Mitchell v. Mercedes Benz U.S. International, Inc. et al

Filing 44

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/24/15. (MRR )

FILED
2015 Mar-24 AM 10:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TONY L. MITCHELL,
Plaintiff,
v.
MERCEDES-BENZ U.S.
INTERNATIONAL, INC., et al.
Defendants.

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Case. No.: 7:13-cv-01708-SGC

MEMORANDUM OPINION
Plaintiff Tony Mitchell brings this action against defendants Mercedes-Benz U.S.
International, Inc. (“Mercedes”), and TW Fitting NA, LLC (“TWF”), alleging race discrimination
and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act and asserting a state-law
claim for intentional interference with contractual and business relationships against Mercedes.
Defendants, pursuant to Fed. R. Civ. P. 56, have moved for summary judgment on all of Mitchell’s
claims. This court has jurisdiction under 28 U.S.C. §§ 636(c), 1331, and 1367. For the reasons stated
below, defendants’ motions are due to be granted.
SUMMARY OF UNDISPUTED FACTS1
Mitchell, an African American, was employed by Mercedes from 1997 to 2008. (Doc. 27-2
at 15:22-16:7). He began as a team member/operator but was later promoted to a team leader
position. (Doc. 27-2 at 34:2-5). In 2008, Mercedes investigated Mitchell for misconduct, resulting
in his demotion to team member and eventual termination. (Doc. 24-2 at 9, 11). Mitchell filed a

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To the extent factual inferences are drawn, they are drawn in favor of Mitchell, the non-movant.

