Raybon v. Alabama Space Science Exhibit Commission

Filing 28

MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 8/31/2018. (AHI)

FILED
2018 Aug-31 AM 08:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TAMELA RAYBON,
Plaintiff,
vs.
ALABAMA SPACE SCIENCE
EXHIBIT COMMISSION d/b/a
U.S. SPACE & ROCKET
CENTER,
Defendant.

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Civil Action No. CV-17-S-372-NE

MEMORANDUM OPINION
Tamela Raybon sued her former employer, the Alabama Space Science Exhibit
Commission, doing business as the “U.S. Space & Rocket Center,” alleging claims
for race discrimination, hostile work environment, and retaliation 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,
as well as a supplemental state law claim for negligent hiring, retention, and
supervision.1
Following consideration of the pleadings, defendant’s motion for summary
judgment,2 briefs,3 oral arguments of counsel, and the declaration of Vickie
1

See doc. no. 1 (Complaint).

2

See doc. no. 13.

3

See doc. no. 14 (Defendant’s Brief in Support of Summary Judgment); doc. no. 17
(Plaintiff’s Response in Opposition to Summary Judgment); and doc. no. 22 (Defendant’s Response).

Henderson filed on August 28, 2018,4 the court enters the following memorandum
opinion.
I. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the 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,
4

See doc. no. 27-1.

2

[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. FACTS
Tamela Raybon (“plaintiff”) began her employment with the Alabama Space
Science Exhibit Commission, doing business as the U.S. Space & Rocket Center (“the
Center”),5 in 1998, as a temporary employee in the accounting department. She
processed payments for persons attending the Center’s “Space Camp”6 and performed
other duties relating to accounts receivable.7 She was hired as a full-time employee
5

See https://www.rocketcenter.com.

6

“Space Camp is the brainchild of rocket scientist Dr. Wernher von Braun, who led the
development of the Apollo-era rockets that took America to the moon, and Mr. Edward O. Buckbee,
the first director of the U.S. Space & Rocket Center. . . . Trainees cultivate teamwork, leadership,
and decision-making skills through simulated missions while gaining personal and professional
insights that profoundly impact their futures.” https://www.spacecamp.com/about (last visited July
29, 2018).
7

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 15. Note: The documents numbered 15-1
and 15-2 together comprise plaintiff’s deposition and exhibits, but were filed in two parts due to the

3

in 1999, and was classified as a “Camp Accounting Clerk.”8 Her job title later was
changed to “Senior Camp Accounting Clerk.”9
The Center’s accounting department was reorganized in 2007, and plaintiff was
designated a “Camp Collections Manager,” a position that required her to be
responsible for accounts receivable, payroll processing, and customer service
functions.10 Plaintiff’s initial supervisor in the accounting department (Mildred
Davis) retired in 2013, and Brenda Perez was hired to replace her.11
One of the goals established for plaintiff by Perez as part of her initial, January
10, 2014 performance evaluation, was: “Avoid negative politicking and gossiping
amongst fellow co-workers/peers.”12 Perez’s second, May 8, 2014 evaluation of
plaintiff”s performance contained instructions that she “immediately” cease personal
telephone conversations during working hours, and that “Personal cell phones [were

size of the electronic file.
8

Id. at 17.

9

Id. at 30.

10

Id. at 31–33.

11

Id. at 34. Brenda Perez was previously known as Brenda Segroves. Id. at 37. She reported
to Brooke Balch, who then was the Center’s Chief Financial Officer. Id.
12

Doc. no. 15-3 (Perez Deposition), Ex. 5, at ECF 47. Note: “ECF” is an acronym formed
from the initial letters of the name of a case filing system that allows parties to file and serve
documents electronically (i.e., “Electronic Case Filing”). See The Bluebook, A Uniform System of
Citation,, Rule 7.1.4, at 21 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). When this
court cites to pagination generated by the ECF header, it will, as here, precede the page number(s)
with the letters ECF.

4

to] be used for emergencies only.”13
The Center installed new accounting software during the Fall of 2014. The
upgrade automated many of plaintiff’s previous duties.14 Accordingly, in order to
justify plaintiff’s continued employment, Perez assigned new duties to her, including
the responsibility for “billing specific events” and “all of the regular accounts
receivable” for which Brenda Perez previously had been responsible.15
Louie Ramirez became the Center’s Chief Financial Officer during January of
the following year (2015), and Brenda Perez’s job title was changed from
“Accounting Manager” to “Controller.”16 Plaintiff was redesignated a “Senior
Accounts Receivable Specialist” and her pay was increased to $21.00 an hour.17
Later that year, after plaintiff had received a written reprimand for
“discourtesy” on May 8, 2015,18 she met with Perez and Vickie Henderson, the
Center’s Vice President of Human Resources. Henderson explained the reason for
13

Id., Ex. 6, at ECF 49 (alteration supplied). Plaintiff initially denied that Perez discussed
that instruction with her during the process of reviewing her mid-year performance evaluation (see
doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 44-46), but subsequently acknowledged that she and
Perez discussed the issue at some point. Id. at ECF 47. Moreover, the typewritten performance
evaluation bears Brenda Perez’s handwritten notation that she “discussed [the issue] w/ TR.” Doc.
no. 15-3 (Perez Deposition), Ex. 5, at ECF 49 (alteration supplied).
14

Doc. no. 15-3 (Perez Deposition), at 27-28.

15

Id. at 29.

16

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 48.

17

Id. at 48-49, 51.

18

Id., Ex. 11, at ECF 86.

5

the reprimand: an incident that had been documented on an “Employee
Disciplinary/Counseling Report” authored by a Center employee identified only as
“Teen.”19 The substantive portion of that report read as follows:
Tamela Rabon [sic] from upstairs was in crew galley and scream [sic]
out “there’s a bug in my food” and then later says “oh, no it’s not” but
everyone heard her. I have been told that she does things like this all the
time. She and her blonde girlfriend from upstairs do things like this all
the time I am told. She refuses piazza [sic] that she is served saying she
wants a “Fresh One.” This not only makes foodservice look bad but also
the entire museum. Can you please speak to her. Thank you, Teen.
Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), Ex. 11, at ECF 86. Perez noted on the
form that the incident had been discussed with plaintiff, and that she would no longer
be allowed to enter the “Crew Galley” or “Mars Grille”: the Center’s two on-site
food purveyors.20
Plaintiff believed the reprimand to be unfair, and met with the Center’s Chief
Executive Officer, Dr. Deborah Barnhart, to complain.21 Dr. Barnhart promised to
look into the matter. The following week, however, she told plaintiff that she had
spoken with Vickie Henderson about the incident and the reprimand would stand.22

19

Id. at 142. “Teen” is not otherwise identified in the record, but the context of the statement
suggests that she may have been a food service employee.
20

Id., Ex. 11, at ECF 86. The form indicates that employee comments were attached, but
none are in the record. Id.
21

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 142.

