Tolbert v. Mercedes-Benz U.S. International Inc

Filing 40

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/19/2018. (PSM)

FILED
2018 Nov-19 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
REPONSA TOLBERT, pro se,

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Plaintiff,
vs.
MERCEDES-BENZ U.S.
INTERNATIONAL, INC.,
Defendant.

7:17-cv-00873-LSC

MEMORANDUM OF OPINION
Plaintiff Reponsa Tolbert (“Tolbert” or “Plaintiff”) filed this action against
Mercedes-Benz U.S. International, Inc. (“MBUSI”) asserting claims for race, sex,
and age discrimination with respect to promotions and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
and the Civil Rights Act of 1866, 42 U.S.C. § 1981a (“§ 1981”). Before the Court is
MBUSI’s motion for summary judgment (doc. 25). 1 The motion has been briefed
and is ripe for review. For the reasons stated below, MBUSI’s motion for summary
judgment (doc. 25) is due to be granted.

1

Tolbert’s retaliation claim against MBUSI is the only claim remaining before this Court.
(Docs. 24 & 29.)
Page 1 of 26

I.

BACKGROUND 2
MBUSI hired Tolbert as a logistics Team Member in October 1996. MBUSI

then promoted Tolbert to a logistics Team Leader position in June 1998. In 2012,
Tolbert began applying for promotion to a Group Leader position. However,
Tolbert claims that while she was seeking promotion, positions were not being
posted and Caucasians and/or younger individuals were being selected for
promotion instead of her. Because she believed these decisions were
discriminatory, Tolbert filed an EEOC charge in September 2013.
In November 2014, Tolbert suffered a fall at work and was injured. MBUSI
safety personnel and a paramedic responded to the incident. Tolbert was then
taken to MBUSI’s on-site medical office. Once at the office, Tolbert’s injuries
were evaluated by the paramedic. The paramedic told Tolbert her elbow was
broken. The paramedic then iced Tolbert’s elbow and placed it in a sling. MBUSI’s

2

The facts as presented in this section are taken only from statements of fact in the parties'
briefs supported by record evidence. While Tolbert includes many unsupported allegations
concerning the conduct of MBUSI, bare allegations not supported by materials in the record are
insufficient to create a material dispute sufficient to overcome summary judgment. See Fed. R.
Civ. P. 56(c); see also Fed. R. Civ. P. 56(e) Nevertheless, all reasonable doubts about the facts
have still been resolved in favor of Tolbert. See Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir.2002). These are the “facts” for summary judgment purposes only.
They may not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d
1386, 1400 (11th Cir.1994).

Page 2 of 26

medical staff then asked Tolbert to wait for the plant doctor to arrive for further
assessment. However, MBUSI’s plant doctor was not scheduled to arrive for
another two hours. Tolbert did not want to wait for the plant doctor to arrive, so
she requested to leave and drive herself to the hospital. When Tolbert was asked to
sign a statement acknowledging that she was refusing treatment, she refused to sign
it and elected instead to stay at MBUSI to receive treatment. Approximately 50
minutes after she was injured, given an initial diagnosis, and limited treatment,
Tolbert was taken to Druid City Hospital (“DCH”) in one of MBUSI’s security
trucks. Although MBUSI initially called an ambulance for Tolbert, it cancelled the
ambulance because Tolbert’s injuries were not deemed life threatening. Due to
traffic conditions, it took MBUSI’s security trucks a little over 40 minutes to make
the approximately 20 mile drive to DCH.
After her accident, Tolbert received short term disability (“STD”) benefits
and leave from MBUSI for her injuries. Although Tolbert received these benefits,
her workers’ compensation request was denied because her injury was not
considered an on the job injury. However, Tolbert’s STD benefits and leave were
set to expire before she was capable of returning to work. Therefore, Tolbert
contacted MBUSI in December 2014 about extending her STD leave and benefits.
Tolbert’s request for an extension of STD benefits was denied because her
Page 3 of 26

