Ray v. Lee Brass Foundry LLC
MEMORANDUM OPINION AND ORDER DISMISSING CASE that plaintiff's motion to strike is DENIED; defendant's motion for summary judgment is GRANTED; it is ORDERED that all plaintiff's claims are DISMISSED with prejudice and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/21/2017. (AHI)
2017 Jun-21 PM 01:32
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
LEE BRASS FOUNDRY, LLC,
Civil Action No. 5:15-cv-0528-CLS
MEMORANDUM OPINION AND ORDER
Plaintiff, Shiama Ray, asserts claims against her employer, Lee Brass Foundry,
LLC, for race discrimination, race-based harassment, and retaliation pursuant to 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (“Title VII”).1 The case currently is before the court on defendant’s
motion for summary judgment,2 and plaintiff’s motion to strike portions of the
declaration of Jerome Truss.3 Upon consideration of the motions, briefs, and
evidentiary submissions, the court concludes that plaintiff’s motion to strike should
be denied, and defendant’s motion for summary judgment should be granted.
Count One of plaintiff’s complaint is entitled “Statement of Plaintiff’s Title VII and 42
U.S.C. § 1981 Racial Discrimination Claims.” It encompasses claims for both race discrimination
and race-based harassment. See doc. no. 1 (Complaint), at 6-8. Count Two is entitled “Statement
of Plaintiff’s Title VII and 42 U.S.C. § 1981 Retaliation Claims.” See id. at 8-10.
Doc. no. 42.
Doc. no. 58.
I. STANDARD OF REVIEW
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 nonmoving 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.
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
Plaintiff asks the court to strike portions of the declaration of Jerome Truss,
defendant’s Human Resources Manager, which was submitted in support of
defendant’s motion for summary judgment.4 Plaintiff asserts that the declaration is
a “sham” because it contradicts Truss’s prior deposition testimony. The Eleventh
Circuit has said that a district court
may determine that an affidavit is a sham when it contradicts previous
deposition testimony and the party submitting the affidavit does not give
any valid explanation for the contradiction. See Van T. Junkins &
Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656 (11th Cir. 1984).
However, “[t]his rule is applied sparingly because of the harsh effect it
may have on a party’s case.” Allen v. Bd. of Pub. Educ. for Bibb
County, 495 F.3d 1306, 1316 (11th Cir. 2007). As such, courts must
“find some inherent inconsistency between an affidavit and a deposition
before disregarding the affidavit.” Id.
See doc. no. 58 (Motion to Strike); doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 2 (“I
am the Human Resources Manager at Lee Brass Foundry, LLC (‘Lee Brass’) and have served in that
role since September of 2004.”).
Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (alteration in
Jerome Truss was deposed twice. During his first deposition, which occurred
on March 31, 2016, he testified that he could not recall the details of any of plaintiff’s
complaints of discrimination, harassment, and retaliation, or of his investigations into
those complaints, because he had been unable to locate the file containing his notes.5
Between that deposition and his second on June 10, 2016, however, Truss found the
missing file. Even so, plaintiff’s attorney only asked him questions about complaints
filed by other employees, and not plaintiff’s complaints.6 Accordingly, Truss
provided no testimony during his second deposition about his investigation of
The declaration challenged by plaintiff was executed on August 30, 2016.7 In
the challenged paragraphs (numbers 15 through 31), Truss states that plaintiff did not
complain to him or any other Human Resources employee about racial harassment,
but she did complain about other workplace issues unrelated to race.8 Truss also
provides details about his investigation of plaintiff’s complaints, and the reasoning
Doc. no. 56-1 (First Deposition of Jerome Truss), at 82-93.
See doc. no. 56-2 (Second Deposition of Jerome Truss), at 6-8.
See doc. no. 42-3 (Declaration of Jerome Truss).
Id. at ¶¶ 15-16.
behind the subsequent decision to place plaintiff on suspension.9
Plaintiff asserts that Truss’s declaration testimony should not be allowed
because it “contradict[s] Truss’s deposition testimony that he was unable to remember
the events surrounding Ray’s complaints, his investigation, and her EEOC charge of
discrimination.”10 Plaintiff relies upon the Eleventh Circuit’s unpublished opinion
in Bryant v. United States Steel Corporation, 428 F. App’x 895 (11th Cir. 2011).
There, the district court dismissed the plaintiff’s statutory discrimination claims as
untimely because she had filed suit more than ninety days after the EEOC had mailed
her right-to-sue letter. Id. at 896.
In doing so, the court struck, as a “sham,” an affidavit Bryant filed in
response to U.S. Steel’s motion for summary judgment, which averred
that she did not receive the EEOC’s letter until December 5, 2008 [i.e.,
a date that fell within 90 days of the date on which she filed suit]. The
court did so because the affidavit squarely contradicted unequivocal
testimony Bryant gave on deposition, which was that she did not
remember when she received the letter.
Id. (alteration and emphasis supplied). The Eleventh Circuit panel held that the
district court did not abuse its discretion in striking the affidavit, saying that:
The affidavit, filed after her deposition had been taken and discovery
had closed, supplied a specific fact that Bryant denied knowledge of
when questioned on deposition. Notably, the affidavit presented no
valid reason for Bryant’s subsequent recollection that she received the
Id. at ¶¶ 19-30.
Doc. no. 58 (Motion to Strike), at ¶ 16 (alteration supplied).
letter on the specific date, December 5. For example, while Bryant was
entitled to refresh her memory, her affidavit did not state that her
recollection had been refreshed. True, her attorney argued that her
recollection had been refreshed, but counsel’s argument is not evidence.
See Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir.1980).
Bryant, F. App’x at 897 (emphasis supplied).
In contrast, this case presents ample evidence of a valid reason for Truss’s
subsequent recollection of the details of plaintiff’s complaints, his investigations, and
the discipline plaintiff received. Even though Truss did not state so in his declaration,
he testified in his second deposition that he had located an investigatory file with
notes that refreshed his recollection about those matters.11 Plaintiff’s attorney had the
opportunity to question Truss during the second deposition about his handling of
plaintiff’s complaints, but she chose not to do so. There is, therefore, nothing to
prevent Truss from providing declaration testimony about matters for which his
recollection was refreshed following his first deposition. Plaintiff’s motion to strike
is due to be denied.
Plaintiff’s Employment with Lee Brass Foundry
Lee Brass Foundry, LLC (“Lee Brass”), located in Anniston, Calhoun County,
Alabama, is a facility that manufactures metal castings, fittings, and parts based upon
See doc. no. 56-2 (Second Deposition of Jerome Truss), at 6-8.
specifications provided by its customers.12 It is not clear why this case was filed in
the Northeastern division of the Northern District of Alabama, as opposed to the
Eastern division which encompasses Calhoun County. This court also does not
understand why defendant did not file a motion to transfer, because the following
footnote to defendant’s answer records that counsel clearly were aware of the
impropriety of venue in this division:
Lee Brass denies that venue is appropriate in the Northeastern
Division of the Northern District of Alabama. Lee Brass maintains and
operates a plant in Calhoun County, Alabama, which is located in this
Court’s Eastern Division. The alleged events giving rise to Plaintiff’s
claims are limited to her employment in that Division. Therefore, this
action should be transferred to the Eastern Division.
Doc. no. 7 (Answer), at 1 n.1 (emphasis supplied). As counsel apparently failed to
appreciate, however, a footnote reference is not a substitute for a formal motion to
In any event, plaintiff, Shiama Ray, who is African-American, began working
for Lee Brass as a “Machine Shop Operator A” on May 11, 2011. She later moved
up to a “Machine Operator C” position by using Lee Brass’s internal bidding process.
During the fall of 2012, she became a “Quality Control Inspector.”13
It was plaintiff’s responsibility as a Quality Control Inspector to ensure that
Doc. no. 42-1 (Declaration of David Smith), at ¶ 3. See http://leebrass.com.
Doc. no. 42-2 (Deposition of Shiama Ray), at 14-16, 22-23.
products were produced to the customer’s specifications.14 Plaintiff functioned as a
“floater” in the Quality Control Department. She received training in every division
of that department, and could fill in for any Quality Control employee when needed.
Even so, she worked primarily in the Machine Shop and Cleaning Room.15 The
nature of the tasks plaintiff was required to perform generally did not vary from day
to day, but the volume of her work did vary according to the number of parts being
produced on any given day, which in turn varied according to the volume of orders
received from customers.16 Lee Brass employees used the term “hot jobs” to describe
situations in which there was a particular rush to complete a part within a short period
of time. “Hot jobs” increased the stress level in the facility because they were “a
pressure situation where it’s being rushed through to get finished so that it can meet
the customer’s request.”17
Lance Nichols, a white male, was plaintiff’s direct supervisor from the time she
started working in Quality Control until the latter part of 2015.18 Nichols’ direct
supervisor was the occupant of the “Quality Control Manager” position. Bill Boozer
Id. at 27; doc. no. 42-1 (Declaration of David Smith), at ¶ 8.
