
Watkins maintains EFP discriminated against him “based mainly on race and retaliation,”
(doc. 16-1 at 45 at (171:4-5), but testified “religion maybe had a small percentage of it,” (id.
(171:5-6), and that he “believe[d] [age] maybe had a little to do with it,” (id. (171:16-20)).
However, Watkins explained “it was mainly the race and retaliation, because I wasn’t fired until
I started bringing up about the discrimination of the workload between the white workers and the
– and the black workers.” (Id. (171:4-173:7)).
Amberly Franklin’s Testimony Concerning Warehouse B Employee Jonathan
Amberly Franklin (“Franklin”), a black female, worked for EFP as a packer from August
25, 2010, through her termination for attendance (nine points) on December 21, 2011. (Doc. 186 at 7 (21:13-22:9), 12 (42:23-43:14)). Franklin worked on second shift until May 1, 2011; was
transitioned to third shift on May 2, 2011; and back to second shift on June 27, 2011. (Id. at 1213 (44:3-46:23)).

18

At some point during the Fall of 2011, in connection with fixing a label error on a
product referred to as “Suburban,” Franklin left her machines and went into the warehouse to
address the error and spoke with the Warehouse B employee stacking the mislabeled Suburban
product.

(Docs. 18-6 at 21-22 (80:15-82:5) & 18-7 at 4). 9

The Warehouse B employee,

“Jonathan,” was stacking bundles three high by hand. (Doc. 18-6 at 22 (82:6-19)). Franklin
noticed Cottles was nearby, less than ten to fifteen feet away, engaged in counting products prior
to shipping, but not the Suburban products Jonathan was stacking three high. (Id. at 23-24
(88:16-89:20), 24 (90:23-91:16), 25 (93:20-21, 94:1-7), 26 (99:5-11)). Other than this single
incident with Jonathan, Franklin witnessed no other employee stacking bundles three high by
hand. (Id. at 27 (101:19-102:11)). Cottles testified he never told Franklin he saw Jonathan
stacking bundles three high. (Id. at 25 (96:1-4), 27 (98:17-23)).
Antonio Lee’s Testimony
Antonio Lee (“Lee”), a black male, worked as a Warehouse B employee from August 20,
2010, through his termination for attendance (9.5 points) on August 29, 2011. (Doc. 18-5 at 46,
75).

Lee testified there were occasions, after the April 2011 bundle-stacking rule was

implemented, when Cottles was in the warehouse while Russell and Zach Pirtle (“Pirtle”), both
white males, were stacking bundles three high. (Doc. 18-4 at 28-29 (105:6-112:16)). Lee
speculated that, if Cottles didn’t see Russell and Pirtle violating the rule, “it had to be a miracle,”
(id. at 29 (111:19-20)), but later admitted there are bundles throughout the warehouse that would
9

EFP argues the Court should not consider Franklin or Antonio Lee’s declarations to the
extent they lack basis in personal knowledge, are conclusory, and are contradicted by their later,
sworn deposition testimony. (Doc. 26 at 7 n.6) (citing Fed. R. Civ. P. 56(c)(4)). Franklin’s
testimony from six months after executing her declaration that she did not remember when this
incident occurred does not directly contradict her statement that it occurred sometime in the Fall
of 2011. See Lane v. Celotex Corp., 782 F.2d 1526, 1432 (11th Cir. 1986) (explaining courts
“may only disregard an affidavit that contradicts, without explanation, previously given clear
testimony”).
19

be in a person’s field of view when walking throughout the warehouse, (id. (112:3-16)). Lee’s
speculation as to what Cottles saw is not itself evidence.
Concerning the April bundle-stacking rule, Dunn told Lee: “Do what you have to do to
get the work done and keep the machines from getting shut off” and that “Ronnie [Cottles] is not
going to be here after four [p.m.].” (Doc. 18-5 at 81). Lee interpreted these statements to mean
Dunn was “basically giving [him] the okay to throw [bundles] three high [by hand].” (Doc. 18-4
at 24 (92:7-12)). Dunn never told Lee that Cottles said to ignore the rule. (Id. at 23 (85:1586:3)).
Other Alleged Comparators
The following are Warehouse B employees, in order of seniority, who are pertinent to
this case:
David Russell
Darryl Haggenmaker
Josh Proctor
Antonio Lee
Milton Watkins
Jason Mullins

03/18/2010
04/21/2010
07/02/2010
08/20/2010
10/19/2010
04/08/2011

(Doc. 16-5 at 43). Seniority could affect work assignments on second shift. (Doc. 18-6 at 14
(49:20-50:17)).
Watkins contends Russell was treated more favorably with respect to attendance
discipline. (Docs. 1 at ¶15 & 16-2 at 5 (250:8-15)). When Russell was in jail for a misdemeanor
in January 2011, someone called in for him every day during his absence, and when he returned,
he had nineteen points under the attendance policy.

