Walker v. Schwarze Industries, Inc.

Filing 41

MEMORANDUM OPINION AND ORDERS that the motion to strike portions of plaintiffs opposition affidavit is DENIED; The motion for summary judgment is GRANTED in part and DENIED in part as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/12/2014. (AHI )

FILED
2014 Nov-12 PM 01:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JEFFREY WALKER,
Plaintiff,
vs.
SCHWARZE INDUSTRIES, INC.,
Defendant.

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Civil Action No. CV-13-S-52-NE

MEMORANDUM OPINION AND ORDERS
This action was brought by Jeffrey Walker against his former employer,
Schwarze Industries, Inc. Walker asserts claims for race discrimination, retaliation,
and a retaliatory hostile work environment under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.1 The case
presently is before the court on the defendant’s motion for summary judgment and
motion to strike portions of the affidavit submitted by plaintiff in opposition to
summary judgment.2 Upon consideration of the pleadings, briefs, and evidentiary
submissions, this court concludes that the motion to strike should be denied, and the
motion for summary judgment should be granted in part and denied in part.

1

See doc. no. 1 (Complaint).

2

See doc. no. 25 (Motion for Summary Judgment) and doc. no. 37 (Motion to Strike).
1

I. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
making this determination, the court must review all evidence and make all reasonable
inferences in favor of the party opposing summary judgment.” Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving
party are not unqualified, however. “[A]n inference is not reasonable if it is only a
guess or a possibility, for such an inference is not based on the evidence, but is pure
conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321,
1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for
a reasonable jury to return a verdict in its favor.
2

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. MOTION TO STRIKE
Defendant’s motion to strike attacks numerous statements contained in
plaintiff’s opposition affidavit. Defendant argues that three statements are not
admissible because Walker lacked personal knowledge of the matters about which he
testified. See Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may consist of the witness’s
own testimony . . . .”) (ellipses supplied). For example, defendant moves to strike
Walker’s statement that his direct supervisor, Don Neal, “seemed to offer voluntary
overtime work to Tony Payne (Caucasian) and James Eaton (Caucasian) first and
would not give me the same opportunity to work or turn it down.”3 Defendant
3

Doc. no. 32-1 (Walker Affidavit), ¶ 13. The paragraph from which the sentence quoted in
text was copied reads as follows:
13. During April 2011, I complained about the way Neal assigned overtime
to the employees in the Fabrication department. I specifically complained to Neal
3

contends that “[t]here is no foundation provided to show why it ‘seemed’ that Neal
offered overtime opportunities to Caucasian employees.”4 However, defendant
ignores Walker’s deposition testimony that he personally observed Don Neal offer
overtime work to Tony Payne and James Eaton, but not to him, on at least one
occasion.5 Thus, defendant’s objection affects the weight, but not the admissibility,
of that statement. Further, Don Neal’s own affidavit confirmed that Tony Payne and
James Eaton generally were offered more overtime than Walker.6 Accordingly,
defendant’s motion to strike that statement is due to be denied.
Defendant next asks the court to strike Walker’s affidavit statement that “Garcia
refused to look at the video which I knew would show how mad and threatening Don
Neal was when he yelled at me on the work floor.”7 Defendant does not explain why
(Caucasian) and to Production Manager Wes [Bryant] (Caucasian) that I thought
Neal was discriminating against me because of my race. Neal seemed to offer
voluntary overtime work to Tony Payne (Caucasian) and James Eaton (Caucasian)
first and would not give me the same opportunity to work or turn it down.
Id. at 5-6 (alteration supplied).
4

Doc. no. 37 (Motion to Strike), at 5 n.3 (alteration supplied).

5

See doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 236–37.

6

Doc. no. 27-11 (Defendant’s Exhibit “F” (Neal Declaration)), ¶ 7.

7

Doc. no. 32-1 (Walker Affidavit), ¶ 51. The paragraph from which the sentence quoted in
text was copied reads as follows:
51. On July 3, 2012, Gabriel[a] Garcia visited the Huntsville location and
conducted the corporate investigation which concluded that my complaints lacked
merit. Garcia interviewed many of the same people Kevin Lozen and Kyle Lausee
interviewed a few days before. On the day Garcia visited, Don Neal came to the
department and gathered up the employees who were being interviewed prior to the
4

Walker lacks personal knowledge of that incident,8 and it is obvious that he did.
Accordingly, defendant’s motion to strike that statement also is due to be denied.
Defendant next objects to Walker’s testimony that “Lozen was hostile and
aggressive and yelling at me which caused me to feel threatened.”9 That statement
was made in the following context:
58. On July 12, 2012, [Plant Manager] Kevin Lozen came to my
work station and confronted me where I was working and kept talking
to me. I tried to retreat from the conversation and to just do my job, but
Lozen kept coming at me. Lozen was hostile and aggressive and yelling
at me which caused me to feel threatened. Eventually I turned to face
Lozen, who pushed me in the shoulder hard enough for me to flinch.10
Once again, defendant does not explain the basis for its contention that Walker lacks
personal knowledge of the event he describes. Clearly he does, and it is permissible
for him to characterize Lozen’s behavior, and his own, subjective reaction to the
behavior. Again, therefore, defendant’s motion to strike that statement is due to be
denied.

interviews with Garcia. Garcia only met with me once. By that time, she had
already interviewed all of the other employees and refused to consider issues I raised
during my interview. Garcia refused to look at the video which I knew would show
how mad and threatening Don Neal was when he yelled at me on the work floor.
Garcia said that she didn’t have time since she was only there for that one day.
Id. at 20-21 (alteration supplied).
8

See doc. no. 37 (Motion to Strike), at 10.

9

Doc. no 32-1 (Walker Affidavit), ¶ 58.

10

Id. at 22-23 (alteration supplied).
5

Finally, defendant asks the court to strike Walker’s testimony that “Neal used
the new overtime system at first, but later he got away from the sheet and went back
to offering overtime informally to Tony Payne (Caucasian) and James Eaton
(Caucasian),”11 arguing that it is contradicted by Walker’s deposition testimony.12
Defendant relies upon the “sham affidavit” rule, which prevents a party from
submitting affidavit testimony that “merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins and Associates, Inc. v. U.S.
Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984). Defendant cites the following
colloquy from Walker’s deposition:
Q:

Okay. So after October 11th, 2001, your testimony is to the extent
you wanted to work overtime, you were able to do that?

A:

Yes, sir.

Q:

So the system Mr. Bryant came up with was able to address the
concerns you had back in October about favoritism and, as you
said discrimination?

A:

Yes, sir.

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 235. Defendant’s
argument ignores Walker’s deposition testimony that “Don Neal . . . didn’t go by the
sheet that Mr. Wes Bryant put out. Only certain times he went by that sheet.”13
11

Id., ¶ 20.

12

See doc. no. 37 (Motion to Strike), at 17.

13

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 245.
6

Walker’s deposition also reiterates that the sheet “was passed around sometimes, and
then [Neal] got away from the sheet.”14 Thus, Walker’s affidavit does not contradict,
but actually affirms his deposition testimony.
Those are the only portions of plaintiff’s affidavit that have been taken into
account by this court when considering the motion for summary judgment that is
addressed in the remainder of this opinion. Accordingly, all other parts of defendant’s
motion to strike are due to be denied as moot.
III. FACTS
Schwarze Industries, Inc., manufactures truck-mounted parking-lot and street
sweepers.15 Plaintiff, Jeffrey Walker, is an African-American.16 He was hired during
April of 2006 to work as a “press brake operator” on the third shift in the fabrication
department of Schwarze’s Huntsville, Alabama plant.17 Walker’s direct supervisor,
Don Neal, was a Caucasian (“white”). He promoted Walker to a “leadman” position
(i.e., lead press brake operator) on July 31, 2006, about three months after his initial

14

Id. at 246 (alteration supplied).

15

Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 22–24.

16

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 26. Walker is a resident
of Huntsville, Alabama. Id. at 11.
17

The press brake is a piece of equipment that “takes a flat sheet of metal and allows
[workers] to put bends in it so that it forms different shapes.” Id. at 34 (alteration supplied). The
fabrication department cuts “sheet metal and forms it, and then sends it on to the welding
department.” Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 24.
7

hire.18
During Walker’s employment with Schwarze, he operated a small business on
the side (“Personal Touch Lawn Care Service”).19 At some undisclosed point during
2006, Neal told Walker that he would be moved from the third to the second shift, and
that the move would not interfere with his lawn care business.20 Schwarze eliminated
the second shift in December of 2008, however, and Walker was moved to the first
shift.21 When the second shift was reinstated two and a half years later, during May
of 2011, Walker was moved back to his former position on the second shift.22
A.

Don Neal’s Treatment of Walker Compared to White Leads
Walker was the only African-American leadman in the fabrication department.

The other leads — Ivan Hutto, John Gusich, and William Harris — were white.23 Don
Neal supervised all leadmen.24
Plaintiff alleges that, beginning in December of 2008, when Schwarze
eliminated the second shift and Walker was moved to first shift, Neal subjected him
18

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 91–92, 105; doc. no. 27-2
(Defendant’s Exhibit “A(1)” (Notice/Record of Discussion)); see also doc. no. 27-5 (Defendant’s
Exhibit “C” (Neal Deposition)), at 28.
19

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 84.

20

Id. at 97.

21

Id. at 93–94, 101.

22

Id. at 101–02.

23

Id. at 106–07; doc. no. 32-1 (Walker Affidavit), ¶ 2.

24

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 21, 107.
8

to less favorable treatment than the white leads. For example, Neal did not permit
Walker to give instructions and guidance to hourly employees, whereas he permitted
the white leads to do so.25 Walker also was the only leadman in his department to
whom Neal did not allow free access to certain equipment. Instead, Walker had to “go
to another Caucasian lead to get those accesses.”26 Moreover, Walker was not given
a key to the building until sometime after the white leads had received them.27
Furthermore, when Neal prepared to leave on personal vacations, he always selected
a white lead to serve as acting supervisor in his absence.28 Neal also directed white
leads to deliver orders to Walker, but he never asked Walker to deliver orders to the
white leads.29 Finally, Neal invited only white leads in the fabrication department to
production meetings, which were “supposed to be for all department heads and the
leads.”30 It should be noted, nevertheless, that Chris Moore, an African-American lead
in the welding department, was invited to production meetings.31
B.

Walker’s April 2011 Overtime Complaint
25

Id. at 134–35.

26

Id. at 138.

27

Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 134–36. Neal testifies that
William Harris had his key for “quite a while,” but that Ivan Hutto received his key “just in the last
recent few years.” Id. Walker received his key on May 9, 2011. Id.; doc. no. 27-6 (Defendant’s
Exhibit “C(27)” (May 9, 2011 Notice/Record of Discussion)).
28

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 139.

29

Id. at 170.

30

Id. at 144.

31

Id. at 146.
9

Walker complained that Don Neal was offering more voluntary overtime to two
white employees in the fabrication department (i.e., James Eaton and Tony Payne)
than he offered to Walker during a meeting with Neal and Production Manager Wes
Bryant during April 2011.32 Walker stated that he believed Neal was “discriminating
against him because of his race.”33 After the meeting, Neal privately told Walker:
“[You] shouldn’t have went [sic] to Wes, I despise that man, that is the biggest
mistake you made. And Wes don’t [sic] run the fab shop, I do.”34
C.