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charge of discrimination with the EEOC and a lawsuit against Mercedes, alleging his demotion and
termination were racially discriminatory. (Docs. 24-2 at 10, 24-5). The suit was settled on August
10, 2010. (Doc. 24-6).
After leaving Mercedes, Mitchell applied for several other jobs. (Doc. 27-2 at 356:12-13).
Mitchell claims he was offered employment with four of these businesses, but each offer was
rescinded because Mercedes spoke of him negatively when contacted for a reference. (Doc. 27-2 at
107:18-108:10, 171:6-172:6). Mitchell interviewed with the first of these companies, Brose, in 2012.
(Doc. 27-2 at 171:15-16). According to Mitchell, Brose offered him a job as a Production Supervisor
with a set salary, contingent on a background and reference check. (Doc. 27-2 at 171:1-9). He heard
nothing from Brose until he received a rejection letter approximately a week later. (Doc. 27-2 at
171:17-172:6). According to Brose, it did not contact any of Mitchell’s former employers. (Doc. 2410 at 2).
Mitchell applied for a position with Faurecia in August 2012, through Melissa Preston at
Cornerstone Recruitment Group. (Doc. 27-2 at 184:21-185:5, 195:19-23). After the interview,
Preston told Mitchell that Faurecia had offered him a position. (Doc. 27-2 at 200:20-201:2).
Subsequently, a Faurecia employee emailed Archie Craft, Vice President of Human Resources and
Administration at Mercedes, requesting information on Mitchell. Craft replied, “This individual used
to be a Team Leader for us he has a file three inches deep and is not eligible for rehire.” (Doc. 2413). Preston, after speaking with Faurecia, informed Mitchell he would not be hired because of
negative references from Mercedes and Johnson Controls, a company for which Mitchell has never
worked. (Doc. 27-2 at 90:3-6, 200:20-21). Craft avers that, at the time of the email, he had no
knowledge of Mitchell’s EEOC charge or lawsuit against Mercedes and that the information
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contained in the email is true. (Doc. 24-4).
Mitchell interviewed with Nissan in August 2012. (Doc. 24-2 at 93). According to Mitchell,
he was offered a position as a Production Supervisor during the interview. (Doc. 27-2 at 204:15-20,
210:17-19). One of Mitchell’s interviewers, Tom Jones, expressed his desire to get in touch with
Patrick Schwind, a former manager of Mitchell’s at Mercedes who had been transferred to China.
(Doc. 27-2 at 209:19-210:1). After the interview, Jones emailed Mitchell to request Schwind’s
contact information. (Doc. 27-2 at 208:9-18). Later, when Mitchell attempted to complete the
required online assessment, he found himself locked out of the system, and Nissan made no further
contact regarding the position. (Doc. 27-2 at 206:1-8, 19-22).
Mitchell applied for a position with Altec in late 2012. (Doc. 24-11 at 2). On November 6,
2012, Altec formally offered Mitchell a supervisor position, contingent on a background check.
(Doc. 39-1). Altec contacted Mercedes to conduct the reference check and spoke with Donna Merrill
from Mercedes’s human resources department. (Doc. 27-2 at 224:10-13). According to Mercedes
and Altec, Merrill simply provided Altec with Mitchell’s job title and dates of employment. (Docs.
24-2 at 100, 24-9). According to Mitchell, however, Merrill first told Altec that Mitchell was only
an operator, not a team leader, making Mitchell appear to have lied on his resume. Mitchell
contacted Merrill to clarify with Altec that he had been a team leader, but by this time Altec was no
longer interested in Mitchell, and he was not hired. (Doc. 27-2 at 225:1-228:7). Merrill avers that
she has no knowledge of any EEOC charge or lawsuit filed by Mitchell against Mercedes. (Doc. 249).
Around December 2012, Mitchell had Terri Johnson, a friend for whom he had done some
work, contact Mercedes and request a reference determine whether Mercedes was providing negative
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references about him. (Doc. 24-12 at 58:5-17). Johnson did not intend to actually employ Mitchell.
(Doc. 24-12 at 60:7-10). Johnson claims to have spoken to Barbara in the human resources
department at Mercedes, who told Johnson that Mitchell was not eligible for rehire, had gotten into
some trouble, and was not reliable, dependable, or dedicated to Mercedes. (Docs. 24-12 at 62:7-11,
39-1 at 11). Mercedes claims no team member named Barbara worked in their human resources
department in December 2012. (Doc. 24-9 at 2).
Mitchell began working for defendant TWF, a Mercedes supplier, as a Production Manager
on May 2, 2013. (Doc. 24-2 at 41). As part of his duties, Mitchell frequently made purchases for