(Doc. 17-4 at 31-32 (120:8-121:22)).

Having previously received a verbal warning for two points, Russell was issued a written
warning when he returned in accordance with past practice. (Id.). Russell’s next occurrence

20

resulted in a three-day suspension and the following occurrence resulted in his termination.
(Doc. 16-6 at ¶12, 12-13).
On or about July 27, 2010, Darryl Haggenmaker (“Haggenmaker”), a white male
warehouse employee on first shift, crawled into a baler, after turning the power off, disregarding
a safety placard stating: “Keep Hands And Body Outside Of Baler at All Times” and placing
himself at risk of injury. (Docs. 18-1 at 24-26 (91:20-99:16) & 25-8 at 4-5). Although Watts
considers this a gross safety violation and may have considered terminating Haggenmaker, Watts
was out of town when the discipline was issued and could not revisit the discipline due to double
jeopardy constraints with the Union. (Id.). Thompson, considering in part that the power was
turned off on the machine, made the decision to suspend Haggenmaker in Watts’ absence. (Doc.
17-4 at 28-29 (107:7-109:4)). Thompson testified that, when Watts returned, Watts told her she
should have fired Haggenmaker. (Id. at 29 (109:5-12)).
Watts testified there was at least one, and were possibly two, other employees who were
terminated for safety violations. (Doc. 18-1 at 13 (47:3-11)). Watts could not recall any other
employee whose discipline jumped straight to discharge without going through any of the lesser
steps of progressive discipline for a safety violation. (Id. at (48:10-16)).
Watkins’ Replacement
Chris Long (“Long”), a black male, was the next person hired into the Warehouse B
position following Watkins’ termination. (Doc. 16-6 at ¶12). EFP hired Long on June 27, 2011.
(Id.).
Watkins’ Unemployment Compensation Testimony
On July 22, 2011, after conducting a hearing on Watkins’ claim, the Alabama
Department of Industrial Relations (“ADIR”) administrative hearing officer issued a

21

determination that Watkins was discharged for misconduct committed in connection with his
work for violating a safety rule, including noting Watkins admitted violating the rule and he was
partially disqualified from receiving unemployment benefits. (Doc. 18-8 at 2-3).
III. Analysis
Watkins initiated this action asserting claims under Title VII and § 1981 10 for racial
discrimination and retaliation. (Doc. 1). Specifically, Watkins alleges discriminatory discipline,
denial of a promotion, and termination and retaliatory discharge. (See id.). Because both Title
VII and § 1981 have the same requirements of proof and use the same analytical framework, see
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998), the court will expressly
address the Title VII claims with the understanding the analysis also applies to the § 1981 claims
unless indicated otherwise.
A. Discrimination Claims (Discipline, Promotion, and Termination)
“A plaintiff may prove a claim of intentional discrimination through direct evidence,
circumstantial evidence, or through statistical proof.” Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1274 (11th Cir. 2008). Where, as here, a plaintiff offers only circumstantial evidence, the
court evaluates the sufficiency of his claims through the burden shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this framework, the
10

Despite EFP’s arguments to the contrary, Watkins’ § 1981 claims are not barred by
collateral estoppel. In this context, collateral estoppel depends on whether the race
discrimination and retaliation issues were litigated and decided in the state judicial proceeding.
See Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376, 1379-80 (11th Cir. 1988). If the race
claims were not decided in the course of the state action, there can be no collateral estoppel. Id.
(citations omitted). EFP attempts to assert collateral estoppel on the basis of a twenty minute
ADIR telephone hearing where the issue of disparate treatment was irrelevant to the outcome,
and the hearing officer prohibited Watkins from discussing the discipline of other employees.
(See doc. 23). Because this action is dependent upon whether similarly situated employees who
violated the same policies as Watkins were treated more favorably, the ADIR decision does not
work to preclude Watkins’ claims in this action. See e.g., Rawlinson v. Whitney Nat’l Bank, 416
F. Supp. 2d 1263, 1273-74 (M.D. Ala. 2005).
22