paperwork was incomplete. Consequently, Tolbert’s STD benefits lapsed on
January 6, 2015. On January 20, 2015,Tolbert filed a second charge with the
EEOC alleging that MBUSI’s failure to transport her in an ambulance and request
for her to sign a statement acknowledging she was refusing treatment were
retaliatory acts. In February 2015, Tolbert’s STD benefits were restored because
her doctor provided the required paperwork.
Although Tolbert continued to work for MBUSI, she filed for Chapter 13
Bankruptcy on August 2, 2016, as a result of her medical bills from the fall. (Doc.
26 Ex. A at 18-19). In her bankruptcy petition, Tolbert disclosed that she “may
have a workman’s comp action against Mercedes for injury to her arm.” (Id. at
137.) Tolbert did not disclose her EEOC charges.
In 2017, Tolbert began to experience symptoms indicating carpal tunnel
syndrome (CTS). Although she was initially misdiagnosed by an occupational
therapist employed by MBUSI, MBUSI’s doctor correctly diagnosed Tolbert with
CTS a few weeks later. Tolbert filed this action in May 2017. Even though
Tolbert’s bankruptcy was ongoing, Tolbert did not update her assets schedule to
disclose this action or disclose her EEOC charges. Despite the ongoing litigation,
Tolbert continued to receive positive ratings for her work at MBUSI and was
granted additional STD leave and benefits in March 2018 for treatment of her
Page 4 of 26

CTS. Tolbert’s request for workers’ compensation benefits for her CTS was
denied.
II.

STANDARD

Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact 3 and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Id. A
genuine dispute as to a material fact exists “if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in its favor.”
Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)
(quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2001)). The trial judge should not weigh the evidence, but determine whether there
are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal
3

A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015).

Page 5 of 26

Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). Although “pro se
complaints are entitled to a liberal interpretation by the courts, ... a pro se litigant
does not escape the essential burden under summary judgment standards of
establishing that there is a genuine issue as to a fact material to his case in order to
avert summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990)
(emphasis added). “[U]nsubstantiated assertions alone are not enough to
withstand a motion for summary judgment,” Rollins v. TechSouth, Inc., 833 F.2d
1525, 1529 (11th Cir. 1987), as the Court can rely only on facts which are properly
supported by the evidence, and “set forth by affidavit or otherwise.” Lewis v.
Casey, 518 U.S. 343, 358 (1996). Therefore, Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will not suffice to overcome
a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th
Cir. 2004)).
In making a motion for summary judgment, “the moving party has the
burden of either negating an essential element of the nonmoving party’s case or
showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th
Page 6 of 26

Cir. 2013). Although the trial courts must use caution when granting motions for
summary judgment, “[s]ummary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules
as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III.

DISCUSSION
A. RETALIATION UNDER TITLE VII AND § 1981
i. ADMINISTRATIVE EXHAUSTION

Valid claims under Title VII must meet all requirements for administrative
exhaustion. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).
Administrative exhaustion under Title VII requires filing a timely charge with the
EEOC. Id. If, as in this case, the EEOC declines to bring its own civil action against
the employer, it will issue a Notice of Right to Sue to the employee. 29 C.F.R. §
1601.28(b)(1). Upon receipt of this notice, the employee has a period of ninety days
to bring suit against the employer. 42 U.S.C. § 2000e-5(f)(1). The Eleventh Circuit
has held that a judicial complaint is limited by claims that are “like or related to, or
grew out of, the administrative allegations.” Basel v. Sec’y of Defense, 507 Fed.
App’ x. 873, 876 (11th Cir. 2013) (citing Gregory v. Georgia Dept. of Human
Resources, 355 F.3d 1277, 1280 (11th Cir. 2004)). This Circuit has also “noted that
judicial claims are allowed if they ‘amplify, clarify, or more clearly focus’ the
Page 7 of 26