TWF using the company credit card. (Doc. 27-2 at 279:19-23). The procedure for use of the
company credit card is as follows: the employee fills out a company charge request, listing the
purposes for use of the card. (Doc. 27-2 at 282:17-19). The request must be approved and signed
by Craig Human, the plant manager. (Doc. 27-2 at 284:13-15). The employee then signs out the
credit card, receives it, and uses it for the authorized purposes. (Doc. 27-2 at 281:6-7). When the
employee returns to TWF, he gives the card back, signs it back in, and turns in all receipts for
purchases made using the card. (Doc. 27-2 at 281:7-9). Failure to follow this policy could subject
the employee to discipline, including immediate termination of employment. (Doc. 24-2 at 120).
Mitchell requested he be able to use the card on June 28, 2013 to buy supplies at Lowe’s or
Wal-Mart needed for the upcoming plant shutdown. (Docs. 24-2 at 116, 27-2 at 287:2-6). Human
approved and signed the request, Mitchell received the card from TWF’s accountant, and Mitchell
and two employees left the plant. (Docs. 24-2 at 116, 27-2 at 285:6-17, 295:1-2). The group drove
the company van because of the amount of supplies needed, but the van had trouble, lengthening the
trip. (Doc. 27-2 at 288:23-289:4). Once they arrived at Lowe’s, they gathered the needed supplies
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but had to wait for the paint to be stirred. (Doc. 27-2 at 291:5-8). While waiting, they went outside
to attempt to start the van. After fixing more problems with the van, Mitchell realized the group had
missed lunch, so he offered to pay for lunch at a nearby Ryan’s Steakhouse using the company credit
card. (Doc. 27-2 at 292:1-5). They did so, and Mitchell charged $29.36 to the credit card. (Doc. 24-2
at 118).
Around this time, from approximately the last week of June to the first week of July,
Mercedes employees visited TWF because mechanical problems at TWF had been causing
downtime, affecting Mercedes. (Doc. 27-2 at 314-15). Mitchell recognized two of the Mercedes
employees, Mike Capps and Rocky Harrelson, as former coworkers. (Doc. 27-2 at 310:20-22). In
the course of conversation, Capps asked Mitchell how his lawsuit against Mercedes was going.
(Doc. 27-2 at 311:20-21). Mitchell told him it was settled. (Doc. 27-2 at 311:23). While the
Mercedes employees were at the plant, they spent some time speaking privately with Human in his
office. (Doc. 27-2 at 316:14-16).
Mitchell’s employment with TWF was terminated on July 8, 2013, purportedly for use of the
company credit card for unauthorized, personal purchases. (Doc. 24-2 at 122). Mitchell claims he
was actually fired because of his race and because of pressure exerted by Mercedes on TWF to fire
him in retaliation for his previously filed EEOC charge and lawsuit against Mercedes. (Doc. 27-2
at 309:14-19). According to Mitchell, Human, who is white, also used the company credit card for
personal purposes but was not fired. (Docs. 27-2 at 305:19-23; 41-1). Capps and Harrelson executed
verbatim affidavits averring they have no knowledge of any EEOC charge or suit filed by Mitchell
alleging violations of his civil rights and that they did not speak to anyone at TWF about Mitchell.
(Docs. 24-15, 24-16).
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Mitchell filed a charge of discrimination with the EEOC against Mercedes on September 7,
2012, alleging retaliation based on the negative job references. (Doc. 1-1 at 2). He received notice
of his right to sue on August 7, 2013. (Doc. 1-1 at 3). He filed separate charges of discrimination
against Mercedes and TWF on July 23, 2013, alleging retaliation based on his termination from
TWF. (Doc. 24-2 at 45-46). Mitchell filed suit in this court on September 13, 2013, alleging five
causes of action: two claims against TWF under 42 U.S.C. § 1981 for race discrimination and
retaliation, two claims against Mercedes under 42 U.S.C. § 1981 and Title VII for retaliation, and
one claim against Mercedes under Alabama law for intentional interference with contractual and
business relationships. (Doc. 1). The defendants moved for summary judgment on all counts. (Docs.
22, 25).
CONCLUSIONS OF LAW
Summary judgment is appropriate when “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). The court must
“examine the evidence in the light most favorable to the non-moving party,” drawing all inferences
in favor of such party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “[A] ‘judge’s
function’ at summary judgment is not ‘to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Anderson v Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