Doc. no. 42-2 (Deposition of Shiama Ray), at 20-21; doc. no. 42-1 (Declaration of David
Smith), at ¶ 9.
Doc. no. 42-2 (Deposition of Shiama Ray), at 41-42; doc. no. 42-1 (Declaration of David
Smith), at ¶¶ 9, 11.
Doc. no. 42-2 (Deposition of Shiama Ray), at 43-44.
Id. at 32.
occupied that position until April of 2013, when David Smith took over as Quality
Lee Brass’s Human Resources Department and Policies
Lee Brass is an equal opportunity employer. It has policies prohibiting
workplace discrimination and harassment based upon race, among other protected
characteristics.20 The “Workplace Harassment Policy” found in the Lee Brass
Employee Handbook contains the following instructions about the manner of
reporting complaints of harassment or discrimination:
Any associate who believes that actions or words by a manager,
supervisor, co-worker, customer or vendor constitute harassment has a
responsibility to report or complain about the situation as soon as
possible. Such a report or complaint should be made to the associate’s
supervisor, department manager, Human Resource Manager, Operations
Manager, or CFO at Lee Brass.
If the immediate supervisor is the source of the alleged
discrimination or sexual harassment, the associate should report the
problem to the department manager, Human Resources Manager,
Operations Manager, or the President/CEO.
If the plant department manager, Operations Manager, or the CFO
is the source of the alleged discrimination, the associate should report
the problem to the next higher level of management, Human Resource
Manager, or President/CEO.
Doc. no. 42-3 (Lee Brass Employee Handbook), at ECF 79 (Workplace Harassment
Id. at 32-33; doc. no. 42-1 (Declaration of David Smith), at ¶ 2.
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶¶ 4-5.
Policy, § B).21
The Lee Brass Employee Handbook also contains a “Problem Resolution
Policy” that addresses workplace issues that do not arise from unlawful
discrimination. That policy states:
The Company welcomes a free exchange of thinking between
associates and management at all levels. The Company’s policy is to
give prompt, careful and courteous consideration to all associates’
complaints and problems arising out of the work situation. We believe
this is the best method of communicating with one another and ensuring
that our policy of fair employment practices is being enforced.
The following procedures will apply to problems that arise on the
Discuss the problem with your supervisor. He/she has
been instructed to make every effort to deal with your
problems in a prompt and courteous fashion, and will be
able to solve most problems.
If you are not satisfied with the answer from your
supervisor, you may submit the matter to the department
manager. He/she will review the situation with you and
give you an immediate answer, if possible. Otherwise, you
will be told approximately when to expect an answer.
If the problem is not resolved as outlined above, the matter
“ECF” is an acronym formed from the initial letters of the name of a filing system that
allows parties to file and serve documents electronically (i.e., “Electronic Case Filing”). Bluebook
Rule B7.1.4 allows citation to page numbers generated by the ECF header. The Bluebook: A
Uniform System of Citation, at 21 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). Even
so, the Bluebook recommends against citation to ECF pagination in lieu of original pagination.
Consequently, unless stated otherwise, this court will cite to 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(s) with the letters “ECF.”
will be submitted to the Human Resources Manager. The
Human Resources Manager will review the situation with
you and give you an immediate answer, if possible, or you
will be informed approximately when to expect an answer.
If the situation is not resolved to your satisfaction as
outlined above, a meeting will be arranged with the
The Company believes in its associates and the need to maintain
open lines of communication. We sincerely hope that you will utilize
the above procedure if you have a problem.
Id. at ECF 66 (Problem Resolution Policy).
The company’s disciplinary policy is stated as follows in the Employee
The purpose of this policy is not primarily to punish, but to
correctively encourage behavior modification to discourage repetition
of misbehavior by the offender or by another following their example.
Record of disciplinary action will become part of a[n] associate’s
Before administering discipline, the manager should be sure they
have all the facts. The associate’s past record should be examined in the
Human Resources office to determine if the associate has had any
previous violations. Associates should be given ample opportunity to
present their side before any final decision is made as to the discipline
to be administered. The review and decision to issue disciplinary action
is to be done in a timely manner.
A verbal counseling should represent a direct attempt of
the manager and associate to deal with a breach of rules at
an early stage. It should clarify, in specific terms, what
behavior needs attention and define a method and a
reasonable time for correction.
Written warnings represent a more formalized means of
correcting behavior and become part of an associate’s work
record. Should associates have any additional factors or
knowledge of extenuation [sic] circumstances relating to
the incident they should be discussed at this time. The
supervisor or department manager will then consider this
information when deciding what discipline to administer.
In order to maintain consistency, Human Resources must
be involved in the preparation of any written warnings.
Human Resources will insure [sic] that documentation of
the event leading to any action is made a part of the
offending associate’s record.
All disciplinary actions will be cumulative for a rolling period of
6 (six) months. Group violations are cumulative.
The usual disciplinary steps will be:
Final Written Warning
Subject to Discharge
Depending upon the violation, the procedure may be at any of the
above steps and other required condition/actions may have to be met.
Id. at ECF 64-65 (Plant Rules & Disciplinary Procedures Policy) (alteration supplied).
Jerome Truss, Lee Brass’s Human Resources Manager, testified that the
company may also issue a suspension before resorting to termination.22
Lee Brass also has a policy of giving preference to current employees for open
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶¶ 3, 7.
positions. The company posts job openings by placing written notices of the opening
in the employee break room, near the employee time clock, and in the Human
Resources Office. Some job openings are also verbally announced by department
supervisors during weekly departmental meetings. Employees who are interested in
a posted position sign their name to a bid sheet posted in the Human Resources
Office.23 Jerome Truss attested that:
There are no factors about an employee’s employment that would
preclude him or her from signing their name to the posting or bidding on
an open job. However, disciplinary and other issues could be weighed
when considering whether an employee should be awarded a job he or
she has bid on.
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 11. Plaintiff, on the other hand,
testified that she was told from the beginning of her employment with Lee Brass that
if an employee was in disciplinary trouble, she could not write her name on a bid
sheet for an open job. She was not asked, and did not specify whether she was told
that by a member of management, or by other employees, and she did not know
whether her belief was founded upon a “formal policy of Lee Brass.”24
Plaintiff acknowledged receiving a copy of the Employee Handbook when she
Doc. no. 42-3, at ECF 25-27 (Lee Brass Employee Handbook Job Postings and Filling
Vacancies Policy); doc. no. 42-3 (Declaration of Jerome Truss), at ¶¶ 8-11; doc. no. 42-2 (Deposition
of Shiama Ray), at 16-18.
Doc. no. 42-2 (Deposition of Shiama Ray), at 165-67.
began working at Lee Brass.25 Lance Nichols, plaintiff’s direct supervisor, testified
that he had never been trained on the Employee Handbook, including any of Lee
Brass’s anti-harassment or anti-discrimination policies.26 David Smith, the Quality
Control Manager (and, therefore, Nichols’s direct supervisor), testified that he was
not aware of any Lee Brass employees receiving formal training about discrimination,
harassment, or retaliation.27 Robert Smith, the Company President, testified that,
other than discussions with Human Resources Manager Jerome Truss, he never
personally investigated any allegations of harassment or talked to any employees
about racial issues at the plant.28
Plaintiff’s Allegations of Harassment and Racial Incidents at Work
Jackie Hogan’s comment
Soon after plaintiff transitioned into the “Quality Control Inspector” position,
Lance Nichols (plaintiff’s direct supervisor) told her that Jackie Hogan, a white
female co-worker, had said of plaintiff, “that black girl knows everything.”29 There
is no evidence that Hogan ever made such a comment directly to plaintiff, or that
Doc. no. 42-2 (Deposition of Shiama Ray), at 193-94; see also id. at ECF 74 (Exhibit 5,
Handbook Receipt Acknowledgment).
Doc. no. 42-5 (First Deposition of Lance Nichols), at 36-37.
Doc. no. 42-4 (Deposition of David Smith), at 92.
Doc. no. 56-5 (Deposition of Robert Smith), at 114.
Doc. no. 42-2 (Deposition of Shiama Ray), at 124.
plaintiff heard the comment.
Refusal to train
When plaintiff became a Quality Control Inspector during the fall of 2012,
Lance Nichols told her that she would be training as a backup for the position of
Quality Control Specialist.30 The Quality Control Specialist is located in the front
office of the Lee Brass facility, and works directly with the sales department to make
sure that all the required paperwork is sent with each outgoing order.31 Plaintiff did
not receive training for that position, and when she asked Nichols why, he informed
her that Diane Sparks, a white female who then occupied the Quality Control
Specialist position, refused to train plaintiff.32 Plaintiff does not know why Sparks
refused to train her, but Nichols informed her that Sparks had also refused to train
another black female employee in the past.33
David Smith, the current Manager over the Quality Control Department,
testified that the backup for the Quality Control Specialist usually comes from the
Engineering Department, rather than the Quality Control Department, because the
position requires some specialized engineering knowledge.34 Plaintiff’s supervisor
Id. at 64-65.