22

Id. at 143, 149-50.

6

Later that same year, during November of 2015, Perez reviewed the Center’s
written policy on personal telephone calls and cell phone usage with all employees
of the accounting department. The policy read as follows:
The Center’s business phones are to be used only for official
business. Personal telephone calls should be kept to a minimum so as
not to interrupt the business processes. In the instance that you do not
have phone access and an emergency occurs, please have the caller
contact your manager who will get the message to you immediately.
If an emergency arises while you are at your workstation, contact
your supervisor or manager immediately because only your manager
may release you from your assigned workstation and duties.
The use of cell phones, telephone earpieces, etc. is prohibited
during work hours especially if working as a “front-line” employee,
interacting with our guests or with trainees. You may use your cell
phone during your break periods ONLY.
Company owned telephones, cell phones, pagers, fax machines,
and copiers are to be used for official Center business purposes only.
Cell phone usage while operating Center vehicles or Privately Owned
Vehicles (POV) on Center business should be used with caution. All
employees operating Center vehicles shall obey all traffic laws to
include those concerning cell phones. Please be reminded that
supervisors and managers will monitor telephone and especially cell
phone usage while you are at work.
Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), Ex. 12, at ECF 87 (italicized emphasis
supplied). Plaintiff signed a copy of the policy, thereby acknowledging that she had
read and understood
the policy on the use of company telephones and personal cell phones.
7

I agree to comply with the policy as a condition of my continued
employment. I understand that failure to follow the policy will result in
disciplinary action up to and including discharge from employment with
the U.S. Space & Rocket Center.
Id. (emphasis supplied).
Plaintiff received an annual performance evaluation from Brenda Perez on
December 8, 2015.23 She was rated on specific, but largely subjective, criteria in the
areas of “Job Knowledge & Performance,” “General Requirements,” “Professional
Standards,” and “Teamwork Standards.”24 Perez entered comments under three of the
four categories. She recorded the following statements under the category labeled
“Job Knowledge & Performance”:
Tamela had several complaints filed in the spring of 2015 regarding
being discourteous to food service staff. Disciplinary action was taken
on 5/7/2015 and Tamela was instructed to stay away from the Crew
Galley/Mars Grille. I have had no further complaints from food staff
members. However, there have been complaints regarding Tamela’s
behavior in the Accounting suites relating to the volume of her
conversations and constant negative attitude. I have counseled her on
this behavior and will monitor the progress over the coming months.
Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), Ex. 13, at ECF 88. Perez recorded the
following statements under the category labeled “Professional Standards”:
Tamela communicates effectively with customers but needs to improve
on her interactions with co-workers. Her outspoken negativity regarding
23

Id. at 55.

24

Id., Ex. 13, at ECF 88-89.

8

[the Center] is a problem that effects [sic] her co-workers. She has been
counseled to keep her opinions to herself and to work quietly and
efficiently.
Id. (alteration supplied). Perez observed under the “Teamwork Standards” category
that “Tamela displays a negative attitude at times which effects [sic] other
employees.”25 In addition, Perez remarked that
Tamela has spent too much time on personal phone calls which are
disrupting to the other accounting staff members. She has been
instructed to refrain from all personal calls in the accounting office. The
Center’s Cell Phone policy has been reviewed with Tamela in November
2015, and she has been given permission to have one personal phone
call in the morning (15 min) and one in the afternoon (15 min) that must
be made outside the accounting suites. Tamela needs to display a more
professional demeanor by avoiding negative comments and respecting
her co-workers’ need for a calm and quite [sic] work area.
Id. at ECF 89 (emphasis supplied). Perez’s overall rating of plaintiff on the
December 8, 2015 performance evaluation was only 46%26 — a score that fell within
the range designated as “Needs Major Improvement.”27 Plaintiff denied that she had
been counseled on the issues recorded in her annual performance evaluation, but
admitted that her signature appeared on the form which documented the issues.28
Brenda Perez subsequently attached the following note to plaintiff’s evaluation form:

25

Id.

26

How this percentage was calculated is not explained.

27

Id. at ECF 89.

28

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 58-61.

9

I met with Tamela briefly to review her written annual
performance [evaluation]. We again discussed our policy on personal
phone calls. I reiterated to her that she was to make no personal phone
calls in the accounting offices. She looked at me but did not respond.
Tamela signed her evaluation and left my office.
Doc. no. 15-3 (Perez Deposition), Ex. 9, at ECF 54 (alteration supplied); see also id.
(Perez Deposition), at 104.
Plaintiff was absent from her office for two-and-a-half hours, from 1:31 p.m.
until 4:01 p.m., on Wednesday, February 17, 2016.29 Perez annotated plaintiff’s timesheet with a hand-written note stating that plaintiff had “no prior approval [for the
absence, and she] gave no explanation for being gone for 2 ½ hours for lunch.”30
Plaintiff denied that assertion during her deposition, and testified that, prior to leaving
the office, she had told Perez that she had an appointment for a medical test, and that
Perez had responded: “It’s fine. Go ahead.”31 There is no evidence in the record that
any formal counseling occurred as a result of plaintiff’s extended absence.
Nine days after the foregoing incident, however (i.e., on Friday, February 26,
2016), the Center posted an opening for the position of “Accounting Supervisor.”32
Plaintiff attempted to apply for the position through the Center’s on-line job
29

Doc. no. 15-3 (Perez Deposition), Ex. 10, at ECF 55.

30

Id. (alteration supplied).

31

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 67-68.

32

Id. at 69.

10

application system, but was unsuccessful.

