Johnson v. Reed Contracting Services Inc
MEMORANDUM OPINION that 15 MOTION for Summary Judgment is due to be granted. 25 MOTION to Strike Portions of the Declaration of Chris Baker is DENIED as set out herein. Signed by Judge Abdul K Kallon on 9/28/2016. (YMB)
2016 Sep-28 PM 04:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOE D. JOHNSON,
Civil Action Number
Joe D. Johnson brings this action against Reed Contracting Services, Inc., for
alleged gender and race discrimination, in violation of Title VII of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981. Doc. 1. Reed Contracting moves for summary
judgment, challenging whether Johnson can establish a prima facie case of race or sex
discrimination, and, alternatively, contending that it has a legitimate, nondiscriminatory reason for its decision to discharge Johnson. Doc 16 at 22, 25. Reed
Contracting’s motion is fully briefed and ripe for review. Because Reed Contracting
had a reasonable basis to believe that Johnson threatened his co-workers, the
motion is due to be granted.1
Reed Contracting also moves to strike portions of a witness’s affidavit Johnson submitted. Doc.
25 at 1. Under the sham affidavit doctrine, a court can strike an affidavit that contains an “inherent
consistency” with the affiant’s prior sworn testimony. Van T. Junkins & Assocs. v. U.S Indus., Inc.,
STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
is proper “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.” “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in
original). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the non-moving
party, who is required to go “beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324 (internal citations and quotation marks omitted).
A dispute about material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from
736 F.2d 656, 658 (11th Cir. 1984). The motion is DENIED as far as it relates to the conversation
between the witness and Shawn Rice, because the affidavit and the email are not inherently
contradictory, and, as Reed Contracting concedes, the email was not sworn testimony. Doc. 25 at 6.
The motion to strike is also DENIED because the court did not rely on the witness’s testimony in
deciding whether Reed Contracting engages in discrimination.
it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all justifiable
inferences must be drawn in the non-moving party’s favor). Any factual dispute will
be resolved in the non-moving party’s favor when sufficient competent evidence
supports that party’s version of the disputed facts. See Pace v. Capobianco, 238 F.3d
1275, 1276–1278 (11th Cir. 2002) (a court is not required to resolve disputes in the
non-moving party’s favor when that party’s version of events is supported by
insufficient evidence). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that a jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (1lth Cir. 1990) (citing Anderson, 477 U.S. at 252).
Johnson, who is male and African American, worked for Reed Contracting as
a dump truck driver from May 2013 until his discharge in February 2014. Docs. 16
at 5; 19-1 at 39, 43. Relevant here, Reed Contracting’s work rules prohibit the use
of foul or offensive language, and “[t]hreats, threatening and abusive behavior, or acts
of violence against employees . . . on company property.” Doc. 18-2 at 22. A violation
of the policy leads to “corrective action up to, and including, termination and/or
referral to the [proper authorities].” Id. at 22. An employee who “makes threats,
exhibits threatening behavior, or engages in violent acts on company premises shall
be removed from the premises as quickly as safety permits” and is not allowed back
during the investigation. Id. After the investigation, Reed Contracting will “initiate
an immediate response [which may include] suspension and/or termination of
employment.” Id. Generally, under Reed Contracting’s progressive disciplinary
system, the first step is a verbal discussion about the unacceptable behavior and
necessary changes the employee needs to make, followed by a written warning, and,
finally, a suspension or termination. Doc. 19-3 at 3. However, “[a]n employee may
be terminated immediately in certain situations . . . that could be interpreted as an
immediate threat to the company or its employees.” Id. Finally, Reed Contracting can
only deviate from these procedures with the approval of its vice president or
Johnson worked for Reed Contracting without incident until Saturday,
February 1, 2014. The events that triggered Johnson’s discharge began when Reed
Contracting instructed Johnson to transport an additional “load back and [dump] it
on the east side of the bridge.” Doc.17-1 at 16. When Johnson arrived to pick up the
second load, Angel McKinley, a white female dump truck driver who usually
transported the last truck load of the day, told Johnson over the communication radio
that he “better not get loaded” because she was supposed to be “the last truck.” Id.
Immediately following McKinley’s comments, Johnson received a call from Tammy
Woods, a dispatcher who filled in on Saturdays for trucking foreman Scott Sterling
as Johnson and McKinley’s supervisor. Docs. 17-1 at 16-17; 20-3 at 1; 20-1 at 1.