plaintiff bears the initial burden of establishing a prima facie case. Id. at 802. To do so, he must
show: (1) he was a member of a protected class, (2) who was qualified for his position, but (3)
was subject to an adverse employment action and (4) treated less favorably than a similarly
situated employee outside of his protected class. Burke-Fowler v. Orange Cnty., Fla, 447 F.3d
1319, 1323 (11th Cir. 2006). “The successful assertion of a prima facie case then creates a
rebuttable presumption that the employer unlawfully discriminated against the plaintiff.” Rioux,
520 F.3d at 1275. (internal quotation marks and citations omitted).
Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to
produce evidence that it had a legitimate, non-discriminatory reason for the challenged action.
Rioux, 520 F.3d at 1275. If the employer satisfies its burden, the burden shifts back to the
plaintiff to “show that the proffered reason really is a pretext for unlawful discrimination.” Id.
(internal quotation marks and citations omitted).
1. Disparate Treatment: Suspension for Attendance
Watkins argues EFP treated him differently than a similarly situated white employee
when he was suspended for attendance. 11 (Doc. 1 at ¶¶ 14-15). Specifically, Watkins argues he
was suspended for absences, whereas Russell, a white employee, violated the attendance policy
in a more egregious manner, but was not suspended. (Doc. 22 at 60). Watkins’ argument,
however, omits many of the relevant facts.
The CBA contains EFP’s attendance policy and provides for progressive discipline for
employee “occurrences” or points under the system. (Doc. 16-4 at 84-85). Subject to past
practice recognized under the CBA, the CBA prescribes attendance discipline for occurrences
within a twelve month period as follows: Two points, oral or “verbal” warning; four points,
11

EFP does not dispute the first three elements of the prima facie case as to this claim.
(See doc. 15 at 34-36).
23

written warning; six points, three day suspension; eight points, “automatic discharge.” (Doc. 175 at 41). Points are removed from the employee’s record after one year. (Id.). Employees can
also earn back half a point for every thirty calendar days of perfect attendance. (Id.).
Employees must be present at work to receive discipline. (Doc. 16-6 at ¶10). Under the
CBA, past practice dictates employees must receive the next step of attendance discipline upon
returning to work, even if having accrued sufficient points to receive a higher level of discipline.
(Doc. 17-4 at 30 (115:23-117:20)). For example, if an employee previously received a verbal
warning, had accrued three points, then was absent for three days, but called in every day while
absent prior to the start of his shift, upon his return he would have six points; however, he would
only receive a written warning, the next level of discipline, and not a suspension. (Id.; see doc.
16-6 at ¶12).
On January 28, 2011, Watkins incurred 2.5 points under EFP’s attendance policy and
received a verbal warning. (Doc. 16-5 at 7). On March 4, 2011, Watkins incurred 5.5 points
under the policy and received a written warning. (Id. at 8). On March 22, 2011, Watkins
incurred 6.0 points under the policy and was suspended. (Id.). Watkins was present at work
each time he was disciplined. (Doc. 16-1 at 54 (208:2-11), 55 (212:4-7)). There is no evidence
EFP did not follow its attendance policy, progressive discipline, or established past practice
when suspending Watkins after his third attendance “occurrence.”
Watkins contends Russell was treated more favorably with respect to attendance
discipline. (Docs. 1 at ¶15 & 16-2 at 5 (250:8-15)). When Russell was in jail for a misdemeanor
in January 2011, someone called in for him every day during his absence, and when he returned,
he had nineteen points under the attendance policy.

(Doc. 17-4 at 31-32 (120:8-121:22)).

Having previously received a verbal warning for two points, Russell was issued a written

24

warning, the next step under the progressive discipline policy, when he returned in accordance
with past practice. (Id.). Russell’s next occurrence resulted in a three-day suspension and the
following occurrence resulted in his termination. (Doc. 16-6 at ¶12, 12-13). EFP followed the
same attendance policy, progressive discipline and established past practice as it applied to
Watkins’ occurrences when only issuing Russell a written warning, the next step under the
progressive discipline regime, when he returned to work.
Despite EFP applying the same policy and practices to Watkins and Russell, Watkins
points to a supplemental agreement to the CBA stating “eight (8) occurrences within a
consecutive twelve month period – automatic discharge.” (Doc. 16-4 at 85) (emphasis omitted).
Watkins does not address the established past practice of only issuing discipline once the
employee is present at work or that employees must receive the next step of attendance discipline
upon returning to work, even if having accrued sufficient points to receive a higher level of
discipline. (See doc. 22 at 60-61). Additionally, although it is apparent EFP did not discharge
Russell for accruing more than eight points within a consecutive twelve month period, Watkins
does not contends he, nor any other African-American employee, was discharged for accruing
eight points in a twelve month period. Simply put, Watkins fails to show how the attendance
rules were applied differently to anyone outside of his protected class or how EFP’s reliance on
established past practice 12 is a pretext for discrimination.