allegations in the EEOC complaint, but has cautioned that allegations of new acts of
discrimination are inappropriate.” Gregory, 355 F.3d at 1279-80 (citing Wu v.
Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)). Although a plaintiff cannot add new
acts of discrimination, acts of retaliation that “grow[] out of an administrative
charge that is properly before the court” are not barred. See Gupta v. East Texas
State Univ., 654 F.2d 411 (5th Cir. Unit A Aug. 1981) 4
MBUSI argues that many of Tolbert’s allegations of retaliation are untimely
and are due to be dismissed because of Tolbert’s failure to exhaust her
administrative remedies in regard to these actions. MBUSI specifically claims that
the following allegations are not properly before this Court because Tolbert did not
include them in her EEOC charges: (1) Tolbert’s 2012 Informal Complaint, (2)
MBUSI’s denial of Tolbert’s STD benefits extension after her November 2014 fall,
(3) MBUSI’s alleged denials of Tolbert’s workers’ compensation claims, and (4)
MBUSI’s initial misdiagnosis of Tolbert’s CTS.
Even though Tolbert’s EEOC charges do not list the aforementioned
actions, they nonetheless relate to and grow out of the charges in Tolbert’s

In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binging precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
4

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administrative filings because they would have likely been included in the EEOC’s
investigation into Tolbert’s allegations of discrimination. 5 See Sanchez , 431 F.2d at
466 (noting that “the ‘scope’ of the judicial complaint is limited to the ‘scope’ of
the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.”). Therefore, none of Tolbert’s allegations are due to be
dismissed as untimely.
ii. TOLBERT’S PRIMA FACIE CASE
Retaliation claims that rely on circumstantial evidence are analyzed using the
burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411,
U.S. 792, 793 (1973). See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009).
Under this framework, the plaintiff first bears the burden of establishing her prima
facie case. To establish a prima facie case for retaliation under § 1981 or Title VII, a
plaintiff must show that (1) she was engaged in statutorily protected activity; (2)
she suffered an adverse employment action; and (3) a causal link exists between the
protected activity and the adverse employment action. Furcron v. Mail Ctrs. Plus,
LLC, 843 F.3d 1295, 1310 (11th Cir. 2016); see also Standard v. A.B.E.L. Servs., Inc.,

Tolbert received her right to sue letter for her September 2013 EEOC Charge on May 1,
2017. The right to sue letter for Tolbert’s January 2015 EEOC charge was issued on March 3,
2017.
5

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161 F.3d 1318, 1330 (11th Cir. 1998) (“Both of these statutes [i.e., section 1981 and
Title VII] have the same requirements of proof and use the same analytical
framework.”).
Once a plaintiff establishes a prima facie case, McDonnell Douglas next
requires defendants to meet their “burden of producing a legitimate, nondiscriminatory reason for the challenged employment action.” Denney v. City of
Albany, 247 F.3d 1172, 1183 (11th Cir. 2001). Finally, “[i]f such a reason is
produced, a plaintiff then has the ultimate burden of proving the reason to be a
pretext for unlawful discrimination.” Id.
Tolbert has failed to demonstrate a prima facie case because she cannot
establish a causal link between her statutorily protected activity and the alleged
adverse employment actions. Tolbert’s filing of an EEOC charge is a statutorily
protected activity. 42 U.S.C. § 2000e–3(a). Additionally, making an informal
complaint that “explicitly or implicitly communicate[s] a belief that [the conduct
suffered by the plaintiff] constitutes unlawful employment discrimination” is a
statutorily protected activity. Furcron, 843 F.3d at 1311.

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In her alleged 2012 informal complaint 6, Tolbert complained to an
unidentified co-worker about a “Caucasian male being awarded a position without
said position being posted to the whole department.” (Doc. 13 ¶¶ 17, 41,
66.)Taking this complaint in the light most favorable to the Plaintiff, Tolbert’s
complaint implicitly communicated that the practice of not posting positions
constituted unlawful employment discrimination. Nevertheless, a plaintiff making
an informal complaint must also demonstrate that she “had a good faith, reasonable
belief that the employer was engaged in unlawful employment practices.” Id.
(quoting Little v United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.
1997)). This belief must be “objectively reasonable in light of the facts and record
presented.” Little, 103 F.3d at 960. Tolbert has not presented evidence indicating
that her belief was objectionably reasonable. Accordingly, even if this Court were to
consider the 2012 complaint, it could not be seen by a reasonable jury as protected
activity.