Woods, who sounded “a little angry,” inquired why Johnson was on Highway 72
instead of Highway 20. Doc. 17-1 at 16. After denying being on Highway 72, based
on his belief that McKinley had called Woods and lied about Johnson’s whereabouts
because there was “no way [Woods] could have seen him” on Highway 72, Johnson
told Woods that McKinley needed to “stay out of [his] business.” Id. at 17; doc. 20-3
Chris Baker, one of Johnson’s co-workers, heard McKinley’s purported “threat
to [Johnson] about . . . not taking load from the airport” over the radio. Docs. 19-3
at 4; 23-3 at 2. After Johnson’s conversation with Woods, Johnson called Baker and
was still on the phone with Baker when Johnson arrived at the operations building.
Docs. 17-1 at 17; 19-3 at 4. While fueling his truck, Johnson saw McKinley “walking
from [her] truck and going into the [operations] building.” Doc. 17-1 at 17. With
roughly twenty to thirty feet separating them, docs. 17-1 at 18; 19-3 at 6, Johnson told
McKinley that he would “appreciate [her] staying out of [his] business, because
[Woods] had called [him],” doc. 17-1 at 17. Baker, who heard this comment over the
telephone, stated that McKinley responded by “cuss[ing] at [Johnson].” Docs. 17-1
at 17; 19-3 at 4. Allegedly, McKinley told Johnson that she was not “in his fucking
business and frankly [didn’t] give a shit,” which prompted Johnson to tell McKinley
again that she was in “[his] fucking business” and needed to stay out of it. Docs. 17-1
at 17–18; 20-7 at 6; 19-3 at 4; 23-3 at 2.
The two witnesses to this incident paint a different picture. Bobby Sims, whom
Johnson identified as a witness, see doc. 20-1 at 4, claims that when “[McKinley]
walked by, [Johnson] started screaming at her [that she was] a fucking bitch [and that]
he was going to kill her.” Doc. 20-6 at 1. Sims also claims that he did not hear
McKinley threaten, yell, or curse at Johnson. Id. at 2. Omarr Nelson, the other
witness, claims that he heard “something that sounded like a male voice yelling and
cursing in a very loud voice” when he was at “the parking lot across the street and on
the other side of the yard.” Doc. 20-5 at 1.
After this exchange, McKinley entered the operations building, while Johnson
purportedly stayed outside to work on his daily paperwork. Doc. 17-1 at 17–18. Once
inside, McKinley told Woods that Johnson “had been yelling and cursing at her” and
“that she had not done anything to set [him] off.” Doc. 20-3 at 2. As Johnson tells it,
when he subsequently entered the office, Woods met Johnson at the door and asked
Johnson why he was “fussing” at McKinley. Doc. 17-1 at 18–19. McKinley, who
stood behind Woods about ten to fifteen feet away from Johnson, allegedly told
Johnson that “he did not know who he was messing with” and that she “could get him
fired.” Id. at 18. Johnson continued to fill out his paperwork as Woods and McKinley
continued talking to him. Id. The exchange ended when Woods arranged for another
employee to escort McKinley outside under the pretense of helping another driver.
Id. at 18–19; doc. 20-3 at 2–3 (Woods stating that “To try and get Mr. Johnson away
from Ms. McKinley, I called another driver . . . and asked her to take Ms. McKinley
away from the yard because I was concerned about her safety because [Johnson]
stated that he would kill her.”).
Unlike Johnson’s account, the witnesses again paint a different picture. Nelson
reported that when Johnson followed McKinley into the operations building, he
decided to follow Johnson “into the operations building because [he] was concerned
that Mr. Johnson might physically assault Angel [McKinley] or Tammy Woods [the
dispatcher].” Doc. 20-5 at 1–2. As for Woods, she described the exchange in the
office as follows:
Then, around 3 [p.m.] . . . McKinley came in to the
operations building. She was crying and said that Mr.
Johnson had been yelling and cursing at her. Ms. McKinley
said that she had not done anything to set Mr. Johnson off.
. . . The next thing I knew Mr. Johnson had entered the
operations building. He was shaking with anger and
continued yelling and screaming at Ms. McKinley . . . Mr.
Johnson said such things as Ms. McKinley “didn’t know
who she was messing with,” and “I will get you back
bitch.” He was also saying, “you don’t know me, I will kill
Doc. 20-3 at 2.
