Garrett v. Day and Zimmerman NPS
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/14/2016. (KEK)
2016 Sep-14 AM 10:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAY AND ZIMMERMAN NPS, }
Case No.: 5:13-cv-01297-MHH
This Title VII race discrimination case has been pending before a magistrate
judge. The magistrate judge entered a report in which she recommended that the
Court grant defendant Day and Zimmerman NPS, Inc.’s motion for summary
judgment on plaintiff Rodney Garrett’s Title VII claim. (Doc. 40).1 Mr. Garrett
filed timely objections to the report and recommendation. (Doc. 41). The Clerk of
Court reassigned the action to the undersigned to review Mr. Garrett’s objections.
In her report, Magistrate Judge Cornelius also addressed Mr. Garrett’s motion to compel and
Day and Zimmerman’s motions to strike. (Doc. 40). No party objected to Judge Cornelius’s
recommendations regarding these motions.
The Court accepted Judge Cornelius’s
recommendations concerning the motion to compel and the motions to strike. (Doc. 44). This
memorandum opinion addresses only Day and Zimmerman’s motion for summary judgment.
In his objections, Mr. Garrett argues that he does not have to offer
comparator evidence to prove his Title VII claim. Eleventh Circuit precedent
supports Mr. Garrett’s argument, so the Court will sustain this objection. Mr.
Garrett also argues that he has provided sufficient evidence to create a dispute of
material fact concerning discriminatory intent. The record viewed in the light most
favorable to Mr. Garrett does not support this argument, so the Court will overrule
this objection and enter summary judgment for Day and Zimmerman. The opinion
that follows explains the Court’s decision.
STANDARD OR REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error proposed factual findings to which no objection is
made, and the Court reviews propositions of law de novo. Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993); see also United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050 (1984) (“The
failure to object to the magistrate’s findings of fact prohibits an attack on appeal of
the factual findings adopted by the district court except on grounds of plain error or
manifest injustice.”) (internal citation omitted); Macort v. Prem, Inc., 208 Fed.
Appx. 781, 784 (11th Cir. 2006).
Mr. Garrett may establish a prima facie case of race
discrimination without providing comparator evidence.
The Court sustains Mr. Garrett’s first objection with respect to the
proposition that a Title VII plaintiff does not have to demonstrate “the existence of
a similarly situated employee if there is other evidence of discrimination present.”
(Doc. 41, p. 3). “Employees who believe that they are the victims of racial
discrimination may  present direct evidence of that discrimination.” Flowers v.
Troup County, Ga. School Dist., 803 F.3d 1327, 1335 (11th Cir. 2015). “When
direct evidence of unlawful discrimination is lacking, Title VII plaintiffs may
instead turn to the burden-shifting framework set out in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981).” Id. Under that framework, a plaintiff may establish a
prima facie case by showing: “(1) that he is a member of a protected racial class,
(2) that he was qualified for the position, (3) that he experienced an adverse
employment action, and (4) that he was replaced by someone outside of his
protected class or received less favorable treatment than a similarly situated person
outside of his protected class.” Flowers, 803 F.3d at 1336. But “‘the McDonnell
Douglas framework is not, and never was intended to be, the sine qua non for a
plaintiff to survive a summary judgment motion’ in Title VII cases.” Id. (quoting
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).
“The methods of presenting a prima facie case are not fixed; they are
flexible and depend to a large degree upon the employment situation.” Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). “[T]he plaintiff’s
failure to produce a comparator does not necessarily doom the plaintiff’s case.”
Lockheed-Martin Corp., 644 F.3d at 1328.
“Rather, the plaintiff will always
survive summary judgment if he presents circumstantial evidence that creates a
triable issue concerning the employer’s discriminatory intent.”
Id.; see also
Flowers, 803 F.3d at 1336 (“The critical decision that must be made is whether the
plaintiff has ‘create[d] a triable issue concerning the employer’s discriminatory
intent.’”) (quoting Lockheed-Martin Corp., 644 F.3d at 1328).
A plaintiff’s race discrimination claim may survive summary judgment if the
evidence, viewed in the light most favorable to the plaintiff, “presents ‘a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.’” Lockheed-Martin Corp., 644
F.3d at 1328 (quoting Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729,
733 (7th Cir. 2011)). “Whatever form it takes, if the circumstantial evidence is
sufficient to raise ‘a reasonable inference that the employer discriminated against
the plaintiff, summary judgment is improper.’”