Walker’s October 2011 Overtime Complaint
Several months later, “[o]n or about October 28, 2011,” Walker again

complained during a meeting with Don Neal, Production Manager Wes Bryant, and
Human Resources Manager Kyle Lausee that Neal’s method of assigning overtime
was racially discriminatory.35 According to a memorandum of that meeting signed by
Walker, Bryant, and Lausee, “[Walker] said he wanted to state that this was obvious

32

Id. at 239–40; doc. no. 32-1 (Walker Affidavit), ¶ 13.

33

Doc. no. 32-1 (Walker Affidavit), ¶ 13.

34

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 245 (alterations
supplied). Neal testified that he assigned voluntary overtime based upon his needs for the shift:
If it was voluntary for multiple skill sets, you ask everybody, and you take the ones
that want it. If I needed only laser operators, I wouldn’t call the whole group
together and ask them about working the Saturday; I would talk to the laser operators
about working the Saturday.
Doc. no. 27-5 (Defendant’s Exhibit “C”(Neal Deposition)), at 141.
35

Doc. no. 32-1 (Walker Affidavit), ¶ 16 (alteration supplied).
10

favoritism, and that the company had a policy against favoritism and desegregation
[sic].”36 The memo described a new policy for assigning voluntary overtime that was
supposed to be implemented immediately: i.e., a sign-up sheet was to be posted in an
area accessible to all employees whenever voluntary overtime shifts were available.37

D.

October 28, 2011 Reprimand
Don Neal issued a reprimand to Walker later on that same day, after Neal and

Bryant had agreed to change the policy, for “complain[ing] to hourly team members
about the decision on overtime.”38 The reprimand stated that Walker’s complaints had
caused “a disruption in the work place.”39

Walker wrote in the “Employee

Comments” section that he felt that the reprimand had been issued in retaliation for
his complaints about the overtime system “and also other incidents.”40
Walker testified during his deposition that Neal adhered to the new overtime

36

Doc. no. 27-2 (Defendant’s Exhibit “A(6)” (October 28, 2011 Notice of Disciplinary
Action)) (alterations and emphasis supplied). It should be noted that this notice was treated as a
record of discussion. Doc. no. 27-9 (Defendant’s Exhibit “E” (Lausee Deposition)), at 29.
37

Doc. no. 27-2 (Defendant’s Exhibit “A(6)” (October 28, 2011 Notice of Disciplinary
Action)). Walker describes the old policy as a “tap on the shoulder” method.
38

Id. (Defendant’s Exhibit “A(7)” (October 28, 2011 Reprimand)) (alteration supplied); see
also doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 155. Walker testifies that he “did
not complain to the other employees after the new system was put in place.” Doc. no. 32-1 (Walker
Affidavit), ¶ 19.
39

Doc. no. 27-2 (Defendant’s Exhibit “A(7)” (October 28, 2011 Reprimand)).

40

Id.
11

policy “only certain times” because, according to Walker, Neal “didn’t have any
respect for” Production Manager Wes Bryant.41 Neal eventually “went back to
offering overtime informally,” and Tony Payne and James Eaton were again offered
more overtime than Walker.42 Thus, Walker complained once more to Neal during
March of 2012 that he “was not offered overtime and . . . [that he, Walker,] wanted
to work,” but he “did not specifically complain that this was race discrimination.”43
E.

April 2012 Reprimand
On April 4, 2012 — five months after Neal’s October 28, 2011 reprimand of

Walker — Neal issued another reprimand to Walker for “[n]ot being productive”
during his April 2nd shift.44 The reprimand stated that Walker had failed to follow
specific orders, exhibited “no urgency or effort,” and that his actions “caused a two
hour delay in [the] weld department the next morning.”45
Neal wrote the reprimand only after reviewing video footage of Walker’s work
during the April 2nd shift, because Neal had been on vacation on that date and, upon
41

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 245.

42

Doc. no. 32-1 (Walker Affidavit), ¶ 20. Neal admitted that the two generally worked more
overtime than Walker, but he attributed the discrepancy to the fact that Payne and Eaton were able
to operate more machines than Walker. Doc. no. 27-11 (Defendant’s Exhibit “F” (Neal
Declaration)), ¶ 7.
43

Doc. no. 32-1 (Walker Affidavit), ¶ 21 (alteration supplied).

44

Doc. no. 27-2 (Defendant’s Exhibit “A(5)” (April 4, 2012 Notice of Disciplinary Action))
(alteration supplied); see also doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 165.
45

Doc. no. 27-2 (Defendant’s Exhibit “A(5)” (April 4, 2012 Notice of Disciplinary Action))
(alteration supplied).
12

his return, he had been told of Walker’s poor performance by acting supervisor John
Gusich.46
As a result of the reprimand, Walker was required to take a drug test, and was
placed on probation for one year, during which time any “insubordination/failure to
carry out reasonable job assignments, poor performance, [or] low productivity [would]
result in demotion of lead position and lead pay.”47
Walker wrote in the employee comments section that he felt the reprimand had
been issued in retaliation for the “meeting held [in] October 2011”: i.e., the October
28, 2011 meeting with Don Neal, Production Manager Wes Bryant, and Human
Resources Manager Kyle Lausee, during which Walker had complained that Neal’s
method of assigning overtime was racially discriminatory.48
At the conclusion of his April 4, 2012 meeting with Neal, Walker called his
wife, who took him to an “Urgent Care” facility, because the allegations contained in
the reprimand and the stress of the meeting had made his “blood pressure go sky
high.”49

46

Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 167; doc. no. 27-1
(Defendant’s Exhibit “A” (Walker Deposition)), at 294–95.
47

Doc. no. 27-2 (Defendant’s Exhibit “A(5)” (April 4, 2012 Notice of Disciplinary Action))
(alterations supplied).
48

Id. (alterations supplied). See also doc. no. 27-2 (Defendant’s Exhibit “A(6)” (October
28, 2011 Notice of Disciplinary Action)).
49

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 311.
13

F.

Walker’s April 5, 2012 Letter to Human Resources Manager Kyle Lausee
Walker denied that he had engaged in the misconduct described in Neal’s April

4th reprimand in a letter addressed to Human Resources Manager Kyle Lausee the
following day.50 He charged that the reprimand was “strictly retaliatory” for the
complaints he had lodged during the meeting held on October 28, 2011.51 Walker also
listed several ways in which he believed that he had been treated differently, or
unfairly, from other leads.52
Walker did not explicitly allege racial discrimination in his letter, but Lausee
admitted that Walker’s use of terms like “prejudice” and “equal opportunity” clearly
carried “racial connotations.”53
Walker’s letter requested a meeting with the “Human Resources Manager”
(Kyle Lausee), the “Plant Manager” (Kevin Lozen), and Schwarze’s President
(Howard May) in order “to discuss these matters further.”54 No such meeting was
held, however, and there is nothing in the record indicating that Lausee or any other
employee of Schwarze conducted an investigation into the allegations contained in
50

Doc. no. 27-2 (Defendant’s Exhibit “A(8)” (April 5, 2012 Letter to Kyle Lausee)). The
allegations are supported by “Statements of Facts” written by John Gusich and William Harris on
April 5, 2012. See doc. no. 27-2 (Defendant’s Exhibit “A(11)” (“Team Member Relations:
Statement of Facts” of John Gusich and William Harris)).
51

Doc. no. 27-2 (Defendant’s Exhibit “A(8)” (April 5, 2012 Letter to Kyle Lausee)).

52

Id.

53

Doc. no. 27-9 (Defendant’s Exhibit “E” (Lausee Deposition)), at 64.

54

Doc. no. 27-2 (Defendant’s Exhibit “A(8)” (April 5, 2012 Letter to Kyle Lausee)).
14

Walker’s letter.55
G.

Walker’s April 9, 2012 Letter to Kyle Lausee, Kevin Lozen, and Howard
May
Walker sent another letter challenging his April 4th reprimand four days after

the preceding, April 5th letter. The second letter was jointly addressed to Human
Resources Manager Kyle Lausee, Plant Manager Kevin Lozen, and Schwarze’s
President, Howard May. The letter explained the basis for Walker’s belief that he was
not at fault for causing a delay in the weld department on April 3rd.56
H.

Walker’s Transfer to First Shift
As noted in the introductory paragraphs to this Part of this opinion, Walker was

originally hired to operate a press brake on the third shift, but was moved to the
second shift at some undisclosed time during 2006. When Schwarze eliminated the
second shift during December of 2008, Walker was moved to the first shift. The
second shift was reinstated in May of 2011, however, and Walker then was moved
back to his former position on that shift. Nearly a year after being returned to the
second shift, i.e., on or about April 10, 2012, Walker was called into a meeting with

55

In his deposition, Lausee testifies that he “looked into the overtime” accusation, but Lausee
was confusing that investigation with the investigation of later, verbal accusations. See doc. no. 279 (Defendant’s Exhibit “E” (Lausee Deposition)), at 65; doc. no. 27-10 (Defendant’s Exhibit
“E(10)” (April 25, 2012 E-mail to Kyle Lausee)); doc. no. 27-2 (Defendant’s Exhibit “A(12)” (April
25, 2012 Notice/Record of Discussion)).
56

Doc. no. 27-10 (Defendant’s Exhibit “E(9)” (April 9, 2012 Letter to Kyle Lausee, et al.)).
15

Human Resources Manager Kyle Lausee, Plant Manager Kevin Lozen, and his direct
supervisor, Don Neal. He was told by Lozen that he was being moved back to the first
shift, in order to “improve [his] communication [skills]” and cross-train on other
machines.57 Lozen said that the transfer was temporary, and that there would be a
“reassessment” of the move after two weeks.58
At some undisclosed time after the two–week reassessment period had passed,
Walker complained to Human Resources Manager Kyle Lausee about still being
assigned to the first shift.59 Lausee investigated the complaint and concluded that it
was “not warranted,” because Walker had not met the expectations placed upon him
when he was moved to the first shift, including improvement in the areas of “attitude,”
“teamwork,” and “skills.”60
Walker also complained that he had been “skipped over” in the assignment of
an overtime shift on a Monday morning.61 Lausee investigated that complaint as well,
but concluded that it also was “not warranted,” because Walker had been off work, on

57

Doc. no. 32-1 (Walker Affidavit), ¶ 26 (alterations supplied). See also doc. no. 27-5
(Defendant’s Exhibit “C” (Neal Deposition)), at 187. Lozen was responsible for moving Walker
to the first shift. Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 186.
58

Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition)), at 191.

59

See doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 331; doc. no. 27-2
(Defendant’s Exhibit “A(12)” (April 25, 2012 Notice/Record of Discussion)).
60

Doc. no. 27-2 (Defendant’s Exhibit “A(12)” (April 25, 2012 Notice/Record of
Discussion)).
61

Id. (Defendant’s Exhibit “A(12)” (April 26, 2012 Notice/Record of Discussion)).
16

vacation, on the day during which the overtime assignments were offered.62
I.