When she attempted to enter her

application, the computer program indicated that the posting was “closed.” In
contrast, the posted position announcement stated that the vacancy was to remain
“open” until Wednesday, March 2.33 Consequently, plaintiff and a co-worker named
Andrea Thrasher met with Louie Ramirez, the Center’s Chief Financial Officer.
Plaintiff complained about her inability to submit an on-line application, and Thrasher
voiced concerns about her duties as the Accounts Payable Clerk.34 Ramirez told
plaintiff that he would “get back” with her about her inability to submit an on-line
application for the Accounting Supervisor position, but he did not do so. Plaintiff not
only failed to follow up with Ramirez on the issue,35 but she also did not complain to
Brenda Perez about her inability to apply for the Accounting Supervisor position after
Perez returned to work.36
Notwithstanding the fact that plaintiff did not actually submit an application
for the Accounting Supervisor position, she possessed neither experience in nor

33

Id. at 71. Defendant produced evidence of the successful use of the computer program by
Patricia Kimberlin, who ultimately was selected for the position. Doc. no. 15-19 (Landman
Deposition), Ex. 21, at ECF 14.
34

See doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 76. Apparently, plaintiff and Thrasher
met with Ramirez, rather than Brenda Perez, because Perez was absent from work that day, and there
was no human resources department employee available. Id. at 77.
35

Id. at 80.

36

Id. at 79. Perez confirmed that plaintiff never told her that she had either wanted to, or had
attempted to, submit an on-line application for the position. Doc. no. 15-3 (Perez Deposition), at 77.

11

knowledge of several of the qualifications required for the position.37 For example,
plaintiff testified during deposition that: she had not created and managed balance
sheets; she was not familiar with generally accepted accounting principles; she had
not created or managed financial statements; she had not directed an audit; she was
“not sure” what information was recorded on a balance sheet; and, she did not know
how to reconcile a general ledger.38
Patricia Kimberlin, a white female employed in the Center’s accounting
department, was selected for the Accounting Supervisor position. Perez announced
Kimberlin’s selection during a staff meeting on March 2, 2016.39 While doing so,
Perez also stated her belief that “the Accounting suites had become too noisy,”40 and
directed a rearrangement of the cubicles and office furniture.41 Plaintiff’s cubicle was
moved to the back of the suite, about seven feet from its prior location.42 Plaintiff
testified that, after the rearrangement, employees from other departments came to see

37

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 85-89, 98. For the qualifications and
duties required for the Accounting Supervisor position, see id., Ex. 15, at ECF 91-93.
38

Id. (Plaintiff’s Deposition: Part 1), at 86-89, 91.

39

Id. at 89, 91-93; doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 17, at ECF 13.

40

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 92.

41

Id. at 95.

42

Id. at 102; doc. no. 15-3 (Perez Deposition), at 73. Plaintiff took photographs of the suite’s
arrangement before and after her cubicle was relocated. Doc. no. 15-1 ( Plaintiff’s Deposition: Part
1), at 112-21; doc. no. 15-13 (“Accounting Office Photographs”), at ECF 2-4.

12

where her cubicle had been moved.43 According to plaintiff, those employees laughed
and made comments that she considered “discriminatory” and “humiliating.”44
Plaintiff voiced her dissatisfaction with the rearrangement to Perez, but she did
not say that, in her opinion, the relocation of her cubicle to the rear of the suite was
racially motivated.45

Perez attempted to reassure plaintiff that the suite was

rearranged in an attempt to reduce noise levels.46 According to plaintiff, following
the rearrangement, Patricia Kimberlin, the newly-appointed Accounting Supervisor,
instructed her to use the “back door” to enter and exit the office.47
Plaintiff believed that Perez and Kimberlin labeled her as “loud” as a
euphemistic substitute for a racial comment.48 Even so, plaintiff testified that neither
Perez nor Kimberlin specifically described plaintiff, as opposed to the office
generally, as “loud.” Instead, plaintiff simply believed that a racially derogatory

43

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 168-69.

44

Id. at 169. Plaintiff gave as an example of the comments: “Oh, we heard about your move.
We want to see where you were sitting at. We wanted to see it for ourselves.” Id.
45

Plaintiff testified that she told Perez that she “didn’t like it [the new office arrangement].”
Id. at 109 (alteration supplied).
46

Id. at 111.

47

Id. at 120. In opposition to the motion for summary judgment, plaintiff provided
declarations of co-workers who stated that they heard Patricia Kimberlin make racially insensitive
comments, but there is no evidence that plaintiff heard, or was otherwise aware of, such comments,
or that Perez, who made the decision to terminate plaintiff’s employment, made any such comments.
See doc. no. 17-2 (McMullin Declaration) ¶¶ 13 &14, at ECF 3; doc. no. 17-3 (Harper Declaration)
¶ 13, at ECF 3; doc. no. 17-4 (Cunningham Declaration) ¶¶ 18 & 19, at ECF 3.
48

See doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 186.

13

sentiment was implied by their comments about the noise level in the suite.49
Plaintiff also complained about Patricia Kimberlin’s annotation of the staff
calendar to indicate that plaintiff was out of the office due to illness on March 28,
2015.50 Plaintiff believed that, when other employees were absent from work due to
illness, the reason for their absence was not specified on the calendar.51 She
complained to Kimberlin on some unspecified date, and Kimberlin complied with
plaintiff’s request to remove the annotation.52
During the same timeframe as the rearrangement of cubicles within the
accounting suite, Perez assigned plaintiff the responsibility for maintaining the
Center’s petty cash.53 That duty required her to be present in the accounting suite
between the hours of 9:00 a.m. and Noon each Friday.54 As a result, plaintiff was
unable to attend the Center-wide quarterly staff meeting conducted by the Center’s
Chief Executive Officer with plaintiff’s co-workers in the accounting department.
Even so, the quarterly staff meetings were repeated in the afternoons for employees
49

Id. at 187-88.

50

Id. at 126. See also doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 16, at ECF 7-8.
Plaintiff believes that Kimberlin did this on other occasions as well, but acknowledged that
Kimberlin removed the information upon plaintiff’s request. Doc. no. 15-1 (Plaintiff’s Deposition:
Part 1), at 126.
51

See doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 129.

52

See doc. no. 15-3 (Perez Deposition), Ex. 14, at ECF 61.

53

See doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 153-54.

54

Id.

14

who, like plaintiff, were unable to attend the morning session, and plaintiff attended
the afternoon meeting, albeit without her co-workers.55 That made her feel isolated.56
The pertinent part of the Center’s “policy and procedure statement” on
workplace harassment read as follows on the dates of the events leading to this suit:
The US Space & Rocket Center [“USSRC”] is committed to the
principle that all individuals should enjoy a work environment free from
all forms of harassment including, but not limited to, sexual and physical
harassment, intimidation and/or coercion. The USSRC is committed to
providing a favorable environment to all individuals it serves including,
but not limited to, trainees, families, employees, and guests.
Doc. no. 15-3 (Perez Deposition), Ex. 2, at ECF 41 (alteration supplied).57 There was
a corresponding reporting procedure that provided:
1. Employees shall be made aware of this [harassment] policy upon
employment and the policy shall be reviewed on a semiannual basis.
2. Any employee who believes that he/she is being harassed by a
supervisor, co-worker, or non-employee, should promptly take the
following steps:
a. Discuss the situation directly with the person doing the harassing.
b. Politely request that the person cease the harassment because it is
offensive, uncomfortable, and/or intimidating.
c. However, if for any reason an employee is not comfortable with
55

Id.