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A. Count I - § 1981 Race Discrimination Against TWF
In Count I, Mitchell alleges TWF unlawfully discriminated against him because of his race
under 42 U.S.C. § 1981 by terminating his employment.2 “The McDonnell Douglas scheme for the
allocation of burdens and the order of presentation of proof . . . applies in § 1981 cases involving
discriminatory treatment in employment situations.” Turnes v. AmSouth Bank, NA, 36 F.3d 1057,
1060 (11th Cir. 1994).
Under McDonnell Douglas, the initial burden rests on the plaintiff to establish, by a
preponderance of the evidence, a prima facie case of discrimination. Once the
plaintiff has set out a prima facie case, a presumption of discrimination arises. The
intermediate burden of production then shifts to the employer to articulate a
legitimate, non-discriminatory explanation for not hiring him. This intermediate
burden is “exceedingly light.” The employer need only offer admissible evidence
sufficient to raise a genuine issue of fact as to whether it had a legitimate reason for
not hiring the plaintiff.
If an employer succeeds in carrying its intermediate burden of production, the
McDonnell Douglas framework, with its presumptions and burdens, drops out of the
case, and the trier of fact proceeds to decide the ultimate issue in the case: whether
plaintiff has proven that the employer intentionally discriminated against him because
of his race.
Id. at 1060-61 (internal citations omitted).3
“To establish a prima facie case for disparate treatment, [Mitchell] must show that ‘(1) [he]
is a member of a protected class; (2) [he] was subjected to adverse employment action; (3) [his]
employer treated similarly situated [white] employees more favorably; and (4) [he] 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)). TWF concedes Mitchell is a member of
2