Based on Johnson’s outburst and threats, Woods “ was concerned for [her own]
safety and for the safety of Ms. McKinley.” Id. Consequently, Woods called Shawn
Rice, the Human Resources Manager, and informed him that “[Johnson] had been
screaming at, cursing at, and threatening [McKinley],” and that Omarr Nelson
witnessed the incident. Docs. 20-1 at l; 20-3 at 2 (Woods stating, in part, that she told
Rice “that Mr. Johnson threatend Ms. McKinley by saying that she ‘did not know
who whe was messing with’ and ‘I will get you back bitch.’”). Rice in turn, called
David Wilkinson, the Human Resources/Safety Director, and relayed the complaint
from Woods. Docs. 20-1 at 1; 20-2 at 1, 3. Wilkinson asked Rice to investigate the
incident because Rice “often [conducted] investigations for [Wilkinson] . . . and
[provided Wilkinson] with [an] investigative report [so Wilkinson could choose what]
action to take.” Docs. 20-2 at 1, 3; 20-1 at 2.
Rice conducted the investigation on Monday, February 3, 2014, which entailed
meeting with McKinley and Johnson, and Nelson and Sims. Docs. 20-1 at 1–2; 19-2
at 25; 19-3 at 2. Rice met first with McKinley for about thirty to thirty-five minutes
and asked Sterling, the trucking foreman, to sit in during the meeting. Doc. 20-1 at
2. For her part, McKinley relayed to Rice that Johnson “started yelling and cursing
at her when she was in the yard” and that Johnson “followed her into the operations
building while continuing to yell and curse at her.” Id. McKinley denied cursing or
raising her voice at Johnson, and claimed that Johnson “threatened her” by telling her
she was not his boss, that she “did not know who [she was] messing with,” and that
he would get the “bitch” back. Id.
In light of McKinley’s contention, Rice called Wilkinson. Id. Based on Rice’s
summary of his conversation with McKinley and Woods’ earlier report, Wilkinson
instructed Rice to “meet with Mr. Johnson and to suspend him while the investigation
was finished,” id., because “[f]rom what Tammy [Woods] and Angel [McKinley]
said, Mr. Johnson was the aggressor,” doc. 20-2 at 3. Wilkinson maintains he wanted
to “make sure [Johnson] was interviewed and all witnesses were questioned” before
making any “final decisions.” Doc. 20-2 at 3.
Rice met next with Johnson, who, unbeknownst to Rice, recorded the entire
conversation because Johnson was “not comfortable with the way things were going.”
Docs. 17-1 at 20; 20-1 at 3. In fact, Johnson claims that Rice “seemed to already have
his mind made up” when Rice met with him. Doc. 17-1 at 20. At some point, Rice
informed Johnson that several witnesses “heard [Johnson] hollering on the yard about
I’ll get you back, I’ll get even.” Docs. 20-7 at 8; 20-1 at 3. Johnson denied making the
threats, but did not deny hollering at McKinley. Doc. 20-7 at 8–9. Perhaps because
he wanted to point out that McKinley acted inappropriately also, Johnson asked Rice
if it was okay for McKinley to scream at Johnson. Id. In response, Rice stated that he
planned “to deal with [McKinley] too” because “it [was not] okay for neither one of
[them] to scream.” Id.
At some point, Rice informed Johnson of Wilkinson’s decision to suspend
Johnson during the investigation by stating that “until [he got] to the bottom of [the
altercation], we going to take a couple of days off and cool down.” Id. Although Rice
conveyed that he planned to obtain written statements about the incident from
everyone, he added that based on his investigation at that point “it didn’t sound good”
for Johnson because “four or five” people, including one supervisor, deemed
Johnson’s behavior “threatening.” Id. at 9, 11–12. Johnson voiced his displeasure
with the decision by noting that Rice was not suspending McKinley – stating that
McKinley “[wasn’t taking] a couple of days off. She’s running [i.e. working] now,”
id. at 12, and that the “three or four other witnesses” who said that Johnson threatened
McKinley “[were] lying,” Id. at 16–17.
Rice met next with Nelson. Doc. 20-1 at 3. In addition to Nelson conveying a
version of the incident that mirrored McKinley and Woods’ accounts, Nelson
reported that Johnson had also threatened him earlier that morning: “Then, on
Monday morning, . . . Mr. Johnson walked up to me and told me that I would need
to call the police if I did not stay out of his business.” Doc. 20-5 at 2. Nelson added
that he “was concerned by Mr. Johnson’s comment and took it as a threat.” Id.
After meeting with Nelson, Rice called Bobby Sims, whom “Johnson had
indicated . . . was outside the operations building” during the incident. Doc. 20-1 at
4. Sims described the encounter in a manner consistent with the other witnesses:
“Mr. Sims told me that Mr. Johnson was yelling at Ms. McKinley . . . [and] that he
heard Mr. Johnson say he would get [Ms. McKinley] and that she was a ‘fucking
bitch.’” Id.; see also doc. 20-6.
