Crawford v. Dolgen Corp. Inc.
ORDER denying defendant's 40 Motion for Summary Judgment; denying in part and mooting in part 51 Motion to Strike, as set out. Signed by Judge Kristi K. DuBose on 5/4/2011. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DOLGEN CORP. INC.,
d/b/a DOLLAR GENERAL,
CIVIL ACTION NO. 1:10-00256-KD-B
This matter is before the Court on the defendant’s Motion for Summary Judgment and
supporting documents (Docs. 40, 41, 42), the plaintiff’s Response and supporting documents
(Docs. 46, 47), and the defendant’s Reply (Doc. 50) and Motion to Strike (Doc. 51). For the
reasons set forth herein, the Court finds that the defendant’s Motion for Summary Judgment
(Doc. 40) is due to be DENIED, and the defendant’s Motion to Strike (Doc. 51) is due to be
DENIED in part and found MOOT in part.
On May 19, 2010, Plaintiff Asheley Crawford (“Plaintiff”) initiated this action for alleged
discriminatory termination based on her pregnancy by Defendant Dolgen Corp. Inc. d/b/a Dollar
General (“Defendant”), in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq. (Docs. 1, 17). The Court has jurisdiction in this case pursuant to 28
U.S.C. § 1331. Plaintiff timely filed a Charge of Discrimination with the Equal Employment
Opportunity Commission and filed her complaint within 90 days of receiving a “Right to Sue”
letter. (Doc. 17 at 1; Doc. 46-9 at 2-4). Defendant has moved for summary judgment on
Plaintiff’s claim. (Doc. 40).
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) governs procedures and provides as
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
Fed. R. Civ. P. 56(c) (Dec. 2010).
Defendant, as the party seeking summary judgment, bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make a sufficient showing on
an essential element of her case with respect to which she has the burden of proof, the moving
party is entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether the
nonmoving party has met her burden, the court must stop short of weighing the evidence and
making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. denied, 507 U.S. 911
(1993) (internal citations and quotations omitted). The mere existence of a factual dispute will
not automatically necessitate denial; rather, only factual disputes that are material preclude entry
of summary judgment. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809
(11th Cir. 2004), cert. denied, 534 U.S. 1081 (2005).
In January 2008, Plaintiff was hired by Defendant as a stocker/cashier at its Dollar
General retail store in Monroeville, Alabama (“the Store”). (Doc. 41 at 2; Doc. 41-1 at 4).
Plaintiff was eventually promoted to lead sales associate, a position which included such
additional responsibilities as opening and closing the store. (Doc. 41-1 at 19-20). These duties
entailed following set procedures, for which Plaintiff was trained by a store manager. (Id. at 20,
35-37; Doc. 46-1 at 12-15).
Plaintiff learned that she was pregnant in October 2008 and told at least two co-workers.
(Doc. 41 at 9; Doc. 46-1 at 16, 18). Some time later, while working at the Store, Plaintiff
experienced cramps and bleeding. (Doc. 46-1 at 28). She informed the Store’s manager, Barbie,
The Court has made its determination of facts by “review[ing] the record, and all its inferences,
in the light most favorable to [Plaintiff,] the nonmoving party.” Benson v. Tocco, Inc., 113 F.3d
1203, 1207 (11th Cir. 1997).
who called the office of Dr. Angela Powell, an OB/GYN at the local hospital. (Id. at 9, 28-29).
The father of Plaintiff’s baby, Betts, then drove Plaintiff to the hospital. (Id. at 10, 30). Dr.
Powell advised Plaintiff to take a week off from work and provided her with a doctor’s note,
which Betts took to the Store that same night, though it is not known to whom he gave it. (Id. at
9-10). Plaintiff did not return to work before taking the week off. (Id.).