Because the same analytical framework and standards apply to claims brought under § 1981 and Title VII,
the court will cite authority regarding these statutes interchangeably. See Goldsmith v. Bagby Elevator Co., Inc., 513
F.3d 1261, 1277 (11th Cir. 2008) (reciting identical standards for claims brought under Title VII and § 1981).
3

The same framework applies to Mitchell’s retaliation claims under § 1981 and Title VII. See Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999).

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a protected class (a racial minority), that he was subjected to an adverse employment action
(termination), and that he was qualified to do his job. TWF only argues Mitchell cannot establish any
similarly situated white employees were treated more favorably than him. “‘In determining whether
employees are similarly situated for purposes of establishing a prima facie case, it is necessary to
consider whether the employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.’” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.
2001) (quoting Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998)). “In
order to satisfy the similar offenses prong, the comparator's misconduct must be nearly identical to
the plaintiff's in order ‘to prevent courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.’” Id. (quoting Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir.
1999)).
Mitchell only points to Craig Human, the white plant director at TWF, as a comparator.
According to Mitchell’s testimony, taken as true, Human often used the company credit card to
purchase food for team members. (Docs. 27-2 at 305:19-23, 41-1 at 4-25). Mitchell also presents a
receipt for a rental car, purchased by Human for his wife with the company credit card. (Doc. 41-1
at 2). This evidence, however, does not show nearly identical misconduct between Human and
Mitchell. While mere differences in job titles do not prevent comparator status, see Lathem v. Dep’t
of Children and Youth Serv., 172 F.3d 786, 793 (11th Cir. 1999), “they can matter. This is because
the relevant inquiry is whether the employer subjected differently ranked employees to the same or
different employment policies.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir.
2011). Mitchell’s termination was purportedly for unauthorized, personal use of the company credit
card. Human, on the other hand, is responsible for approving all charges, even charges he himself
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makes. (Doc. 27-2 at 306:20-23). If Human decides to use the card, that use cannot, by definition,
be unauthorized. Any misconduct by Human, then, is not nearly identical to Mitchell’s misconduct.
Mitchell attempts to avoid this finding by claiming he and Human were subject to the same rules
governing use of the card (Doc. 27-2 at 306:16-19), but that contention is not supported by the
evidence because Human, not Mitchell, is responsible for authorizing all use of the card. Therefore,
Human is not similarly situated to Mitchell.
Although the lack of a comparator does not necessarily doom Mitchell’s claim, “[i]f a
plaintiff fails to show the existence of a similarly situated employee, summary judgment is
appropriate where no other evidence of discrimination is present.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1092 (11th Cir. 2004) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997)) (emphasis in original). Mitchell presents no other evidence against TWF demonstrating an
intent to discriminate on the basis of race—all of Mitchell’s other allegations against TWF regard
their succumbing to pressure from Mercedes to fire him out of a retaliatory motive. Therefore,
Mitchell has failed to establish a prima facie case of race discrimination under § 1981, and Count
I will be dismissed.
B. Count II - § 1981 Retaliation Against TWF
“To establish a claim of retaliation under Title VII or section 1981, a plaintiff must prove that
he engaged in statutorily protected activity, he suffered a materially adverse action, and there was
some causal relation between the two events.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1277 (11th Cir. 2008). TWF only challenges the third element, that there was a causal connection
between Mitchell’s protected activity (his EEOC charge and suit against Mercedes) and his
termination by TWF. To show a causal connection, “the plaintiff must generally show that the
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decision maker was aware of the protected conduct at the time of the adverse employment action.”
Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000). Mitchell
attempts to meet this showing via circumstantial evidence. According to Mitchell, Mercedes
employees were present at TWF in the days leading up to and during TWF’s plant shutdown in July
of 2013. (Doc. 27-2 at 309:20-310:5). Two of the Mercedes employees, Capps and Harrelson, were
former coworkers of Mitchell’s, and the three engaged in conversation. (Doc. 27-2 at 311:18-312:6).
During the conversation, Capps asked Mitchell how his lawsuit against Mercedes was going, to
which Mitchell responded that it was settled. (Doc. 27-2 at 311:18-312:2). Later on, Capps,
Harrelson, and other Mercedes employees spoke with Human privately. (Doc. 27-2 at 316:14-18).
Mitchell was fired shortly after the shutdown. (Doc. 27-2 at 315:6-11).
A defendant’s awareness of a plaintiff’s protected activity “may be established by
circumstantial evidence,” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993), but
the plaintiff must “show a defendant’s awareness with more evidence than mere curious timing
coupled with speculative theories.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th
Cir. 1997). These two cases are instructive. In Goldsmith, the plaintiff informed an employee of the
defendant of her intention to file an EEOC charge. The employee urged her not to do so and told the
plaintiff that the employee would speak to the defendant’s decisionmaker. The employee actually
did speak to the decisionmaker, who called plaintiff to his office immediately and told plaintiff that
her desired position had been filled. Plaintiff was abruptly transferred three weeks later. The court
found this circumstantial evidence to be sufficient. Goldsmith, 996 F.2d at 1163. In Raney, the only
evidence the plaintiff possessed was “an assertion based on a hunch that [an employee of the
defendant] informed [a decisionmaker for the defendant] of Raney’s plan to file charges with the
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EEOC.” 120 F.3d at 1198. The court found this insufficient, stating that “[s]ummary judgment
cannot be avoided . . . based on hunches unsupported with significant probative evidence.” Id.
This case is much more similar to Raney than to Goldsmith. Neither Capps, Harrelson, nor
anyone else at Mercedes told Mitchell they would inform TWF of Mitchell’s charge and lawsuit
against Mercedes. In fact, while the undersigned accepts Mitchell’s testimony Capps and Harrelson
were aware of Mitchell’s suit against Mercedes, the two aver they did not communicate with TWF
about Mitchell. (Docs. 24-15, 24-16). As in Raney, Mitchell’s claim is based only on “mere curious
timing coupled with speculative theories.” Id. at 1197. Therefore, Mitchell has not set forth
substantial evidence to show that anyone at TWF was aware of his protected activity, so he has failed
to show a causal connection, and his prima facie case fails. Accordingly, Count II will be dismissed.
C. Counts III & IV - Retaliation Against Mercedes
In Counts III and IV, Mitchell brings claims of retaliation against Mercedes under Title VII
and § 1981, respectively, based on two distinct types of conduct by Mercedes. In both counts,
Mitchell claims Mercedes retaliated against him by providing negative employment references when
contacted by Mitchell’s prospective employers. In Count IV, Mitchell also alleges Mercedes, once
it discovered Mitchell was employed by TWF, pressured TWF into terminating him. Each of these
acts will be discussed in turn.
1. Negative Employment References
Mitchell alleges that, on five separate occasions, Mercedes provided negative references
about Mitchell in retaliation for his filing an EEOC charge and lawsuit against Mercedes. Mercedes
challenges Mitchell’s ability to satisfy the second and third prongs of his prima facie case.