6

The Court has not been presented with any evidence of this complaint other than
MBUSI’s reference to the alleged complaint in its brief. Although Tolbert asserts in her
summary judgment response that there is an email that corroborates her allegations of an
informal complaint in 2012, the Court cannot rest its decision on unsupported factual assertions.
See Helmich v. Kennedy, 796 F.2d. 1441, 1443 (11th Cir.1986).(“[s]tatements of fact in a party's
brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of
material fact exists.”)

Page 11 of 26

To prove an adverse employment action in the context of a retaliation claim,
the plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, meaning “it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); accord Crawford
v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008). An adverse employment action need
not be as serious as outright termination. It may include “adverse actions which fall
short of ultimate employment decisions.” Wideman v. Wal-Mart Stores, Inc., 141
F.3d 1453, 1455-56 (11th Cir. 1998). However, the Supreme Court has stressed that
the exercise of statutorily protected activity does not “immunize [an] employee
from those petty slights or minor annoyances that often take place at work that all
employees experience.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. This
Court's determination of whether the defendant’s actions were materially adverse
is inherently fact-specific and “depend[s] upon the particular circumstances” of
the case. Id. at 69; see also Crawford, 529 F.3d at 973 n. 13 (11th Cir.2008) (noting
that Burlington Northern “strongly suggests that it is for a jury to decide whether
anything more than the most petty and trivial actions against an employee should
be considered ‘materially adverse’ to him and thus constitute adverse employment
actions”).
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Tolbert alleges that the following events constitute adverse employment
actions: (1) Transporting her in a security truck to DCH after November 2014
accident at the plant, (2) MBUSI’s asking her to sign a statement acknowledging
that she was refusing treatment for her November 2014 injury, (3) Denial of her
request for an extension of STD benefits, (4) Denial of workers’ compensation
benefits, and (5) a misdiagnosis of Carpal Tunnel Syndrome (CTS).
Tolbert does not explain why these actions are materially adverse. Instead,
Tolbert questions the reasonableness of MBUSI’s decisions and asserts that these
actions were committed in retaliation. While a delay in medical treatment may in
some circumstances rise to the level of deterring a reasonable employee from
bringing a charge of retaliation, the facts before this Court do not rise to the level of
a materially adverse action. See Wideman, 141 F.3d at 1455-56 (finding that needless
delay of required medical treatment to an employee experiencing a severe allergic
reaction in combination with other retaliatory acts could rise to the level of an
adverse action).
Here, Tolbert initially tried to leave the plant for more immediate treatment
of her elbow. However, after MBUSI asked her to sign a statement acknowledging
she was refusing treatment, Tolbert chose to remain at the plant and be evaluated
by the plant doctor. Despite any delay from Tolbert’s decision to stay, the
Page 13 of 26

undisputed facts indicate that Tolbert received treatment by a paramedic
immediately after her fall and that she was being transported to the hospital
approximately 50 minutes after her fall. Although Tolbert claims that both
MBUSI’s request and this delay were improper, she has not presented any
evidence indicating that these actions denied her timely and appropriate medical
treatment for her broken elbow.
Additionally, Tolbert’s argues that there was retaliatory delay in her arrival
at the hospital and exacerbation of her injuries because she was transported in a
security truck instead of an ambulance. Tolbert has not offered evidence
corroborating her allegations that the ride between the plant and the hospital would
have been faster if in an ambulance. Nor has Tolbert presented any further
evidence that the increase in pain and blood pressure she experienced in the
security truck would have been prevented by travel in an ambulance. Therefore,
the fact that MBUSI did not transport Tolbert to the hospital in her preferred
method of transport in this circumstance represents nothing more than a petty
slight or minor annoyance and a reasonable employee would not be dissuaded from
maintaining or filing a discrimination claim by this action.
Further, the undisputed record indicates that the treatment MBUSI
provided to Tolbert was part of its standard protocol at the plant. Although Tolbert
Page 14 of 26