56

Id. at 154.

57

The remainder of the policy in large part deals with issues related to sexual harassment.
Doc. no. 15-3 (Perez Deposition), Ex. 2, at ECF 41.

15

confronting the individual, the employee should seek assistance
from their supervisor and immediately report the situation to the
Equal Employment Opportunity Officer (identified as the Director
of Talent and Acquisition Development, Human Resources).
d. The employee may also report the incident to one of the following
individuals:
i. Vickie Henderson, VP of Human Resources
ii. Louie Ramirez, VP and CFO
iii. Brenda Carr, VP Development
3. Any employee who has knowledge of [the] behavior of another
employee which was offensive, uncomfortable, and/or intimidating
is encouraged to contact his/her supervisor or one of the individuals
listed in “c” above.
4. Any supervisory personnel who has knowledge of or receives a
harassment complaint shall immediately contact the EEO Officer/VP
of HR so that a thorough investigation can be undertaken as set forth
in Policy #1510.9A.
5. If harassment is found to have occurred, appropriate disciplinary
action will be taken up to and including termination of employment
of the harassing party.
6. If a complaint is made against a vendor or contractor, the USSRC
will investigate the complaint according to Policy #1510.9A. If the
investigation supports the allegations, the Center may terminate the
services of the vendor or contractor.
Doc. no. 15-3 (Perez Deposition), Ex. 2, at ECF 41 (alterations supplied, telephone
numbers of the individuals designated to receive reports omitted). There is no
evidence that plaintiff availed herself of the foregoing harassment procedure.

16

Plaintiff was absent from her office from 10:41 a.m. until 1:14 p.m. on
Wednesday, April 6, 2016, without prior authorization from either Patricia Kimberlin
or Brenda Perez.58 Kimberlin met with plaintiff the following day to address not only
her extended absence, but other workload issues.59 Kimberlin told plaintiff that she
needed prior permission if she intended to be absent from the office for longer than
an hour.60 Plaintiff responded that she had not planned to be absent for more than an
hour on April 6th, but she apparently did not contact Kimberlin or anyone else to
report that she would be delayed in returning to work.61 Kimberlin documented her
conversation with plaintiff as follows:
Finally I showed her a screen shot I had of her time that week.
She clocked out Wednesday at 10:41 and did not return until 1:14. I
thanked her for at least clocking out and not just leaving the building.
She said nothing and just stared at me. I stated this was either an early
lunch or a doctor’s appointment but regardless she needed to either let
me know she was leaving the building or to sign out on our calendar we
have in the supply room when she is going to be away at a time that is
not normally a lunch hour. She still said nothing and just stared at me.
I said [“]people were looking for you[”] and nobody had any idea where
she was. All she said was “Who was looking for me?” I replied just
people from other departments and that was why we [need to] let
someone know if we’re going to be out. She didn’t say anything, not
okay in the future . . . or sorry I was . . . , just nothing. Her smug
attitude left me with the feeling she did not plan to let me know in the
58

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 123-25.

59

Id. at 123; doc. no. 15-3 (Perez Deposition), Ex. 14, at ECF 60.

60

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 125.

61

Id. at 126.

17

future her schedule.
Doc. no. 15-3 (Perez Deposition), Ex. 14 (Patricia Kimberlin’s Notes), ¶ 7, at ECF
60-61 (emphasis and alterations supplied, ellipses in original); see also doc. no. 15-14
(Patricia Kimberlin’s Notes), ¶ 7, at ECF 2-3 (same).
Plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”)
following her meeting with Kimberlin; and, on April 6 or 7, 2016, she mailed to the
Commission an “intake form” complaining about her treatment.62 Plaintiff received
a letter dated April 13, 2016 from the EEOC on April 15, 2016 — the same date that
her employment was terminated.63 That letter enclosed an “EEOC Form 5, Charge
of Discrimination,” which summarized the information that plaintiff had provided on
the “intake form.” Plaintiff was instructed to review, sign, and return the “Charge”
form to the EEOC in order to initiate an investigation of her complaint.64
Significantly, however, the EEOC’s April 13th letter also stated that: “Because the
document that you submitted to us [i.e., the “intake form” mailed by plaintiff on or

62

Id. at 135-37, 175. There is no copy of this document in the record. According to the
EEOC’s website, an “intake questionnaire” can be completed and submitted to the EEOC
electronically. See https://publicportal.eeoc.gov/portal/Login.aspx?ReturnUrl=%2fportal%2f (last
visited August 15, 2018). Plaintiff testified, however, that she did not submit the questionnaire
online. Instead, she mailed it to the EEOC on April 6 or 7, 2016. She testified further that the
EEOC sent her a receipt, which also is not in the record, indicating that the charge was received by
the agency, she believed, on April 9th or 11th. Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 175.
63

Id. at 177.

64

Doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 20, at ECF 30.

18

about April 6 or 7] constitutes a charge of employment discrimination, we have
complied with the law and notified the employer that you filed a charge.”65
The EEOC’s notice that plaintiff had submitted an intake form (the “Charge
Notice”) was received by Vickie Henderson, the Center’s Vice President of Human
Resources, on Monday, April 18, 2016.66 Plaintiff’s employment, however, had been
terminated by Brenda Perez three days before, on Friday, April 15, 2016.
The termination occurred in the office of Derrik Landman, the Center’s
Director of Talent Acquisition and Development.67 Perez testified that, a couple of
days prior to April 15, 2016, she had attempted on several occasions to speak with
plaintiff about Center business, but each time that Perez approached plaintiff’s desk,
plaintiff was engaged in personal telephone calls.68 That frustration fed Perez’s
decision to terminate plaintiff’s employment.69 Perez testified that she had regularly
consulted her supervisor, Louie Ramirez, and Vickie Henderson, the Vice President
of Human Resources, about plaintiff’s performance and conduct issues,70 and before
65

Id. (alteration and emphasis supplied).