Chapter 7 Trustee v. Gate
Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012) (quoting Lockheed-Martin
Corp., 644 F.3d at 1328). A Title VII plaintiff may use the same evidence to
establish both pretext and a prima facie case. Wilson, 376 F.3d at 1088.
Mr. Garrett, an African-American male, has attempted to carry his burden at
the summary judgment stage by identifying evidence that demonstrates
discrepancies between the way in which Day and Zimmerman investigated Sharon
McDaniel’s complaint against him and the way in which the company investigated
his complaint against Ms. McDaniel, a Caucasian female. Ms. McDaniel and Mr.
Garrett both worked at the TVA’s Browns Ferry nuclear plant, but they worked for
different contractors.2 Mr. Garrett and Ms. McDaniel had a number of encounters
that led to their complaints against one another. Mr. Garrett contends that the
record illustrates that as compared to the company’s treatment of the complaint
lodged by Ms. McDaniel, Day and Zimmerman was less diligent in its
investigation of his complaint and more willing to question his credibility. (Doc.
28, pp. 17-21). A plaintiff may use these sorts of inconsistences to establish
discriminatory intent. Alvarez v. Royal Alt. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010) (to establish indirect evidence of pretext, a plaintiff may show that
there are “‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
TVA is an acronym for Tennessee Valley Authority.
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.’”) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). Therefore, the Court
will examine the circumstantial evidence that Mr. Garrett has presented in support
of his Title VII claim.3
Mr. Garrett’s circumstantial evidence does not create a triable
issue of fact concerning Day and Zimmerman’s discriminatory
For his second objection, Mr. Garrett maintains that he submitted sufficient
circumstantial evidence to create a genuine issue of material fact as to whether Day
and Zimmerman’s proffered reason for terminating him was a pretext for
discrimination. The Court overrules this objection. Mr. Garrett’s circumstantial
evidence falls short of creating a question of material fact concerning racial
The record demonstrates that Mr. Garrett’s employer, Day and Zimmerman,
is a private contractor that provides services to the TVA at the Browns Ferry
nuclear plant located near Athens, Alabama. Day and Zimmerman’s employees
At the summary judgment stage, although Mr. Garrett described in a fair amount of detail
evidence which he contends illustrates the discrepancies between the two investigations, he used
comparator language to introduce his argument. The Court accepts the legal proposition on
which Mr. Garrett’s objection rests, but the Court understands how the magistrate judge may
have believed that Mr. Garrett was pursuing only a comparator argument. Mr. Garrett does not
specifically object to Judge Cornelius’s findings regarding his comparator evidence. The Court
agrees with Judge Cornelius’s conclusion that Mr. Garrett cannot establish a prima facie case
through comparator evidence.
must comply with the company’s employment policies and with the TVA’s
employment policies. Because of public safety issues concerning nuclear power,
the federal Nuclear Regulatory Commission has issued regulations to ensure the
safe operation of nuclear plants like the Browns Ferry plant. Those regulations
help shape the TVA’s employment policies. (Doc. 23-1, p. 3; see also Doc. 22, pp.
4-6; Doc. 28, pp. 3-4).
Day and Zimmerman decided to terminate Mr. Garrett’s employment after
he had three run-ins with Ms. McDaniel in the spring of 2012.4 After the final
encounter, Ms. McDaniel reported to Day and Zimmerman supervisors that she felt
threated because Mr. Garrett told her “you’re going to get popped.” Mr. Garrett
denies making the remark. Day and Zimmerman’s site manager investigated Ms.
McDaniel’s complaint and placed Mr. Garrett on paid leave during the
investigation. Following weeks of investigation, Day and Zimmerman’s human
resources director recommended that Day and Zimmerman terminate Mr. Garrett
without eligibility for rehire because of the seriousness of threats of physical
violence at a nuclear plant. In support of the recommendation, the HR director
cited the TVA’s Employee Discipline Policy which states that “violence, threats,
harassment, intimidation and other disruptive behavior in our workplace will not
be tolerated.” (Doc. 23-23 p. 5; see also Doc. 23-3, p. 5). The HR director asked
For details concerning those encounters, please see Doc. 40, pp. 5-8.
the TVA to approve Mr. Garrett’s termination through the TVA’s Adverse
Employment Action procedure. (Doc. 23-23, p. 5; see also Doc. 23-25, p. 2).
When an employer offers an employee’s violation of a work rule as the
justification for termination, the employee can demonstrate pretext by showing that
he did not violate the work rule. Winborn v. Supreme Beverage Co. Inc., 572 Fed.