Walker’s May 7, 2012 Complaints
Walker lodged several complaints on May 7, 2012. He first mailed a letter to

four employees in the corporate office of “Alamo Group, Inc.”: Ronald Robinson,
James Skaggs, Geoffrey Davies, and Corporate Attorney Donald Duncan.63 (The
positions held by the first three persons are not disclosed.) The record does not clearly
define the nature of the Alamo Group’s relationship to Schwarze, but this court has
ascertained through an internet search that the entity, headquartered in Seguin, Texas,
appears to be Schwarze’s parent company.64
In any event, Walker’s letter complained about “unethical, discriminatory and
retaliation practices” in the Schwarze plant.65 He alleged that his complaints had not
been adequately addressed, and that Schwarze
Management has taken this as an opportunity to trump up false
information, and knit pick [sic] anything that occurs as a method to pile
negative information into my personnel file without merit. . . . Again,
these accusations are all subjective opinions in an effort to “black-ball”
me out of my position in retaliation. This is all in retaliation [for] my
inquiries regarding equal opportunity.

62

Id.

63

Id. (Defendant’s Exhibit “A(9)” (May 7, 2012 Letter to Ronald Robinson, et al.)).

64

See ALAMO GROUP, http://alamo-group.com/Company/Member_Companies.html (listing
Schwarze as a “Member Company”) (last visited Oct. 9, 2014).
65

Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (May 7, 2012 Letter to Ronald Robinson, et

al.)).
17

This actually all started last year when 2nd shift beg[a]n. Mr. Don
Neal was opposed to having a 2nd shift and tried to coerce me with my
response to upper management regarding my opinion of beginning a 2nd
shift. Upper management approached me with the idea[] of starting the
shift and requested me to take on the position as Lead. I agreed and this
was not favored by Don.
The retaliations beg[a]n in August 2011. — Please see attached
Letter #1 for details [i.e., the letter describes an occasion when Don Neal
asked Walker to work overtime on the day Walker was moving his
daughter into her college dorm, and that request allegedly made Walker
“feel like (he was) being forced to choose between (his) family and (his)
job”66].
The next obvious retaliation occurred when I noticed Don was
allowing his personal favorites (Tony Payne and James Eaton) to work
numerous hours of overtime without affording the same opportunity to
other employees with the same skill level.
Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (May 7, 2012 Letter to Ronald Robinson,
et al.)) (alterations and footnote supplied). Walker then referenced the April 4, 2012
reprimand and April 9, 2012 letter to Kyle Lausee et al., discussed in Parts II.E. and
G., supra.
The second complaint lodged by Walker on May 7, 2012 was contained in an
“Intake Questionnaire” submitted to the Equal Employment Opportunity Commission,

66

Id. (Defendant’s Exhibit “A(10)” (August 19, 2011 Letter to “Wes Bryant”)) (alterations
supplied); see also doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 386 (agreeing
that Don Neal retaliated against Walker on this occasion because Walker would not argue against
a second shift to upper management).
18

which alleged race discrimination and retaliation.67 In the section asking “What
happened to you that you believe was discriminatory,” Walker described two
incidents: i.e., “Called to the office [on May 2, 2012] for 2 Record[s] of Discussion[]
for false accusations regarding communication and leadership”;68 and “Received
write-up [on April 24, 2012] regarding work performance.”69 In the section asking for
a description of other similarly-situated employees who were treated differently,
Walker listed Tony Payne and James Eaton.70 In the section asking for a description
of employees who were treated the same, he listed Chris Moore, an African-American
lead, and Victor Garner, an African-American hourly worker.71 He wrote that Chris
Moore was “[n]ot provided the same privileges as other Leads,” and that Victor
Garner was “[n]ot provided equal opportunity.”72

67

Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (EEOC Intake Questionnaire)), at 1–2
(indicating that the questionnaire was signed on May 3, 2012); doc. no. 32-1 (Walker Affidavit), ¶
33.
68

Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (EEOC Intake Questionnaire)), at 2 (alterations
supplied); see id. (Defendant’s Exhibit “A(12)” (April 25, 2012 and April 26, 2012 Notices/Records
of Discussion)) (indicating that, although the notices are dated in April, they were signed on May
2, 2012). In fact, these notices are merely the results of Lausee’s investigations into Walker’s
complaints, and the only statement resembling an “accusation” in those documents is Lausee’s
recounting of the reasons Walker was moved to the first shift. Id.
69

Id. (Defendant’s Exhibit “A(9)” (EEOC Intake Questionnaire)), at 2 (alteration supplied).
Walker is unsure whether there was actually a write-up on April 24, 2012, or whether he was
referring to the reprimand issued to him on April 4, 2012. Doc. no. 27-1 (Defendant’s Exhibit “A”
(Walker Deposition)), at 338–39.
70

Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (EEOC Intake Questionnaire)), at 2.

71

Id. at 3.

72

Id. (alterations supplied).
19

The third complaint submitted by Walker on May 7, 2012 was lodged
electronically on a website named “MySafeWorkplace.”73 The entity responsible for
maintaining that website is independent of the Alamo Group, but accepts complaints
lodged by employees of Alamo Group companies, either by telephone or through the
“MySafeWorkplace” website.74 Whenever an employee lodges a complaint, an e-mail
is transmitted to Donald Duncan, the Alamo Group’s corporate attorney, and to an
undisclosed member of the Alamo Group Board of Directors.75 The Alamo Group
Human Resources Department determines whether to investigate the complaint.76
Walker’s complaint labeled the “Incident Type” as “Retaliation,”77 and in the
“Description” section he included the text from his May 7, 2012 letter to Alamo
Group,78 his August 19, 2011 letter to Plant Production Manager Wes Bryant,79 his
73

Doc. no. 32-1 (Walker Affidavit), ¶ 34; doc. no. 27-2 (Defendant’s Exhibit “B(1)” (May
7, 2012 MySafeWorkplace Incident Report)). Interestingly, Don Neal had told Walker well before
he made this complaint about another African-American employee, Victor Garner, who had
complained to MySafeWorkplace. Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)),
at 199. Neal told Walker that Garner’s act of complaining to MySafeWorkplace “was a big
mistake,” and that “he won’t be at the company long.” Id. Walker alleges that Garner was later
terminated. Id. at 203.
74

Doc. no. 27-3 (Defendant’s Exhibit “B” (Garcia Deposition)), at 10–15 (alteration

supplied).
75

Id. at 13.

76

Id.

77

Doc. no. 27-4 (Defendant’s Exhibit “B(1)” (May 7, 2012 MySafeWorkplace Incident
Report)), at 2–4.
78

Doc. no. 27-2 (Defendant’s Exhibit “A(9)” (May 7, 2012 Letter to Ronald Robinson, et

79

Id. (Defendant’s Exhibit “A(10)” (August 19, 2011 Letter to Wes Bryant)).

al.)).

20

April 5, 2012 letter to Human Resources Manager Kyle Lausee,80 and an April 25,
2012 e-mail to Lausee.81
J.

May 11, 2012 Performance Evaluation
Walker received an annual performance evaluation from Don Neal on May 11,

2012, four days after lodging the complaints described in the preceding section.
Walker’s evaluation was lower than any previous annual performance evaluation
received by him during the six years he had been employed by Schwarze.82 Neal
assigned Walker an overall rank of 2.57 on a performance scale where a value of 3 is
considered “Satisfactory,” and a value of 2 indicates that the employee “Needs
Improvement.”83 Walker’s three previous scores of 3.0 in 2008,84 3.29 in 2009,85 and
3.43 in 2010,86 had consistently trended in the opposite direction:

above

“Satisfactory.” Neal wrote in the evaluation’s comments section that Walker needed
“to work on communication skills with first shift lead and myself,” and should not
“have a negative attitude and look for reasons why the requirements [cannot] be

80

Id. (Defendant’s Exhibit “A(8)” (April 5, 2012 Letter to Kyle Lausee)).

81

Doc. no. 27-4 (Defendant’s Exhibit “B(1)” (May 7, 2012 MySafeWorkplace Incident
Report)), at 5–6.
82

Doc. no. 32-1 (Walker Affidavit), ¶ 38.

83

Doc. no. 27-2 (Defendant’s Exhibit “A(13)” (2011 Performance Review)).

84

Doc. no. 27-6 (Defendant’s Exhibit “C(16)”).

85

Id. (Defendant’s Exhibit “C(19)”).

86

Id. (Defendant’s Exhibit “C(20)”).
21

[met].”87 The lower score meant that Walker would receive “a smaller raise than if
[he] had been given a performance review which was consistent” with his previous
annual performance evaluations.88
K.

May 11, 2012 Notice/Record of Discussion
Walker met with his Direct Supervisor, Don Neal, Human Resources Manager

Kyle Lausee, and Plant Manager Kevin Lozen later on the same day, May 11, 2012,
and was issued a “Notice/Record of Discussion.”89 According to that document,
Walker was required to remain on the first shift until management saw “improvement
in [his] attitude and performance[,] which includes taking responsibility and
ownership in [his] job duties and actions [and] working as a productive employee with
the other employees on both shifts.”90 Human Resources Manager Kyle Lausee took
notes during the meeting and later recorded the following summary of events:
After I read the [R]ecord of Discussion[, Jeffrey Walker] became very
argumentative[,] saying that he was not going to sign this[, and] that Don
Neal was out to get him. He kept on trying to blame others but could not
give name to his issues. . . . [H]e was creating a disturbance in the work
force and when he kept [interrupting Plant Manager] Kevin Lozen and
myself[,] cutting us off when we were trying to speak to him that that
87

Doc. no. 27-2 (Defendant’s Exhibit “A(13)” (2011 Performance Review)) (alterations
supplied).
88

See doc. no. 32-1 (Walker Affidavit), ¶ 40 (alteration supplied); see also doc. no. 27-9
(Defendant’s Exhibit “E” (Lausee Deposition)), at 98.
89

Doc. no. 27-10 (Defendant’s Exhibit “E(17)” (May 2, 2012 Notice/Record of
Discussion)).
90

Id. (alterations supplied).
22

was insubordination[,] Jeffrey kept getting louder and more aggressive
in his actions and [attitude]. . . . [B]efore Jeffrey said any more[,] as he
was mad and reaching the level of yelling[,] Kevin Lozen decided to
suspend Jeffrey with pay for the rest of the day so that Jeffrey could cool
down[.] We told Jeffrey that we would contact him when he could
return to work.
Doc. no. 27-10 (Defendant’s Exhibit “E(16)” (May 11, 2012 “Notes on Jeffrey
Walker”)) (alterations supplied).
Neal, Lausee, and Lozen threatened Walker during the meeting, standing over
him, and telling him that he would be fired if he did not sign the “Notice/Record of
Discussion.”91 Walker stated that the notice and his poor annual performance
evaluation “were retaliation for [his] complaints of race discrimination.”92 Walker
quietly answered their questions, and was sent home, but his pay was not docked.93
L.

