Kaul v. Brett Robinson Gulf Corporation
ORDER granting 48 , 61 and 66 Motions for Summary Judgment filed by Brett Robinson Gulf Corporation, and denying as moot defendant's 71 Motion to Strike unsworn statement. Signed by Judge Callie V. S. Granade on 5/3/2011. (copy to pltf) (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MACHELLE D. KAUL,
BRETT ROBINSON GULF
CORPORATION, et. al.,
CIVIL ACTION NO. 10-0231-CG-C
This matter comes before the court on three motions for summary judgment
filed by defendant Brett Robinson Gulf Corporation (“BRGC”) (Docs. 48, 61 and 66).
For the reasons set forth below, the motions are due to be GRANTED.
On May 4, 2010, the plaintiff Machelle D. Kaul brought this lawsuit against
BRGC, Larry Stricklin, and Lee Smith, claiming that she was subject to
discrimination, retaliation, harassment, wrongful demotion and termination due to
her sex, national origin and religion. (Doc. 1). On August 31, 2010, this court
dismissed the claims against Larry Stricklin and Lee Smith with prejudice. (Doc.
28). On November 4, 2010, this court granted BRGC’s motion for partial summary
judgment on plaintiff’s claim of religious discrimination. (Doc. 45). Presently
before the court are:
BRGC’s motion for summary judgment on plaintiff’s Family and
Medical Leave Act claim (Doc. 48);
BRGC’s motion for partial summary judgment on plaintiff’s national
origin discrimination claim (Doc. 61); and
BRGC’s motion for summary judgment on plaintiff’s harassment,
discrimination and retaliation claims (Doc. 66).
BRGC’s motion to strike unsworn statement (Doc. 71).
The motions have been fully briefed by the parties and are ripe for disposition.1
BRGC is a vacation rental and sales company which operates high-rise
condominiums located along the beach in Gulf Shores and Orange Beach, Alabama.
On April 25, 2007, plaintiff was hired by BRGC as a security officer. During the
time period relevant to this matter, Larry Stricklin was the chief of BRGC’s
security services department. Lee Smith was second-in-command as the assistant
director of security services. The security officers in each of the three eight-hour
shifts, day, evening, and night, were supervised by a shift supervisor and an
Plaintiff is proceeding pro se in this matter, but was advised of the need to
present evidence in response to BRGC’s motions for summary judgment in
accordance with McBride v. Sharpe, 25 F.3d 962, 968 (11th Cir. 1994)(en banc) cert.
denied, 513 U.S. 990 (1994). (Docs. 35, 50, 64 and 68). Plaintiff has filed responses
to Documents 48 and 66, but has submitted no affidavits or other evidence which
the court can consider in determining the motions for summary judgment.
When she was initially hired, plaintiff was assigned to the day or first shift
which ran from 6:00 a.m. to 2:00 p.m. In May 2007, Stricklin promoted plaintiff to
fill a vacant assistant shift supervisor position on the evening or second shift,
which ran from 2:00 p.m. to 10:00 p.m. After her promotion, plaintiff’s direct
supervisor was Jeremy Smith, the evening shift supervisor. As an assistant
supervisor, plaintiff supervised the security officers on her shift and was in charge
of the evening shift on Saturdays and Sundays when Jeremy Smith was off work.
Roger Wynn was a security officer assigned to the evening shift.2 Part of
plaintiff’s job when she was in charge of that shift involved going to Wynn’s work
location and checking on him. On several occasions in October 2007, Wynn engaged
in conduct plaintiff believed constituted sexual harassment in violation of the
BRGC’s written policy.3
During her deposition, plaintiff originally identified Wynn as Wiggins, but
later corrected herself (Doc. 66-2, p. 36).
During her deposition, plaintiff described the alleged offensive conduct as
He started saying some really off-the-wall things, saying that we were having
conversations that never occurred. He said that I told him that he could put his
hand up my skirt and that I told him that he could kiss me. And I told him that that
conversation never would happen. I said, I'm your supervisor. This is uncalled for.
[O]ne day I went in to Phoenix VI (a Brett Robinson condominium building)
to check on him when I was supervising and he started taking pictures of me with a
camera he had brought in.