After his investigation, Rice prepared a memorandum for Wilkinson in which
he summarized his findings and described Johnson as “very defensive and
aggressive.” Doc. 19-3 at 9. In addition to conveying that everyone described
Johnson as the instigator and mentioning some of the threats Johnson directed at
McKinley, Rice added also that Johnson had recently threatened Nelson.2 Id. The
same day he received Rice’s report, i.e. February 3, Wilkinson instructed Rice to
discharge Johnson for violating the violence policy by threatening Nelson and
McKinley. Docs. 19-2 at 25; 20-2 at 1, 3. As a result, the next day, Rice informed
Johnson of the decision to discharge him. Docs. 17-1 at 21; 19-2 at 22.
Johnson claims Reed Contracting discharged him because of his race and
gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981. “Both [Title VII and § 1981] have the same
requirements of proof and use the same analytical framework, therefore [the court]
Rice testified that Johnson violated the violence in the workplace policy based initially on his
conduct towards McKinley, and a second time when Johnson “walked up to [Nelson] and told
[Nelson] that [Nelson] would need to call the police if [Nelson] did not stay out of his business.”
Doc. 20-5 at 2. Rice did not raise this allegation when he met with Johnson because he had not
yet learned about it. Doc. 19-2 at 15. Johnson denies threatening Nelson, and maintains that he
only learned about this additional reason after his discharge. Docs. 17-1 at 46; 22 at 4.
shall explicitly address the Title VII [race and gender] claim[s] with the
understanding that the analysis applies to the § 1981 [race] claim as well.” Standard
v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Where, as here,
Johnson is relying on circumstantial evidence, the court applies the McDonnell
Douglas burden-shifting standard. See McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313 (11th Cir. 2003).
Under this standard, if Johnson successfully makes a prima facie case, the burden
shifts to Reed Contracting to provide a legitimate, non-discriminatory reason for the
McDonnell Douglas, 411 U.S. 792 at 793; Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010); Jones v. Gerwens, 874 F.2d
1534, 1538 (11th Cir. 1989). If Reed Contracting meets its burden, the burden shifts
back to Johnson to show pretext. Rollins v. TechSouth, Inc., 833 F.2d 1525,
1528–1529 (11th Cir. 1987). If Johnson cannot make a prima facie case or cannot
show that Reed Contracting’s articulated reason is pretext for discrimination, then the
court must find for Reed Contracting. See Maniccia v. Brown, 171 F.3d 1364, 1370
(11th Cir. 1999).
To establish a prima facie case, Johnson must prove by a preponderance of the
evidence that “(l) he is a member of a protected class, (2) he was qualified for the
position, (3) he suffered an adverse employment action, and (4) he was replaced by
a person outside his protected class” or that Reed Contracting “treated [him] less
favorably than a similarly situated individual outside his protected class.” McDonnell
Douglas, 411 U.S. at 793; Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.
2003). The parties agree that Johnson is in a protected class and suffered an adverse
action. As to the second prong, since this is a termination case and Johnson held his
position for a “significant period of time,” i.e. from May 23, 2013 to February 4,
2014, the court assumes that Johnson was qualified for this position. See Crapp v.
City of Miami Beach Police Dep’t, 242 F.3d 1017, 1020 (11th Cir. 2001); Rosenfield
v. Willington Leisure Products, Inc., 827 F.2d 1493, 1495 n.2 (11th Cir. 1987). As
such, the only issue of contention with respect to the prima facie case is whether Reed
Contracting replaced Johnson with a female or a Caucasian, or treated Johnson less
favorably than a similarly situated individual who is not in his protected class. In
resolving the latter issue, the court notes generally that “[w]hen an individual proves
that he was fired but one outside his class was retained although both violated the
same work rule, this raises an inference that the rule was discriminatorily applied
against that individual, regardless of the race [or gender] of the replacement.” Nix v.
WLCY Radio/Rahall Comm., 738 F.2d 1181, 1185 (11th Cir. 1984). However, to
rely on a comparator, Johnson must show that he is “similarly situated [to the
comparator] . . . in all relevant aspects.” Knight, 330 F.3d at 1316.
Johnson cannot show that Reed Contracting treated him less favorably
than similarly situated employees
Johnson identified five individuals as purported comparators. Doc. 17-1. For
the reasons stated herein, none of these individuals is similarly situated to Johnson.