Accordingly, EFP’s motion for

summary judgment is due to be granted on this claim.
2. Disparate Treatment: Promotion/Administration of the MCT

12

The Tardiness and Attendance policy states that past practices are to be “null and
void.” (See doc. 17-5 at 40). Watkins fails to make any arguments based on this provision. It is
not the court’s burden to distill every potential argument that could be made on summary
judgment, rather the onus is on the parties to formulate arguments. Resolution Trust v. Dunmar
Corp., 43 F.3d 587, 589 (11th Cir. 1995).
25

Next, Watkins contends he was subjected to disparate treatment based on EFP’s
discriminatory administration of the MCT, denying him the opportunity to apply for the Set-Up
job because of his race. (Doc. 1 at ¶¶7-12). Specifically, Watkins argues he was denied an
opportunity to retake the MCT after four months, being required to wait six months, whereas
Josh Proctor, a white employee, was permitted to take the MCT within four months of failing
and was not required to wait six months. (Doc. 22 at 58-60). Watkins further contends, if he
would have passed the test, he would have been entitled to the Set-Up position instead of
Anthony Parker, who was awarded the position, because Watkins had seniority. (Id.at 59).
Based on past practice with the Union, EFP contends it was standard practice to require
an employee to wait six months between failing the MCT and retaking it. (Doc. 17-4 at 6
(18:22-19:2)). While the CBA contemplates the MCT, this practice was not reduced to writing
in the 2009 CBA. (Id. at 7 (22:13-23:7)). An employee promoted into a position requiring the
MCT, including Set-Up, was then eligible to advance further in the position depending on their
score on a Level Test related to the position. (Doc. 17-4 at 7 (23:14-19)). Under the CBA, an
employee who failed the Level Test had to wait four months before being eligible to retake it.
(Doc. 17-4 at 7 (23:14-19)). Watkins does not understand how the Level Tests are administered
or the associated timeframe between failing a Level Test and being eligible to retake it. (Doc.
16-1 at 58 (222:22-223:5) & 59 (227:18-23)). Watkins’ testified that, at one point, Thompson
told him he could retake the MCT four months after he failed it, not six. (Doc. 16-1 at 59
(226:21-227:17)). Watkins contends another employee, Josh Proctor (“Proctor”), a white male,
was permitted to take the MCT in October 2010 and again in February 2011, only being required
to wait four months. (Doc. 16-1 at 60 (230:6-17)). Because EFP required Watkins to wait at
least six months to retake the MCT, Watkins was not permitted to retake the test prior to

26

Anthony Parker (“Parker”), a white male with less seniority, being awarded the Set-Up position.
(Docs. 25-15 at 15 & 16-5 at 43).
There is no evidence other than Watkins’ inadmissible testimony regarding what Proctor
told him that Proctor took the MCT in October 2010. (See supra n.3). The cover sheets from
Proctor’s August 2010 and February 2011 MCTs are in the record. (Doc. 17-5 at 5-6). No cover
sheet for the alleged October 2010 MCT has been provided. Although it is conceivable that
Proctor could have taken the test in October 2010 and a cover sheet was not produced, a jury
would also have to believe either (1) that the August 2010 cover sheet is not legitimate or (2) that
EFP permitted Proctor to take the test in August 2010, October 2010, and February 2011.
Neither of these inferences is reasonable.
Watkins has not submitted any admissible evidence to dispute the otherwise uncontested
evidence demonstrating EFP followed a standard practice requiring an employee to wait six
months between failing the MCT and retaking it. Accordingly, EFP’s motion for summary
judgment is due to be granted on this claim.
3. Disparate Treatment: Termination
a. Prima Facie Case
As to Watkins’ discriminatory discharge claim, EFP does not dispute Watkins can
establish the first three elements of a prima facie case. Instead, EFP contends Watkins cannot
point to a similarly situated comparator. (Doc. 15 at 36-37). An appropriate comparator would
be a similarly situated, non-minority employee who his employer treated more favorably than he
was treated. Johnson v. Gestamp Alabama, LLC, 946 F. Supp. 2d 1180, 1195 (N.D. Ala. 2013).
“To make a comparison of the plaintiff’s treatment to that of non-minority employees, the
plaintiff must show that he and the employees are similarly situated in all relevant respects.” Id.