One day I was talking to the girl at the front desk. After I had told him not to
continue to make these comments and that he needed to speak to me in a
professional manner only, and he started stroking -- I had my hand on the desk and
he started stroking my finger, and I pulled it away.
On October 29, 2007, plaintiff reported Wynn’s conduct to Jeremy Smith, who
told her to prepare a written statement. She did so, and signed it on November 1,
2007. According to this written statement, Wynn’s conduct “[s]tart[ed] around the
middle of Oct[ober],” and identifies harassing incidents on four days – October 19,
20, 26, and 28. Also on November 1, 2007, plaintiff’s statement was provided to
Stricklin. Finally on November 1, Stricklin interviewed plaintiff and Wynn, and
After the incidents with Wynn, plaintiff began to receive disciplinary reports
which eventually culminated in her termination. On November 28, 2007, Jeremy
Smith issued plaintiff a written minor infraction report for wearing her uniform
coat while in civilian clothes. Plaintiff had previously been warned not to do this.
During her deposition, plaintiff admitted to doing this and that she had been
previously advised against it. Additionally, plaintiff could not identify another
assistant supervisor who had disobeyed this directive.
Jeremy Smith also issued plaintiff a second minor infraction report on
December 11, 2007. This report was for failing to conduct a telephonic roll call of
the security officers on her shift. Plaintiff admitted that she failed to do this on
There was a time he told me that his -- he showed me a picture of his
niece and her family and told me that she had posed for Playboy.
[T]here was one time -- yes, he did ask me out. And there was one time
in particular that he said, well, she won't go out with me unless I don't work here,
so I guess I'll have to quit my job.
(Doc. 66-2, pp. 28-33).
December 10. Plaintiff also could not identify another assistant supervisor who had
failed to conduct a roll call.4 Also on December 11, 2007, Jeremy Smith issued
plaintiff a separate minor infraction report for failing to have adequate security
officer coverage at a condominium building within her area of responsibility. As
noted on the report, Jeremy Smith learned on December 11 that she had failed to
carry out this duty on December 10. Again, plaintiff admitted during her deposition
that she had allowed an officer to leave early, thereby losing coverage at that
building, and that she could not identify another assistant shift supervisor who had
left a building uncovered and who was not disciplined.
On January 8, 2008, Jeremy Smith issued an employee warning notice to
plaintiff regarding the misuse of her company-provided cell phone. Cell phone
records showed that plaintiff was making lengthy calls while she was off duty to
officers who were on duty. At her deposition, plaintiff admitted that she had used
the company cell phone several times to call her boyfriend, Anthony Rao, a BRGC
security officer, when she was off duty and he was on duty, and that their
discussions, at times, were quite lengthy. She also could not point to any other
assistant shift supervisor who had so many lengthy calls on the company cell phone.
On January 21, 2008, Stricklin met with plaintiff and her supervisor, Jeremy
Smith, to discuss plaintiff’s performance, as well as additional lapses in supervisory
judgment or poor job performance Stricklin thought should be addressed. As
Plaintiff claimed that Jeremy Smith, her shift supervisor, had similarly failed to conduct
a roll call a week before her, but admitted she had no idea whether he was disciplined.
plaintiff recalled the meeting, Stricklin told her that “[h]e felt that [she] was not
making wise supervisor decisions.” One of the additional issues involved plaintiff’s
decision to wear jeans at a leadership training class earlier in the month. Stricklin
had instructed the security department that they were not permitted to wear jeans
to this training. On January 22, 2008, Jeremy Smith gave plaintiff a written
counseling memorandum drafted by Stricklin relating to this issue. Plaintiff
admitted that the facts stated in the counseling memorandum were true and that
she was the only person from the security department wearing jeans to the
Another incident discussed at the January 21st meeting involved a notice to
Stricklin regarding an incident report. During a security patrol, plaintiff came
across an unlocked door at the company’s laundry facility. Plaintiff initially failed
to complete a written report on this incident as required by BRGC policy. She was
instructed by Lee Smith, the assistant chief of security services, to complete an
incident report. When she did so, the report was not correctly completed. During
her deposition, plaintiff admitted she had discovered an unlocked door at the
company’s laundry but had not prepared an incident report simply because she
believed it was unnecessary. Plaintiff also had admitted that her job duties
included the completion of an incident report for occurrences such as an unlocked
door. Plaintiff admitted that she did not know of another assistant shift supervisor
who had similarly failed to timely and accurately complete an incident report.