First, Johnson claims that Reed Contracting failed to discipline Lee Master and Ron
Parker, two Caucasian drivers, for an altercation that escalated to the point where
Master brandished a knife. Doc. 17-1 at 25. Johnson cannot rely on this incident,
however, to establish disparate treatment because he does not contest Reed
Contracting’s contention that no one reported this incident (which occurred before
Johnson’s employment ) to Human Resources. Id. at 49; doc. 20-2 at 7. Likewise,
Johnson cannot rely on an incident involving Melanie Nevallis and Master, two
Caucasian drivers, who purportedly engaged in an altercation in early 2014 that
included Master threatening Nevallis. Docs. 17-1 at 49; 19-1 at 5; 19-2 at 11. Again,
Johnson concedes that he cannot rebut Reed Contracting’s contention that no one
reported the incident to Human Resources. Docs. 17-1 at 49; 20-1 at 7. Absent
evidence that Human Resources knew about these two incidents, Johnson cannot rely
on the purported failure to discipline these employees to establish disparate treatment.
Johnson also cannot rely on the next two comparators he cites – William Bainer
and an unnamed “Mexican” employee – whom he claims Reed Contracting failed to
discharge for using racial slurs. Apparently, Bainer, a Caucasian truck driver, told
a co-worker that he “just [calls Johnson] black spider monkey.” Doc. 17-1 at 11.
After confronting Bainer, Johnson reported Bainer to Sterling, the trucking foreman.
Id.; doc. 20-3 at 1. Sterling took no action, and did not report the incident to Human
Resources, a fact Johnson does not dispute. Docs. 20-2 at 6; 19-1at 47. The second
slur involves an unidentified employee of Mexican heritage who called a co-worker
“nigger” in front of a supervisor. Docs. 19-3 at 5; 17-1 at 19, 23. Allegedly, the
supervisor reprimanded the victim instead of the offending employee. Docs. 19-3 at
5; 17-1 at 23. However, when this incident made it to Human Resources, the
offending employee received a one-week suspension. Docs. 17-1 at 23; 20-2 at 6. The
decision to suspend, instead of discharge, is the basis for Johnson’s claim that Reed
Contracting treated him differently than this employee. Johnson cannot rely on this
incident or the one involving Bainer because the “quantity and quality” of the
comparator’s misconduct must be “nearly identical to prevent courts from secondguessing employers’ reasonable decisions.” Maniccia, 171 F.3d at 1368. Because
these two incidents involved racial slurs and presumably implicated the antiharassment policy, instead of alleged threats of violence, the offending employees are
not similarly situated to Johnson in all relevant respects.
The court turns next to the final purported comparator – i.e. McKinley, whom
Johnson claims is similarly situated to him. Johnson contends that McKinley engaged
in the same exact conduct as him when she purportedly cursed him and threatened to
get him discharged. The court disagrees because cursing at and threatening to get a
co-worker discharged are different from threatening to kill a co-worker, which is the
allegation against Johnson. Moreover, even if Johnson is correct that the quality and
severity of McKinley’s conduct matched his conduct, the court cannot disregard the
reports of the witnesses, all of whom described Johnson as the aggressor. The
witnesses’ reports were sufficient for Reed Contracting to reasonably conclude that
McKinley did not engage in any conduct that warranted discipline. Finally, unlike
Johnson who allegedly threatened two co-workers, McKinley, at best, only committed
the one infraction Johnson cites. This second infraction by Johnson means that
Johnson is not similarly situated to McKinley, and that he cannot rely on her to prove
a prima facie case.
However, because “establishing the elements of 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 an employment discrimination case,” and “the
plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s
case,” see Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011), the
court will assume that Johnson can make a prima facie case.3 However, summary
judgment is still warranted because Johnson failed to rebut Reed Contracting’s
legitimate, non-discriminatory reason for his discharge.
Reed has articulated a legitimate, non-discriminatory reason for the
Reed Contracting has met its burden of articulating a legitimate, nondiscriminatory reason for Johnson’s discharge, i.e. its contention that Johnson
violated the workplace violence policy. Although Johnson denies threatening
McKinley and Nelson, Reed Contracting can still successfully rebut the presumption
of discrimination if it can show that it “honestly believed [Johnson] committed the
violation.” Jones, 874 F.2d at 1540; see also Nix, 738 F.2d at 1186 (finding that
“[even if plaintiff] may have shown that he was fired for violating a rule that he did
Johnson alleges also that he can prove a prima facie case through evidence that he was replaced
him with a white driver. Doc. 22 at 12. Reed Contracting challenges this contention, doc. 16 at
23, and notes that, between February 4, 2014 and May 15, 2015, it hired 47 drivers, seven of
whom were African American. On the day it discharged Johnson, it hired an African American.