66

See doc. no. 27-1 (Henderson Declaration), ¶ 4, at ECF 2-3; see also id., ¶ 5 (“When I
received the Charge Notice on April 18, 2016, I marked it as ‘Received’ and signed it.”); id., Ex. A
(Charge Notice), at ECF 5 (bearing handwritten inscription on bottom of page reading “Received
Monday, April 18, 2016 Vickie Henderson”).
67

See doc. no. 15-2 (Plaintiff’s Deposition: Part 1), at 132-33.

68

Doc. no. 15-3 (Perez Deposition), at 23.

69

Id.

70

Id. at 20.

19

actually terminating plaintiff’s employment, Perez also sought advice from Louie
Ramirez.71 He told Perez that it was “her decision” to make.72
The “Termination of Employment” form completed by Perez identified the
reason for firing plaintiff as her “insubordination and lack of respect for coworkers.”73 Even though that form states that “[i]nvoluntary termination of a fulltime employee must have approval of the President/CEO, the appropriate Vice
President of the Department and be coordinated with the Vice President of Human
Resources,”74 it does not appear that Perez complied with all of those requirements.
(The initials “VH” and date “4/18/16” appear on the line adjacent to “Reviewed by
V.P. of HR.”75)
During deposition, Perez recited the following as examples of the reasons she
considered plaintiff’s conduct to be unacceptably insubordinate:
Refusing to answer where she had been when she left numerous times.
I mean for a long time during the day without permission. Refusing to
answer from her boss, you know, why she was gone or where she was.
Refusing to do duties of her job, such as calling in the credit cards, et
cetera. Refusing to stop having personal calls in the accounting suites.
Asking her to not speak loudly and be disruptive in the accounting
71

Id. at 20-21.

72

Id. at 22.

73

Doc. no. 15-16 (“U.S. Space & Rocket Center Termination of Employment” form for
“Permanent Termination or Layoff More Than 4 weeks”).
74

Id. (alteration supplied).

75

Id.

20

suites. Refusing to stop talking on her cell phone. . . . Refusing to stop
talking on the speakerphone in the accounting suites.
Doc. no. 15-3 (Perez Deposition), at 35-36 (ellipsis supplied). Insubordination was
not the only justification cited by Perez for plaintiff’s dismissal, however. She also
testified that Joy McMullin, Patricia Kimberlin, and Andrea Harper had complained
of being distracted by plaintiff’s conduct, and that a fourth employee, Angela
Thrasher, requested permission to wear earphones as a means of drowning out the
disruptive noise created by plaintiff.76 In addition, employees from the Center’s Sales
Department entered the accounting suite and sought out plaintiff for the purpose of
complaining about “their jobs or their bosses or the Center.”77 According to Perez,
those visits also contributed to distracting noise levels in the accounting suite.78
Plaintiff formalized her charge of discrimination on April 18, 2016, three days
after her termination, and it was received by the EEOC on April 19, 2016.79 Her
formal charge read as follows:
I am Black. I began my employment with the above named
company in February 1999, as an Accounting Clerk. I am currently
employed as a Senior Accounts Receivable Specialist in the Accounting
Department. On February 28, 2016, I was informed that an Accounting
Supervisor position had been posted to the employer’s internal website
76

Doc. no. 15-3 (Perez Deposition), at 37-38.

77

Id. at 38.

78

Id.

79

Doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 17, at ECF 13.

21

and I attempted to apply for the position on-line. I attempted to submit
my application electronically and I received an automated response
informing me that the position was closed. When I complained to
Company Vice President/CFO Louie Ramirez, he asked if I was
qualified for the position and I stated “yes.” Mr. Ramirez then asked if
I was experienced in Foundation Accounting. At that time I told Mr.
Ramirez that I would like the opportunity to apply for the Accounting
Supervisor position. Mr. Ramirez stated that he would ask someone in
Human Resources why the position was only posted for a few minutes
and he would let me know.
Mr. Ramirez began a conversation with another employee about
the new Senior Accounts Payable employee who would start on March
7, 2016. At that time, Mr. Ramirez stated that it had just dawned on him
that the position that I wanted to apply for was the same position as the
new Senior Accounts Payable employee. Mr. Ramirez stated that
Human Resources must have posted the Accounting Supervisor position
as a technicality.
On March 2, 2016, the department was informed that current
employee Patricia Kimberlin (White) would be the new Accounting
Supervisor and that Joy McMullin (Black), an external candidate, would
be the new Senior Accounts Payable employee.
On March 3, 2016, my cubicle was moved to the back of the
office. I am now isolated from my coworkers. I complained of being
isolated to Ms. Perez and she informed me that the move was aimed at
trimming down the noise level. I do not believe that the noise level has
decreased.
I believe that I have been subjected to discrimination because of
my race (Black) in violation of Title VII of the Civil Rights Act of 1964,
as amended.
Doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 17, at ECF 13-14.
Derrik Landman, the Center’s Director of Talent Acquisition and Development,
22

testified that he received notice of plaintiff’s formal charge from Vickie Henderson,
the Center’s Vice President of Human Resources, during the week following
plaintiff’s termination.80

Plaintiff testified that, a couple of weeks after her

termination, Veretta Cunningham, a co-worker, told her that Landman had said
plaintiff was terminated because she filed an EEOC charge.81 That statement, of
course, is classic hearsay. Moreover, Landman denied that statement in sworn
testimony, saying that he
never discussed [plaintiff’s] termination, the reason for her termination,
or any of her other personnel issues with Veretta Cunningham (the
Center’s payroll manager and Tamela’s former coworker) or any other
employees at the Center. . . . I never told Veretta Cunningham or
anyone else that Tamela’s termination was in any way related to her
filing a charge or otherwise communicating with the Equal Employment
Opportunity Commission.
Doc. no. 15-20 (Landman Declaration), ¶¶ 7-8, at ECF 3 (alteration and ellipsis
supplied).
Nonetheless, as a result of Cunningham’s accusation, plaintiff filed another
EEOC charge of discrimination on April 25, 2016.82 It charged retaliation, and read
as follows:
80

Doc. no. 15-19 (Landman Deposition), at 21-22.

81

Doc. no. 15-1 (Plaintiff’s Deposition: Part 1), at 179. Plaintiff submitted Veretta
Cunningham’s declaration in opposition to the motion for summary judgment, but there is no
mention of this conversation. See doc. no. 17-4 (Cunningham Declaration).
82

Doc. no. 15-2 (Plaintiff's Deposition: Part 2), Ex. 18, at ECF 15.