Stricklin has not had occasion to discipline any other assistant shift supervisor for
this type of conduct.
Another example of what Stricklin viewed as plaintiff’s poor judgment
discussed during the January 21st meeting related to her failure to appear for at
least two supervisors meetings, which were held at 6:00 a.m. After she missed the
first meeting, plaintiff told Stricklin that she had a doctor’s appointment.
Thereafter, plaintiff missed a second meeting, and failed to give Stricklin any
warning or notice. During her deposition, plaintiff claimed she had given advance
notice to Jeremy Smith, but was unable to provide any evidence to show that the
notice was passed on to Stricklin. Stricklin has stated in his declaration that he
was not advised in advance of plaintiff’s absence. Plaintiff alleged that one other
assistant shift supervisor had missed supervisors meetings without any
consequences. According to Stricklin, this other employee did have advance
permission to miss meetings.
After the January 21st meeting, Stricklin notified plaintiff that he was
placing her on a period of probation for 90 days, and that she was to be closely
supervised by Jeremy Smith.
Plaintiff was unable to identify any assistant shift
supervisor with a similar discipline history who was not placed on probation. In
fact, plaintiff could not identify an assistant shift supervisor with a similar
During the next several weeks, Jeremy Smith kept Stricklin informed about
his closer supervision of plaintiff and his impression that she was not improving or
attempting to improve her performance as a supervisor. As a result, on February
15, 2008, Stricklin demoted plaintiff to security officer and moved her to the day
shift under the supervision of Carol Wilson, day shift supervisor. Stricklin stated in
his declaration that he has terminated and demoted assistant shift supervisors
based on reports of poor judgment and poor decision-making from their direct
supervisors. Stricklin claims to have made his demotion decision in essentially the
same fashion as his promotion decision a few months earlier by relying on reports
from plaintiff’s supervisor. Plaintiff was transferred to the day shift because there
was a need for a security officer on that shift. Plaintiff could not identify any
assistant shift supervisor who had engaged in conduct similar to that admitted to
by plaintiff and placed on probation who was not demoted after the employee’s
supervisor provided negative opinions about the progress during the probation.
After the demotion and transfer, Wilson kept Stricklin informed regarding
plaintiff’s performance. According to Wilson and reported to Stricklin, plaintiff
exhibited several performance problems. For one, plaintiff’s uniforms and
appearance were at times dirty and not acceptable, and on one occasion she
discovered plaintiff at her gate house duty station with her shoes off and her feet
propped up. According to Wilson, plaintiff failed to enforce security rules against
bike riding and skateboarding on company-owned or company-managed property,
and failed to enforce or follow up on enforcement of rules requiring guests to wear
wrist bands in the pool areas. She also discussed personal issues with guests and
other employees to an extent Wilson considered unprofessional and inappropriate.
Finally, plaintiff failed to completely or thoroughly complete activity reports for the
shift. In April 2008, Wilson prepared a performance appraisal of plaintiff listing
her various concerns and provided it to Stricklin for review. The performance
appraisal was never delivered to plaintiff because, a day or so after receiving it,
Stricklin decided to fire her.
The final incident involving plaintiff concerned beach cleanup. BRGC
required employees to spend an hour every Wednesday morning cleaning trash from
the beach. The company had a telephone call system which would call employees to
remind them to clean the beach between 8:00 a.m. to 9:00 a.m. On the morning of
April 16, 2008, a few minutes after 8:00 a.m., Stricklin and Lee Smith went to the
beach area near buildings which were part of plaintiff’s duty station. When they
arrived, Stricklin saw some trash on the beach but no officer on the beach cleaning.