Id. at 45.
Id. at 65-66.
Id. at 66-68, 170-71.
Doc. no. 42-4 (Deposition of David Smith), at 260-64.
at the time of her deposition, Naylon Williams, a white woman, was trained to fill in
for the Quality Control Specialist position, but she had engineering experience.35
Martin Luther King Day comments
The national holiday celebrated on the third Monday of January each year as
the birthday of Dr. Martin Luther King, Jr. (who actually was born on January 15,
1929) is not a holiday for Lee Brass employees. Soon after plaintiff arrived for her
shift on Martin Luther King Day in 2013, Curtis Clay, the Receiving Clerk (a nonsupervisory position) and a white male,
said in a jokingly [sic] voice, what are you doing here today. And I said
excuse me. And he said what are you doing here today, isn’t this your
guy’s [sic] holiday. And I said Curtis, that is not funny, you know. And
he laughed and Gary Stinson [another white male employee who was
standing nearby] laughed.
Doc. no. 42-2 (Deposition of Shiama Ray), at 76 (alterations supplied). Plaintiff
walked directly to the office of Bill Boozer, who then was the Quality Control
Manager, to report the comment.
On the way to Boozer’s office, plaintiff
encountered Lance Nichols, her direct supervisor, and she also reported the incident
to Nichols. When Boozer learned what had happened, he immediately went to talk
to Curtis Clay’s supervisor, but plaintiff does not know what occurred after that.36
Id.; see also doc. no. 42-2 (Deposition of Shiama Ray), at 170-71.
Doc. no. 42-2 (Deposition of Shiama Ray), at 76-78.
Plaintiff did not make an additional report of the incident to the Human Resources
Department, and there is no evidence that she subsequently heard similar comments
Approximately two days later, Jackie Hogan approached plaintiff and asked
why she had “told on” Curtis Clay.38 Hogan told plaintiff, “you know he was just
playing with you,” and plaintiff responded, “well, I don’t play like that and I didn’t
think it was funny.”39 After that, Hogan “started yapping” and plaintiff “just walked
away from her because [she] didn’t want to go into it any further.”40
Jason Alexander’s use of racial slurs and offensive posters
Sometime during the early part of 2013, a white employee named Jason
Alexander said “those n’s are always tearing something up.”41 He did not direct the
comment at any particular employee; he just “said it out open in the open” so that
other employees could hear.42 Alexander also hung politically opinionated posters
on the wall of his work space, including a photo of President Obama dressed in native
Id. at 79-80.
Id. at 189.
Id. (alteration supplied).
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 169-70; see also doc. no. 56-1 (First
Deposition of Jerome Truss), at 127.
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 170; see also doc. no. 56-1 (First
Deposition of Jerome Truss), at 128.
African dress, and another photo of the President delivering a speech with the
caption, “Four more years of hell: Obama wins re-election,” and a cross-hair drawn
on the President’s forehead.43 Lee Brass issued Alexander a written warning on
February 25, 2013, stating:
This letter is being issued to you due to a couple of different
incidents that we need to resolve and have a general understanding. We
expect our associates to treat each other with respect and our behaviors
must be contained in certain guidelines.
The first incidents happen [sic] a few months ago, when all
associates were informed during one of our Safety Meetings that any
materials on walls, lockers, or work areas that could be offensive to
others must come down. You area had several posting [sic] of materials
that were not appropriate and had to be taken down by a manager. This
type of behavior is not appropriate and will not be tolerated in te
The second incident happen [sic] a couple of weeks ago, when
Foundry III brought a pattern down to be worked on. It was brought to
our attention that you used the “N” word in making a comment
(paraphrasing — those “N” are always tearing something up). These
types of comments will not be tolerated.
This letter will be going in your personnel file and if this type of
behavior continues, then more severe disciplinary actions will be taken.
Doc. no. 56-19, at ECF 2 (February 25, 2013 letter).
There is no evidence that
plaintiff personally heard Jason Alexander make any racially offensive comments, or
that she saw the posters hanging in his work area.
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 173-76; see also doc. no. 56-19,
at ECF 4 and 5 (photos).
Employees using the term “boy” in a racially charged way
At some unspecified time during the five-year period preceding Jerome Truss’s
March 31, 2016 deposition, white employee Vincent Gunter called his black coworker, Marquis Mason, “boy.” Gunter and Mason had a history of conflict, but
Truss believed that Gunter was the more aggressive of the pair, so he concluded that
a suspension was appropriate. Gunter received a letter in his file, was suspended for
three days, and was told that if he ever said anything similar again, his employment
would be terminated.44
At another unspecified time during the five-year period preceding Jerome
Truss’s March 31, 2016 deposition, Ray Wood, a white supervisor in the foundry,
called another black employee “boy.” Wood was suspended for three days but was
allowed to retain his position as a supervisor.45
There is no evidence that plaintiff personally heard anyone call a fellow
African-American employee “boy.”
Tony Poland’s comments to John Foster
Tony Poland, a white employee, was accused at some unspecified time of
Doc. no. 56-1 (First Deposition of Jerome Truss), at 156-60. The record does not indicate
whether Gunter’s suspension was with or without pay.
Id. at 164-66. The record does not indicate whether Mr. Wood’s suspension was with or
saying that John Foster, a black employee, had obtained “a white man’s job.”46
Foster denied the accusation, and Poland was never disciplined for the incident.47
There is no evidence that plaintiff personally heard Poland’s comment.
Harassment by Jackie Hogan, Teresa Turner, and Donald Wade
Plaintiff “didn’t have any issues” with co-workers Jackie Hogan, Teresa
Turner, and Donald Wade — all of whom are white — before she complained about
Curtis Clay’s Martin Luther King Day comment.48 After that, however, and for
approximately a month and a half beginning in March or April of 2013, plaintiff’s
work station was moved to the back of the machine shop for the purpose of checking
a large volume of parts produced by the testing department. Nichols prevented
plaintiff from performing tasks that she previously had performed, like audits. He
also removed the computer from plaintiff’s work space and directed her focus on
visually inspecting parts.49 Hogan, Turner, and Wade, who worked in the testing
department, began rushing plaintiff to finish her work on “hot jobs” coming through
the Quality Control Department.50 Notably, none of those individuals ever made any
Id. at 230.
Id. at 231.
Doc. no. 42-2 (Deposition of Shiama Ray), at 190.
Id. at 172-75.
Id. at 89-92.
race-based comments to plaintiff.51 Even so, she complained to her supervisor Lance
Nichols and Quality Control Manager David Smith that Hogan, Turner, and Wade
had been “harassing” her. She did not characterize the “harassment” as race-based,
but stated that it did not begin until after she had complained about Curtis Clay’s
Martin Luther King Day comment.52
Other alleged harassment by Jackie Hogan
On a couple of occasions during April or May of 2013, Jackie Hogan asked
plaintiff whether she would “go on” food stamps if plaintiff ceased working at Lee
Brass. Other employees were within earshot when Hogan asked those questions, but
Hogan directed the question specifically to plaintiff. Plaintiff interpreted the
comment as suggesting that all black people are on food stamps.53
On another unspecified occasion after February 26, 2012, Hogan, Turner, and
Wade were discussing the tragic shooting of Trayvon Martin, a seventeen-year-old
African-American male who was fatally shot in Sanford, Florida, by George
Zimmerman, a white “neighborhood watch” volunteer. When asked her opinion
about the shooting, plaintiff said that she did not believe anyone deserved to be shot,
and then attempted to divert the conversation to another subject. Nevertheless, Hogan
Id. at 88, 97-98, 102-05.
Id. at 120-21.
stated that Martin deserved to be shot because he had “jumped on” Zimmerman.54
Plaintiff believed the comment was racially motivated, because she was the only
African-American person in the area when the comment was made.55 After the
statement, plaintiff attempted to avoid Jackie Hogan. As a consequence, she did not
know whether Hogan made any other race-based comments.56
During November of 2015, Curtis Clay heard Jackie Hogan say that, when she
recently traveled to Disney World, she had trouble getting around because there were
so many “niggers” in the hotel.57 There is no evidence that plaintiff personally heard
During January of 2014, Michael Judkins, a black employee, accused Hogan
of saying that she might have to work with “niggers,” but she did not have to eat with
them. When Truss investigated that accusation, Hogan denied making the comment,
and there is no indication that she was disciplined.58 There also is no evidence that
plaintiff heard Hogan make the comment.