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a. Adverse Employment Action
First, Mercedes argues Mitchell cannot show Mercedes took an adverse employment action
against him. An employment action qualifies as adverse if the action “‘well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.’” Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 174 (2011) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)). The Eleventh Circuit has not decided when an employment reference qualifies
as an adverse action. Mercedes cites non-binding authority for the proposition that an employment
reference must be false, not merely negative, to be actionable. See, e.g., Jute v. Hamilton Sundstrand
Corp., 420 F.3d 166, 178-79 (2d Cir. 2005) (“[A] reasonable jury, after hearing the defendant's
evidence to the contrary, could find that Yost's false statement negatively affected Jute's chances of
securing employment.”); Syzmanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir. 2006) (“And
‘adverse’ in this setting has to mean, employing an objective standard, the dissemination of false
reference information that a prospective employer would view as material to its hiring decision.”).
Other courts have found a reference to be adverse so long as it is negative, even if the information
provided is not false. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, (9th Cir. 2000) (“Among
those employment decisions that can constitute an adverse employment action are . . . dissemination
of a negative employment reference . . . .”); Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004)
(finding negative employment references to be actionable so long as they have more than a de
minimis impact on future job opportunities); Chapman v. Western Express, Inc., No. 10-675-WS-C,
2011 WL 780594, *2 n.3 (S.D. Ala. Feb. 28, 2011) (“[F]ederal courts around the country have
recognized the viability of discrimination claims predicated on a former employer’s furnishing of
false or negative employment references.”) (emphasis added).
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The undersigned finds that a negative employment reference, even if providing only true
information, can qualify as an adverse employment action because a true reference could serve to
dissuade a reasonable employee from pursuing a protected activity just as much as a false one.
Contrary to Mercedes’s assertion, it is not illogical to hold true references actionable. Even true
references could harbor retaliatory intent, as an employer could volunteer more negative information
than requested or provide an unsolicited negative reference. Further, this holding only concerns one
element of the prima facie case, not a finding of liability. Retaliatory intent must still be shown.
Mitchell argues that Mercedes provided five negative references. The first was to Brose in
2012, but Mitchell only possesses circumstantial evidence to show a negative review took place.
According to Mitchell, Brose offered him a job contingent on a reference check, but Mitchell did not
hear from Brose until he received a rejection letter approximately ten days after the interview. (Doc.
27-2 at 171-72). Brose states it did not speak to any former employers concerning Mitchell. (Doc.
24-10 at 2). Mitchell’s evidence as to Brose is insufficient to survive summary judgment. Mitchell
simply provides no basis for the court to determine Mercedes provided a negative reference to Brose,
much less the contents of or intent behind any such reference. Therefore, the alleged reference given
to Brose is not actionable.
The second reference, given to Faurecia in August 2012, is plainly actionable. After Mitchell
claims to have been offered a job, a Faurecia employee emailed Archie Craft, Vice President of
Human Resources and Administration at Mercedes, requesting information on Mitchell. Craft
replied, “This individual used to be a Team Leader for us he has a file three inches deep and is not
eligible for rehire.” (Doc. 24-13). Craft’s comments about Mitchell’s disciplinary record and
eligibility for rehire reflect negatively on Mitchell, so the claim will proceed as to this reference.
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The third reference was to Nissan, also given in August 2012. Mitchell’s assertion that a
reference occurred is based only on circumstantial evidence, but such evidence is stronger as to
Nissan than as to Brose. During Mitchell’s interview, one of the interviewers, Tom Jones, expressed
his desire to get in touch with Patrick Schwind, a former manager of Mitchell’s at Mercedes who had
been transferred to China. (Doc. 27-2 at 209:19-210:1). After the interview, Jones emailed Mitchell
to request Schwind’s contact information. (Doc. 27-2 at 208:9-18). After this, when Mitchell
attempted to complete the required online assessment, he found himself locked out of the system,
and Nissan made no further contact regarding the position. (Doc. 27-2 at 206:1-8, 19-22). While the
details of this potential reference are not known, the circumstantial evidence present is sufficient to
allow an inference of a negative reference, so the claim will proceed.
The fourth reference was given to Altec in late 2012. Altec offered Mitchell a position,
contingent on a background check. (Doc. 39-1 at 14-15). Altec then contacted Mercedes to conduct
the reference check and spoke with Donna Merrill from Mercedes’s human resources department.
(Doc. 27-2 at 224:10-13). According to Mercedes and Altec, Merrill simply provided Altec with
Mitchell’s job title and dates of employment. (Docs. 24-2 at 100, 24-9). According to Mitchell,
however, Merrill first told Altec that Mitchell was only an operator, not a team leader, making
Mitchell appear to have lied on his resume. Mitchell called Merrill to clarify with Altec that he had
been a team leader, but by this time Altec was no longer interested in Mitchell, and he was not hired.
(Doc. 27-2 at 225:1-228:7). While this mix-up could have merely been the result of an honest
mistake, the reference is sufficient to qualify as an adverse employment action.