attempts to underscore the propriety of MBUSI’s policies, the undisputed facts
indicate that Tolbert received timely medical treatment, albeit not in the manner or
at the speed Tolbert desired. The Eleventh Circuit has observed that Title VII’s
protections “simply do not extend to everything that makes an employee
unhappy.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir. 2001)
(internal quotations and citation omitted). Therefore, in reviewing the evidence
and considering it in the light most favorable to Tolbert, the Court concludes that a
reasonable employee under the circumstances would not be dissuaded from
maintaining a discrimination claim by being asked to sign such a statement and/ or
being transported to a hospital in a security truck.
Tolbert also claims that the initial misdiagnosis of her CTS was an adverse
action. Tolbert was initially told that she did not have CTS by an occupational
therapist working for MBUSI. However, MBUSI’s plant doctor corrected
Tolbert’s diagnosis a few weeks later. Tolbert again offers no argument as to how
this delay in diagnosis would constitute a materially adverse action or dissuade a
reasonable employee from maintaining a claim of retaliation. Therefore, a
reasonable jury could not conclude under the circumstances in this case that this
delay in diagnosis constituted an adverse action.

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With regard to the denial of Tolbert’s request for an extension of STD
benefits and workers’ compensation benefits, courts in the Eleventh Circuit have
found that losses or reductions in pay may constitute materially adverse
employment actions. See Davis, 245 F.3d at 1240. The evidence indicates that
Tolbert suffered financial hardships as a result of these denials. As such, a
reasonable jury could conclude under these circumstances that a reasonable
employee would be dissuaded from maintaining a claim of discrimination by these
denials.
As part of her prima facie case, a plaintiff must also establish that a causal
connection exists between her statutorily protected activity and the alleged adverse
employment actions she suffered. Furcron, 843 F.3d at 1310. To do so, the plaintiff
must prove that but-for the employer’s desire to retaliate, she would not have
suffered the adverse employment action. Booth, 757 F.3d at 1207. One way the
plaintiff can establish a causal connection is if she can show sufficient evidence that
the employer knew of her statutorily protected activity and that there was a close
temporal proximity between this awareness and the adverse employment actions.
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004); see Clark County School
Dist. v. Breeden, 532 U.S. 268, 273 (holding that the temporal proximity must be
“very close”).
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A claim of retaliation fails as a matter of law “[i]f there is a substantial delay
between the protected expression and the adverse action in the absence of other
evidence tending to show causation.” Higdon, 393 F.3d at 1220. Tolbert argues that
the adverse actions were taken in retaliation for her September 2013 EEOC charge.
However, the adverse actions Tolbert complains of did not begin until November
2014, over a year after she filed her EEOC charge. See Breeden, 532 U.S . at 273-74
(finding that a three-and-a-half month passage of time between the protected
activity and adverse action, without other evidence of causation, is too long for the
purposes of establishing the causal link.)7 This temporal gap between the activities
is too great for this Court to find a causal link.
Even if Tolbert could establish temporal proximity, Tolbert has failed to
adduce any evidence that any decision maker involved with her medical treatment
for her November 2014 accident, her request for an extension of STD benefits, her
workers’ compensation claims, or her misdiagnosis was aware of her EEOC
charges or her 2012 informal complaint. See Raney v. Vinson Guard Serv., Inc., 120
F.3d 1192, 1197 (11th Cir.1997) (“[I]n a case involving a corporate defendant the

Tolbert does not make an argument for or present any evidence of a causal link between
her 2015 EEOC charge and the misdiagnosis of her CTS in 2017 or the denial of workers’
compensation benefits in 2017.
7