During April of 2013, Jackie Hogan, Teresa Turner, and Donald Wade
Doc. no. 42-2 (Deposition of Shiama Ray), at 119, 122-23.
Id. at 123.
Id. at 187-88.
Doc. no. 56-3 (Deposition of Curtis Clay), at 97-98.
Doc. no. 56-1 (First Deposition of Jerome Truss), at 116-17.
complained to supervisor Lance Nichols about plaintiff being allowed to sit on a stool
during part of the work day. Nichols asked plaintiff to remove the stool from her
work area. Plaintiff initially complied, but then asked Quality Control Manager
David Smith if she could sit on the stool to check small parts in order to avoid
bending over. Smith agreed, so plaintiff retrieved the stool and returned it to her
work area.59 Approximately three days later, however, plaintiff found the stool
missing when she reported to her work area. She did not search for another stool.60
David Smith testified that Lance Nichols should have asked him, or a member
of the Human Resources team, before summarily telling plaintiff that she could no
longer use the stool.61
Notably, no other Quality Control Inspector was permitted to sit on a stool for
work, but employees in other departments were permitted to do so. The decision of
whether to allow an employee to use a stool depended upon the type of job
performed, and the ergonomics of the employee’s work area.62
Plaintiff calls the police and is later suspended
Lance Nichols testified that plaintiff complained to him “every other day”
Doc. no. 42-2 (Deposition of Shiama Ray), at 98-101.
Id. at 176-77.
Doc. no. 42-4 (Deposition of David Smith), at 38-39.
Id. at 40; doc. no. 42-2 (Deposition of Shiama Ray), at 178-80.
about being asked to check parts, and about other employees “picking on her.”63 One
of those complaints occurred on Wednesday, May 30, 2013, when plaintiff
complained to Nichols that Hogan, Turner, and Wade had become more and more
aggressive in rushing her to complete “hot jobs” during the previous week, and that
she was “getting tired.”64 Nichols told plaintiff that he would “handle” the situation,
but plaintiff did not perceive any change in her work environment.65 Plaintiff also
complained to David Smith and Jerome Truss about being rushed.66 At some
unspecified point after plaintiff lodged a complaint with Truss, he told her that she
was being “too vocal.”67
Despite plaintiff’s complaints, her co-workers continued to rush her to finish
“hot jobs.” Plaintiff described the tone of their voices as “aggressive,” but they did
not raise their voices, curse, get in plaintiff’s face, utter race-based comments, or
make physical threats.68 Because the work environment did not change, plaintiff
called the police from her cell phone in a bathroom approximately thirty steps from
her work station.69 She explained her decision to place the call as follows:
Doc. no. 42-2 (Deposition of Shiama Ray), at 72-73.
Id. at 133-34.
Id. at 134.
Doc. no. 42-4 (Deposition of David Smith), at 205-08.
Doc. no. 42-2 (Deposition of Shiama Ray), at 221.
Id. at 130-32.
Id. at 134-37.
I felt like the harassment had gone on too long and nothing was
being done about it and I was afraid of what was going to happen.
If they were getting — I felt like they were getting aggressive. I
didn’t know if — I didn’t know what was going to happen. I felt the
need to have it end that day, you know, something got to be done. And
like I said, I had been complaining about it and nothing had been done
about it. So I felt the need to call the police.
When you are growing up, you know, something going wrong,
you call the police for help, you know. And I felt like all the
opportunities or the chances I got to ask somebody to help me, I was
being denied help, so I called the police because I didn’t know what else
Doc. no. 42-2 (Deposition of Shiama Ray), at 135-36 (ellipsis supplied). When asked
why she did not report the continued harassment to Lance Nichols or David Smith,
as opposed to calling the police, plaintiff responded:
I was just tired, to be honest with you, beating a dead horse. I
didn’t think that — I don’t know why I didn’t go to David Smith. I
don’t know if he was even in the building that day. But I had been to
Lance so many times about this issue and it wasn’t being dealt with.
And I don’t know if he was relaying it to David Smith, but, you know,
David Smith was aware of what was going on and I just — I got to the
point where it’s either call the police or walk off my job and I need my
job, so I felt no — I had no other choice as far as what I was thinking.
I didn’t want it to escalate to somebody that would be me fired or
anybody else. I just wanted it to stop.
Id. at 138-39.
After she placed the telephone call to the police, plaintiff walked to Jerome
Truss’s office, crying, to inform him that the police would soon be arriving. Truss
was out to lunch, but he returned after another Human Resources employee called
him.70 Plaintiff told Truss that Hogan, Turner, and Wade had been harassing her, and
that she did not know what was going to happen. She also said that she “kept telling
Lance [Nichols] and nothing was being done.”71 Plaintiff told Truss that she wanted
to file charges of harassment with the police, but Truss asked plaintiff to let him
handle the situation internally, and plaintiff agreed. When the responding officer
arrived at the Lee Brass facility, plaintiff and Truss walked to the gate together to
inform the officer that plaintiff did not want to press charges because she had agreed
to allow Lee Brass to handle the matter internally.72
Plaintiff and Truss continued to discuss the situation after they returned to
Truss’s office, and Truss began to investigate.73 Plaintiff did not tell Truss that she
had been subjected to harassment or discrimination because of her race. She did say,
however, that the harassment did not begin until after she complained about Curtis
Clay’s Martin Luther King Day comment.74
As part of his investigation into the May 31 incident, Truss interviewed Jackie
Id. at 141-43.
Id. at 143-44 (alteration supplied).
Doc. no. 42-2 (Deposition of Shiama Ray), at 144-45.
Id. at 221; doc. no. 42-3 (Declaration of Jerome Truss), at ¶¶ 16, 19.
Hogan, Teresa Turner, Donald Wade, Lance Nichols, David Smith, and Curtis Clay.75
Hogan, Turner, and Wade informed Truss that they often told plaintiff which jobs
needed to be prioritized, but they denied harassing her because of her race.76 Nichols
informed Truss that plaintiff had complained to him “on a few occasions” that Hogan,
Turner, and Wade were rushing her, but Nichols had never observed any of those
individuals acting inappropriately toward plaintiff.77 Some of the manufacturing
managers reported to Truss that, after plaintiff called the police, the production
process was momentarily disrupted by employees stopping work to talk to each other
about the incident. Even so, production never came to a complete stop.78
Five days later, on Monday, June 4, 2013, plaintiff complained to Lee Brass’s
security guard that someone in a small white car had been harassing her. The security
guard brought the complaint to Lance Nichols’s attention, and Nichols forwarded it
to Jerome Truss in Human Resources. There is no indication in the record that
anything was done in response.79
On some unspecified later date, Jerome Truss met with Lance Nichols and
David Smith to discuss his investigation findings and determine the appropriate
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 21.
Id. at ¶ 22.
Id. at ¶ 23.
Id. at ¶ 24; see also doc. no. 42-5 (Deposition of Lance Nichols), at 95-96.
Doc. no. 42-7 (Second Deposition of Lance Nichols), at 158-60.
course of action.80 The three men agreed that plaintiff had not been harassed by
Hogan, Turner, or Wade, all of whom had simply been doing their jobs when they
directed plaintiff to give priority to certain tasks.81 They also agreed that plaintiff
should have brought her concerns to any (or all) of them before taking the extreme
measure of calling the police, and they concluded that plaintiff’s decision to call the
police was a violation of company policies, because plaintiff had not been threatened,
and she did not fear for her personal safety.82 Moreover, Smith and Truss were
concerned that, if plaintiff was not disciplined for unnecessarily calling the police,
other employees might believe that it was acceptable to call the police to resolve
minor disputes.83 As a result, Truss determined that he, Smith, and Nichols should
meet with plaintiff to explain what the investigation had revealed, that plaintiff
should be issued a written discipline, and that plaintiff should be suspended for three
During the meeting, which took place on June 17, 2013, Smith and Truss
explained to [plaintiff] that we did not find that she was being harassed
but rather asked to prioritize certain jobs, that she violated policy in
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 25.
Id. at ¶ 26.
Id. at ¶ 27.
Id. at ¶ 28.
Id. at ¶ 29. The record does not indicate whether Gunter’s suspension was with or without
calling the police rather than making a report to one of us or any
supervisor or manager, that she was away from her job for an extended
period of time without justification, and we informed her that she was
being suspended for failing to follow procedure and these other
Doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 30 (alteration supplied). Smith also
reminded plaintiff that she should always follow the chain of command when she had
a problem at work, and if she did not like the response she received at any level, she
should take her complaint to the next highest level.85 Plaintiff responded that she
believed she had been following the chain of command by complaining to Nichols
and Smith about her co-workers’ harassment.86
Plaintiff signed the written
disciplinary notice that was issued to her, but she did not read it before doing so
because she was too discouraged and frustrated.87 Hogan, Turner, and Wade did not
receive any disciplinary action.88
When plaintiff returned to work after her three-day suspension, her job duties
changed. She was no longer a “floater,” she no longer performed audits, and she
complained that she and John Foster, another African-American employee, were
given more work than white employees in the same work area. Even so, she
Doc. no. 42-2 (Deposition of Shiama Ray), at 149-50.