Finally, Mitchell had Terri Johnson, a friend for whom he had done some work, contact
Mercedes and request a reference to determine whether Mercedes was providing negative references
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about him. (Doc. 24-12 at 58:5-17). Johnson claims to have spoken to Barbara in the human
resources department at Mercedes, who told Johnson that Mitchell was not eligible for rehire, had
gotten into some trouble, and was not reliable, dependable, or dedicated to Mercedes. (Docs. 24-12
at 62:7-11, 39-1 at 11). Even though no employment relationship existed or was intended between
Mitchell and Johnson, this reference constitutes an adverse employment action. While the lack of
actual harm to Mitchell by the reference would factor into a damages analysis, it does not alter the
fact that Mercedes gave a negative review of Mitchell to Johnson, whom Mercedes likely thought
to be an actual employer. Therefore, Mitchell’s claim will proceed as to this reference.
b. Causal Connection
Mercedes also challenges Mitchell’s ability to show a causal connection between his
protected activity (the EEOC charge and lawsuit against Mercedes) and the negative references,
giving three reasons in support of the challenge. First, Mercedes argues no causal connection exists
because the prospective employers all chose not to hire Mitchell for legitimate reasons, so the
references did not cause Mitchell not to be hired. This argument is misguided. The causal
connection prong requires a connection between Mitchell’s protected activity—his EEOC charge
and lawsuit against Mercedes—and the adverse employment action—the negative job references.
The causal connection between Mercedes’ actions and the actions of the other potential employers
is irrelevant.
Second, Mercedes argues Mitchell cannot rely on temporal proximity to establish causation.
While Mercedes is correct that temporal proximity alone is insufficient in this instance, since
Mitchell’s lawsuit ended approximately two years before any of the negative references occurred
(Doc. 24-6), the contention is irrelevant because Mitchell does not seek to establish causation by
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temporal proximity. Rather, Mitchell seeks to establish a causal connection by demonstrating “that
an employer knew of a protected activity, and a series of adverse employment actions commenced
thereafter.” Jiles v. United Parcel Serv., Inc., 360 Fed. App’x 61, 66 (11th Cir. 2010).
Finally, Mercedes argues that none of the involved employees had any knowledge of
Mitchell’s EEOC charge and lawsuit. As stated above, to show a causal connection “the plaintiff
must generally show that the decision maker was aware of the protected conduct at the time of the
adverse employment action.” Brungart, 231 F.3d at 799. Mitchell claims the negative references
came from Donna Merrill and Barbara, Mercedes’s human resources representatives, from Archie
Craft, Mercedes’s Vice President of Human Resources and Administration, and from Patrick
Schwind, a former manager of Mitchell’s at Mercedes. Merrill avers she has no knowledge of any
EEOC charge or lawsuit filed by Mitchell and that no one named Barbara worked in Mercedes’s
human resources department at the time of Terri Johnson’s call. (Doc. 24-9). Craft also avers that,
at the time of the email, he had no knowledge of Mitchell’s charge or suit. (Doc. 24-4). Mitchell’s
only response is to argue any assertion that Craft, as Vice President of Human Resources, was
unaware of Mitchell’s charge and lawsuit “strains credulity.” (Doc. 38 at 16). Mitchell presents no
evidence to the contrary regarding Craft or any of the other persons he alleges provided negative
references, and the bare circumstantial evidence here fails to create a genuine issue of material fact.
Therefore, Mitchell has failed to establish a causal connection, and Count III will be dismissed, as
will Count IV as far as it relates to the negative employment references.
2. Alleged Pressure Placed on TWF
In Count IV, Mitchell claims Mercedes retaliated against him by pressuring TWF, a
Mercedes supplier, to terminate Mitchell’s employment. Mercedes challenges Mitchell’s ability to
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satisfy the second and third elements of his prima facie case. The undersigned finds that Mitchell has
failed to present evidence of any adverse employment action taken by Mercedes. Mitchell alleges
Mercedes employees, namely Capps and Harrelson, exerted pressure on TWF to terminate Mitchell’s
employment. After Capps asked Mitchell how his lawsuit against Mercedes was going, the Mercedes
employees spoke with Human in his office, and Mitchell was fired a few days after the Mercedes
employees left. Capps and Harrelson, however, have averred they did not speak to anyone at TWF
about Mitchell. (Docs. 24-15, 24-16). Just as in Count II, Mitchell’s reliance on this circumstantial
evidence is insufficient to demonstrate that Capps, Harrelson, or anyone at Mercedes actually exerted
pressure on TWF to terminate Mitchell. Mitchell’s claim amounts only to “mere curious timing
coupled with speculative theories.” Raney, 120 F.3d at 1197. Accordingly, Mitchell cannot make out
a prima facie case, and Count IV as related to this theory will be dismissed.
D. Count V - Intentional Interference With Contractual and Business Relationships Against
Mercedes
Finally, Mitchell brings a claim against Mercedes under Alabama law for intentional
interference with contractual or business relationships. “[T]he elements of the tort are (1) the
existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the
defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damages.”
White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009). While Mercedes challenges
Mitchell’s ability to show four of the five requirements, the undersigned need only consider the
fourth: that Mercedes intentionally interfered with Mitchell’s employment with TWF and potential
employment with other companies. Whether conduct rises to the level of intentional interference