Walker’s Second, May 11, 2012, “MySafeWorkplace” Complaint
Walker lodged a second complaint on the “MySafeWorkplace” website later on

that same day, May 11, 2012. He complained about his annual performance
evaluation, the “Notice/Record of Discussion,” and the tenor of the related meeting
with Neal, Lausee, and Lozen.94 He wrote that, in each of those instances, “Schwarze

91

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 350.

92

Doc. no. 32-1 (Walker Affidavit), ¶ 39 (alteration supplied).

93

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 350–52.

94

Doc. no. 32-1 (Walker Affidavit), ¶ 41; doc. no. 27-4 (Defendant’s Exhibit “B(4)” (“Talk
To Your Organization”)).
23

Industries ha[d] exhibited discrimination and retaliation.”95
M.

May 15, 2012 Demotion
Four days after Walker’s meeting with Neal, Lausee, and Lozen, he received

a telephone call directing him to return to work.96 When he arrived at the plant, Neal
issued him another “Notice/Record of Discussion” stating that Walker had been
demoted from his leadman position. The pertinent portions read as follows:
Jeffrey[,] you were brought to Human Resources’ office today (515-12) on some issues with your performance as an employee and a Lead
in the [fabrication] department. Alamo Group has policies, processes
and procedures that must be followed by individuals in lead positions.
You have violated Alamo policies such as code of conduct when you
blame others for everything that goes wrong. You have become very
aggressive and argumentative when you are being addressed with issues
that need improvement. You have not been following chain of command
when addressing issues[,] which does not follow our Complaint
Procedure. You have been insubordinate while showing disrespect to the
Plant [M]anager and HR [M]anager by interrupting as we try to go over
corrective issues that need to be addressed[. T]his is another violation
of company policy [and] a terminable offense.
Jeffrey[,] due to your actions you have been creating a hostile and
volatile work environment[,] and [this] needs to stop. We have been
trying to work with you to correct this, but your defiant actions have
been getting in the way of progress.
....
Kevin Lozen and I have gone over with you in detail the problems
95

Doc. no. 27-4 (Defendant’s Exhibit “B(4)” (“Talk To Your Organization”)) (alteration
supplied).
96

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 352.
24

that are occurring, [and] many are stated in the above details. This
Record of Discussion is to confirm that you will remain on 1st shift and
that you will no longer be in a lead position. This has officially
happened Monday[,] May 14, 2012. We need to see improvement in
your attitude and work ethic. We are placing you on a 6 month
probation period. . . .
Doc. no. 27-2 (Defendant’s Exhibit “A(15)” (May 15, 2012 Notice/Record of
Discussion)) (alterations supplied).
Walker refused to sign the notice, and was told that he could not write
comments on it.97
As a result of the demotion, Walker lost his lead pay and “the shift deferential
[he] had been receiving on second shift.”98
N.

Walker’s June 11, 2012 EEOC Complaint
Walker filed a formal “Charge of Discrimination” with the Equal Employment

Opportunity Commission on June 11, 2012.99 The EEOC notified Schwarze of
Walker’s charge in a document dated June 15, 2012.100
O.

June 26, 2012 Incident and Resulting Complaints
Neal “was very critical” of Walker during the month of June. He “would act

97

Id. at 356–57.

98

Doc. no. 32-1 (Walker Affidavit), ¶ 44 (alteration supplied).

99

Id. ¶ 45; doc. no. 27-2 (Defendant’s Exhibit “A(17)” (Charge of Discrimination)).

100

Doc. no. 27-2 (Defendant’s Exhibit “A(18)” (Notice of Charge of Discriminaton)).
25

extraordinarily angry and yell” when Walker asked questions.101 For example, when
Walker asked about cross-training on June 26, 2012, Neal yelled and pointed his
finger at him.102 Walker addressed an e-mail about the incident to Human Resources
Manager Kyle Lausee later that same day, and complained that Neal “continues to
create [an] uncomfortable, hostil[e,] and harassing environment.”103
Walker lodged a third complaint on the “MySafeWorkplace” website that same
day, June 26, 2012, in which he described the incident with Neal and complained that,
even though he had submitted his first complaint to “MySafeWorkplace” nearly two
months before, i.e., on May 7, 2012, “no one from the [Alamo Group] corporate office
ha[d] contacted [him] or provided a status of the investigation[,] [but] the harassment
[was] continuing.”104
Walker transmitted an e-mail to Alamo Group corporate attorney Donald
Duncan on the same day, June 26, 2012, complaining about “harassment, a hostile
work environment[, and] less favorable treatment than other employees.”105 He asked
Duncan “to investigate the unfair and unethical practices at this [Huntsville]
101

Doc. no. 32-1 (Walker Affidavit), ¶ 46.

102

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 365–67.

103

Doc. no. 27-2 (Defendant’s Exhibit “A(19)” (June 26, 2012 E-mail to Kyle Lausee))
(alterations supplied).
104

Doc. no. 27-4 (Defendant’s Exhibit “B(5)” (June 26, 2012 Complaint to
MySafeWorkplace)) (alterations supplied); doc. no. 32-1 (Walker Affidavit), ¶ 48.
105

Doc. no. 27-4 (Defendant’s Exhibit “B(6)” (June 26–27, 2012 E-mail Exchange Between
Jeffrey Walker and Donald Duncan)), at 3 (alteration supplied).
26

location.”106 Duncan responded later that same day, writing that an investigation into
the complaints that Walker had lodged with “MySafeWorkplace” and the EEOC was
“ongoing,” but he also encouraged Walker to “work out” his issues with “supervisors
and local management.”107
P.

Kyle Lausee’s Investigations of Walker’s Complaints
Schwarze’s Human Resources Manager Kyle Lausee interviewed eight

employees about the June 26, 2012 incident between Walker and Neal, described in
Part II.O, supra. He asked each employee the same questions: i.e.,
1.

Did Don Neal become very [irate and] point his finger in the air
waving it around?

2.

Did Don Neal yell or raise his voice to Jeffrey Walker?

3.

Was Don Verbally abusive to Jeffrey Walker?

4.

Did Don verbally go after Jeffrey Walker?

Doc. no. 27-10 (Defendant’s Exhibit “E(26)” (Lausee Investigation Results)), at ECF
63 (alteration supplied).108
106

Id. (alteration supplied).

107

Id. at 2.

108

The employees’ responses, recorded by Lausee but signed by the employees, were
attached to the Records of Discussion. See doc. no. 27-2 (Defendant’s Exhibit “A(21)”
(Notices/Records of Discussion)). “ECF” is the acronym for “Electronic Case Filing,” a system that
allows parties to file and serve documents electronically. See Atterbury v. Foulk, No. C-07-6256
MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations
to the “page numbers generated by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257
n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia
Law Review Ass’n et al., 19th ed. 2010)). Even so, the Bluebook recommends “against citation to
27

Four of the eight employees interviewed by Lausee were African-American
(i.e., Robert Brandon, Calvin Doss, Victor Garner, and Doug Hall), and the remaining
four were white (i.e., William Harris, Ivan Hutto, Jerry Lausdell, and Tony Payne).109
All eight employees, regardless of race, answered each question the same way:
“No.”110
Lausee recorded the results of his investigation in a “Notice/Record of
Discussion” addressed to Walker and dated July 9, 2012. He wrote that he found no
evidence to support Walker’s allegations that Neal had yelled and pointed his finger
at Walker, had verbally attacked Walker, or had raised his voice when speaking to
Walker.111
Q.

Alamo Group Investigation of Walker’s Complaints
At some point on either June 26 or 27, 2012, Donald Duncan transmitted an e-

mail to Walker, summarizing his understanding of Walker’s allegations: that is, Neal
had “tried to punish [him] and get back at [him]” for refusing to argue against
reinstating the second shift, and Neal’s retaliation had consisted of: asking Walker to

ECF pagination in lieu of original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless
stated otherwise, this court will cite the original pagination in the parties’ pleadings. When the court
cites to pagination generated by the ECF header, it will, as here, precede the page number with the
letters “ECF.”
109

Doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 25.

110

See doc. no. 27-10 (Defendant’s Exhibit “E(26)” (Lausee Investigation Results)) .

111

Doc. no. 27-2 (Defendant’s Exhibit “A(21)” (Notices/Records of Discussion)).
28

work on a Saturday that he had planned to move his daughter into her college dorm;
giving other employees overtime without asking Walker whether he desired to work
the extra hours; giving Walker a poor annual performance evaluation in May of 2012;
moving Walker from the second to the first shift; and, demoting Walker from his lead
position.112
Walker responded to Duncan’s summary by adding a few details, but he did not
contradict the substance of Duncan’s summary of his allegations, or lodge any
additional claims. Significantly, Walker did not dispute Duncan’s understanding of
the alleged motivation for Neal’s retaliatory actions: i.e., that Walker had refused to
argue against reinstating the second shift.113
Gabriela Garcia — who is Hispanic, and who was, at the time, the senior Alamo
Group human resources official — investigated Walker’s complaints at Schwarze’s
Huntsville plant on July 2 and 3, 2012.114 She met with Walker and interviewed
several Schwarze employees, some of whom were African-American.115 Garcia asked
several employees whether workers on the first and second shifts had communication
problems.116 Ivan Hutto (white) responded that Walker had an attitude of “not
112

Doc. no. 27-4 (Defendant’s Exhibit “B(6)” (June 26, 2012 E-mail Exchange Between
Jeffrey Walker and Donald Duncan)), at 2 (alterations supplied).
113

Id.

114

Doc. no. 27-3 (Defendant’s Exhibit “B” (Garcia Deposition)), at 9, 39, 50.

115

Id.

116

Doc. no. 27-2 (Defendant’s Exhibit “A(20)” (Notes Dated July 2, 2012 and July 3, 2012)).
29

wanting to be here,” and that he often was difficult to find.117 Williams Harris (white)
said that it was difficult to talk to Walker, and that Walker “never” talked to other
employees, including other leads.118 Chris Moore (African-American) said that
Walker was “quick to point fingers” at other persons.119
Garcia asked several employees about overtime policies, and each told her
essentially the same thing. For example, Ivan Hutto (white) told her that it was
allocated based on an employee’s ability to run the machines required for performance
of the overtime work.120 John Gusich (white) said that overtime was based on an
employee’s job classification, and that those who were not qualified to operate the
machines needed during overtime shifts would not be offered overtime.121 Chris
Moore (African-American) said that overtime “is based on needs and tasks that need
to be done.”122 William Harris (white) added that Walker “wants the overtime when
he wants it and not when it is available,” but even so, Neal “tried to work with him.”123

117

Id. at ECF 59.

118

Id. at ECF 60.

119

Id. at ECF 61.

120

Id. at ECF 59.

121

Doc. no. 27-2 (Defendant’s Exhibit “A(20)” (Notes Dated July 2, 2012 and July 3, 2012)),
at ECF 64.
122

Id. at ECF 60.