Id. at 147.
Id. at 147, 210-11.
Doc. no. 42-4 (Deposition of David Smith), at 214.
acknowledged that the white employees who received less work than she and John
Foster did not have the same job title as she and Foster did.89 Despite those negative
changes, plaintiff acknowledged that, after she returned to work, her work station no
longer was located near Hogan, Turner, or Wade, and the work environment was
“quiet” and “peaceful.”90 Moreover, since plaintiff returned to work after her
suspension, whenever she has raised a workplace issue with Smith or Truss, the issue
has been resolved to her satisfaction.91
Metals Lab Technician position
A position for Metals Lab Technician, which carried a higher rate of pay than
plaintiff’s position of Quality Control Inspector, came open in either June or
November of 2013.92 The position was posted in the usual manner, but plaintiff did
not apply for it because she had recently been given an assignment with which she
was not happy, and she had been taking more days off work than usual. As a result,
Doc. no. 42-2 (Deposition of Shiama Ray), at 115-17, 157, 161-64.
Id. at 150-51.
Id. at 152-53.
During plaintiff’s deposition, she responded to counsel’s questions about a metals lab
technician position in June of 2013. Id. at 156-57. Even so, defendant stated in its summary
judgment brief that the position came open in November of 2013. Doc. no. 43 (Brief in Support of
Defendant’s Motion for Summary Judgment), at ECF 20, ¶ 118 (“In November 2013 a Technician
position in the Metals Lab became available.”). Plaintiff admitted that proposed fact in her summary
judgment response brief. Doc. no. 57 (Plaintiff’s Response in Opposition to Defendant’s Motion
for Summary Judgment), at ECF 14 (“108-111. Admitted.”). See also doc. no. 42-5 (Deposition of
Lance Nichols), at 126.
she had incurred so many disciplinary “points” due to excessive absences that she
subjectively believed she was not eligible to even write her name on the bid sheet for
the position.93 A white-male employee named Matthew Lay applied for and received
the position.94 Plaintiff believes Lay was “hand picked” for the position, because he
was allowed to train in the metals lab in order to escape a supervisor he did not like
in his previous work area.95 Plaintiff, on the other hand, had already been trained in
the metals lab, and she could have started as a Metals Lab Technician in 2013 without
any additional training.96 Moreover, both Lance Nichols and David Smith testified
that plaintiff would have been qualified for the position.97
Plaintiff’s other complaints about Lance Nichols
At some point that cannot be clearly discerned from the record, Lance Nichols
began recording notes about plaintiff’s workplace behavior. He did not record similar
notes about any other employees.98 Nichols also testified that he attempted to talk to
plaintiff and John Foster, another African-American employee, as little as possible,
Doc. no. 42-2 (Deposition of Shiama Ray), at 165-66.
Id. at 157-58, 191-92.
Id. at 159-60.
Id. at 165-66.
Doc. no. 42-5 (Deposition of Lance Nichols), at 123, 126; doc. no. 42-4 (Deposition of
David Smith), at 178.
Doc. no. 42-7 (Second Deposition of Lance Nichols), at 157.
but he did not say that was because of their race.99
At some point after plaintiff complained about Hogan, Turner, and Wade
rushing her to complete “hot jobs,” Nichols began asking plaintiff, and only plaintiff,
to leave her ordinary job duties to inspect items that had been returned by
During December of 2013, a rope fashioned as a noose was seen hanging in the
maintenance area at Lee Brass. Many of the employees were “distraught” about it.
Plaintiff never saw the noose while it was hanging, but she did “glance at it” after
it had been taken down and was about to be thrown in the trash.101 Plaintiff testified
that, other than glancing at the noose, she “didn’t pay no attention to” it, and she
grew tired of other employees discussing it.102
John Foster reported the noose to Lance Nichols. Nichols went to the
maintenance area to investigate, but he did not see anything suspicious, and he did
not take any further action and did not report it to upper management or Human
Id. at 162.
Doc. no. 42-2 (Deposition of Shiama Ray), at 109-11.
Id. at 184-86 (alteration supplied).
Id. at 186 (“I didn’t pay no attention to that. I mean, I saw the rope tied up like a noose
and that was that. It was throwed away and I didn’t — they talked about it so much, you know, it
was kind of like — after hearing about it every day for about a week, it was like, okay, I don’t want
to hear this anymore, you know.”).
Resources.103 Indeed, Jerome Truss did not learn about the noose until after Foster
filed a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”). Truss was upset that Nichols had not informed him earlier, but he did not
discipline Nichols for that failure. In fact, no employee received any disciplinary
action for the noose incident.104
Plaintiff saw another noose hanging in the Lee Brass facility just a few weeks
before she executed her declaration on October 5, 2016.105
Nora Woods’ Facebook comment
Nora Woods, a white lead employee, posted the following comment on her
private Facebook account on August 17, 2014: “This is not my circus . . . and these
are not my monkeys.”106 Woods had been out of work for a few weeks, and her post
referenced her impending return to work. She explained to Jerome Truss that the
phrase meant, “hey, I take care of myself, and I don’t get in anybody else’s
business.”107 But many of the black employees who viewed the post, including
plaintiff, believed that the reference to monkeys was racially inflammatory.108 In fact,
Doc. no. 42-5 (Deposition of Lance Nichols), at 52-54.
Doc. no. 56-1 (First Deposition of Jerome Truss), at 168-70.
Doc. no. 56-15 (Declaration of Shiama Ray), at ¶ 4.
Doc. no. 56-1 (First Deposition of Jerome Truss), at 145-46, 150; doc. no. 56-2 (Second
Deposition of Jerome Truss), at 48.
Doc. no. 56-1 (First Deposition of Jerome Truss), at 146-47.
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 34-35; doc. no. 56-15 (Declaration
the comment caused so much hostility among black employees that members of
management advised Woods not to eat with or enter the shower room with black
employees for her own safety.109 Woods received a written reprimand on September
24, 2014, stating:
The posting that you placed on your Facebook page on Thursday,
August 17, 2014, “This Is Not My Circus, These Are Not My Monkeys”
was inappropriate and was offensive to several of your co-workers.
By using Lee Brass in the posting, [you] made it a Company issue
because of your Lead Person role here with the Company. We expect
our leaders to demonstrate the ability to censor their information at work
and also on Social Media. This type of behavior causes dissension in
the workplace that is a cancerous element in trying to development [sic]
This letter is being put in your personnel file and if you
demonstrate this type of behavior again during your tenure here with
Lee Brass your employment will be subjected to immediate termination.
Again we need our leaders to demonstrate a positive attitude to all
Associates and discretion has to be used in our communication whether
it’s verbally or on Social Media.
Nora we expect you to take this matter very seriously because it
has affected your role as Lead Person and if it is not corrected, it can and
will affect your leadership role moving forward.
Doc. no. 56-20 (September 24, 2014 Written Reprimand) (alteration supplied).
of Shiama Ray), at ¶ 9.
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 35.
Despite the reprimand, Woods was allowed to retain her position as a Lead Person.110
Robert Smith’s comments about plaintiff
Robert Smith, the President of Lee Brass, testified during his deposition that
he would not say that plaintiff is a good employee, because of his opinion that she is
a “troublemaker.”111 He clarified that he did not think plaintiff was a troublemaker
because she complained about harassment or discrimination, or because she filed an
Instead, the problem was that plaintiff “can’t get along with
anybody.”112 Robert Smith was concerned that multiple Lee Brass employees had
filed EEOC charges alleging race discrimination, but he also thinks that “a lot of
people use that as a way to avoid discipline and getting out of work.”113
Plaintiff’s EEOC Charge
Plaintiff filed an EEOC charge on November 21, 2013, alleging race-based
harassment, race-based discrimination, and retaliation.114 The EEOC issued a notice
of right to sue on December 30, 2014.115
Doc. no. 56-2 (Second Deposition of Jerome Truss), at 49.
Doc. no. 56-5 (Deposition of Robert Smith), at 100.
Id. at 100-01.
Id. at 111-13.
Doc. no. 42-2, at ECF 72-73 (EEOC Charge).
See doc. no. 1 (Complaint), at ¶ 9. The court cannot locate a copy of the right-to-sue letter
in the record, but defendant does not appear to contest that such a letter was issued, or that plaintiff
filed suit within the prescribed time period.
Plaintiff brought her claims under both 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).116
Both 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) (ellipsis supplied).