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plaintiff must show that the corporate agent who took the adverse action was aware
of the plaintiff's protected expression....”) In regard to Tolbert’s workers’
compensation claim, the evidence does not indicate that MBUSI was at all involved
in the workers’ compensation decision. An independent third party administrator
(“TPA”) runs MBUSI worker’s compensation program, and there is no evidence
that MBUSI informed the TPA about Tolbert’s charges. Tolbert merely argues
that she was treated differently because she filed an EEOC charge. This argument
does little to carry Tolbert’s burden of establishing her prima facie case. Tolbert has
failed to establish her prima facie case because there is no causal link between her
protected activity and an adverse action. MBUSI is entitled to summary judgment.
B. LEGITIMATE, NONDISCRIMINATORY REASON
If a Title VII plaintiff makes a prima facie case for retaliation, the burden of
production then shifts to the defendant to articulate legitimate, nondiscriminatory
reasons for its actions. Brown, 597 F.3d at 1181 (quoting Bryant, 575 F.3d at 1308).
The employer's burden at this stage is “exceedingly light.” Perryman v. Johnson
Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). If the employer articulates one or
more such reasons, even if it does not “persuade the court that it was actually
motivated by the proffered reasons…then the presumption of discrimination is
rebutted, and the burden of production shifts to the plaintiff to offer evidence that
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the alleged reason of the employer is a pretext for illegal discrimination.” Brown,
597 F.3d at 1174 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981)) (internal citations and quotation marks omitted).
MBUSI has articulated legitimate, nondiscriminatory reasons for its actions.
First, MBUSI asserts that it does not require individuals to be treated by the plant
doctor before seeking care elsewhere, but that those refusing medical treatment at
the plant and seeking to leave before receiving treatment are asked to sign a
statement acknowledging the refusal of treatment. Accordingly, MBUSI asked
Tolbert to sign a statement acknowledging she was refusing care. Moreover,
MBSUI has asserted that its general practice is to cancel any ambulance that was
called for an employee if there is no immediate medical risk, and to transport that
employee in one of its security trucks instead. Here, MBUSI asserts that Tolbert’s
injury did not present an immediate medical risk and thus did not warrant her
transportation in an ambulance. Additionally, MBUSI has asserted that Tolbert’s
STD benefit extension was initially denied because her paperwork was not timely.
MBUSI has also indicated that Tolbert’s initial misdiagnosis by an occupational
therapist was corrected a few weeks later by the plant doctor. Furthermore,
MBUSI has pointed to evidence that it was not responsible for the denial of
Tolbert’s workers’ compensation claims because an independent third party
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administrator ran its workers’ compensation plan. MBUSI has thus proffered
legitimate, nondiscriminatory reasons for its actions concerning Tolbert.
C. PRETEXT
Once a legitimate, nondiscriminatory reason is proffered, Tolbert is required
to show that MBUSI’s proffered reasons were pretextual. In order to show pretext,
a plaintiff must “demonstrate that [the defendant’s] proffered reason was not the
true reason for the employment decision . . . . [The plaintiff] may succeed in this
either directly by persuading the court that a discriminatory reason [or retaliatory
motive] more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Jackson v. State of
Alabama State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005); Burdine, 450
U.S. at 256. A plaintiff survives summary adjudication if she produces sufficient
evidence to allow a reasonable factfinder to disbelieve the employer’s articulated
reasons for its decisions. Jackson, 405 F.3d at 1289; Howard v. BP Oil Co., 32 F.3d
520, 525-26 (11th Cir. 1994). The plaintiff must show sufficient “weaknesses or
implausibilities” in the employer’s articulated reasons. Rioux v. City of Atlanta, 520
F.3d 1269, 1278 (11th Cir. 2008).
Tolbert has failed to point to any evidence from which a reasonable jury
could conclude that MBUSI’s legitimate, non-discriminatory reasons were
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pretextual. Instead, Tolbert merely questions the wisdom of MBUSI’s decisions
and speculates that MBUSI had an improper motive. This is insufficient to show
pretext as MBUSI did not deviate from its medical treatment policies or
procedures. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1299
(11th Cir. 2006) (“an employer's deviation from its own standard procedures may
serve as evidence of pretext”).
Furthermore, there is no evidence indicating that MBUSI’s reasons for
denying of Tolbert’s STD or workers’ compensation benefits were pretextual. The
evidence supports MBUSI’s explanation for the denial of Tolbert’s STD benefits
because they were restored upon receipt of Tolbert’s completed paperwork.
Additionally, although Tolbert alleges that the denials of workers’ compensation
benefits were wrongful, she has produced no evidence that indicates that her claims
were otherwise valid or that MBUSI acted in bad faith or in any way impaired her
claims. See Riccard v. Prudential, 307 F.3d 1277, 1293 (11th Cir. 2002). Therefore,
Tolbert has both failed to make a prima facie case or show that MBUSI’s legitimate,
nondiscriminatory reasons for its actions were pretextual. As such, MBUSI is
entitled to summary judgment on Tolbert’s remaining claims.
D. JUDICIAL ESTOPPEL