23

I filed a previous charge (420-2016-01857) based on race
discrimination on or about April 19, 2016; however, my employer was
informed of my intent to file a charge of discrimination on or about
April 14, 2016.
I was discharged on April 15, 2016, by Controller Brenda Perez.
The reason given for my discharge was negative actions toward the
workplace.
I believe that I have been subjected to retaliation for engaging in
protected activity, in violation of Title VII of the Civil Rights Act of
1964, as amended.
Doc. no. 15-2 (Plaintiff’s Deposition: Part 2), Ex. 18, at ECF 15.
The EEOC dismissed both charges on December 9, 2016, and mailed plaintiff
notice of her right to sue.83 She commenced this action on March 9, 2017.84
III. ANALYSIS
By offering no response to defendant’s argument that Eleventh Amendment
immunity required summary judgment to be entered in its favor on those racially
hostile work environment and retaliation claims that plaintiff had based upon 42
U.S.C. § 1981, plaintiff effectively abandoned those claims. Issues and contentions
not raised in a party’s brief are deemed abandoned. See, e.g., Chapman v. AI
Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc) (“Parties opposing
summary judgment are appropriately charged with the responsibility of marshaling
83

Doc. no. 1 (Complaint), Ex. A.

84

Id. (Complaint).

24

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)).
In opposing a motion for summary judgment, a party may not rely on his
pleadings to avoid judgment against him. There is no burden on the
district court to distill every potential argument that could be made
based upon the materials before it on summary judgment. Rather, the
onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed
abandoned.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations
and internal quotation marks omitted). Accordingly, Counts I and II of plaintiff’s
Complaint are due to be dismissed.
Plaintiff’s supplemental state law claim for negligent hiring, retention, and
supervision (Count V of the Complaint) also is due to be dismissed for the same
reason.
Moreover, plaintiff failed to pursue any claims based upon her unsuccessful
application for the position of Accounting Supervisor, and all claims related to that
25

event also are deemed abandoned.
Plaintiff’s remaining Title VII claims for a hostile work environment, disparate
treatment, and retaliation are addressed in the following sections.
A.

Hostile Work Environment
A prima facie racially-hostile work environment claim requires proof of five

elements: (1) plaintiff belongs to a protected racial group, African-American; (2) she
was subjected to unwelcome harassment; (3) the harassment was based upon
plaintiff’s race; (4) the harassment was sufficiently severe or pervasive to alter the
terms or conditions of plaintiff’s employment, and created a discriminatorily abusive
working environment; and (5) plaintiff’s 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).
Plaintiff cannot satisfy all the elements of a prima facie case because she
cannot prove that she suffered harassment based upon her race. “Title VII does not
prohibit all verbal or physical harassment in the workplace; it is directed only at
‘discriminat[ion] . . . because of . . . [race].’” Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 80 (1998) (emphasis and ellipses supplied, first alteration in
original, second alteration supplied); see also Mendoza v. Borden, Inc., 195 F.3d
1238, 1253 (11th Cir. 1999) (“Title VII was never intended to protect employees from
26

all unpleasant and rude conduct in the workplace.”) (Edmondson, J., concurring).
The “‘critical issue,’” according to the Supreme Court, “‘is whether members
of one [race] are exposed to disadvantageous terms or conditions of employment to
which members of the other [race] are not exposed.’” Oncale, 523 U.S. at 80
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J.,
concurring)) (alterations supplied). “[U]nfair treatment of an employee, standing
alone, does not make out a Title VII case; the mistreatment must be because the
employee was [African-American].” Bell v. Crackin’ Good Bakers, Inc., 777 F.2d
1497, 1504 (11th Cir. 1985) (Hill, J., concurring in part; dissenting in part) (emphasis
and alterations supplied).
Plaintiff contends that she was subjected to harassment based upon her race
because she subjectively believed that Perez’s and Kimberlin’s description of her as
“loud” was a euphemistic reference to her race (African-American), and that their
racial prejudice led them to: admonish her to cease personal telephone calls and
conversations in the accounting suite; move her cubicle to another location within the
suite; require her to use the back entrance to enter and exit the suite; monitor her
activities; and, note the reason for her absence from work on the staff calendar. She
also believed that other Center employees mocked her after her cubicle had been
relocated because of her race. Even so, there is no objective evidence whatsoever
27

indicating that any of those actions were based on plaintiff’s race.
Plaintiff has submitted evidence in the form of declarations of co-workers that
Kimberlin made racially insensitive remarks, but there is no evidence that Perez, the
supervisor who made the decision to terminate plaintiff’s employment, harbored a
racial animus. Moreover, the statements of plaintiff’s co-workers constitute
inadmissible hearsay under Federal Rule of Evidence 801, and may not be considered.
See Macouba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999).
Plaintiff also cannot prove that the harassment she allegedly endured was
sufficiently severe or pervasive to alter the terms and conditions of her employment.
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 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, 2122 (1993). When evaluating the objective severity of offensive conduct, courts
examine the totality of circumstances, including such factors as: (1) the frequency
of the conduct; (2) the severity of the conduct; (3) whether the conduct was
threatening or humiliating, or a mere offensive utterance; and (4) 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)
28

(citing Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999)). 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, 787 (1998) (citations omitted).
Here, the behavior to which plaintiff was subjected, taken as a whole, simply
does not add up to a hostile and discriminatorily abusive work environment. The
severity factor does not weigh heavily in plaintiff’s favor. None of the actions she
complained of can be considered extreme, in the sense of working a material change
in the terms and conditions of her employment. The rearrangement of the office suite,
the direction to cease personal telephone calls in the suite, and the monitoring of
plaintiff’s activities were legitimate efforts by Perez to maintain a productive working
environment. When plaintiff complained to Kimberlin about notation of her personal
information on the staff calendar, Kimberlin promptly complied with her request to
remove it. Finally, while plaintiff may have felt humiliated by the comments and
laughter of employees about the relocation of her cubicle, that conduct was not
sufficiently severe to meet the legal standard. Defendant’s motion for summary
judgment on plaintiff’s hostile work environment claim is, therefore, due to be
29

granted.
B.