Racially-Hostile Work Environment
Plaintiff must provide proof of five elements in order to establish a prima facie
racially-hostile work-environment claim: (1) she belongs to a protected group; (2)
she was subjected to unwelcome harassment; (3) the harassment was based upon her
race, African-American; (4) the harassment was sufficiently severe or pervasive to
alter the terms or conditions of her employment and create a discriminatory abusive
working environment; and (5) her employer is liable for the environment under a
theory of either direct or vicarious liability. See, e.g., Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
As an African-American, plaintiff clearly belongs to a protected group. She
also was subjected to conduct that she found unwelcome. The other elements of the
claim require closer consideration, however.
See doc. no. 1 (Complaint).
As an initial matter, the pressure plaintiff received (or perceived) from her coworkers to quickly complete “hot jobs” cannot be considered race-based harassment.
Personal conflicts between employees cannot serve as the basis for a Title VII claim,
if they do not arise from the aggrieved employee’s racial heritage. “Title VII prohibits
discrimination; it is not a shield against harsh treatment at the work place. Personal
animosity is not the equivalent of [race] discrimination. . . . The plaintiff cannot turn
a personal feud into a [race] discrimination case. . . .” Succar v. Dade County School
Board, 229 F.3d 1343, 1345 (11th Cir. 2000) (per curiam) (quoting McCollum v.
Bolger, 794 F.2d 602, 610 (11th Cir. 1986) (alterations supplied, footnote and
internal quotation marks omitted)). Regardless of the factual context in which the
employees’ dispute arises, the court’s analysis of a Title VII harassment claim should
focus only upon whether the complaining employee was targeted because of her
membership in a protected category. Succar, 229 F.3d at 1345. Here, there is no
connection between plaintiff’s race and her co-workers’ behavior. Plaintiff asserts
that the pressure her co-workers placed on her to quickly complete “hot jobs” was
race-based because it did not commence until after she complained to Lance Nichols
and Bill Boozer about Curtis Clay’s Martin Luther King Day comment. That
argument might be appropriate for a retaliation claim, but it does not transform the
treatment to which plaintiff was subjected into race-based harassment.
The only arguably race-based incidents to which plaintiff was subjected
include: Curtis Clay’s Martin Luther King Day comment in January of 2013; Jackie
Hogan’s two comments about food stamps during April and May of 2013; Hogan’s
comment about Trayvon Martin on some undisclosed date; plaintiff’s viewing of a
noose in the maintenance shop during December of 2013; and Nora Woods’ August
2014 Facebook comment about monkeys.117 Plaintiff cannot demonstrate that those
incidents, even considered collectively, were sufficiently severe or pervasive to alter
the terms and conditions of her employment and create a racially-abusive working
environment. The “severe or pervasive” element contains both an objective and a
subjective component. To satisfy that element, plaintiff must show both that she
subjectively believed the environment to be racially hostile or abusive, and that a
reasonable person also would perceive it as such. See, e.g., Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21-22 (1993).
When evaluating the objective severity of offensive conduct, courts examine
the totality of circumstances, including such factors as: the frequency of the conduct;
The court must only consider comments and incidents of which plaintiff was actually
aware, not incidents that happened to other people and of which she heard after the fact. See Adams
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250 (11th Cir. 2014) (“We agree with these courts that a
district court should not consider evidence of racial harassment of other employees — evidence that
the plaintiff did not know about — in evaluating the objective component of a claim of a hostile
the severity of the conduct; whether the conduct was threatening or humiliating, or
a mere offensive utterance; and, whether the conduct unreasonably interfered with
plaintiff’s work performance.
See, e.g., Johnson v. Booker T. Washington
Broadcasting Service, Inc., 234 F.3d 501, 509 (11th Cir. 2000) (quoting Mendoza v.
Borden, Inc., 195 F.3d at 1238,1246 (11th Cir. 1999)); Edwards v. Wallace
Community College, 49 F.3d 1517, 1521 (11th Cir. 1995). It is not necessary to prove
each of the factors individually. However, the factors, taken together, must reveal
conduct that is so extreme that it caused a material change in the terms and conditions
of plaintiff’s employment, and created a working environment that a reasonable
person would find discriminatorily abusive. See, e.g., Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (citations omitted).
Here, the behavior to which plaintiff was subjected, taken as a whole, simply
does not add up to a racially-hostile and abusive work environment. Five incidents
over a span of approximately twenty months is not frequent. Compare Miller, 277
F.3d at 1276 (holding that verbal ethnic slurs uttered by a co-employee “three to four
times a day” throughout the approximately one-month period plaintiff worked with
the employee were sufficiently frequent) and Johnson, 234 F.3d at 509 (holding that
“roughly fifteen separate instances of harassment over the course of four months” was
sufficiently frequent) with Mendoza, 195 F.3d at 1248-49 (holding that four incidents
over an eleven-month period were not sufficiently frequent to merit judicial scrutiny),
Shepherd v. Comptroller of Public Accounts of Texas, 168 F.3d 871, 872-75 (5th Cir.
1999) (holding that several incidents over a two-year period were not frequent), and
Baskerville v. Culligan International Co., 50 F.3d 428, 430 (7th Cir. 1995) (holding
that nine instances of offensive behavior over seven months were not sufficient to be
characterized as “frequent”).
Moreover, the food stamp and Facebook comments cannot be considered
severe or threatening, because any connection between those comments and race is
tenuous. The Martin Luther King Day comment is more closely connected to
plaintiff’s race, but it was neither severe nor threatening. The Trayvon Martin
comment could be considered more severe and threatening, in view of the fact that
discussions about the tragic death of Trayvon Martin evoke images of a racially
charged shooting. Moreover, a noose is a historically-significant symbol of racebased terrorism and oppression. Even so, the threatening effect of those incidents is
arguably mitigated by the fact that Jackie Hogan said Trayvon Martin deserved to be
shot because he provoked his attacker, not because of his race. Moreover, while the
presence of the a noose in a workplace can never be justified, and is deserving of the
most severe condemnation, any connection between the noose and plaintiff is tenuous
at best. See Cunningham v. Austal, U.S.A., L.L.C, No. CIV.A. 08-00155-KD-N, 2011
WL 3924185, at *6 (S.D. Ala. Sept. 7, 2011) (“[T]he Eleventh Circuit has not held
that the temporary display of a noose by a rogue employee creates a per se hostile
work environment.”) (alteration supplied). In addition, there is no indication that any
of the race-based comments or incidents unreasonably interfered with plaintiff’s work
The final element of a hostile work environment claim — a basis for holding
the employer liable — also cannot be satisfied. Because all of the harassment
plaintiff allegedly endured was from co-workers, and not from a supervisor,
defendant can be held liable for that harassment only if the company officers or
supervisors either knew, or should have known, of the alleged harassment, but failed
to take prompt and appropriate remedial action. See, e.g., Faragher, 524 U.S. at 799
(collecting cases); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998)
(“Negligence sets a minimum standard for employer liability under Title VII.”);
Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003) (“When . . . the
alleged harassment is committed by co-workers or customers, a Title VII plaintiff
must show that the employer either knew (actual notice) or should have known
The pressure plaintiff received from her co-workers to quickly complete “hot jobs” did
interfere with plaintiff’s work performance, as evidenced by the fact that she felt compelled to leave
her work station and call the police. Even so, as previously discussed, that incident had nothing to
do with plaintiff’s race. With regard to the noose, plaintiff testified that she did not pay much
attention to the noose, and she was relieved when other employees ceased talking about it. Doc. no.
42-2 (Deposition of Shiama Ray), at 186.
(constructive notice) of the harassment and failed to take immediate and appropriate
Actual notice is established by proof that management knew of the
harassment. Miller, 277 F.3d at 1278. When an employer has a clear
and published policy that outlines the procedures an employee must
follow to report suspected harassment and the complaining employee
follows those procedures, actual notice is established. Breda[ v. Wolf
Camera & Video], 222 F.3d [886,] 889[ (11th Cir. 2000)]; Coates v.
Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999).
Constructive notice, on the other hand, is established when the
harassment was so severe and pervasive that management reasonably
should have known of it. Miller, 277 F.3d at 1278.
Watson, 324 F.3d at 1259. “[A]n employer need not act instantaneously, but must act
in a reasonably prompt manner to respond to the employee’s complaint.” Frederick
v. Sprint/United Management Co., 246 F.3d 1305, 1314 (11th Cir. 2001) (citing
Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1302 (11th Cir. 2000))
(alteration supplied). Similarly, an employer’s remedial measure is adequate if it is
“reasonably likely to prevent the misconduct from recurring.” Baldwin v. Blue
Cross/Blue Shield of Alabama, 480 F.3d 1287, 1305 (11th Cir. 2007) (internal
quotation marks and citations omitted).
The only alleged race-based harassment about which plaintiff complained prior
to filing her EEOC charge was Curtis Clay’s Martin Luther King Day comment.119
Plaintiff claims that she often complained about her co-workers “harassing” her to quickly
complete “hot jobs,” but as has already been stated, that alleged harassment was not race-based.