Appx. 672, 675 (11th Cir. 2014). However, “[w]hen considering whether an
employee’s termination based on alleged misconduct was merely a pretext, the
proper inquiry is whether the employer believed that the employee was guilty of
misconduct and whether that belief was the reason for the employee’s discharge.”
Id. (citing Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)).
The plaintiff’s burden “is to show not just that [the defendant’s] proffered reasons
for firing [him] were ill-founded but that unlawful discrimination was the true
reason.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1267 (11th Cir.
Therefore, to overcome Day and Zimmerman’s motion for summary
judgment, Mr. Garrett cannot merely deny that he threatened Ms. McDaniel so as
to establish that he did not violate the TVA’s workplace policy prohibiting threats
Rather, he must offer evidence that establishes that Day and
Zimmerman did not really believe that he threatened Ms. McDaniel – or at least
that Day and Zimmerman’s investigation of the threat was inadequate – and that
the company really fired him because it was biased against him because of his race.
Mr. Garrett’s evidence falls short on both counts.
The record demonstrates that Day and Zimmerman conducted a thorough
investigation of Ms. McDaniel’s complaint. The company interviewed Mr. Garrett
twice and spoke with witnesses to the encounters between Mr. Garrett and Ms.
McDaniel. The company also conferred with a representative from the Browns
Ferry security department. (Doc. 23-9, p. 2; Doc. 23-11, p. 4; Doc. 23-14, pp. 5-6).
The record demonstrates that the information that Day and Zimmerman
gathered during its investigation substantiated Ms. McDaniel’s allegation that Mr.
Garrett threatened to “pop” her. A witness provided a statement in which the
witness “indicated that [he] heard Garrett say that he was going to ‘pop’” Ms.
McDaniel. (Doc. 23-24, p. 2). Day and Zimmerman confirmed that the witness
did not have a relationship with Ms. McDaniel that would bias the witness towards
Ms. McDaniel. (Doc. 23-14, p. 2; Doc. 23-24, p. 2). Day and Zimmerman did not
determine the proximity of the witness to Mr. Garrett during the encounter between
Mr. Garrett and Ms. McDaniel. (Doc. 23-13, p. 12). Day and Zimmerman’s HR
director concluded that Mr. Garrett’s denial of Ms. McDaniel’s accusation was
“not credible.” (Doc. 23-23, p. 4, n. 2; Doc. 23-24, p. 2).
Finally, the record demonstrates that Day and Zimmerman decided to
recommend Mr. Garrett’s termination in deference to the TVA’s workplace safety
policy. Day and Zimmerman’s HR director initially gave Mr. Garrett the benefit of
the doubt, stating that based on what she had learned within the first week of the
investigation, she “would not consider this encounter to be one that rises to a level
to warrant termination. It sounds like [Mr. Garrett and Ms. McDaniel] both gave
attitude to each other.” (Doc. 23-14, p. 6). But the HR director acknowledged that
she had to consider “how TVA would view an employee saying they would ‘pop’
another employee.” (Doc. 23-14, p. 6).
Consultation with a representative from the Browns Ferry nuclear plant
security department produced the following information:
that if it were a TVA employee it would most likely result in
the removal of an individual’s badge for several days and
possibly loss of pay during this time.
If it was a contractor there are more harsh ramifications
including removal from site access and suspension.
(Doc. 23-14, p. 5). Based on this information and all of the information that Day
and Zimmerman collected in its investigation, Day and Zimmerman recommended
Mr. Garrett’s termination because of a “threat of physical violence  made against
another contract employee” at the nuclear plant. (Doc. 23-25, p. 2; see also Doc.
23-24, p. 3).
“The factual issue to be resolved” in this case “is not the wisdom or
accuracy” of Day and Zimmerman’s conclusion that Mr. Garrett violated a TVA
safety rule. Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). The Court
“[is] not interested in whether the conclusion is a correct one, but whether it is an
honest one. Like all Title VII cases where pretext is an issue, the question the
factfinder must answer is whether” Day and Zimmerman’s “proffered reasons were
‘a coverup for a . . . discriminatory decision.’ McDonnell Douglas, 93 S.Ct. at
1826.” Id. The Court “‘[is] not in the business of adjudging whether employment
decisions are prudent or fair. Instead, [the Court’s] sole concern is whether
unlawful discriminatory animus motivates a challenged employment decision.’”
Id. (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361
(11th Cir. 1999)).