Disparate Treatment
Plaintiff claims that she was subjected to race-based disparate treatment when

the cubicles in the accounting suite were rearranged and her cubicle was relocated to
the back of the suite. She does not claim to have direct evidence of a race-based
discriminatory animus. Therefore, she must prove her claims with circumstantial
evidence, navigating the burden-shifting framework first 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 in order to create a
presumption of discrimination. To rebut the presumption, the employer 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 of disparate treatment based upon her race,
plaintiff must show that (1) she is a member of a protected class, African-American;
(2) she was subjected to an adverse employment action; (3) her employer treated
30

similarly situated white employees more favorably; and (4) she was qualified to
perform the duties of her job. See, e.g., McCann v. Tillman, 526 F.3d 1370, 1373
(11th Cir. 2008); EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.
2000). Plaintiff cannot establish the second element: that the relocation of her
cubicle to the rear of the accounting suite amounted to an adverse employment action.
An employment action is considered sufficiently “adverse” to be actionable
under federal discrimination statutes only if it results in some tangible, negative effect
on the plaintiff’s employment. Cf. Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 761(1998) (holding in the context of a Title VII sexual harassment claim, that
“[a] tangible employment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits”)
(alteration supplied). The fundamental principle is that Title VII is not a “general
civility code”; accordingly, it does not protect employees from “the ordinary
tribulations of the workplace.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). It follows, therefore, that an employment action does not become actionably
adverse “merely because the employee dislikes it or disagrees with it.” Doe v. Dekalb
County School District, 145 F.3d 1441, 1449 (11th Cir. 1998) (quoting Perryman v.
West, 949 F. Supp. 815, 819 (M.D. Ala. 1996)); accord McCoy v. Macon Water
31

Authority, 966 F. Supp. 1209, 1220 (M.D. Ga. 1997). Neither “every unkind act,”85
nor “everything that makes an employee unhappy,”86 amounts to an adverse
employment action. “Otherwise, every trivial personnel action that an irritable, chipon-the-shoulder employee did not like would form the basis of a discrimination suit.”
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (Posner, C.J.)
(quoted with approval in Doe, 145 F.3d at 1449).
Stated somewhat differently, a plaintiff’s subjective feelings and personal
reactions are not the complete measure of whether a contested employment action is
sufficiently “adverse” to be actionable under federal employment discrimination
statutes. If a plaintiff’s individualized response to an employer’s decision was the test
for determining “adversity,” then “the most unreasonably hypersensitive employee
would be entitled to more protection than a reasonable employee. . . .” Gupta v.
Florida Board of Regents, 212 F.3d 571, 586 (11th Cir. 2000).87

85

Doe v. Dekalb County School District, 145 F.3d 1441, 1449 (11th Cir. 1998) (quoting Wu
v. Thomas, 996 F.2d 271, 273 n.3 (11th Cir. 1993) (per curiam)).
86

Doe, 145 F.3d at 1450 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d
Cir. 1997)); see also Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (“not
everything that makes an employee unhappy is an actionable adverse action.”).
87

Indeed, the Eleventh Circuit panel deciding Doe v. Dekalb County School District “found
no case, in this or any other circuit, in which a court explicitly relied on the subjective preferences
of a plaintiff to hold that that plaintiff had suffered an adverse employment action.” Doe, 145 F.3d
at 1448 (footnote omitted); see also id. at 1449 (reiterating that “no panel of this circuit has ever
listed a plaintiff’s particular subjective preference as a basis for its holding that a transfer was
adverse”) (footnote omitted).

32

Ultimately, a plaintiff must show a serious and material change in the terms,
conditions, or privileges of her employment, and the plaintiff’s subjective view of the
significance of her employer’s action is not controlling; rather, it must be
demonstrated that a reasonable person, placed in the plaintiff’s same position, would
have viewed the contested employment action as materially adverse under the
circumstances, before it may be said to rise to the level of an actionable, “adverse”
employment action. See, e.g., Davis v. Town of Lake Park, 245 F.3d 1232, 1239
(11th Cir. 2001). Cf., Doe, 145 F.3d at 1449 (“An ADA plaintiff must demonstrate
that a reasonable person in his position would view the employment action in
question as adverse.”). “Any adversity must be material; it is not enough that a
transfer[, or any other contested employment action,] imposes some de minimis
inconvenience or alteration of [the terms, conditions, privileges, or] responsibilities
[of the plaintiff’s job position].” Doe, 145 F.3d at 1453 (citing Crady v. Liberty
National Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)) (alterations
supplied); see also Davis, 245 F.3d at 1239 (“Whatever the benchmark, it is clear
that to support a claim under Title VII’s anti-discrimination clause the employer’s
action must impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real
and demonstrable way.”) (emphasis supplied). In other words, employment decisions
that fall short of “patently adverse” employment actions — defined as “a significant
33

change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change
in benefits,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) — “must
meet ‘some threshold level of substantiality . . . to be cognizable’” under Title VII.
Gupta, 212 F.3d at 587 (quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,
1456 (11th Cir. 1998)); see also Smith v. Alabama Department of Public Safety, 64
F. Supp. 2d 1215, 1221-22 (M.D. Ala. 1999) (finding that Title VII plaintiff could not
establish adverse employment action, because he suffered no loss in pay, benefits, or
classification, only great embarrassment). “In sum, [the plaintiff] must demonstrate
that a reasonable person in [her] position would have found the transfer [or other
contested employment action] to be adverse under all the facts and circumstances.”
Doe, 145 F.3d at 1453 (alterations supplied).
Plaintiff has failed to demonstrate that the rearrangement of cubicles within the
accounting suite constituted a serious and material change in the terms, conditions,
or privileges of her employment. She clearly was unhappy with the new location of
her cubicle, but that change can only be characterized as de minimis. While she may
have felt isolated due to the suite’s reconfiguration, her subjective reaction is not
enough to satisfy that element of a prima facie case. Accordingly, plaintiff cannot
establish that she was subjected to race-based disparate treatment, and summary
34

judgment is due to be granted in defendant’s favor on plaintiff’s disparate treatment
claim.
C.

Retaliation
“Retaliation is a separate violation of Title VII.” Gupta, 212 F.3d at 586.