During the week Plaintiff was off, Tara Pugh (“Pugh”) took Barbie’s place as manager of
the Store. (Doc. 46-1 at 6). Around that time, Donna Rivers (“Rivers”), another Store employee,
discussed Plaintiff with Pugh as follows:
[Pugh] told me that she didn’t think it was going to work that Ms.
Crawford was pregnant and a third key holder. She said that she
couldn’t have her go out on maternity leave. I told her to just go
ahead and train someone else and have them ready to take Ms.
Crawford’s place. She said that she didn’t want to do that, and that
she was going to have to get rid of Ms. Crawford. She asked me if
I wanted the job. I told her that I didn’t and that it was wrong for
her to fire Ms. Crawford because she was pregnant.
(Doc. 46-4 at 2).2
Plaintiff returned to work on April 9, 2009, and was responsible for closing the Store that
night. (Doc. 41-1 at 15-16; Doc. 46-1 at 31-32). Rivers closed up the store with her. (Id. at 32).
Pugh claims that the following morning, when she arrived to open the Store, she found the door
unlocked and the Store’s safe open. (Doc. 41-2 at 2, 18). Pugh viewed footage of the previous
night from the Store’s security cameras and claims that it showed Plaintiff leave the Store
without closing the safe. (Id.). As the person in charge of closing the Store on April 9, Plaintiff
Section B of Defendant’s motion to strike (Doc. 51 at 4-6), pertaining to certain
portions of Rivers’ affidavit (Doc. 46-4), is DENIED as to the portion quoted. The
remainder of Defendant’s motion to strike (Doc. 51) is MOOT, as the Court has not relied
on any of this evidence in reaching its decision.
was responsible for making sure that the safe and the door were both locked before leaving for
the night. (Doc. 46-3 at 13-14).
Pugh notified Ronald Poindexter (“Poindexter”), the district manager in charge of the
Store, of the situation. (Id. at 14; Doc. 46-2 at 5). Poindexter, in turn, contacted Trent Telford,
the regional loss prevention manager, who told him that the incident constituted a severe failure
to protect company assets. (Doc. 46-2 at 14). Poindexter had Plaintiff suspended while he
conducted an investigation, which included reviews of the security video, the police report of the
incident, and statements given by Pugh and Rebecca Harrison, another Store employee who had
been present with Pugh the morning of the incident. (Id. at 14-19). Poindexter agreed with
Pugh’s assessment of the incident; he and Pugh then jointly made the decision to terminate
Plaintiff. (Id. at 16-19; Doc. 41 at 5; Doc. 41-2 at 10). This decision was made sometime after
April 15, 2009, the day Poindexter reviewed the security video. (Doc. 41-3 at 10, 17).
A copy of the security video allegedly showing Plaintiff’s violations of company
procedures was not retained by Defendant. (Doc. 41-3 at 11-12). Plaintiff disputes that she left
the safe open and the door unlocked the night of April 9, 2009. (Doc. 46-1 at 32-33). In
addition, Rebecca Harrison, who had initially corroborated Pugh’s version of the following
morning’s events, now disputes it, asserting that the door was locked and the safe was closed
when they arrived to open the Store. (Doc. 45-3 at 23-24; Doc. 46-6 at 2).
Disparate treatment, or intentional discrimination, under Title VII occurs when an
“‘employer simply treats some people less favorably than others because of their race, color,
religion, sex, or national origin.’” Armstrong v. Flowers Hosp., 33 F.3d 1308, 1313 (11th Cir.
Ala. 1994) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)).
The Pregnancy Discrimination Act of 1978 amended Title VII to make unlawful the act of
discharging an employee “because of or on the basis of pregnancy, childbirth, or related medical
conditions.” 42 U.S.C. § 2000e(k). “This act declared that women affected by pregnancy ‘shall
be treated the same for all employment-related purposes . . . as other persons not so affected but
similar in their ability or inability to work . . . ’” Spivey v. Beverly Enters., Inc., 196 F.3d 1309,
1312 (11th Cir. 1999) (citing 42 U.S.C. § 2000e(k)). Moreover, “[t]he Pregnancy Discrimination
Act  made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy
is, on its face, discrimination because of her sex.” Int’l Union, United Auto., Aerospace and Agr.
Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 198-199 (1991)
(citation omitted). Therefore, “[t]he analysis required for a pregnancy discrimination claim is the
same type of analysis used in other Title VII sex discrimination suits.” Armindo v. Padlocker,
Inc., 209 F.3d 1319, 1320 (11th Cir. 2000). Plaintiff alleges that she was terminated solely on
the basis of her pregnancy and related medical condition in violation of Title VII. (Doc. 17).
For intentional discrimination claims, “‘[p]roof of discriminatory motive is critical[.]’”
Armstrong, 33 F.3d at 1313 (quoting Int'l Bhd. of Teamsters, 431 U.S. at 335-36 n.15). A
plaintiff may prove a claim of intentional discrimination through direct evidence, circumstantial
evidence, or through statistical proof. See, e.g., Burke-Fowler v. Orange County, Fla., 447 F.3d
1319, 1322-1323 (11th Cir. 2006); Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th
Cir. 1990). The Eleventh Circuit “defines direct evidence of discrimination as evidence which
reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.
2004) (internal quotation marks omitted) (quoting Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1357 (11th Cir. 1999) and Carter v. Three Springs Residential Treatment, 132
F.3d 635, 641 (11th Cir. 1998)). The Eleventh Circuit’s “precedent illustrates [that] only the
most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of
some impermissible factor, constitute direct evidence of discrimination.” Wilson, 376 F.3d at
1086 (internal quotation marks omitted) (quoting Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th
Cir. 2002) and Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). That is, “[i]f the
alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial
evidence.” Id. (citing Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir.
1997) (rejecting contention that a statement that “allows an inference of discrimination, but [also
permitted a] factfinder [to] infer reasonably that the statement was nothing more than an
observation of a fact” constituted direct evidence). However, “[w]here the non-movant presents
direct evidence that, if believed by the jury, would be sufficient to win at trial, summary
judgment is not appropriate even where the movant presents conflicting evidence.” Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (quoting Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996)). The Eleventh Circuit has further
defined direct evidence as “evidence, which if believed, proves existence of fact
in issue without inference or presumption.” Rollins v. TechSouth, Inc., 833 F.2d
1525, 1528 n. 6 (11th Cir. 1987) (citation, emphasis and brackets omitted).
Evidence that only suggests discrimination, see Earley v. Champion Intern. Corp.,
907 F.2d 1077, 1081-82 (11th Cir. 1990), or that is subject to more than one
interpretation, see Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1083 n. 2
(11th Cir.1996), does not constitute direct evidence. In a long line of cases, this
Court has found direct evidence where “actions or statements of an employer
reflect[ ] a discriminatory or retaliatory attitude correlating to the discrimination
or retaliation complained of by the employee.” Caban-Wheeler v. Elsea, 904 F.2d
1549, 1555 (11th Cir.1990). See Haynes v. W.C. Caye & Co., Inc., 52 F.3d 928,
930 (11th Cir.1995) (holding that statement questioning whether “sweet little old
lady could get tough enough” to do job and statement that “a woman was not
competent enough to do this job” constitute direct evidence); Burns v. Gadsden
State Community College, 908 F.2d 1512, 1518 (11th Cir.1990) (holding that
statement that “no woman would be named to a B scheduled job” constitutes
direct evidence); Caban-Wheeler, 904 F.2d at 1555 (holding that defendant's
statement that program needed a black director constitutes direct evidence);
E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir.1990) (holding
that general manager's statement that “if it was his company, he wouldn't hire any
black people” and production manager's statement that “you people can't do a ---thing right” constitute direct evidence); . . . ; Sennello v. Reserve Life Ins. Co.,