Stricklin instructed Lee Smith to contact Wilson in order to locate plaintiff . When
contacted, plaintiff explained she had already been to the beach and cleaned up
what she had seen. Plaintiff was ordered to come out to the beach and perform the
cleanup work. Plaintiff did so. Stricklin instructed Lee Smith to document these
events, which he did. Wilson believed plaintiff was lying to her about performing
her cleanup earlier in an attempt to excuse her failure to perform her job. Wilson
also believed that, even if she had performed some beach cleaning earlier, plaintiff
was not following orders about the assigned time for this job and had not done a
good job because from what she understood from Lee Smith there was still trash on
the beach. Stricklin decided to discharge plaintiff the day of the beach cleanup. Not
following orders or lying to supervisors were both reasons for discipline under
BRGC’s policies. Plaintiff does not know of any other security officer who Stricklin
believed had lied about or misrepresented the facts about performing the beach
cleaning or any other duty.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall
be granted Aif the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law.@ The trial court=s function is not Ato weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.@
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The basic issue before
the court on a motion for summary judgment is Awhether 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.@ See Anderson, 477 U.S. at 251-252.
The moving party bears the burden of proving that no genuine issue of material fact
exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must view all evidence in
the light most favorable to the non-moving party, and resolve all reasonable doubts
about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th
Cir. 1999). AIf reasonable minds could differ on the inferences arising from
undisputed facts, then a court should deny summary judgment.@ Miranda v. B&B
Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile
Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party Amust make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial.@ Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must Ademonstrate that there is indeed a material issue of fact that
precludes summary judgment.@ See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party Amay not rely merely on allegations or
denials in [the non-moving party=s] pleading; rather, its response .... must B by
affidavits or as otherwise provided in this rule B set out specific facts showing a
genuine issue for trial.@ FED. R. CIV. P. 56(e). AA mere >scintilla= of evidence
supporting the [non-moving] party=s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that party.@ Walker v. Darby,
911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). A[T]he nonmoving party
may avail itself of all facts and justifiable inferences in the record taken as a whole.@
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). AWhere the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.@ Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation and citation
National Origin Discrimination
In her complaint, plaintiff checked the blocks indicating she accused BRGC of
discriminating against her on the basis of her religion, sex and national origin.
(Doc. 1, p. 2). This court has already granted summary judgment in favor of BRGC
on plaintiff’s religious discrimination claim because such a claim was not part of
plaintiff’s EEOC charge. (Doc. 45). As noted in that prior order, filing an
administrative claim of discrimination with the EEOC is a condition precedent to
filing suit in this court under Title VII. Maynard v. Pneumatic Products Corp., 256
F.3d 1259, 1262 (11th Cir. 2001)(citing 42 U.S.C. § 2000e-5(e)). “A plaintiff’s
judicial complaint is limited by the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination.” Mulhall v.
Advance Sec. Inc., 19 F.3d 586, 589 n. 8 (11th Cir. 1994)(citing Sanchez v. Standard
Brands, Inc., 431 F.2d 455 (5th Cir. 1970)).
The court has reviewed the plaintiff’s EEOC charge, as well as the
correspondence from the EEOC submitted by BRGC. The court finds that plaintiff
did not exhaust her administrative remedies by raising a national origin
discrimination claim before the EEOC. The scope of the investigation which could
be reasonably expected to grow out of the plaintiff’s discrimination charge, and did
in fact grow out of that charge did not include a national origin discrimination
claim. So for the reasons set forth in this court’s prior order (Doc. 45), BRGC is
entitled to summary judgment on plaintiff’s national origin discrimination claim.
Family and Medical Leave Act Claim
Plaintiff’s complaint contains the following allegations that bear on this
In Dec. of 2007, my mother was diagnosed with stage four lung
cancer, terminal, and was given six months to live.
In Feb. of 2008 I was demoted back to officer, and put on first
shift, I asked if I could work 2nd or 3rd shift so that I could be there for
my Mother during the day while she was awake. Larry [Stricklin] said,
“no, first shift or nothing at all. So I worked the first shift and put in
another request for 2nd or 3rd shift in March of 2008. By this time my
Mother was deteriorating very fast …. Larry [Stricklin] again said, no,
first shift or nothing at all. This was a violation of the family medical
leave act unable to work with me on my schedule to be there for my
The Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”) grants
eligible employees certain substantive rights including the right to 12 weeks of
leave in a 12-month period in order to care for a parent who has a serious health
condition. 29 U.S.C. §2612(a)(1). Employee rights established by FMLA are
enforced in part by 29 U.S.C. §2615 which states in pertinent part:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right provided
under this subchapter.