Section 704(a) of Title VII of the Civil Rights Act of 1964 provides protection for
employees who oppose or participate in activities to correct an employer’s
discriminatory practices.
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
. . . because he [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a) (alteration and ellipsis supplied). Congress thus recognized
two predicates for retaliation claims: one for opposition to discriminatory practices,
and another for participation in protected activity.
Under the opposition clause, an employer may not retaliate against an
employee because the employee “has opposed any practice made an
unlawful employment practice by this subchapter.” . . . And, under the
participation clause, an employer may not retaliate against an employee
because the employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.”
Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d

35

1171, 1174 (11th Cir. 2000) (citations omitted).
The filing of a formal charge of discrimination with the EEOC is protected
under the “participation clause.” See, e.g., Berman v. Orkin Exterminating Co., 160
F.3d 697, 702 (11th Cir. 1998). That clause protects actions and statements that
“occur in conjunction with or after the filing of a formal charge with the EEOC.”
Total System Services, Inc., 221 F.3d at 1174 (citation and footnote omitted).
Plaintiff met that burden by filing an “intake form,” which the EEOC construed as a
charge of discrimination.
In addition to showing that she participated in protected activity, a plaintiff
must establish that she suffered an adverse employment action, and that the adverse
employment action was causally related to the protected activity. See, e.g., Chapter
7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012). “To establish
a causal connection, a plaintiff must show that the relevant decisionmaker was ‘aware
of the protected conduct, and that the protected activity and the adverse actions were
not wholly unrelated.” Kidd v. Mando American Corp, 731 F.3d 1196, 1210 (11th
Cir. 2013) (quoting Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712,
716 (11th Cir. 2002)).
When causation is based upon temporal proximity, the Supreme Court has
observed that the temporal gap between the protected activity and the subsequent
36

adverse employment action must be “very close.” Clark County School District v.
Breeden, 532 U.S. 268, 273 (2001) (per curiam) (quoting O’Neal v. Ferguson Constr.
Co., 237 F.3d 1248, 1253 (10th Cir. 2001), and citing Richmond v. ONEOK, Inc., 120
F.3d 205, 209 (10th Cir. 1997), and Hughes v. Derwinski, 967 F.2d 1168, 1174-75
(7th Cir. 1992), for the proposition that three- and four-month gaps, respectively,
between an employer’s knowledge of protected activity and an adverse employment
action are not sufficiently close to serve as circumstantial evidence of a causal
relationship between the two events).88
Here, plaintiff alleges that she mailed to the EEOC an “intake form” describing
her complaints of discrimination on April 6 or 7, 2016, and that she received a letter
dated April 13, 2016 from the EEOC on April 15, 2016 — the same date on which
her employment was terminated by Brenda Perez. That letter stated that the EEOC
had construed the information included in her “intake form” as a charge of

88

In full text, the Supreme Court’s statement in Breeden is as follows:

The cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity
must be “very close.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10
2001). See e.g., Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997)
(3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175
(C.A.7 1992) (4-month period insufficient). Action taken (as here) 20 months later
suggests, by itself, no causality at all.
Clark County School District v. Breeden, 532 U.S. 268 (2001) (per curiam).

37

discrimination, and that, in accordance with applicable regulations, her employer had
been notified. The EEOC is required to notify a complainant’s employer that a charge
of discrimination has been filed within ten days of its receipt. See 29 C.F.R. §
1601.14. Based on that regulatory requirement and the April 13th letter from the
EEOC, plaintiff argues that defendant must have received notice of her discrimination
complaint prior to the date of her termination (Friday, April 15, 2016). However,
objective evidence does not support that contention.
Vickie Henderson, the Center’s Vice President of Human Resources, declared
under penalty of perjury that she received the EEOC’s Charge Notice on Monday,
April 18, 2016 — three days after plaintiff had been terminated.89 Henderson
“informed Brenda Perez of Ms. Raybon’s Charge a few days after [she] received it.”90
Plaintiff’s contention that Veretta Cunningham told her that Derrik Landman
said that plaintiff had been fired because she filed an EEOC charge is inadmissible
hearsay. It also is not supported by the declaration of Veretta Cunningham submitted
by plaintiff in opposition to defendant’s motion for summary judgment, as well as
being contradicted by Landman’s sworn declaration.91 Cf. Jones v. UPS Ground

89

See doc. no. 27-1 (Henderson Declaration) ¶¶ 4-5, at ECF 2-3.

90

Id., ¶ 7, at ECF 3 (alteration supplied). The notice from the EEOC is dated April 14, 2016.
Id., Ex. A, at ECF 5.
91

See doc. no. 15-20 (Landman Declaration) ¶¶ 8-9, at ECF 3.

38

Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (holding that hearsay may not be
considered at the summary judgment phase when “the declarant has given sworn
testimony during the course of discovery that contradicts the hearsay statement”).
Although there is close temporal proximity between plaintiff’s submission of
an intake form to the EEOC and the subsequent termination of her employment,
plaintiff has failed to establish that the supervisor who terminated her employment
possessed knowledge that she had initiated the process for filing a formal charge of
discrimination. Without evidence of that linkage, plaintiff cannot show that her
termination was causally related to her protected activity. Moreover, the Eleventh
Circuit has held that,
in a retaliation case, when an employer contemplates an adverse
employment action before an employee engages in protected activity,
temporal proximity between the protected activity and the subsequent
adverse employment action does not suffice to show causation. Cf.
Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232
(11th Cir. 2006) (citing Clark County School Dist. v. Breeden, 532 U.S.
268, 272, 121 S. Ct. 1508, 1510-11, 149 L. Ed. 2d 509 (2001)).
Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). Here, defendant presented
evidence that Perez had contemplated terminating plaintiff’s employment before
plaintiff engaged in protected activity. Perez testified that plaintiff’s performance and
conduct began to deteriorate during the Fall of 2014, when the new accounting

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software eliminated many of plaintiff’s duties.92 Her attitude deteriorated further
when Kimberlin was hired as the Center’s Staff Accountant in the Spring of 2015.93
During May of 2015, plaintiff was disciplined by Perez and Henderson and banned
from the Center’s food service area for inappropriate behavior. Perez evaluated
plaintiff’s overall performance as “Needs Major Improvement” in December of 2015,
and counseled her to cease making personal telephone calls in the accounting suite.94
During the weeks leading up to plaintiff’s termination, Perez sought advice from the
Human Resources department to address plaintiff’s behavior.95 Perez testified that
she made the final decision to fire plaintiff a couple of days before she executed the
decision on April 15, 2016, due to plaintiff’s course of conduct and her continued
disregard of her instruction to refrain from personal telephone calls in the office.96
For all of the foregoing reasons, summary judgment is due to be granted on
plaintiff’s Title VII retaliation claim.
IV. CONCLUSION
A separate judgment in accordance with this memorandum opinion will be
entered contemporaneously herewith.
92

Doc. no. 15-3 (Perez Deposition), at 55.

93

Id.

94

Id., Ex. 9.

95

Doc. no. 15-3 (Perez Deposition), at 20.

96

Id. at 23.

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DONE this 31st day of August, 2018.

______________________________
United States District Judge

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