Thereafter, it did not hire the next driver until fifteen days later. Doc. 19-3 at 15. Based on the
record before the court, Johnson failed to establish that his specific replacement was someone
outside his protected class.
not violate, . . . Title VII does not take away an employer’s right to interpret its rules
as it chooses, and to make determinations as it sees fit under those rules.”). As to the
conduct involving McKinley, the evidence supports Reed Contracting’s good faith
belief. Specifically, all the identified witnesses relayed the same story, i.e. that
Johnson threatened McKinley. To make matters worse, for reasons that are not clear
to the court, Johnson waited until after his discharge to disclose that one person,
Baker, could support Johnson’s version of the incident.4 Put simply, when Reed
Contracting decided to discharge Johnson, all the identified witnesses had described
Johnson as the aggressor and painted an unequivocal account that supported
McKinley’s contention that Johnson threatened her. Also, one of these witnesses
added that Johnson also threatened him that day regarding that witness’s involvement
in the investigation. As such, Johnson’s contention that McKinley and the witnesses
lied is irrelevant. As the Eleventh Circuit aptly put it, even if the complainants “were
lying through their teeth[,] [t]he [relevant] inquiry . . . is limited to whether [the
employer] believed that [the employee] was guilty of harassment, and if so, whether
this belief was the reason behind [the employee’s] discharge.” Elrod v. Sears,
Roebuck & Co.,939 F.2d 1466, 1470 (11th Cir. 1991). Stated differently, as long as
Reed Contracting believed, in good faith, that the complaints were true, their accuracy
is irrelevant. See Gerwens, 874 F.2d at 1540 (“The law is clear that even if a Title
The court questions whether Baker’s report would have altered the decision to discharge
Johnson given that Baker could only report about what he heard while he was on the phone with
Johnson. Because this conversation occurred while Johnson was outside in the yard, Baker was
in no position to contradict the reports about what transpired inside the operations building.
VII claimant did not in fact commit the violation with which he is charged, an
employer successfully rebuts any prima facie case of disparate treatment by showing
that it honestly believed the employee committed the violation.”).
Significantly, Johnson acknowledges that he never provided Rice with any
reason to discredit the reports against him, except to state his own personal view
about their alleged inaccuracy. See generally doc. 17-1. While it is possible that
McKinley fabricated her account of the incident, the witnesses’ corroboration of her
account undermines Johnson’s contentions. As Rice told Johnson in the meeting
Johnson surreptitiously recorded, the reports “don’t sound good. Everybody’s saying
threatening. . . . It’s like four or five [witnesses] right now saying it was threatening
sounding to them, and one of them [Woods] is a supervisor so . . .” Doc. 20-7 at
11–12. In short, the multiple reports against Johnson supports Reed Contracting’s
contention that it had a reasonable basis to credit the complaints against Johnson and
that it acted in good faith when it discharged him.
Johnson has not alleged sufficient facts to establish pretext.
Since Reed Contracting has offered a legitimate reason for its decision to
discharge Johnson, the presumption of discrimination “drops from the case” and the
burden shifts back to Johnson to “create a genuine issue of material fact as to whether
[the] proffered reasons for firing [Johnson] are pretext masking discrimination.”
Alvarez, 610 F.3d at 1265. In that regard, Johnson raises several contentions of
pretext, which the court address separately below.
Alleged deviation from progressive discipline policy
Johnson contends that Reed Contracting deviated from the Progressive
Discipline Policy when it failed to obtain approval from its vice president or president
to immediately advance to the termination stage. Johnson’s interpretation of the
policy ignores its general framework. Specifically, after initially outlining the
progressive steps the company generally follows, the policy then states that for some
offenses, Reed Contracting will proceed immediately to termination. See doc. 19-3
at 3. It is only after pointing out that immediate termination is an option that the
policy then states that Reed Contracting can only deviate from the policy with the
approval of its vice president or president. Id. Contrary to Johnson’s contention, there
was no deviation from the policy or a need to obtain approval because the policy, in
fact, calls for termination when, as here, an employee engages “in certain situations
. . . that could be interpreted as an immediate threat to the company or its employees.”
Id. In short, the plain language of the policy belies Johnson’s contention that Reed
needed to obtain the approval of its president or vice president to discharge him.