It shall be unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing any
practice made unlawful by this subchapter.
Courts have noted that the FMLA thus creates two types of claims: (1)
interference claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the Act, see 29 U.S.C. §
2615(a)(1); and (2) retaliation claims, in which an employee asserts that his
employer discriminated against him because he engaged in activity protected by the
Act, see 29 U.S.C. § 2615(a)(1) & (2). Strickland v Water Works, 239 F.3d 1199,
1207 (11th Cir. 2001). To state a claim of interference with a substantive right, an
employee need only demonstrate by a preponderance of the evidence that he was
entitled to the benefit denied. Id. at 1206-1207 (citations omitted). In contrast, to
succeed on a retaliation claim, an employee must demonstrate that his employer
intentionally discriminated against him in the form of an adverse employment
action for having exercised an FMLA right. Id. at 1207. “In other words, a plaintiff
bringing a retaliation claim faces the increased burden of showing that his
employer's actions were motivated by an impermissible retaliatory or
discriminatory animus.” Id. (internal quotations omitted).
The court construes plaintiff’s complaint as seeking to make an FMLA
interference claim. Plaintiff essentially says that she was entitled to switch to the
second or third shift at work, that she requested such a change, and that her
request was denied. For purposes of resolving the motion, the court assumes,
without deciding, that the accommodation plaintiff requested comes under the
purview of the FMLA.
Based on the undisputed facts of record in this matter, the court finds that, at
the time of her request, plaintiff was not entitled to any benefits under the FMLA
because she was not an eligible employee as defined by that law. The leave
entitlements of the FMLA apply to “eligible employees.” 29 U.S.C. §2612(a). An
eligible employee is defined as an employee who has been employed for at least 12
months and 1250 hours. 29 U.S.C. §2611(2)(a). By her own admission, plaintiff
was terminated by BRGC before she had been employed for 12 months. In her
complaint, plaintiff lists her employment dates as April 25, 2007, to April 14, 2008.
(Doc. 1 p. 2). In her deposition, she testified that she was discharged on April 16,
2008, and that she had not been employed for one year at that time. (Doc. 48-1 p.
10-11). The specific incidents she complains of, BRGC’s refusal to place her on the
second or third shift, are alleged to have occurred in February and March of 2008.
She was, therefore, outside of the protection of the FMLA. BRGC is, accordingly,
entitled to summary judgment of this claim.5
BRGC moves for summary judgment on plaintiff’s claim for sexual
harassment. While sexual harassment claims involve fact intensive issues, motions
The court takes note that, in her response to the summary judgment
motion, plaintiff asserts that the FMLA claim is actually based on her desire for the
accommodation in working shift to be effective after her one year employment
anniversary. The court need not address this issue because there is no factual
support in the record for it. See Scarboro v. Universal C. I. T. Credit Corp., 364
F.2d 10 (5th Cir. 1966) (On motion for summary judgment, an adverse party may
not rest upon mere allegations of his pleading; he must by affidavits or other
evidentiary matter set forth specific facts showing that there is a genuine issue for
for summary judgment are appropriate to police the baseline for such claims.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc). Sexual
harassment can constitute discrimination based on sex for purposes of Title VII.
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501 (11th Cir. 2000).
Actionable sexual harassment occurs when inappropriate sexual conduct causes a
hostile work environment that is sufficiently severe or pervasive to alter the terms
and conditions of work. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.
2004). Under Title VII, to support a hostile work environment claim against an
employer, a plaintiff must establish that: (1) she belongs to a protected group; (2)
she has been subject to unwelcome sexual harassment, such as sexual advances,
requests for sexual favors or other conduct of a sexual nature; (3) the harassment
was based on the sex of the employee; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create an abusive
working environment; and (5) a basis for holding the employer liable. Mendoza,
195 F.3d at 1245.
BRGC argues that there is no basis for holding it liable for the conduct of
Wynn. Where, as here, the perpetrator of the harassment is a co-employee of the
victim, rather than a supervisor, the employer will be held directly liable only if it
knew or should have known of the harassing conduct, but failed to take prompt
remedial action. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir.