There is no indication that defendant had actual notice of any of the other race-based
incidents, or that any race-based harassment plaintiff endured was so severe and
pervasive that management reasonably should have known about it. When plaintiff
reported Clay’s comment to Bill Boozer, the Quality Control Manager at the time,
Boozer immediately addressed the issue with Clay’s supervisor. There is no
indication that plaintiff ever experienced any additional problems with Clay after
reporting the Martin Luther King Day comment. Accordingly, there is no basis for
holding defendant liable for any of the alleged harassment suffered by plaintiff.
Because plaintiff cannot satisfy all elements of her hostile work environment
claim, summary judgment is due to be granted on that claim.
Plaintiff claims that she suffered race discrimination when she was suspended
and when she failed to receive the Metals Lab Technician position.120 She does not
claim to have direct evidence of a race-based discriminatory animus. Therefore, she
To the extent plaintiff formerly asserted any other instances of race-based discrimination,
she has since abandoned those claims by not responding to defendant’s well-founded arguments
about why summary judgment should be granted on those claims. Issues and contentions not raised
in a party’s brief are deemed abandoned. See, e.g., Chapman, 229 F.3d at 1027 (“Parties opposing
summary judgment are appropriately charged with the responsibility of marshaling and presenting
their evidence before summary judgment is granted, not afterwards.”); Road Sprinkler Fitters Local
Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (holding that
a district court can “properly treat as abandoned a claim alleged in the complaint but not even raised
as a ground for summary judgment”) (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269
(7th Cir. 1986) (holding that a ground not pressed in opposition to a motion for summary judgment
is to be treated by the district court as abandoned)).
must prove her claims with circumstantial evidence, navigating the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under that
analytical framework, a plaintiff must first establish a prima facie case of disparate
treatment, which creates a presumption of discrimination. To rebut the presumption,
the employer then must articulate a legitimate, nondiscriminatory reason for the
disputed 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 McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-56.
“To establish a prima facie case for disparate treatment, [plaintiff] must show
that ‘(1) she is a member of a protected class; (2) she was subjected to adverse
employment action; (3) her employer treated similarly situated [white] employees
more favorably; and (4) she was qualified to do the job.’” McCann v. Tillman, 526
F.3d 1370, 1373 (11th Cir. 2008) (quoting EEOC v. Joe’s Stone Crab, Inc., 220 F.3d
1263, 1286 (11th Cir. 2000)) (first alteration supplied, second alteration in McCann).
As an African-American, plaintiff clearly is a member of a protected class, and her
suspension clearly was an adverse employment action.
Even so, plaintiff
acknowledges that she cannot establish a prima facie case of discrimination under the
McDonnell-Douglas framework, because “there is no evidence tha[t] any other
employee called the police to report racial harassment and retaliation.”121 Instead, she
asserts that there is additional circumstantial evidence sufficient to demonstrate a
The Eleventh Circuit held in Smith v. Lockheed-Martin Corp., 644 F.3d 1321
(11th Cir. 2011), that “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.” Id. at
1328. The white plaintiff in that case was unable to establish a prima facie case of
race discrimination because he could not identify a similarly situated black
comparator who was treated more favorably than he was. Id. at 1327-28. Even so,
the Eleventh Circuit held that the “convincing mosaic of circumstantial evidence” in
the record gave rise to an inference of discrimination. Id. at 1328 (quoting Silverman
v. Board of Education of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011)). The
pertinent circumstantial evidence included: a backdrop of racial tension in the
company following a racially-motivated shooting less than two years earlier; an
upcoming television news special expected to portray the company’s handling of
Doc. no. 57 (Plaintiff’s Response in Opposition to Defendant’s Motion for Summary
Judgment), at ECF 37 (alteration supplied).
racism at the workplace, both before and after the shooting, in an extremely
unflattering light; and, the company’s inclusion of race in a human resources
spreadsheet used in determining the appropriate disciplinary action for each employee
(including the plaintiff) implicated in the distribution of a racist email. Id. at 132940. Those factors cumulatively demonstrated that the employer “had a substantial
incentive to discipline white employees more harshly than black employees,” and
“consciously injected race considerations into its discipline decision making without
an adequate explanation for doing so.” Id. at 1341.
Plaintiff asserts that a similarly racially-charged environment existed at Lee
Brass because white employees “engaged in racially-offensive conduct while Lee
Brass turned a blind eye.”122 Specifically, she references: (1) Jason Alexander’s use
of the racial slur “nigger” and display of racially offensive posters that resulted in
only a written warning; (2) Nora Woods’ racially offensive Facebook post that
resulted in only a written warning; (3) Curtis Clay’s Martin Luther King Day
comment, which did not result in any disciplinary action; and (4) Jackie Hogan’s
multiple, racially-offensive comments, for which she also was not disciplined.
According to plaintiff, those incidents create an inference of discrimination based
upon the unpublished decision from another judge of this court in Perry v. Supreme
Id. at ECF 38.
Beverage Co., No. 2:11-CV-00060-MHH, 2015 WL 128586 (N.D. Ala. Jan. 9, 2015)
In Perry, the district court held that, while the black plaintiff’s alleged
misconduct was not sufficiently similar to that of his alleged white comparator to
satisfy a prima facie case of race discrimination, the similarities were sufficient to
give rise to an inference of discrimination under Smith, especially considering that the
employer had “demonstrated a quick trigger finger” with regard to the plaintiff in the
past, while it had a history of offering the white comparator “second chances.” Id.
at *2. The court also considered that the employer typically gave white employees
preferable work assignments, and offered them assistance that was not also offered
to black employees. Id. at *3.
Plaintiff’s argument is not persuasive. As an initial matter, the Perry decision
is an unpublished decision from another district judge, and it is not binding authority.
Moreover, while other Lee Brass employees have received less severe disciplinary
sanctions in race-related situations than the three-day suspension imposed upon
plaintiff, none of those employees engaged in misconduct that was remotely similar
to plaintiff’s. Finally, there is no history of defendant reacting more severely in other
disciplinary situations involving plaintiff than it did in situations involving other
employees. In summary, there is not sufficient circumstantial evidence of a racially
charged work environment to give rise to an inference of discrimination.
Even if there were sufficient circumstantial evidence, defendant has proffered
a legitimate, non-discriminatory reason for plaintiff’s suspension: i.e., that plaintiff’s
decision to leave her work station and call the police to address a workplace dispute
was an overreaction and could not be tolerated because it “would set a bad precedent
and lead to more incidences of employees calling the police without cause.”123
Thus, plaintiff can survive summary judgment on her discriminatory
suspension claim only if she comes “forward with evidence, including the previously
produced evidence establishing the prima facie case, sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real
reasons for the adverse employment decision.” Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997) (citing Burdine, 450 U.S. at 256; McDonnell
Douglas, 411 U.S. at 804). Plaintiff’s burden at this step of the analysis is that of
“cast[ing] sufficient doubt on the defendants’ proffered nondiscriminatory reasons to
permit a reasonable factfinder to conclude that the employer’s proffered ‘legitimate
reasons were not what actually motivated its conduct . . . .’” Combs, 106 F.3d at 1538
(quoting Cooper-Houston v. Southern Railway Co., 37 F.3d 603, 605 (11th Cir.
1994)) (alteration supplied); see also Chapman, 229 F.3d at 1024-25. Plaintiff
Doc. no. 43 (Brief in Support of Defendant’s Motion for Summary Judgment), at ECF 29.
shoulders that burden by demonstrating “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.” Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont de Nemours
& Company, 100 F.3d 1061, 1072 (3d Cir. 1996)) (internal quotation marks omitted).
Plaintiff does not make any additional argument about why defendant’s
proffered legitimate reason should not be credited. Instead, she simply reasserts the
same arguments upon which she relied to argue that there was circumstantial
evidence of discrimination. For the same reasons that evidence was not sufficient to
raise an inference of discrimination, it also is not sufficient to undermine defendant’s
proffered legitimate, non-discriminatory reason for suspending plaintiff’s
employment. There is no reason to believe that defendant actually suspended plaintiff
because of her race, especially considering that the alleged “harassment” precipitating
plaintiff’s telephone call to the police was not race-based. Accordingly, summary
judgment is due to be granted in defendant’s favor on plaintiff’s discriminatory
Metals Lab Technician position
Plaintiff also asserts that her failure to receive the Metals Lab Technician
position was the result of race discrimination. For such a claim, plaintiff must
establish the following elements of a prima facie case: she is a member of a protected
group; she applied for, and was qualified to fill, a position for which the defendant
was accepting applications; despite her qualifications, she was rejected for the
position; and, after her rejection, the employer either kept the position open, or filled
it with a person outside plaintiff’s protected class. See, e.g., Walker v. Mortham, 158
F.3d 1177, 1179 n.2, 1185-93 (11th Cir. 1998) (explaining that a plaintiff need not
introduce evidence of the relative qualification of the person promoted instead of
plaintiff as part of her prima facie case for failure to promote).