Alleged failure to account for Johnson’s non-existent disciplinary
Johnson argues also that his discharge is pretextual because he was a good
employee and that Reed Contracting should have only issued him a warning. These
contentions are unavailing because courts are instructed to refrain from second
guessing business decisions. See Alvarez, 610 F.3d at 1265 (citing Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)). In fact, “Title VII does not take away
an employer’s right to interpret its rules as it chooses, and to make determinations as
it sees fit under those rules.” Nix, 738 F.2d at 1187. Where, as here, “the proffered
reason is one that might motivate a reasonable employer, an employee must meet that
reason head on and rebut it, and [he] cannot succeed by simply quarreling with the
wisdom of that reason.” Alvarez, 610 F.3d at 1265–66. Moreover, that Johnson had
no prior performance infractions is irrelevant because Reed Contracting did not
discharge him for purportedly accumulating too many performance infractions. It
discharged Johnson instead for threatening his co-workers, including telling one in
front of a supervisor that he intended to kill her. No court has the right to tell an
employer that it cannot discharge an employee making such an alleged threat simply
because the employee has a good performance record.
Alleged failure to review all evidence
Johnson contends next that his discharge is pretextual because Reed
Contracting failed to preserve the closed circuit video of his encounter with
McKinley. Apparently, Johnson believes that the video would have supported his
contentions that McKinley instigated the encounter and/or was the aggressor. There
are several flaws with this contention. As an initial matter, Reed Contracting contends
that it does not “review the surveillance tapes unless there has been a theft or a
situation in which [it is] trying to identify somebody,” doc. 20-2 at 4, and that it had
no need to review the tapes here because it knew the identity of the accused.
Moreover, the surveillance cameras only record video, and it is doubtful that a
recording with no audio would have revealed that McKinley threatened Johnson. See
doc. 20-2 at 4 (“We did not review the surveillance video after incident . . . because
there was no audio, and Shawn [Rice] interviewed all the witnesses.”). More
importantly, a review of the security footage was unnecessary because all the
witnesses confirmed McKinley’s report that Johnson threatened her. Therefore, that
McKinley may have purportedly instigated the encounter does not overcome that the
witnesses reported (1) that as “[McKinley] walked by, [Johnson] started screaming
at her [that she was] a fucking bitch [and that] he was going to kill her,”doc. 20-6 at
1; see also doc. 20-5 at 1 (Nelson stating that he heard “something that sounded like
a male voice yelling and cursing in a very loud voice”), (2) that Johnson followed
McKinley inside and Nelson, in turn, followed Johnson “because [he] was concerned
that Mr. Johnson might physically assault Angel [McKinley] or Tammy Woods [the
dispatcher],” doc. 20-5 at 1–2, and (3) that Johnson, in front of Woods, a supervisor,
“was shaking with anger and continued yelling and screaming at Ms. McKinley . . .
[stating] such things as Ms. McKinley ‘didn’t know who she was messing with,’ and
‘I will get you back bitch.’ . . . ‘I will kill you,’” doc. 20-3 at 2.
Ultimately, Johnson’s references to the failure to review the video is an attack
on the investigation. Indeed, in addition to the video, Johnson contends also that Reed
Contracting conducted a flawed investigation because it failed to interview all
possible witnesses, and that the decisionmaker relied on his subordinate’s
investigation instead of conducting his own investigation. An investigation does not
have to be perfect, and just because the accused proclaims his innocense does not
obligate the employer to expand or extend the investigation indefinitely in hopes of
finding at least one person who can support the accused. See, e.g., Sanches v.
Carrollton-Farmers Branch Ind. School Dist., 647 F.3d 156, 170 (5th Cir.
2011)(“Title IX does not require flawless investigations or perfect solutions.”);
Graham v. Best Buy Stores, 298 F. App’x 487, 496 (6th Cir. Oct. 22, 2008)(“To
prevail on its motion for summary judgment, Best Buy does not have to prove that
Graham actually committed the alleged theft or show that its investigation was
perfect; it need only show that it decided to report Graham to the police based on an
honestly held belief in a nondiscriminatory reason supported by particularized facts
after a reasonably thorough investigation.”)(citation and quotations omitted); Knabe
v. Boury, 114 F.3d 407, 412 (3d Cir. 1997)(stating in a case where the plaintiff
challenged the adequacy of an employer’s investigation into her complaints of sexual
harassment that “the law does not require that investigations into sexual harassment
complaints be perfect.”). Likewise, there is no requirement that the decisionmaker
conduct her own independent investigation, and any contention otherwise ignores the
realities of the hierarchal and departmentalized modern day workplace. Rather, an
investigation only needs to be free of discriminatory bias and involve all relevant
witnesses. In this case, Rice met with Johnson, Johnson’s accuser, and the three
identified witnesses. All three witnesses corroborated McKinley’s report and
conveyed that Johnson threatened McKinley. Moreover, the witnesses’ reports match
the information Rice transmitted to the decisionmaker, and, as a result, Wilkinson had
all the relevant information he needed to act. While Johnson has every right to
disagree with the witnesses or the investigation, that disagreement does not establish
Alleged shifting rationale for discharge
Johnson also seems to claim that Reed Contracting added a second reason (the
threat against Nelson) for the discharge after-the-fact and/or challenges the decision
to rely on Nelson’s complaint because Johnson never received an opportunity to
respond. These contentions are unavailing because, as an initial matter, Rice could
not have raised an allegation he did not know about when he met with Johnson.