2002). There is no dispute in this case that plaintiff reported Wynn’s unwanted
advances to her supervisor, Jeremy Smith, on October 29, 2007. There has been no
evidence presented that indicates any earlier notification. Plaintiff does not argue,
and the evidence does not support a conclusion, that BRGC should have known of
Wynn’s conduct prior to plaintiff’s report. Plaintiff was requested to put her
complaint in writing, which she did on November 1, 2007. The written report was
provided to Larry Strickland, head of security for BRGC, who fired Wynn that very
same day. This court finds, as a matter of law, that BRGC took prompt remedial
action in response to plaintiff’s complaint. See Lewis v. U.S. Dept. of Labor 368
Fed. Appx. 20 (11th Cir. 2010) (prompt remedial action taken where employer
immediately initiated investigation and in response counseled offending employee);
Blackmon v. Wal-Mart Stores East, L.P., 358 Fed. Appx. 101 (11th Cir. 2009)
(termination of offending employee within two weeks of harassment incident was
prompt remedial action). Because of BRGC’s prompt remedial action in
investigating plaintiff’s complaint and firing Wynn, summary judgment is
appropriate on the sexual harassment count.6
BRGC argues first that plaintiff has failed to make out a prima facie case of
retaliation. In order to make out such a case, a plaintiff must show that (1) she
engaged in activity protected under Title VII; (2) she suffered an adverse
employment action; and (3) there is some causal relationship between the two
BRGC also argues that the conduct of Roger Wynn, as described above, was
insufficiently severe or pervasive to alter the terms and conditions of plaintiff’s
employment. The court need not address this issue because it has found there is no
basis for employer liability in this case.
events. Crawford v Carroll, 529 F.3d 961, 970 (11th Cir. 2008); Johnson, 234 F.3d
at 507; Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). Once a prima facie
case is established, the employer must proffer a legitimate, non-retaliatory reason
for the adverse employment action. Olmsted v. Taco Bell Corp., 141 F.3d 1457,
1460 (11th Cir. 1998). The plaintiff then bears the ultimate burden of proving by a
preponderance of the evidence that the reason provided by the employer is a pretext
for prohibited, retaliatory conduct. Id.
There is no question that by complaining to her superiors regarding Wynn’s
conduct in October 2007 and subsequently filing an EEOC discrimination charge,
plaintiff engaged in statutorily protected activity. There is also no dispute that
after October, plaintiff began to receive minor infraction reports and other
disciplinary actions that led to her placement on extended probation in January
2008, her demotion from sergeant to officer in February 2008, and ultimately her
termination in April 2008. Plaintiff received her first minor infraction report within
a month of her complaint about Wynn. Under the standard set forth by the
Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,
57 (2006), these disciplinary actions would have been materially adverse to a
reasonable employee in plaintiff’s position as they were used to place plaintiff on
probation, demote and finally fire her. Also, construing the causal element broadly,
the court finds that there is a sufficient temporal proximity between her complaint
and the disciplinary actions to support finding of a causal relationship between the
events. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (a close temporal
proximity between the protected activity and an adverse action is sufficient
circumstantial evidence of a causal connection for purposes of a prima facie case);
Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986) (“The short period
of time [one month] between the filing of the discrimination complaint and the
plaintiff's discharge belies any assertion by the defendant that the plaintiff failed to
prove causation”). Plaintiff has, therefore, made out a proper prima facie case of
Because BRGC has articulated legitimate, nondiscriminatory reasons for
plaintiff's demotion and termination, the burden shifts back to plaintiff to produce
sufficient evidence to raise a genuine issue of material fact with regard to whether
BRGC’s proffered reasons for her demotion and termination were pretextual. Bass
v. Bd. of County Comm'rs, 256 F.3d 1095, 1103-04 (11th Cir. 2001). In order to
show pretext, plaintiff must “demonstrate that the proffered reason was not the
true reason for the [employment] decision.... [Plaintiff] may [succeed in this] either
directly by persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's proffered explanation is
unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).