Plaintiff cannot satisfy the prima facie case because she did not apply for the
Metals Lab Technician position. She believed that she was not eligible to apply.
Even though that belief was mistaken, there is no evidence that defendant misled her
about her eligibility. Plaintiff complains that she formed her mistaken belief because
she had too many absences, and she only had those absences because defendant had
placed her in a position she did enjoy occupying. But she has offered no authority,
and this court has located none, to support the argument that defendant should be held
responsible for her mistaken belief, or for her decision not to come to work.
Plaintiff’s race discrimination claim based upon her failure to receive the Metals Lab
Technician cannot succeed.
Plaintiff also asserts that her suspension and failure to receive the Metals Lab
Technician position were the result of unlawful retaliation.124 “Retaliation is a
separate violation of Title VII.” Gupta v. Florida Board of Regents, 212 F.3d 571,
586 (11th Cir. 2000). A plaintiff generally must prove three elements to establish a
prima facie case of retaliation: she engaged in statutorily protected expression; she
suffered an adverse employment action; and, there was a causal linkage between the
protected conduct and the adverse employment action. See, e.g., Shannon v.
BellSouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002).
Once plaintiff establishes a prima facie case [of retaliation] by proving
only that the protected activity and the negative employment action are
not completely unrelated, the burden shifts to the defendant to proffer
a legitimate reason for the adverse action . . . . The burden then shifts
back to the plaintiff to prove by a preponderance of the evidence that the
“legitimate” reason is merely pretext for prohibited, retaliatory conduct.
Sierminski v. Transouth Financial Corporation, 216 F.3d 945, 950 (11th Cir. 2000)
(citations omitted, alteration supplied).
Even if plaintiff could establish a prima facie case of retaliation with regard to
her suspension or her failure to receive the Metals Lab Technician position, she
cannot refute defendant’s proffered legitimate, non-retaliatory reasons for those
It actually is unclear from plaintiff’s brief whether she asserts that her failure to receive
the Metals Lab Technician position was the result of retaliation, or just discrimination. Giving
plaintiff the benefit of the doubt, the court will assume that she intended to assert both discrimination
and retaliation claims based upon that conduct.
employment decisions. As discussed above, defendant asserts that it suspended
plaintiff because it wanted to send the message that calling the police to resolve a
workplace dispute was not acceptable conduct, and plaintiff has offered nothing to
discredit that explanation. Defendant asserts that plaintiff did not receive the Metals
Lab Technician position because she did not apply for it, and plaintiff has offered no
evidence to discredit that assertion. While plaintiff mistakenly believed that she was
not eligible to apply for the position, she offers no evidence that defendant did
anything to further that mistaken belief. Accordingly, defendant is entitled to
summary judgment on plaintiff’s retaliation claim.
“Me Too” Evidence
Finally, plaintiff asserts that she has presented sufficient “me too” evidence to
support her claims. The Eleventh Circuit has held that evidence of discriminatory
acts suffered by other employees can be used, under certain circumstances, to prove
an employer’s intent to discriminate. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d
1261, 1286 (11th Cir. 2008).125 Typically, such “me too” evidence will be allowed
if it involves employment decisions made by the same person who made the decisions
This holding is consistent with Federal Rule of Evidence 404(b), which states that while
evidence of other crimes, wrongs, or other acts is not admissible “to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character,” it is
admissible for other purposes, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).
affecting the plaintiff, and if the witness (the other employee offering evidence of
alleged discrimination) held a position similar to the plaintiff’s and experienced an
employment situation similar to the plaintiff’s. Id. More specifically, another judge
in this district has stated that the following factors should be considered in
determining whether to admit “me too” evidence:
whether the allegations of discrimination occurred close in time to [the
plaintiff’s] allegations, whether the other employees alleging
discrimination had similar job positions as [the plaintiff], whether they
were demoted or terminated for reasons similar to Defendants’ proffered
reason for demoting [the plaintiff], and whether there was a common
Davis v. Dunn Construction Co., 872 F. Supp. 2d 1291, 1318 (N.D. Ala. 2012)
(Proctor, J.) (alterations supplied). It must also be remembered that, “[e]ven when
‘me too’ evidence is relevant under Rule 401, the district court retains the discretion
to exclude that evidence, under Rule 403, if it is unduly prejudicial, confusing,
misleading, or cumulative.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258
(11th Cir. 2014) (alteration supplied).
It is unclear whether plaintiff is offering the purported “me too” evidence to
support her harassment claim, her race discrimination claim, her retaliation claim, or
all three. It also is unclear whether plaintiff contends that the evidence constitutes
proof of her prima facie case, or pretext, or whether it is simply other circumstantial
evidence of discriminatory or retaliatory intent.
The purpose for which the
information is being offered is irrelevant, however, because what plaintiff has offered
is not “evidence” at all. Instead, plaintiff points to EEOC charges and district court
complaints filed by other Lee Brass employees.126 The complaints are not verified,
and plaintiff has not offered any testimony by way of deposition or affidavit from the
other employees who filed those charges and complaints. She also has not put forth
any effort to describe the other employees’ claims in any detail, or to identify the
similarities between those claims and her own, including similar jobs, common
decision makers, or similar employment decisions being made for similar reasons.
Instead, she only states:
In this case, the “me too” evidence of numerous other EEOC
charges, lawsuits and internal complaints supports Ray’s claims of
motive as well as hostile environment, as outlined in Goldsmith. The
claims made by other employees were in the same time frame as were
those made by Ray, and were often being addressed by Truss at the same
time Ray was making complaints. Ray was aware of other acts of
discrimination that were not directed at her specifically.
Doc. no. 57 (Plaintiff’s Response in Opposition to Defendant’s Motion for Summary
Judgment), at ECF 42. Those conclusory allegations and vague references to claims
asserted by other employees are insufficient to carry a claim for harassment,
See doc. no. 57 (Plaintiff’s Response in Opposition to Defendant’s Motion for Summary
Judgment), at ECF 18, Plaintiff’s Proposed Facts 2-3 (discussing complaints filed by Michael
Judkins and Jerald Seals, and EEOC charges filed by Genika Owens, Marquis Mason, and John
discrimination, or retaliation.
In so holding, the court finds persuasive the decision of Judge Proctor in Davis
v. Dunn Construction Co., 872 F. Supp. 2d 1291 (N.D. Ala. 2012). There, the
plaintiff offered “me too” evidence consisting of “racial discrimination claims that
were dismissed on summary judgment, EEOC Charges that never resulted in lawsuits,
and sworn testimony from an employee stating that [a co-worker] was disrespectful
towards African-American employees.” Id. at 1318 (emphasis in original, alteration
supplied). The court referred to that evidence as “a hodgepodge of unproven
allegations of discrimination,” “a watered-down version of ‘me too’ evidence,” and
found that the evidence was insufficient to create an inference that the plaintiff had
suffered any discrimination. Id. (emphasis in original). Significantly, Judge Proctor
stated: “It would be unproductive and unnecessary for the court to parse through
Plaintiff’s evidence to explain why each specific piece of evidence concerning [other
employees] is not relevant to Plaintiff’s case, particularly since Plaintiff has not
bothered to explain why he believes this evidence is relevant.” Id. (alteration
supplied) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary
judgment”). That was particularly true in the Davis case, considering the plaintiff’s
reliance upon other employees’ EEOC charges, because those charges would not be
admissible in evidence under Federal Rule of Evidence 403. Id. at 1318-19.
The court will not do the work of formulating potential arguments on plaintiff’s
behalf, particularly not ones that are based upon inadmissible evidence.127 There is
no reason to conclude, based upon the information presented to this court, that other
employees have suffered sufficiently similar discriminatory or retaliatory treatment
under circumstances sufficiently similar to those presented here, to justify an
inference of discrimination or retaliation against plaintiff.128
V. CONCLUSION AND ORDER
In accordance with the foregoing, plaintiff’s motion to strike is DENIED.
Defendant’s motion for summary judgment is GRANTED, and it is ORDERED that
all of plaintiff’s claims are DISMISSED with prejudice. Costs are taxed to plaintiff.
The Clerk is directed to close this file.
It is also worth nothing that plaintiff has not discussed how any of her purported evidence
could be presented in admissible form at trial.
Plaintiff also makes the argument that defendant’s attempts to hide and/or minimize the
evidence of other employees’ complaints of discrimination and retaliation make the “me too”
evidence even more probative. That argument is immaterial, however, because plaintiff’s purported
“me too” evidence is not actually evidence, and plaintiff has not sufficiently developed her argument
that the situations faced by other employees should give rise to an inference of discrimination in her
DONE this 21st day of June, 2017.
United States District Judge
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