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depends, in part, on whether the conduct was justified.4 Id. at 12. Whether conduct is justified
depends on a balancing of seven factors: “(a) the nature of the actor’s conduct, (b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be
advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the
contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the
interference, and (g) the relations between the parties.” Id. at 13 (internal quotations omitted). “The
nature of the actor’s conduct is a chief factor in determining whether the conduct is improper or not,
despite its harm to the other person.” Id.
Considering these factors, the undersigned finds that Mercedes did not intentionally interfere
with Mitchell’s relationships. Mitchell has only presented substantial evidence that Mercedes gave
negative references to Altec, Faurecia, and Terri Johnson. But Mitchell has failed to show that any
of these references were untruthful or motivated by a desire to retaliate. Further, Mitchell has not
shown any actual pressure exerted by Mercedes on TWF to terminate Mitchell’s employment. The
only acts supported by the evidence are Mercedes’s truthful, negative references given to Altec,
Faurecia, and Johnson. Because of this, the first, second, and fifth factors weigh heavily in favor of
Mercedes. Mercedes only provided truthful references on request, without any retaliatory motive
present. While the references were negative, societal interests favor employers being allowed to offer
truthful, negative opinions about employees when other potential employers request references, so
that employers may give and receive correct information when determining whom to employ without
fear of legal action. Therefore, Count V will be dismissed.

4

Whether justification is considered as an aspect of this prima facie element or as an affirmative defense,
the analysis remains the same.

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CONCLUSION
For the reasons stated above, the motions for summary judgment filed by Mercedes (Doc.
22) and TWF (Doc. 25) will be granted. A separate final judgment will be entered.
DONE this 24th day of March, 2015.

STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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