27

(quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). To be considered “similarly
situated,” the compared employees must have been “involved in or accused of the same or
similar conduct, yet “disciplined in different ways” for that conduct. Id. (quoting Holifield, 115
F.3d at 1562).
First, Watkins argues Davis Russell, Jonathan Ray, and Zach Pirtle are proper
comparators. (Doc. 22 at 38-39). Russell, Ray, and Pirtle all had the same work duties as
Watkins and were subject to the same policies. Therefore, the court must examine whether their
conduct and respective punishment was similar. Jones v. Bessemer Carraway Med. Ctr., 137
F.3d 1306, 1311 (11th Cir. 1998). Watkins offers testimony from two other employees, Franklin
and Lee, explaining they witnessed Russell, Ray, and/or Pirtle violate the April 2011 bundlestacking rule while Cottles was in the warehouse. 13 It is undisputed neither Russell, Ray, nor
Pirtle were terminated or disciplined in any way for this violation. The question remains whether
Cottles witnessed these employees’ violations.
This is simply a question of fact. Franklin and Lee’s speculation regarding whether
Cottles saw these employees violate the rule is not evidence. However, Franklin did testify
Cottles was less than ten to fifteen feet away from Ray when he was violating the April 2011
bundle-stacking rule. (Doc. 18-6 at 23-24 (88:16-89:20), 24 (90:23-91:16), 25 (93:20-21, 94:17) 26 (99:5-11)). A reasonable juror could conclude that Cottles saw white employees violating
the April 2011 bundle-stacking rule but did not report them. However, there is also evidence the
warehouse storage area is approximately the size of a football field, (doc. 16-6 at ¶5, 8), and

13

EFP challenges Franklin and Lee’s statements as “conclusory, vague, and otherwise
inadmissible.” (See e.g., doc. 26 at 26). To the extent the declarations contain speculation, such
statements are not evidence and have not been considered. To the extent EFP contends the
statements should not be considered because they contradict later deposition testimony, such
argument is not supported by the record.
28

there are bundles throughout the warehouse that could be in a person’s field of view when
walking through the warehouse, (doc. 18-4 at 29 (112:3-16)). Whether Cottles saw the other
employees violate the rule is a question of fact for the fact-finder, not the court on a motion for
summary judgment. For purposes of summary judgment only, Russell, Ray, and Pirtle are
appropriate comparators to shift the burden to EFP to state a legitimate, non-discriminatory
reason for Cottles’ action.
Next, Watkins argues Haggenmaker is an appropriate comparator. (Doc. 22 at 38-39).
Although Haggenmaker worked a different shift, he was subject to the same policies as Watkins.
In July 2010, Haggenmaker, a white male, crawled into a baler, after turning the power off,
disregarding a safety placard stating: “Keep Hands And Body Outside Of Baler at All Times.”
(Docs. 18-1 at 24-26 (91:20-99:16) & 25-8 at 4-5). Like Watkins’ violation of the April 2011
bundle-stacking rule, Haggenmaker’s offense constituted a gross safety violation that may have
resulted in termination. Because Watts was out of town, Thompson made the disciplinary
decision and decided to suspend Haggenmaker. (Doc. 17-4 at 28-29 (107:7-109:4)). Thomas
explained she considered the fact that Haggenmaker had turned off the power to the baler before
entering the machine in her decision to suspend him instead of terminating his employment. (Id.
at 29 (109:10-16)).
The fact different decisionmakers were involved in administering Watkins and
Haggenmaker’s discipline is relevant, but not dispositive. Horn v. United Parcel Service, Inc.,
433 Fed. Appx. 788, 793 (11th Cir. 2011) (citing Anderson v. WBMG-42, 253 F.3d 561, 656-66
(11th Cir. 2001)).