123

Id.
30

Garcia asked some of the employees whether they had ever been “written up”
for poor performance. William Harris (white) replied that Neal usually issued “write
ups” only when an employee makes a costly mistake.124 Arthur Grant (AfricanAmerican) said that, “right now everyone is getting a taste of getting written up on
quality and safety.”125 John Gusich (white) said that he was written up the first time
he built something backwards, and that when employees committed errors, they
received write ups.126
When Garcia asked about discrimination, Chris Moore (African-American)
responded that he was not aware of any.127 Victor Garner (African-American) said
that Neal treats everyone fairly.128 John Gusich (white) said that Neal was “straight
across the board.”129 But Arthur Grant (African American) said that he “[w]ouldn’t
say” that some leads were not treated differently or discriminated against.130 Victor
Garner (African-American) explained the June 26, 2012 incident between Walker and
Neal, recalling that “Don was raising his voice[,] but it was with everyone there

124

Id.

125

Id. at ECF 62.

126

Id. at ECF 64.

127

Doc. no. 27-2 (Defendant’s Exhibit “A(20)” (Notes Dated July 2, 2012 and July 3, 2012)),
at ECF 61.
128

Id. at ECF 62.

129

Id. at ECF 64.

130

Id. at ECF 62 (alteration supplied).
31

because the fans were loud.”131
In her meeting with Walker, Garcia refused his request to view the video of the
June 26, 2012 incident, explaining that she did not have enough time.132
The results of Garcia’s investigation, as well as the results of Lausee’s
investigation of the June 26, 2012 incident, were recorded in a “Record of Discussion”
dated July 3, 2012.133 Garcia found no foundation for Walker’s complaint that
overtime was assigned unfairly, or that he was treated unfairly compared to other
leads, or that Neal “became irate [and] beg[a]n yelling and pointing his finger” at
Walker on June 26, 2012.134 Garcia concluded that “it cannot be determined that
unfair treatment [or] retaliation is being made toward [Jeffrey] Walker. We are
considering the matter closed.”135 Walker refused to sign the record of his discussion
with Garcia.136
R.

July 2012 Incidents
Don Neal, Kyle Lausee, and Kevin Lozen issued a “Notice of Disciplinary

Action” to Walker on July 11, 2012. The document faulted Walker for incidents that

131

Id. (alteration supplied).

132

Doc. no. 32-1 (Walker Affidavit), ¶ 51.

133

Doc. no. 27-4 (Defendant’s Exhibit “B(9)” (July 3, 2012 Notice/Record of Discussion)).

134

Id. (alterations supplied).

135

Id. (alterations supplied).

136

Id.
32

occurred on June 28 and 29, 2012, when Walker allegedly rolled two parts incorrectly,
costing the company nearly two hundred dollars.137
Per company policy[,] this is the 3rd disciplinary action since October
2011 and normally would be grounds for a 3 day suspension and drug
test. However[,] we are moving this back to a written warning with drug
test to make sure you are clear as to the severity of your recent actions.
More infractions will lead to disciplinary actions up to and including
termination.
Doc. no. 27-2 (Defendant’s Exhibit “A(22)” (July 11, 2012 Notice of Disciplinary
Action)) (alterations supplied). Walker refused to sign the notice, claiming that he
was not at fault, and alleged retaliation.138
Later that same day, Walker addressed an e-mail to Kyle Lausee, complaining
that the notice of disciplinary action amounted to “retaliation and harassment by Don
Neal and Kevin [Lozen].”139
S.

Confrontation Between Kevin Lozen and Jeffrey Walker
The following day, July 12, 2012, Walker told other employees in the

fabrication department that he “could not answer any questions they might have”
because he was afraid that his supervisor, Don Neal, and Plant Manager Kevin Lozen

137

Doc. no. 27-2 (Defendant’s Exhibit “A(22)” (July 11, 2012 Notice of Disciplinary

Action)).
138

Id.

139

Doc. no. 27-10 (Defendant’s Exhibit “E(30)” (July 11, 2012 E-mail to Kyle Lausee))
(alteration supplied).
33

“would try to come up with new reasons to give [him] discipline.”140 When Lozen
learned about Walker’s comments, he confronted him. According to Walker, Lozen
“cornered” him at his work station,141 and was “hostile and aggressive and yelling,”142
thereby making him feel threatened.143 Walker alleged that Lozen pushed him on the
shoulder, “hard enough for [his] shoulder to flinch.”144 Walker repeatedly asked:
“Kevin, why are you touching me?”; and “Why did you do that to me?” As Lozen
walked away, Walker shouted “You have assaulted me.”145
Walker reported the incident to Human Resources Manager Kyle Lausee, who
refused to “document a complaint.”146 Walker became visibly upset, and Lausee
called Walker’s wife, who in turn called the Huntsville Police Department.147 Walker
was sent home and suspended with pay until an investigation could be completed, but
no disciplinary action was taken against Lozen.148

140

Doc. no. 32-1 (Walker Affidavit), ¶ 57 (alteration supplied).

141

Id. ¶ 58.

142

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 428.

143

Doc. no. 32-1 (Walker Affidavit), ¶ 58. Lozen notes in his deposition that the fabrication
department is loud because machines are running and that employees wear hearing protection. Doc.
no. 27-7 (Defendant’s Exhibit “D” (Lozen Deposition)), at 84.
144

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 426–28 (alteration

supplied).
145

Doc. no. 27-7 (Defendant’s Exhibit “D” (Lozen Deposition)), at 85.

146

Doc. no. 32-1 (Walker Affidavit), ¶ 60.

147

Id.

148

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 462–63.
34

Within two hours of the incident, Walker filed a police report, which included
a statement that Lozen had “pushed [him] on the shoulder.”149 Later that same day,
he wrote the EEOC, described the incident, complained that his rights were “being
totally violated,” and alleged that he felt “imprisoned” in his workplace.150 Walker
also filed a complaint about the alleged assault with Alamo Group corporate
headquarters.151
The police conducted an investigation of Walker’s allegation. Investigators
reviewed a video recording of the incident and interviewed Schwarze employees.152
Lozen was not charged with a criminal offense, however, because the video indicated
that Lozen “had his hands up in a ninety-degree position” when talking to Walker.153
An investigating officer told Lozen that he “did not see any problems, did not see any
crime, did not see anything wrong.”154
T.

Walker’s Termination
A panel of three Alamo Group employees— Gabriela Garcia, Donald Duncan,
149

Doc. no. 27-2 (Defendant’s Exhibit “A(23)” (“Alabama Uniform Incident/Offense
Report” and “Statement of Witness”)) (alteration supplied).
150

Id. (Defendant’s Exhibit “A(24)” (July 12, 2012 Letter to Antwan Matthews)).

151

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 463.

152

Id. at 449–50.

153

Id. The court reviewed the video in question and found that Lozen’s right arm was indeed
bent at a ninety-degree angle during the times when he was close to Walker. It was unclear,
however, whether there was contact between Lozen and Walker. Doc. no. 27-2 (Defendant’s Exhibit
“A(28)” (Video Recording of July 12, 2012 Incident)).
154

Doc. no. 27-7 (Defendant’s Exhibit “D” (Lozen Deposition)), at 89.
35

and Jeff Leonard (an “Executive Vice President” of an undisclosed industrial
department) — convened in Donald Duncan’s office at Alamo Group headquarters on
July 30, 2012, for the purpose of reviewing Walker’s employment status.155 The panel
reviewed a “fact packet” prepared by Kyle Lausee which contained “Walker’s
complaints, items from his personnel file, his disciplinary actions, [Garcia’s]
investigation notes, . . . an outside attorney’s investigation notes [of the July 12, 2012
incident involving Lozen], [and] police reports.”156 The panel wrote the following
memorandum addressed to Alamo Group Vice President of Administration Bob
George:
There have been continuing conflicts between Walker and Neal
since mid 2011. Walker has filed several internal complaints with
Huntsville management and one corporate level complaint through
[MySafeWorkplace]. Huntsville management has responded to Walker’s
complaints by conducting investigations that were well documented in
some cases and less well documented in others. . . .
In each case where there were witnesses to Walker’s allegations,
those witnesses (including hourly and managerial employees) have
contradicted Walker’s version of events. Our conclusion is that Walker
has been less than truthful.
Some of Walker’s complaints contradict each other. He made one
complaint because Neal asked him to work overtime on a Saturday. He
told Neal he could not work because [he was helping his daughter move
into college]. A few weeks later, Walker made another complaint
155

Doc. no. 27-3 (Defendant’s Exhibit “B” (Garcia Deposition)), at 62–63.

156

Doc. no. 27-9 (Defendant’s Exhibit “E” (Lausee Deposition)), at 130 (alterations
supplied); see also doc. no. 27-3 (Defendant’s Exhibit “B” (Garcia Deposition)), at 62–63.
36

because Neal did not ask him to work overtime — but the employee who
was asked had skills that were better matched for the requirements
needed that day.
Walker’s complaints seem exaggerated. He has complained on
several occasions that routine workplace issues caused him to experience
medical emergencies. However, to date, Mr. Walker has not provided
any medical restrictions to the Company from a qualified medical
professional that restrict him from performing his essential job functions.
With these things in mind, we turn to the July 12, 2012 incident
that led to Walker’s current suspension with pay. After an incident in the
morning when Walker caused a disruption in work by loudly stating that
he would not assist anyone with their assignments, later in the day
Walker accused Plant Manager Kevin Lozen [of] physically assaulting
him. Walker made this allegation to three different places: (1) Huntsville
HR, (2) corporate headquarters in Seguin, TX and (3) the Huntsville
Police Department. This allegation was taken seriously. All three
locations conducted investigations, with the corporate investigation
being conducted by an outside attorney. . . . But after review [of] the
video of the incident, all three independently came to the same
conclusion: to the extent that there was any physical contact between
Walker and Lozen, it was very light and inadvertent.
Walker has made a serious and intentionally false allegation about
Kevin Lozen. His conduct on July 12 disrupted the plant and interfered
with the work of numerous employees, including his own work and the
work of Kevin Lozen and others.
Walker’s conduct on July 12 violated several rules of conduct,
including interfering with the work of others, verbal abuse of other
employees, making derogatory statements concerning employees, and
making false statements.
We recommend unanimously that Walker’s employment be
terminated as soon as possible. This recommendation is based on his
conduct on July 12 as evaluated in light of his record of on the job
conflicts, deteriorating performance, and making false allegations.
37

Doc. no. 27-2 (Defendant’s Exhibit “A(26)” (Memo to Bob George)) (alterations
supplied).

Schwarze fired Walker on August 2, 2012, with the preceding

memorandum attached to the notice of termination.157
U.

Dismissal of EEOC Investigation
The EEOC issued a “Dismissal and Notice of Rights” on October 11, 2012,

stating that the agency had terminated its investigation of Walker’s charge of
discrimination because it was unable to conclude that the information obtained
established violations of the civil rights statutes.158 The document notified Walker of
his right to file suit, and this action followed.159
IV. WALKER’S RACE DISCRIMINATION CLAIMS
Walker’s race discrimination claims are asserted under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., as well as 42 U.S.C. §
1981.160 “Both of these statutes have the same requirements of proof and use the same
analytical framework . . . .” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330
(11th Cir. 1998). The essential element under each statute is proof that the employer
intentionally inflicted the adverse employment action complained of because of the
157

Doc. no. 27-2 (Defendant’s Exhibit “A(25)” (August 2, 2012 Notice of Disciplinary

Action)).
158

Doc. no. 8-2.