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Even if the Court were to find that Tolbert’s claims were otherwise valid,
her claims would be barred by judicial estoppel. “Judicial estoppel is an equitable
doctrine invoked at a court’s discretion.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d
1282, 1285 (11th Cir. 2002) (citing New Hampshire v. Maine, 532 U.S. 742, 750
(2001)) overruled in part on other grounds by Slater v. U.S. Steel Corp., 871 F.3d 1174
(11th Cir. 2017) (en banc). Application of the judicial estoppel doctrine prevents a
party from “asserting a claim in a legal proceeding that is inconsistent with a claim
taken by that party in a previous proceeding.” Burnes, 291 F.3d at 1285 (quoting 18
James Wm. Moore et al., Moore’s Federal Practice § 134.30, p. 134–62 (3d ed.
2000)). The purpose of the doctrine is “to protect the integrity of the judicial
process by prohibiting parties from deliberately changing positions according to the
exigencies of the moment.” New Hampshire, 532 U.S. at 749–50. Because judicial
estoppel protects the process, not a specific party, the one asserting the doctrine
need not show that it detrimentally relied on the other party’s previous assertions
or even that it was involved in the previous proceeding. Burnes, 291 F.3d at 1286.
The Eleventh Circuit has established two factors which predominate in
applying judicial estoppel to a particular case. Burnes, 291 F.3d at 1285 (noting that
the “two factors applied in the Eleventh Circuit are consistent with the Supreme
Court’s instructions” in New Hampshire); Barger v. City of Cartersville, 348 F.3d
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1289, 1293 (11th Cir. 2003) overruled in part on other grounds by Slater, 871 F.3d
1174. First, a party’s allegedly inconsistent position must have been “made under
oath in a prior proceeding.” Burnes, 291 F. 3d at 1285 (quoting Salomon Smith
Barney, Inc. v. Harvey, 260 F.3d 1302, 1308 (11th Cir. 2001)). Second, the
“inconsistencies must be shown to have been calculated to make a mockery of the
judicial system.” Id. “[T]hese two enumerated factors are not inflexible or
exhaustive; rather, courts must always give due consideration to all of the
circumstances of a particular case when considering the applicability of this
doctrine.” Id. at 1286.
A debtor seeking protection under the bankruptcy laws is required to
disclose all assets, or potential assets, to the bankruptcy court by filing a schedule of
assets and a statement of the debtor’s financial affairs. 28 U.S.C. § 521(1). “[T]he
importance of full and honest disclosure cannot be overstated.” Burnes, 291 F.3d at
1286 (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355,
362 (3d. Cir. 1996)). The Eleventh Circuit “has emphasized the importance of full
and honest disclosure in bankruptcy proceedings, stating that it is ‘crucial’ to the
system’s ‘effective functioning.’” Robinson v. Tyson Foods, Inc., 595 F.3d 1269,
1274 (11th Cir. 2010) (quoting Burnes, 291 F.3d at 1286). This duty to disclose
“applies to proceedings under Chapter 13 and Chapter 7 alike” and “is a
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continuing one that does not end once the forms are submitted to the bankruptcy
court; rather, a debtor must amend her financial statements if circumstances
change.” Id. Full disclosure is particularly important because “creditors rely on a
debtor’s disclosure statements in determining whether to contest or consent to a no
asset discharge. Bankruptcy courts also rely on the accuracy of the disclosure
statements when considering whether to approve a no asset discharge.” Burnes,