“[A] plaintiff withstands summary adjudication by producing sufficient evidence to
allow a reasonable finder of fact to conclude that the defendant's articulated reasons
for its decision are not believable.” Howard v. BP Oil Co., 32 F.3d 520, 526 (11th
Cir. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). In evaluating
a summary judgment motion, “[t]he district court must evaluate whether the
plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal
quotations and citations omitted).
In this case, plaintiff has produced no evidence to rebut BRGC’s proffered
reasons for any disciplinary action taken against her. The evidence that has been
placed on the record indicates that there is support for each disciplinary action
taken by BRGC. Plaintiff has admitted to the conduct underlying each occasion on
which she received written or verbal discipline. Plaintiff has not identified any
BRGC security department employee who engaged in the same conduct and who
was treated in a more lenient fashion. Plaintiff, in short, has failed to give the court
any reason to question the disciplinary actions taken by BRGC. As plaintiff has
failed to raise a question of fact as to pretext, BRGC is entitled to summary
judgment on plaintiff’s retaliation claim.
Plaintiff’s final claim is for sex discrimination. In moving for summary
judgment, BRGC argues that plaintiff has failed to make out a prima facie case of
sex discrimination. A prima facie case of discrimination may be established
through circumstantial evidence by proving that (1) she belongs to a protected class;
(2) she was subjected to adverse employment action; (3) she was qualified to do the
job; and (4) her employer treated similarly situated employees outside her
classification more favorably. Crawford, 529 F.3d at 970; Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (citations omitted). “The plaintiff and the
employee she identifies as a comparator must be similarly situated in all relevant
respects” in order to “prevent courts from second-guessing a reasonable decision by
the employer.” Wilson, 376 F. 3d at 1091 (citations and internal quotations
omitted). “If a plaintiff fails to show the existence of a similarly situated employee,
summary judgment is appropriate where no other evidence of discrimination is
present.” Id. at 1092 (citations omitted).
BRGC acknowledges that plaintiff meets the first three elements listed
above, but argues that she has not, and cannot, satisfy the fourth element.7 The
court agrees and finds that plaintiff has produced no evidence identifying similarly
situated male employees, much less any such employees who were treated more
favorably than plaintiff. In her deposition, plaintiff admits to the conduct that led
to her disciplinary reports, her probation and her termination. When asked, during
her deposition, to identify similarly situated male employees who were treated
differently from her, she admits that she cannot. Again, in response to BRGC’s
summary judgment motion, she had another opportunity to identify such
Plaintiff is not clear about what actions of BRGC she considers sexually
discriminatory, but the court will presume that plaintiff intended to include all
disciplinary actions, her demotion in February 2008, and her termination in April
employees, but failed to do so.8 Accordingly, plaintiff has failed to make out a prima
facie case of sexual discrimination.
The court further finds that even were it to find that a prima facie case of
sexual discrimination had been made out, BRGC has put forward evidence showing
legitimate, nondiscriminatory reasons for each of its disciplinary actions against
plaintiff. As mentioned before, plaintiff admitted to the conduct which led to each of
these actions. Plaintiff, therefore, had the burden of establishing that BRGC’s
proffered reasons for its actions were pretextual. If the proffered reasons given by
an employer are ones that might motivate a reasonable employer, a plaintiff cannot
recast the reason, but must meet it head on and rebut it. Wilson, 376 F.3d at 1088.
Merely quarreling with those reasons is not enough. Id. A court in Title VII action
is not in the business of adjudging whether employment decisions are prudent or
fair. Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). Instead, a court's sole
concern is whether unlawful discriminatory animus motivates a challenged
employment decision. Id. In this case, plaintiff has submitted no evidence, and the
record otherwise contains no evidence, which would support a claim of
discrimination. Summary judgment is therefore warranted.
Indeed, although plaintiff stated during her deposition that she “could
subpoena other people’s work files and find out that [Stricklin] treats certain people
differently . . . ,” she provides no evidence from any other employee’s file to support
her claims of discrimination.
After due consideration of all matters presented and for the reasons set forth
herein, it is ORDERED that BRGC=s motions for summary judgment (Docs. 48, 61
and 66) are hereby GRANTED. BRGC’s motion to strike unsworn statement (Doc.
71) is DENIED AS MOOT.
DONE and ORDERED this 3rd day of May, 2011.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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