Different managers could have different management styles that could

possibly account for the disparate treatment. Here, it appears Thompson could have imposed a
less severe punishment because she was the HR Manager, not the plant manager, and didn’t want

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to go out on a limb and terminate his employment. She could have also, as she testified, imposed
a less severe punishment because she considered other mitigating factors, such as the fact
Haggenmaker turned off the baler.

Neither of these inferences, in favor of defendant, is

appropriate at summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also
Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party’s favor).

For purposes of summary judgment only, Haggenmaker is an appropriate comparator to shift the
burden to EFP to state a legitimate, non-discriminatory reason for its action.
b. Legitimate, Non-Discriminatory Reason
EFP’s stated reason for writing-up and later terminating Watkins’ employment is
violation of a work rule. This is a legitimate, non-discriminatory reason sufficient to shift the
burden to Watkins to demonstrate it is a pretext for unlawful discrimination. See Bush v.
Houston Cnty. Comm’n, 414 Fed. Appx. 264, 267 (11th Cir. 2011) (citations omitted). The
burden now shifts back to Watkins to present evidence demonstrating EFP’s legitimate, nondiscriminatory reason for terminating his employment was a pretext for unlawful discrimination.
c. Pretext for Discrimination and Cat’s Paw Theory of Liability
To establish pretext, Watkins “must cast sufficient doubt on [EFP’s] proffered
nondiscriminatory reason[] to permit a reasonable factfinder to conclude that [EFP’s] proffered
legitimate reason[] w[as] not what actually motivated its conduct.” Brown v. Chertoff, 563 F.
Supp. 2d 1372, 1378 (S.D. Ga. 2008) (quoting Combs v. Plantation Patters, 106 F.3d 1519, 1538
(11th Cir. 1997)).

Here, there is no evidence Watts, the decision-maker, treated anyone

differently than he treated Watkins or that Watts harbored any racial animus. Therefore, Watkins
must rely on another theory of liability.

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Watkins relies on the “cat’s paw” theory of liability, 14 also known as “subordinate bias
theory.” (Doc. 22 at 42-48). Under this theory, a plaintiff seeks to hold his employer liable for
the animus of a supervisor who is not charged with making the ultimate employment decision.
Sims v. MVM, Inc., 704 F.3d 1327, 1334-35 n.6 (11th Cir. 2013) (citing Staub v. Proctor Hosp., - U.S. --, 131 S. Ct. 1186, 1190 (2011)). “[I]f a supervisor performs an act motivated by
[discriminatory] animus that is intended by the supervisor to cause an adverse employment
action, and that act is the proximate cause of the ultimate employment action, then the employer
is liable . . . .” Staub, 131 S. Ct. at 1194; see King v. Volunteers of Am., N. Ala., Inc., 502 Fed.
Appx. 823, 828 (11th Cir. 2012) (applying the cat’s paw principles of Staub to Title VII). Under
this theory, Watkins’ termination is discriminatory only if someone’s racial animus can be
imputed to the final decisionmaker, Watts.
Watkins contends Watts was Dunn and/or Cottles’ “cat’s paw.” (Doc. 22 at 43-48).
Specifically, he argues both Dunn and Cottles exhibited discriminatory animus intended to cause
his termination and that Dunn and Cottles’ actions were the proximate cause of his termination.
(Doc. 22 at 43-48). Watkins points to Cottles reporting he violated the April bundle-stacking
rule, but not reporting numerous white employees for violating the same rule. (Id. at 43-44).
Watkins also points to Dunn not telling Watts during the investigation he had instructed Watkins
and others to continue stacking bundles as they had prior to the April 2011 rule as well as to
Dunn’s racially-charged comments, specifically “we still tar and feather y’all around here for
making a fuss.” (doc. 16-1 at 46 (174:1-3), and telling Watkins about the guns in his care and
how he’d “take you out if you keep raising a fuss, (doc. 17-4 at 52 (199:17-200:19)). (Id. at 44-