291 F.3d at 1286. As such, a debtor's failure to amend her asset schedule “to reflect
a pending claim while simultaneously [pursuing] that claim in another court of law
constitutes inconsistent positions under oath.” Robinson, 595 F.3d at 1275.
Tolbert filed for Chapter 13 bankruptcy protection on August 2, 2016.
Although Tolbert had pending EEOC charges, she did not include these claims in
her schedule. Moreover, when Tolbert filed this action in 2017 she did not amend
her schedule to include these claims. Therefore, Tolbert took inconsistent
positions under oath by simultaneously pursuing her claims of discrimination all
while omitting them from her bankruptcy proceeding.
Having established that Tolbert has adopted inconsistent positions, the
Court must evaluate whether these inconsistences were “calculated to make a
mockery of the judicial system.” Burnes, 291 F. 3d at 1285. This is a question of
intent. The Eleventh Circuit has stated that judicial estoppel may only apply in
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situations involving intentional contradictions, “not simple error or inadvertence.”
Id. at 1286.To determine whether the plaintiff “intended to make a mockery of the
judicial system, a district court should consider all the facts and circumstances of
the case.” Slater, 871 F.3d at 1176. Factors to be considered by the district court
include:
the plaintiff's level of sophistication, whether and under what
circumstances the plaintiff corrected the disclosures, whether the
plaintiff told [her] bankruptcy attorney about the civil claims before
filing the bankruptcy disclosures, whether the trustee or creditors
were aware of the civil lawsuit or claims before the plaintiff amended
the disclosures, whether the plaintiff identified other lawsuits to which
[she] was party, and any findings or actions by the bankruptcy court
after the omission was discovered.
Id. at 1185.
Here, Tolbert is a college educated individual, who was represented by an
attorney in her bankruptcy proceeding. Although the parties debate whether
Tolbert told her bankruptcy attorney about her EEOC charges and retaliation
claims, the undisputed record indicates that Tolbert did disclose other pending
claims that she had, including her workers’ compensation claims. Moreover,
Tolbert’s deposition testimony indicates that she knew of her claims and was aware
of the requirement to disclose all pending claims but “didn’t see a need” to
disclose her claims. (Doc. 26 Ex. A. at 15, 20-21.) Tolbert did not reveal her EEOC

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charges throughout the pendency of her bankruptcy. Similarly, Tolbert did not
disclose this action to the bankruptcy court, even though her bankruptcy was still
pending. After her bankruptcy was dismissed in March 2018, Tolbert reached a
settlement with MBUSI and as a result dismissed all but one of her pending claims
in this case, effectively hiding the proceeds of this case from the bankruptcy court
and her creditors. These actions taken together indicate intentional conduct, not
inadvertence, by Tolbert. Therefore, the Court finds that Tolbert is judicially
estopped from asserting her claims and MBUSI is entitled to summary judgment.
IV.

CONCLUSION

For the reasons stated above, Defendant’s Motion for Summary Judgment
(doc. 25) is due to be GRANTED and Tolbert’s claims DISMISSED WITH
PREJDICE. An Order consistent with this Opinion will be entered separately.
DONE and ORDERED on November 19, 2018.

_____________________________
L. Scott Coogler
United States District Judge
195126

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