Moreover, the record supports Reed Contracting’s position that it knew about this
second threat before it discharged Johnson. Indeed, Rice included the threat against
Nelson in the investigation summary he drafted for Wilkinson. Rice’s failure to
mention this allegation to Johnson as one of the reasons for Johnson’s discharge does
not establish pretext or that the threat did not factor in the discharge. See Tidwell v.
Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998) (“[E]xistence of a possible
additional non-discriminatory basis for an employee’s termination does not
necessarily prove pretext. If an employer offers different reasons for an employee’s
discharge, that does not necessarily mean the original proffered reason was pretext.”).
While it may be unfair for an employer to rely on an incident it did not disclose to the
employee, “Title VII [and Section 1981] address discrimination. Title VII [and
Section 1981] . . . [are] not a shield against harsh treatment at the work place.” Nix,
738 F.2d at 1187 (emphasis in original) (internal quotation and citation omitted). In
fact, an “employer may fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason.” Id. at 1184. In other words, while perhaps harsh and unfair,
there is nothing discriminatory about Reed Contracting’s failure to disclose to
Johnson Nelson’s complaint or that it relied on it in its decision to discharge Johnson.
Alleged imputation of bias
Finally, Johnson argues that Rice orchestrated his discharge because “Rice
mistook assertiveness for aggression . . . [and] was more concerned with making sure
[Johnson] knew his place than with finding out what [Johnson’s] side of the story
was.” Doc. 22 at 23–24. This purported racial bias by Rice allegedly infected
Wilkinson’s decision to discharge Johnson. In this Circuit, “a ‘cat’s paw’ theory of
recovery may apply when a biased actor recommends that an adverse employment
action be taken against an employee, [even though] the biased actor is not the ultimate
decision-maker.” Williamson v. Adventist Health Sys./Sunbelt. Inc., 372 F. App’x
936, 938 (11th Cir. 2010) (citing Stimpson v. City of Tuscaloosa, 186 F.3d 1328,
1332 (11th Cir.1999)). Johnson’s attempt to blame Rice for his discharge is
unfounded speculation that has no factual support. See Cordoba v. Dillard’s, Inc.,
419 F.3d 1169, 1181 (11th Cir. 2005)(“Speculation does not create a genuine issue
of fact; instead, it creates a false issue, the demolition of which is a primary goal of
summary judgment.”) (citation omitted). As Rice testified, and as his report to
Wilkinson shows, he did not recommend that Wilkinson discharge Johnson; he
simply presented his investigation findings. Moreover, there is no credible evidence
to support that Rice had a discriminatory bias against Johnson, except for Johnson’s
reliance on Rice’s statement that Johnson not tell Rice how to do Rice’s job. Rather
than establishing racial bias, this statement may well just be proof that Rice has a
control disorder, is insecure about his job duties, or was simply frustrated with
dealing with a difficult employee. To read discriminatory animus into this comment
would require the court to make impermissible and unsubstantiated assumptions,
which the court declines to do. See, e.g., Standard v. A.B.E.L. Servs., 161 F.3d at
1330 (“Direct evidence is evidence that establishes the existence of discriminatory
intent . . . without any inference or presumption.”). In short, because there is no
proven bias by Rice or evidence that Rice made a recommendation that Wilkinson
discharge Johnson, the cat’s paw theory does not carry the day.
This court’s “purpose is not to determine whether the employer’s decision was
prudent or fair, but is to determine whether an unlawful discriminatory animus
motivated the employment decision. Stated differently, pretext is not present unless
it is shown both that the reason was false, and that discrimination was the real
reason.” Johnson v. Switch Data Mgmt. Co., 199 F. App’x 834, 835 (11th Cir. 2006)
(internal citations and quotation marks omitted); see also Alvarez, 610 F.3d at 1267
(plaintiff must “show not just that [defendant’s] reasons for firing her were illfounded but that unlawful discrimination was the true reason.” ). Based on the record
before this court, Johnson has not carried his burden of establishing that the
articulated reason is false or that discrimination was the real reason for his discharge.
Accordingly, his claims fail, and Reed Contracting’s motion for summary
judgment, doc. 15, is due to be granted. A separate order consistent with this
opinion will be
DONE the 28th day of September, 2016.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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