14

The “cat’s paw” theory gets its name from the fable of a 17th Century French poet,
about a monkey who persuaded a cat to pull chestnuts out of the fire, so the cat gets burned and
the monkey makes off with the chestnuts.
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48). From this evidence a reasonable jury could infer a racial animus on behalf of Dunn and
Cottles and that each intended to cause Watkins’ termination. Proximate cause is also present. In
this context, “proximate cause” is defined as “some direct relation between the injury asserted
and the injurious conduct alleged, and excludes only those link[s] that are too remote, purely
contingent, or indirect.” Staub, 131 S. Ct. at 1192. Cottles reporting Watkins’ violation and
Dunn not telling Watts he had instructed Watkins (and others) to disregard the April 2011
bundle-stacking rule are certainly proximate causes of Watkins’ termination. (See doc. 18-1 at
24 (89:1-90:2) (Watts’ testimony stating if he would have known about Dunn’s alleged
comments, there would have been further investigation that may have resulted in a different
result)).
Cat’s paw liability generally is not appropriate where the decisionmaker is not a mere
“rubber stamp” for the offending supervisor, but conducts an independent investigation of the
events. See Sirpal v. Univ. of Miami, 509 Fed. Appx. 924 (11th Cir. 2013) (stating that cat’s paw
situation was inapplicable because the independent investigation determined dismissal was, apart
from the recommendation, entirely justified); but see King, 502 Fed. Appx. at 828 (holding the
plaintiff demonstrated potential liability under a “cat's paw” theory when the offending
supervisor made statements that she would engineer the plaintiff's termination and that the
decision maker rubber-stamps her recommendations). At first blush, this principle seems to
apply because Watts was more than a “rubber stamp.”

After receiving the report from

Thompson, Watts conducted an investigation, discussing Cottles’ note with Thompson, Dunn,
Cottles and Yeager. (Doc. 18-1 at 22-23 (68:8-69:20)). Based on the information he had, Watts
determined Watkins’ had committed a “gross violation” of safety Rule 10 and decided to
termination his employment. (Id. at 22 (81:19-82:17)). However, this is not the end of the

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inquiry.

A supervisor’s bias can be imputed to the decisionmaker, even if there is an

independent investigation, if the decisionmaker “relies on facts provided by the biased
supervisor,” by “effectively delegat[ing] the factfinding portion of the investigation to the biased
supervisor.” Staub, 131 S. Ct. at 1193. Watts relied entirely on Dunn and Cottles for the “factfinding portion” of the investigation. (Doc. 18-1 at 22-23 (68:8-69:20)). Although he also
discussed the matter with Thompson and Yeager, (see id.), neither were present at the time of the
alleged violation. Watkins has presented sufficient evidence of Dunn and Cottles’ racial animus,
their intention, and proximate cause to survive EFP’s motion for summary judgment on this
claim.
B. Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff “must present evidence that: (1)
he engaged in statutorily protected conduct; (2) he was adversely affected by an employment
decision, and (3) there was a causal connection between (1) and (2). Doxie v. Volunteers of Am.,
Se., Inc., -- F. Supp. 2d --, 2014 WL 3894062 (N.D. Ala. 2014) (citing Drago v. Jenne, 453 F.3d
1301, 1307 (11th Cir. 2006)). Once established, the burden shifts to the employer to articulate a
legitimate, non-retaliatory reason for the challenged employment decision. Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If the employer successfully articulates a
legitimate, non-retaliatory reason, the plaintiff must show that each reason is a pretext for
unlawful retaliation and that the plaintiff’s protected activity as the “but-for” cause of the adverse
action. Id.; Mealing v. Ga. Dept. of Juvenile Justice, 564 Fed. Appx. 421, 427 (11th Cir. 2014)
(citing University of Texas Southwestern Medical Center v. Nassar, -- U.S. --, 133 S. Ct. 2517
(2013)).
1. Prima Facie Case and Nassar

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EFP does not directly challenge Watkins’ ability to establish a prima facie case.15
Instead, EFP argues Watkins’ complaints regarding racial discrimination in workload allocation
were not the “but-for” cause of his termination, and, therefore, his retaliation claim is due to be
dismissed under Nassar. (See doc. 15 at 39-40). In Nassar, the Supreme Court held a plaintiff
making a Title VII retaliation claim “must establish that his or her protected activity was a butfor cause of the alleged adverse action by the employer. 133 S. Ct. at 2534. This requires proof
the adverse employment action would not have occurred in the absence of the alleged unlawful
discrimination. Id.at 2533.
EFP points to Watkins’ testimony in which Watkins states he believes his complaint
about fans, (doc. 16-1 at 16 (56:9-13), and his religion and age were part of the reason he was
terminated, (id. at 46 (170:19-171:5, 172:16-173:5). Simply put, EFP asks Nassar to do too
much. “But-for” causation does not require unlawful retaliation to be the only factor. Instead,
the plaintiff must prove the wrongful act would not have occurred in the absence of unlawful
retaliation. See Nassar, 133 S. Ct. at 2533. In other words, a sole-causation standard is not the
same as a but-for, or necessary, causation standard. See Freeman v. Koch Foods of Ala., No.
2:09-cv-270-MEF, 2010 WL 9461668, at *2 (M.D. Ala. June 15, 2010) (discussing the “but-for”
causation standard as applied in ADEA cases after Gross v. FBL Financial Services, Inc., 557