Mr. Garrett’s pretext argument rests on evidence that demonstrates that Day
and Zimmerman did not thoroughly investigate his contention that Ms. McDaniel
used the “n” word and told him that “she doesn’t like black people.” (Doc. 23-2, p.
38; Doc. 23-14, p. 2). In a handwritten statement that Mr. Garrett faxed to Day and
Zimmerman, he asserted that Ms. McDaniel called him a black “m-f’er” and
repeatedly used the “n” word. (Doc. 23-15, pp. 5-6). For purposes of summary
judgment, the Court accepts Mr. Garrett’s description of Ms. McDaniel’s conduct.
On the record in this case, the Court also accepts Mr. Garrett’s contention that Day
and Zimmerman did not investigate his allegation as thoroughly as the company
investigated Ms. McDaniel’s allegation that Mr. Garrett threatened her.5
Under different circumstances, racial slurs and disparate investigations
might provide a pathway to trial, but this evidence does not help Mr. Garrett on the
record in this case, given the legal standard that governs his Title VII claim. Even
if the Court assumes that Ms. McDaniel uttered racial slurs and that Day and
Zimmerman gave less attention to Ms. McDaniel’s discriminatory statements than
to Ms. McDaniel’s accusation that Mr. Garrett threatened to pop her, the result
would not change because Ms. McDaniel was not an employee of Day and
Zimmerman, and the racial slurs do not trump the TVA’s policy that prohibits
threats and violence at the Browns Ferry nuclear plant. Because Ms. McDaniel
was not a Day and Zimmerman employee, Mr. Garrett cannot attribute Ms.
The record demonstrates that after his second encounter with Ms. McDaniel, Mr. Garrett told
his supervisor that there was friction between him and Ms. McDaniel. During this conversation,
Mr. Garrett did not suggest that Ms. McDaniel had directed racial slurs to him. (Doc. 23-2, pp.
37-38). Following the third Garrett-McDaniel encounter, during an April 8, 2012 interview
about the incident, Mr. Garrett did not mention racial slurs. Mr. Garrett first complained about
racial slurs in his second Day and Zimmerman interview on April 17, 2012. (Doc. 23-2, p. 40;
Doc. 23-14, p. 4; Doc. 23-23, p. 3). During that interview, Mr. Garrett described the racial slurs
and identified two witnesses to Ms. McDaniel’s conduct. Day and Zimmerman’s HR director
indicated that she would like to interview both witnesses, but she actually interviewed only one
of the witnesses. That witness, a Day and Zimmerman employee, stated that he did not hear Ms.
McDaniel use derogatory language. (Doc. 23-13, p. 18; Doc. 23-19, p. 3). Day and Zimmerman
did not interview the other witness who was an African American female who worked for
another contractor. That witness testified in her deposition that no one from Day and
Zimmerman attempted to reach her. (Doc. 28-1, p. 11). There also is evidence from which
jurors could reasonably infer that Day and Zimmerman discounted Mr. Garrett’s complaint
because he previously complained about racial remarks that he attributed to Day and
Zimmerman supervisors, and Day and Zimmerman found no facts to support the allegation that
Mr. Garrett’s supervisors were racially biased.
McDaniel’s discriminatory statements to Day and Zimmerman, and Day and
Zimmerman had no ability to take direct action against Ms. McDaniel even if she
had called Mr. Garrett the “n” word. Moreover, even if the statements might
provoke a response, a response that includes a threat of violence violates the
TVA’s safety protocol at the Browns Ferry nuclear plant. Day and Zimmerman
based its employment recommendation on safety standards that its customer
imposed on the contractors who worked at the plant, and that customer, the TVA,
did not object to Day and Zimmerman’s recommendation to terminate Mr. Garrett.
(Doc. 23-26, p. 2). The TVA concluded that the proposed termination was “based
on legitimate, non-retaliatory reasons” and was “complaint with TVA policy.”
(Doc. 23-26, p. 2).
Thus, even if Mr. Garrett did not threaten to “pop” Ms. McDaniel, Mr.
Garrett has not offered evidence from which a jury could conclude that Day and
Zimmerman’s decision to terminate his employment was motivated by race.
Therefore, Mr. Garrett’s pretext argument fails.
For the reasons discussed above, the Court grants Day and Zimmerman’s
motion for summary judgment. By separate order, the Court will enter judgment in
favor of Day and Zimmerman on Mr. Garrett’s Title VII claim.
DONE and ORDERED this September 14, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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