159

Id.

160

Doc. no. 1 (Complaint), ¶¶ 38–46.
38

plaintiff’s race. See, e.g., Vessels v. Atlanta Independent School System, 408 F.3d
763, 767 (11th Cir. 2005) (observing that disparate treatment claims based upon a
plaintiff’s race and “brought under Title VII, § 1981, and § 1983, all require proof of
discriminatory intent”).
Direct evidence of an employer’s discriminatory intent usually is not available.
See, e.g., Sheridan v. E.I. DuPont de Nemors & Co., 100 F.3d 1061, 1071 (3d Cir.
1996) (en banc). That is true in this case.161 Thus, plaintiff bears the initial burden
of establishing the employer’s discriminatory intent through the use of circumstantial
evidence. See Vessels, 408 F.3d at 767. Federal courts evaluate the sufficiency of
such evidence using some variant of the analytical framework announced by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
elaborated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). See also, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993);
Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2004) (en banc); Berman
v. Orkin Exterminating Co., Inc., 160 F.3d 697, 701 (11th Cir. 1998); Bigge v.
Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990).
Under that familiar framework, a plaintiff must first establish a prima facie case
of disparate treatment, which creates a presumption of discrimination. To rebut that
161

Walker does not allege in his brief that there is any direct evidence of discriminatory
intent. See doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 30.
39

presumption, the employer must articulate a legitimate, nondiscriminatory reason for
the contested employment action. If the employer does so, the presumption of
discrimination drops from the case, and the burden shifts back to the plaintiff to show
that the defendant’s proffered reason is merely a pretext for unlawful discrimination.
See, e.g., McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-56.
The specific elements of a plaintiff’s prima facie case generally vary with the
nature of the adverse employment action that is complained of. Here, Walker
complains of four adverse employment actions: denial of opportunities to earn
overtime compensation; his negative performance evaluation; demotion; and
termination of his employment.162 All but the first of those contested actions were
inflicted as disciplinary sanctions. Consequently, they are addressed together in the
following discussion.
A.

Disciplinary Sanctions
This Circuit applies the same prima facie elements to cases involving

disciplinary sanctions. The plaintiff must prove that: he belongs to a protected class;
he suffered an adverse employment action; he was qualified for the position he held;
and his employer treated similarly situated employees outside his protected class more
favorably. See, e.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir.
162

Doc. no. 26 (Defendant’s Summary Judgment Brief), at 17. Importantly, Schwarze does
not dispute that those four actions constitute adverse employment actions in this context. Id.
40

2011); McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008); Burke-Fowler v.
Orange County, Florida, 447 F.3d 1319, 1323 (11th Cir. 2006); Knight v. Baptist
Hospital of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); Maniccia v. Brown,
171 F.3d 1364, 1369 (11th Cir. 1999).
As is often true in cases involving disciplinary sanctions, see, e.g., McCann,
526 F.3d at 1373, only the fourth element is at issue here. To satisfy that element, the
plaintiff must identify an employee outside his protected class who engaged in — or
was accused of — similar misconduct, but was disciplined differently. Burke-Fowler,
447 F.3d at 1323 (“When a plaintiff alleges discriminatory discipline, to determine
whether employees are similarly situated, [courts] evaluate whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different
ways.” (alteration supplied)).

The comparator’s misconduct must be “nearly

identical” to that of the plaintiff, so as “to prevent [the court] from second-guessing
employers’ reasonable decisions and confusing apples with oranges.” Silvera v.
Orange County School Board, 244 F.3d 1253, 1259 (11th Cir. 2001) (quoting
Maniccia, 171 F.3d at 1368–69) (alteration supplied).
As a general matter, the comparators that Walker points to are “the other leads
in the Fabrication Department, all of whom were white and all of whom were treated

41

better than Walker by Don Neal.”163 Walker does not explain, however, how the other
leads were treated more favorably with regard to each disciplinary sanction. Instead,
he argues that Neal’s generally more favorable treatment of the white leads is
“sufficient, if not rebutted, to create an inference of discrimination.”164 Again,
however, Walker’s brief does not address how white employees at Schwarze were
“disciplined in different ways” for “the same or similar conduct.” Burke-Fowler, 447
F.3d 1323. Indeed, Walker has not identified even one white employee who engaged
in similar conduct, but was treated differently with regard to the three disciplinary
sanctions he suffered: i.e., the negative performance evaluation, demotion, and
termination.165 Simply put, with no evidence of misconduct by the white leads that
resulted in less severe disciplinary sanctions, or no disciplinary action at all, the court
cannot engage in a rational evaluation of this prima facie element. Thus, Walker has
failed to satisfy that element of a prima facie case for his negative performance
review, demotion, and termination.
Even so, a plaintiff who fails to identify a comparator still may create a “triable
issue concerning the employer’s discriminatory intent” by showing a “convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional

163

Doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 32–33.

164

Id. at 33.

165

See id. at 32–33.
42

discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d
1321, 1328 (11th Cir. 2011). As the Eleventh Circuit observed in Connelly v.
Metropolitan Atlanta Rapid Transit Authority, 764 F.3d 1358 (11th Cir. 2014), the
plaintiff in Smith overcame his failure to identify a comparator by offering
“compelling evidence of . . . numerous incidents where the discipline of white
employees varied considerably from that of black employees, and a ‘discipline matrix’
created by the employer that tracked the discipline and race of employees.” Id. at 1364
(some internal quotation marks omitted). The plaintiff’s evidence in Smith precluded
summary judgment, at least in part, because it indicated clearly that the employer
“consciously injected race considerations into its discipline decision making without
an adequate explanation for doing so.” Smith, 644 F.3d at 1341.
The evidence here is not nearly so probative of discrimination. Although
Walker has shown that, in several instances, Don Neal treated him less favorably than
the white leads in his department,166 he has not shown beyond mere speculation that
there is any connection between Neal’s actions and Walker’s race. See id. at 1328;
Marshall v. City of Cape Coral, Florida, 797 F.2d 1555, 1559 (11th Cir. 1986)
(holding that “inferences based upon speculation are not reasonable”). For example,
even though Walker alleges that Neal never invited him to production meetings

166

See supra Part II.A.
43

because of his race, he admits that another African-American lead was invited to the
same meetings from which he was excluded.167 Moreover, the only minority employee
for whom there is any evidence of unfavorable treatment by Neal is Walker.
Walker’s circumstantial evidence, therefore, is not comparable to the evidence
presented by the plaintiff in Smith, which indicated a clear connection between the
employer’s actions and the employee’s race. See Connor v. Bell MicroproductsFuture Tech, Inc., 492 F. App’x 963, 967 n.1 (11th Cir. 2012) (observing that the
employee in Smith “presented evidence that his employer was particularly concerned
with race[,] and all of the circumstantial evidence connected its employees’ race to the
employer’s decision-making” (alteration supplied)). Consequently, Walker has not
presented a “convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination.” Smith, 644 F.3d at 1328.
Accordingly, this court concludes that summary judgment is due to be entered
in favor of defendant on Walker’s claims of a racially-discriminatory performance
evaluation, demotion, and termination.
B.

Denial of Overtime Opportunities
Walker also contends that he was denied voluntary overtime opportunities

because of his race. He has identified two white comparators, Tony Payne and James

167

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 146.
44

Eaton, who were treated more favorably.168 Schwarze does not deny that Payne and
Eaton are proper comparators, or that Walker established a prima facie case.169
Instead, Schwarze contends that Walker was denied overtime opportunities because
he was not as qualified to operate the same machines that were used by Payne and
Eaton to perform the overtime work assigned to them.170 Neal testified that Walker
“had no experience” on any machines other than the press brake and roller, whereas
Payne and Eaton could operate a roller, saw, and shear.171 Schwarze met its burden of
coming forward with a non-discriminatory reason for the contested employment
action.
When examining an employer’s proffered reasons, courts focus on the
employer’s beliefs, rather than those of the employee. See Elrod v. Sears, Roebuck
& Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (citing Smith v. Papp Clinic, P.A., 808
F.2d 1449, 1452–53 (11th Cir. 1987)). For that reason, Walker’s assertion that he was
qualified to operate the same machinery as Payne and Eaton is not probative of Neal’s
beliefs.172 Further, Walker acknowledged that Neal instructed him to train on the
roller and the saw when he was moved to the first shift: an admission that corroborates
168

Doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 1.

169

Doc. no. 26 (Defendant’s Summary Judgment Brief), at 22.

170

Id.

171

Doc. no. 27-11 (Defendant’s Exhibit “F” (Neal Declaration)), ¶ 4 (testifying that Walker
was not qualified to operate as many machines as Tony Payne and James Eaton).
172

Id. ¶¶ 4–6.
45

Neal’s stated reason for not assigning more overtime to Walker.173 Moreover, Walker
has not produced any evidence casting doubt upon Neal’s testimony that he did not
believe that Walker was qualified to operate the same machines as Tony Payne and
James Eaton. Therefore, Walker has not demonstrated that the employer’s stated
reason for the disparate treatment was pretextual. Accordingly, the court finds that
summary judgment is due to be entered in favor of defendant on Walker’s claim that
he was denied overtime opportunities because of his race.
IV. WALKER’S RETALIATION CLAIMS
Walker also alleges that Schwarze unlawfully retaliated against him for
“complain[ing] about race discrimination and fil[ing] a charge of discrimination [with
the EEOC].”174 He contends that Schwarze engaged in “a pattern of retaliatory
harassment[,] which included discipline, discharge, and other terms, conditions, and
privileges of employment in violation of Title VII,” as well as § 1981.175
The elements of proof for a retaliation claim are the same under both Title VII
and § 1981. See, e.g., Standard v. A.B.E.L., 161 F.3d at 1330. When, as here, there
is no direct evidence of retaliation, courts again employ the burden-shifting analytical
173

Doc. no. 32-1 (Walker Affidavit), ¶ 28; see also doc. no. 26 (Defendant’s Summary
Judgment Brief), at 22. Neal’s belief that Walker needed training on the roller is perhaps bolstered
by Kevin Lozen’s testimony that Walker once told him “I don’t know anything about this roller.”
Doc. no. 27-7 (Defendant’s Exhibit “D” (Lozen Deposition)), at 34.
174

Doc. no. 1 (Complaint), ¶¶ 48, 54 (alterations supplied).