15

It appears Watkins has presented evidence sufficient to establish a prima facie case.
During May and June 2011, Watkins complained to several managers, including Dunn, Cottles,
Thompson, and Watts, about alleged race discrimination in workload on second shift among
Warehouse B employees. (Docs. 16-1 at 19 (67:1-18), 45-46 (173:16-174:23) & 16-2 (266:913)); see 42 U.S.C. § 2000e-3(a); Butler v. Ala. Dept. of Transp., 536 F.3d 1209, 1213 (11th Cir.
2008). On June 21, 2011, Cottles observed Watkins violating the April 2011 bundle-stacking
rule. (Docs. 17 at 39-40 (148:4-150:16), 42 (158:5-20), & 25-7 at 2). Cottles reported the
violation to HR, (doc. 17-1 at 47 (179:5-23), and Watts terminated Watkins’ employment for a
“gross violation” of safety Rule 10, (doc. 18-1 at 22 (81:19-82:17)). Causation can be inferred
from the close temporal proximity of these events. See Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007).
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U.S. 167 (2009)). EFP’s Nassar-based arguments are without merit.
2. Legitimate, Non-retaliatory Reason
Alternatively, EFP offers a legitimate, non-retaliatory reason for Watkins’ discharge,
explaining it terminated Watkins’ employment because he committed a “gross violation” of
safety Rule 10. (Doc. 15 at 40); see e.g., Ferguson v. Ga. Dept. of Corr., 428 F. Supp. 2d 1339,
1336 (M.D. Ga. 2006) (violation of a work rule is a legitimate, non-retaliatory reason). The
burden now shifts back to Watkins to present evidence demonstrating this reason is a pretext for
unlawful retaliation.
3. Pretext for Retaliation
To advance this claim, Watkins must create a genuine issue of material fact whether
EFP’s reason for his termination is pretextual. Specifically, Watkins must provide evidence to
allow a reasonable fact finder to conclude the proffered reason (i.e., willful violation of safety
rule) was not actually the motivation for Watkins’ discharge. Standard, 161 F.3d 1332. Watkins
has presented sufficient evidence Watts (and other senior managers) was aware of his
complaints. Watkins testified he complained to Watts about alleged racial discrimination
approximately three weeks before he was terminated. (Doc. 16-2 at 11-12 (227:18-279:12)). He
further testified he spoke with Yeager approximately one week before his termination, again
raising the issue of racial discrimination in work assignments. (Id. at 12 (280:18-281:5)). On the
day of Watkins’ termination, Yeager and Scalzo told Watkins there would be a meeting the next
day regarding his race discrimination and other complaints. (Doc. 16-1 at 23 (84:6-86:7)).
There is also evidence another employee who did not engage in protected activity,
Haggenmaker, committed a willful safety violation and was not terminated.

Although

Thompson chose not to terminate Haggenmaker for the violation, the inconsistent application of

35

the policy could raise an inference of impropriety.

The evidence also indicates Watkins

complained to Cottles regarding unequal workload, and Cottles subsequently reported Watkins’
violation of the April 2011 bundle-stacking rule. There is also evidence Cottles was in the
warehouse at the same time other employees who did not engage in protected activity violated
this rule, but did not report them. All of this evidence taken together, and the reasonable
inferences therefrom, create a genuine issue of material fact whether EFP’s stated reason for
terminating Watkins, violation of a work rule, was a pretext for unlawful retaliation.
Accordingly, EFP’s motion for summary judgment is due to be denied as to this claim.
IV. Conclusion
EFP’s motion for summary judgment, (doc. 14), is GRANTED IN PART AND
DENIED IN PART. The motion is GRANTED as to Watkins’ Title VII and § 1981 claims for
disparate treatment based on discipline for absences and the administration of the MCT. The
motion is DENIED as to Watkins’ Title VII and § 1981 disparate treatment and retaliation
claims related to his termination. A separate order will be entered.
DONE this 22nd day of December 2014.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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