175

Id. ¶¶ 49, 55 (alteration supplied).
46

framework articulated in McDonnell Douglas and Burdine to evaluate a plaintiff’s
circumstantial evidence of retaliation. To establish a prima facie case of retaliation,
a plaintiff must demonstrate that: he engaged in statutorily protected activity; he
suffered an adverse employment action; and there is a causal connection between the
protected activity and the adverse employment action. See, e.g., Hurlbert v. St.
Mary’s Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). If the
plaintiff does so, the employer must come forward with a legitimate, non-retaliatory
reason for the adverse employment action. Holified v. Reno, 115 F.3d 1555, 1566
(11th Cir. 1997). If the employer does so, the plaintiff then bears the burden of
demonstrating that the employer’s stated reason is merely a pretextual excuse for
retaliation. Id.
Title VII’s Opposition Clause provides that an employer may not retaliate
against an employee because the employee “has opposed any practice made an
unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e–3(a). Title
VII’s Participation Clause provides that an employer may not retaliate against an
employee because the employee “has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this subchapter.” Id.
The Participation Clause protects “proceedings and activities which occur in
conjunction with or after the filing of a formal charge with the EEOC.” EEOC v.
47

Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).
It is clear that Walker engaged in activity protected by both clauses. He filed
a formal EEOC charge of discrimination, made several verbal and written complaints
of discrimination and retaliation to Don Neal, Kevin Lozen, Gabriela Garcia, Kyle
Lausee, Wes Bryant, Donald Duncan, and others, and he lodged formal complaints of
discrimination and retaliation with “MySafeWorkplace” on several occasions. Indeed,
Walker engaged in protected activity for the first time in April of 2011, and
subsequently on more than a dozen occasions before his termination in August of
2012.176
A.

Denial of Voluntary Overtime Opportunities
Walker testified in his deposition that Neal began “retaliating” against him by

assigning fewer overtime shifts after Walker refused to argue against reinstatement
of the second shift.177 Schwarze, therefore, contends that Walker’s retaliation claim
is not cognizable, because the adverse employment action was in retaliation for a nonprotected activity. Inexplicably, Walker does not address this point, or the testimony
in question, in his brief.178 Walker’s affidavit recounts having told Neal, Bryant, and
Lausee on two occasions that he believed the overtime assignments were racially
176

Doc. no. 32-1 (Walker Affidavit), ¶ 13.

177

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 278–81.

178

See doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 34–37.
48

discriminatory.179 Even so, Walker’s affidavit does not refute his deposition testimony
that he believed that Neal denied him overtime opportunities in retaliation for his
support of the reinstatement of the second shift.180 Having considered Walker’s
deposition testimony and other evidence,181 the court similarly concludes that Walker
attributes Neal’s alleged retaliatory denial of overtime shifts to his support for
reinstatement of the second shift: a non-protected activity. Accordingly, summary
judgment is due to be entered in favor of Schwarze on this claim.
B.

Negative Annual Performance Evaluation
Schwarze does not deny that Neal’s negative annual performance evaluation of

Walker on May 11, 2012 constituted an adverse employment action.182 Walker
engaged in protected activity one month prior to the evaluation, on April 4, 2012,
when he complained to Neal of discrimination and retaliation.183 The temporal
proximity between the two events, coupled with evidence that the evaluation was
179

Doc. no. 32-1 (Walker Affidavit), ¶¶ 13, 16-18.

180

See also doc. no. 27-2 (Defendant’s Exhibit “A(9)” (May 7, 2012 Letter to Ronald
Robinson, et al.)) (“This actually all started last year when 2nd shift beg[a]n. Mr. Don Neal was
opposed to having a 2nd shift and tried to coerce me with my response to upper management
regarding my opinion of beginning a 2nd shift. Upper management approached me with the idea[]
of starting the shift and requested me to take a position as lead. I agreed and this was not favored
by Don.” (alterations supplied)). Walker also did not dispute Donald Duncan’s statement that
Walker believed Neal was retaliating against him to “get back at [him]” for his support of the
reinstatement of the second shift. See doc. no. 27-4 (Defendant’s Exhibit “B(6)” (June 26, 2012 Email Exchange Between Jeffrey Walker and Donald Duncan)), at 2.
181

See supra note 180.

182

See doc. no. 26 (Defendant’s Summary Judgment Brief), at 28–29.

183

Doc. no. 32-1 (Walker Affidavit), ¶ 22.
49

lower than any previous evaluation by Neal, is sufficient to satisfy the causal
connection element of the prima facie case. See Weaver v. Casa Gallardo, 922 F.2d
1515, 1525 (11th Cir. 1991) (superseded by statute on other grounds) (“The
pronounced increase in negative reviews and the careful scrutiny of Weaver’s
performance . . . is sufficient to establish a causal link.”).
Schwarze contends that the evaluation merely reflected Walker’s poor
performance, as evidenced by the reprimand he was issued on April 4, 2012.184 In
addition, Neal wrote on the evaluation form that Walker needed to work on his
“communication skills” and his “negative attitude.”185 Thus, Schwarze has met its
burden of coming forward with an allegedly non-retaliatory reason for the contested
employment action.
Walker argues in his brief, under the heading “Pretext for Intentional
Discrimination,” that he has demonstrated pretext because he has “disputed the
underlying basis for any discipline at all,” and because he “has alleged that Neal and
Lozen, with assistance from Lausee, actively harassed him during these meetings and
when he was trying to work.”186 Those two statements encompass the entirety of

184

Doc. no. 26 (Defendant’s Summary Judgment Brief), at 21.

185

Doc. no. 27-2 (Defendant’s Exhibit “A(13)” (2011 Performance Review)).

186

Doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 37.
50

Walker’s pretext arguments for his retaliation claims.187
The court agrees with Schwarze that “Walker is apparently trying to
demonstrate pretext by simply denying that he engaged in the misconduct for which
Schwarze subjected him to adverse actions.”188 The Eleventh Circuit has repeatedly
held, however, that such an argument, standing alone, cannot prevent summary
judgment. See, e.g., Stone & Webster Construction, Inc. v. U.S. Department of Labor,
684 F.3d 1127, 1136 (11th Cir. 2012) (“Where an employee argues that he did not
actually engage in misconduct, we have held that an employer may rebut this
allegation by showing its good faith, honest belief that the employee violated a rule.”)
(citing Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991));
Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (holding that “an employee’s
assertions of his own good performance are insufficient to defeat summary judgment,
in the absence of other evidence”); Bennett v. Chatham County Sheriff Department,
315 F. App’x 152, 160–61 (11th Cir. 2008) (holding that a plaintiff’s assertion that
she was “innocent of the misconduct does not support a finding of pretext” when the
employer had “reasonable grounds to believe that [plaintiff] had engaged in the
charged misconduct) (citing EEOC v. Total System Services, Inc., 221 F.3d 1171,
1176 (11th Cir. 2000) and Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
187

See id. at 37–38.

188

Doc. no. 36 (Defendant’s Reply Brief), at 17.
51

1354, 1363 n.3 (11th Cir. 1999)) (alteration supplied).
Walker’s second argument, — i.e., that Neal, Lozen, and Lausee harassed him
during meetings and at his work station, and that such conduct “create[s] a material
issue of fact” — has some merit.189 The Eleventh Circuit has held that evidence of a
sudden increase in scrutiny and harassment from an employee’s supervisors may be
evidence of pretext. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921
(11th Cir. 1993). Since that decision, however, the Eleventh Circuit has repeatedly
said that, in order to show pretext, a plaintiff “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253,
1265 (11th Cir. 2010) (internal quotation marks omitted); see also, e.g., Kragor v.
Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012); Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Cooper-Houston v.
Southern Railway Co., 37 F.3d 603, 605 (11th Cir. 1994). Therefore, evidence of the
alleged “harassment” of Walker may contribute to a finding of pretext, but Walker
still bears the burden of showing that each of Schwarze’s proffered reasons is
unworthy of credence.
189

Doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 37 (alteration

supplied).
52

As previously noted, when examining an employer’s proffered reasons, courts
focus on the employer’s beliefs, rather than on those of the employee. See Elrod, 939
F.2d at 1470. In that regard, the record contains evidence that several Schwarze
employees believed that Walker’s communication skills were lacking, and that he had
a negative attitude. For example, Ivan Hutto, William Harris, and Chris Moore told
Gabriela Garcia during her investigation that Walker had communication problems,
and that he often manifested a negative attitude.190
The record also contains evidence that several Schwarze employees believed
that Walker exhibited poor performance during the shift mentioned in the April 4,
2012 reprimand. For example, John Gusich (the acting supervisor during the shift in
question) and William Harris wrote in a “Team Member Relations Statement of Facts”
that Walker had not accomplished much work during the shift at issue.191 Don Neal
testified that he came to the same conclusion after reviewing a video recording of the
shift.192 Moreover, Walker admits that he did not complete some of the parts he was

190

Doc. no. 27-2 (Defendant’s Exhibit “A(20)” (Notes Dated July 2, 2012 and July 3, 2012)),
at ECF 59–61. Ivan Hutto also witnessed an incident involving Walker and James Eaton during
which Walker “kept asking [James] the same questions,” and that Eaton’s poor reaction “was due
to [Walker] repeating the same question.” See id. (Defendant’s Exhibit “A(3)”), at ECF 7
(alterations supplied).
191

Id. (Defendant’s Exhibit “A(11)” (“Team Member Relations: Statement of Facts)).

192

Doc. no. 27-5 (Defendant’s Exhibit “C” (Neal Deposition), at 167.
53

instructed to fabricate before the shift began.193
Walker contends that the document Schwarze filed as “Exhibit C(34),” in which
Neal describes an occasion on which Walker demonstrated a negative attitude,
contains inconsistencies.194 That document, allegedly written by Don Neal on April
18, 2012, describes how Walker, as lead on the second shift, had a negative outlook
on his shift’s ability to finish some parts.195 Neal’s notes clearly indicate that Walker
was speaking as lead on the second shift on April 18, 2012.196 Significantly, however,
Walker had been moved to the first shift eight days earlier, on April 10, 2012.197 Thus,
Schwarze’s only documentation of Neal’s belief that Walker had a negative attitude
contains a glaring inconsistency. See Elrod, 939 F.2d at 1470 (focusing its pretext
analysis on the decisionmaker’s beliefs). That inconsistency, together with the fact
that Walker’s three previous annual performance evaluations were not only higher, but
were trending higher each year, creates a genuine issue of material fact as to whether
Neal’s stated reasons for issuing a negative annual performance evaluation to Walker

193

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 301–02. Walker
testified that he could not complete the part because of a defect in a machine. Id.
194

Doc. no. 27-6 (Defendant’s Exhibit “C(34)” (Notes Taken by Don Neal)); doc. no. 31
(Plaintiff’s Response to Summary Judgment Motion), at 16, ¶ 23.
195

Doc. no. 27-6 (Defendant’s Exhibit “C(34)” (Notes Taken by Don Neal)).

196

Id.

197

Doc. no. 32-1 (Walker Affidavit), ¶ 26.
54

were pretextual.198 Summary judgment on this claim, therefore, is due to be denied.
C.

Demotion
It is not disputed that Walker’s May 14, 2012 demotion was an adverse

employment action. Walker complained to Neal of discrimination and retaliation just
three days earlier. Consequently, Walker has established a prima facie case of
retaliation. The notice that Neal issued to Walker, explaining the demotion, recited
that Walker: had violated the Alamo Group’s code of conduct by “blaming others for
everything that goes wrong”; had failed to follow proper chain-of-command
procedures when filing complaints; had become “very aggressive and argumentative”
when criticized; had been insubordinate; and had created a “hostile and volatile work
environment.”199 Those statements meet Schwarze’s burden of producing legitimate,
non-retaliatory reasons for demoting Walker.
Walker has not demonstrated inconsistencies in Schwarze’s stated reasons. A
search of his brief, affidavit, deposition, and complaint reveals no allegations that
demonstrate such inconsistencies.200 On the other hand, the record shows that, on

198

Indeed, Walker’s score reflected a drop of twenty-five percent (25%) from his previous
score. Compare doc. no. 27-6 (Defendant’s Exhibit “C(20)” (2010 Performance Evaluation)), with
doc. no. 27-2 (Defendant’s Exhibit “A(13)” (2011 Performance Evaluation)).
199

Doc. no. 27-2 (Defendant’s Exhibit “A(15)” (May 15, 2012 Notice/Record of
Discussion)).
200

Walker did not discuss Alamo Group’s code of conduct or its complaint procedures, nor
did he provide copies for the court to review.
55

several occasions in which Walker was disciplined, he attempted to shift blame to
others.201 Further, Kyle Lausee documented at least one occasion prior to May 14,
2012, on which he believed that Walker had been insubordinate.202
Accordingly, Walker has not demonstrated that his demotion was retaliatory
under either Title VII or § 1981, and summary judgment is due to be entered in favor
of defendant on that claim.
D.

Termination
Termination of a person’s employment is the “classic and ultimate ‘tangible

employment action.’” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246
n.18 (11th Cir. 1998) (citation omitted). Walker engaged in protected activity when
he filed an EEOC charge for discrimination.203 It is undisputed that Schwarze was
aware of the protected activity on or around June 15, 2012.204 Walker also engaged
in protected activity on June 26, 2012, when he lodged complaints of harassment and
a hostile work environment to “MySafeWorkplace” and to Donald Duncan.205 Walker
was terminated on August 2, 2012, just over one month after he last engaged in

201

See, e.g., doc. no. 27-6 (Defendant’s Exhibit “C(12)” (Walker’s Comments on October
9, 2008 Reprimand)); see also id. (Defendant’s Exhibit “C(15)” (March 27, 2009 Reprimand)).
202

See, e.g., doc. no. 27-2 (Defendant’s Exhibit “A(14)” (Lausee’s Notes on May 11, 2012
Meeting)).
203

Doc. no. 26 (Defendant’s Summary Judgment Brief), at 24.

204

Id.

205

See doc. no. 27-4 (Defendant’s Exhibit “B(5)”(“Talk To Your Organization)).
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protected activity.206 That close temporal proximity between his protected activity and
subsequent termination, viewed in the light of all other evidence, satisfies the causal
link element of the prima facie case under Title VII and § 1981.
Gabriela Garcia, Donald Duncan, and Jeff Leonard recommended Walker’s
termination for several reasons, all listed in the memorandum attached to Walker’s
notice of termination that is quoted in Part II.T., supra. Those statements satisfy
Schwarze’s burden of proffering legitimate, non-retaliatory reasons for terminating
Walker.
Once again, Walker’s brief does not address Schwarze’s stated reasons for his
termination.207 The court has reviewed his complaint, affidavit, deposition, and brief
for any factual allegations tending to show that Schwarze’s stated reasons are merely
pretext for retaliation and found none. Moreover, an employer who terminates an
employee based on its good faith belief that the employee engaged in misconduct has
not violated Title VII or § 1981. See, e.g., E.E.O.C. v. Total System Services, Inc., 221
206

Doc. no. 27-2 (Defendant’s Exhibit “A(25)” (August 2, 2012 Notice of Employment
Separation)). Neither party mentions the potential issues concerning who made the final decision
to terminate Walker, including what impact, if any, Alamo Group’s corporate relationship with
Schwarze has on the analysis. A review of Schwarze’s briefs revealed that the company is operating
under the assumption that Duncan, Garcia, and Leonard were responsible for terminating Walker,
and that their reasoning and actions may fairly be attributable to Schwarze. The court will continue
under the same assumption.
207

Granted, Walker also argued that Neal, Lozen, and Lausee “harassing” him was evidence
of pretext. See doc. no. 31 (Plaintiff’s Response to Summary Judgment Motion), at 37. Walker
failed to address how the behavior of those three men makes the reasons cited by the panel unworthy
of credence, however. See id.
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F.3d at 1176–77 (holding that plaintiff failed to show pretext when she failed to show
that “[d]efendant lacked a good faith belief that [plaintiff] lied” (alterations supplied));
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d at 1363 n.3 (noting that
an employer “who fires an employee under the mistaken but honest impression that
the employee violated a work rule is not liable for discriminatory conduct”); Smith v.
Papp Clinic, PA, 808 F.2d 1449, 1452–53 (11th Cir. 1987) (“[I]f the employer fired
an employee because it honestly believed that the employee had violated a company
policy, even if it was mistaken in such belief, . . . the employer has not violated §
1981” (alteration supplied)).
The panel’s principal reason for terminating Walker was that he made an
“intentionally false” allegation against Kevin Lozen.208 In reaching that conclusion,
the panel consulted the results of investigations conducted by Alamo Group, the
Huntsville Police Department, and an outside attorney.

All investigators

independently reached the same conclusion: if Lozen touched Walker at all, the
contact was light and inadvertent.209 The panel reviewed a video recording of the
incident — a recording that this court also has viewed — and that recording clearly
supports the findings of the three investigations. In short, it simply cannot be argued
that the panel did not believe that Walker had made an intentionally false allegation,
208

Doc. no. 27-2 (Defendant’s Exhibit “A(26)” (Memo to Bob George)).

209

Id.
58

in light of the unequivocally clear video evidence and the results of three independent
investigations.
Walker testified in deposition that Lozen fully extended his arm when pushing
on the shoulder,210 whereas the video recording clearly shows that Lozen’s arm was
never close to being fully extended when he was near Walker.211
The panel also observed that, whenever other persons witnessed incidents that
Walker complained of, “those witnesses (including hourly and managerial employees)
. . . contradicted Walker’s version of events.”212 As a result, the panel concluded that
“Walker ha[d] been less than truthful.”213
Walker has presented no evidence suggesting that the panel did not in good
faith believe that he engaged in misconduct by lodging untruthful complaints.
The panel also stated that Walker was disruptive on July 12, 2012, when he
announced to other workers that he would not be helping them any longer, and when
he accused Lozen of assaulting him. Again, Walker has not presented any evidence
that the panel did not, in good faith, believe that he was disruptive in those instances.
Accordingly, summary judgment is due to be entered in favor of defendant on

210

Doc. no. 27-1 (Defendant’s Exhibit “A” (Walker Deposition)), at 428.

211

See doc. no. 27-2 (Defendant’s Exhibit “A(28)” (Video Recording of July 12, 2012

Incident)).
212

Id. (Defendant’s Exhibit “A(26)” (Memo to Bob George)).

213

Id. (alteration supplied).
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Walker’s retaliatory termination claim.
V. WALKER’S RETALIATORY HOSTILE WORK
ENVIRONMENT CLAIM
Schwarze’s reply brief contends that Walker attempted to “raise a new claim”
for a hostile work environment in his response brief.214 Walker’s complaint does not
specifically mention “hostile work environment.” Instead, that pleading is divided
into four counts of discrimination and retaliation under Title VII and § 1981.215 The
retaliation counts contain an allegation that Schwarze “discriminated against [Walker]
on the basis of retaliation by beginning a pattern of retaliatory harassment.”216 Though
poorly worded, that statement arguably alleges a claim that Schwarze created a hostile
work environment in retaliation for Walker’s protected conduct.
The Eleventh Circuit recently recognized a cause of action for retaliatory hostile
work environment under Title VII which can be established with evidence that an
employer’s actions “were sufficiently severe or pervasive to alter the terms and
conditions of employment, thus constituting an adverse employment action.” Gowski
v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (per curiam). In other words, when
evaluating whether an employer’s actions constitute an “adverse employment action”
within the context of a claim of retaliatory hostile work environment, courts do not
214

Doc. no. 36 (Defendant’s Reply Brief), at 19.

215

Doc. no. 1 (Complaint), ¶¶ 38–58.

216

Id. ¶¶ 49, 55 (alteration supplied).
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employ the standard typical of retaliation claims — i.e., whether the employer’s
actions “well might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” See, e.g., Burlington Northern & Santa Fe Railway Co.
v. White, 548 U.S. 53, 68 (2006). Instead, courts apply the “severe or pervasive”
standard typical of hostile work environment claims. See, e.g., Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993).
Schwarze argues that the alleged harassment, which included “discipline,
discharge, and other terms, conditions, and privileges,” was already “addressed in
Schwarze’s motion for summary judgment.”217 It is true that Schwarze addressed four
alleged adverse employment actions, individually, in its summary judgment brief.
Schwarze ignores, however, the principle that the question of “whether an
environment is hostile or abusive can be determined only by looking at all the
circumstances.” Id. (emphasis supplied, internal quotation marks omitted). Schwarze
has only addressed four, discrete adverse employment actions, rather than “all the
circumstances” in the aggregate. Moreover, when
evaluating the objective severity of the harassment, [courts] look[] at the
totality of the circumstances and consider[], among other things: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance.
217

Doc. no. 36 (Defendant’s Reply Brief), at 19.
61

Gowski, 682 F.3d at 1312 (citing Harris, 510 U.S. at 23) (alterations supplied, internal
quotation marks omitted). Schwarze’s brief did not address any of these factors.
This court has reviewed the record, however, and finds that it shows that
Walker has, at the very least, created a genuine issue of material fact as to whether the
actions of Don Neal and Kevin Lozen “were sufficiently severe or pervasive to alter
the terms and conditions of [Walker’s] employment.” Id. (alteration supplied). In the
span of less than one year, Walker was subjected to more than a dozen disciplinary
actions, including several suspensions and disciplinary notices, periods of probation,
a poor performance review, reductions in pay, demotion, reassignment, and
termination, as well as several instances of aggressive, intimidating, and physically
threatening behavior by Neal and Lozen. Even though some of those actions did not,
individually, constitute an adverse employment action in the context of a retaliatory
hostile work environment claim, when they are considered in the aggregate, a
reasonable jury could conclude that they were sufficiently severe or pervasive as to
alter the terms of Walker’s employment. Id. Accordingly, the motion for summary
judgment as to Walker’s retaliatory hostile work environment claim is due to be
denied.
VI. CONCLUSION AND ORDERS
In accordance with the foregoing, the motion to strike portions of plaintiff’s
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opposition affidavit is DENIED. The motion for summary judgment filed by
defendant Schwarze Industries, Inc., is due to be GRANTED in part and DENIED in
part. Plaintiff Jeffrey Walker’s Title VII and § 1981 claims for discrimination are
DISMISSED with prejudice. The motion as to plaintiff’s claims for retaliation
pursuant to Title VII and § 1981 is GRANTED in part and DENIED in part. The
motion as to the negative performance review is DENIED. The motion as to all other
adverse employment actions is GRANTED, and those claims are DISMISSED with
prejudice. The motion as to plaintiff’s claim for retaliatory hostile work environment
pursuant to Title VII is DENIED. All remaining claims will be set for pretrial
conference by separate order.
DONE and ORDERED this 12th day of November, 2014.

______________________________
United States District Judge

63