872 F.2d 393, 394, 395 (11th Cir.1989) (holding that statement that “we can't
have women in management” constitutes direct evidence); Walters v. City of
Atlanta, 803 F.2d 1135, 1141-42 (11th Cir.1986) (holding that memorandum
requesting a new list of candidates because “current register ... does not include
any minority group representation” constitutes direct evidence); Wilson v. City of
Aliceville, 779 F.2d 631, 633, 636 (11th Cir.1986) (holding that mayor's
statement that “he wasn't gonna let no Federal government make him hire no goddam nigger” constitutes direct evidence); Thompkins v. Morris Brown College,
752 F.2d 558, 561, 563 (11th Cir.1985) (holding that college president's statement
that he saw no reason for a woman to have a second job and statement that males
had families and needs that female plaintiff did not constitute direct evidence);
Miles v. M.N.C. Corp., 750 F.2d 867, 874-75 (11th Cir.1985) (holding that plant
manager's statement that he wouldn't hire blacks because “[h]alf of them weren't
worth a shit” constitutes direct evidence); Bell v. Birmingham Linen Serv., 715
F.2d 1552, 1553, 1557 (11th Cir.1983) (holding that supervisor's statement that he
would not put woman in washerman position because “every woman in the plant
would want to go into the washroom” constitutes direct evidence); but see Harris,
99 F.3d at 1082, 1083 n. 2 (holding that statement that “under the circumstances
we did not need to employ a black at Thompson High School” open to more than
one interpretation and thus not direct evidence).
Id. at 1189-90 (finding direct evidence of retaliation sufficient to avoid summary judgment).
In addition to the cases cited by the Eleventh Circuit in Merritt, courts have identified
evidence supporting a finding of discrimination in a variety of factual contexts. See Buckley v.
Hosp. Corp. of Am., Inc., 758 F.2d 1525, 1530 (11th Cir. 1985) (finding evidence from which a
reasonable jury could conclude that defendants acted with discriminatory intent in violation of
the ADEA based in part on new hospital administrator’s “expression of surprise at the longevity
of the staff members, . . . indications that the hospital needed ‘new blood’ and that he intended to
recruit younger doctors and nurses, and his comment on plaintiff’s ‘advanced age’” combined
with the fact that “the two individuals who ultimately absorbed the bulk of her duties were more
than 15 years her junior”). The Eleventh Circuit has considered relevant whether the comments
in question specifically address or were made in the context of the challenged employment
action, as well as whether they were uttered by the decisionmaker(s). See Tran v. The Boeing
Co., 190 Fed. Appx. 929 (11th Cir. 2006); Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d
1223, 1227-28 (11th Cir. 2002) (per curiam); Standard v. ABEL Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998) (ADEA case holding that “remarks by non-decisionmakers or remarks
unrelated to the decisionmaking process itself are not direct evidence of discrimination.”).
Regarding pregnancy specifically, this Court has held that “[i]f a plaintiff can
demonstrate that her termination was prompted by her pregnancy, then ‘the ultimate issue of
discrimination is proved.’” Ferrell v. Masland Carpets, Inc., 97 F. Supp. 2d 1114, 1122 (S.D.
Ala. 2000) (Vollmer, J.) (quoting Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1556 (11th
Cir. 1983)) (where the “sole offer of direct evidence [wa]s Alvin Simmons’s deposition
testimony that he feared that an unborn child could become strangled by the umbilical cord if the
mother raised her arms too high,” which would “require the court to infer that [an employee’s]
belief in an old wives tale somehow motivated [another employee’s] decision to terminate
Ferrell,” such could not be considered direct evidence, which “does not require such an
inferential leap.”). By way of example, the court in Ferrell pointed to EEOC v. Wal-Mart Stores,
Inc., 156 F.3d 989 (9th Cir. 1998), in which the Ninth Circuit held that “a statement by an
assistant store manager to a plaintiff that ‘we won’t be hiring you . . . because of the conditions
of your pregnancy’ and that ‘[y]ou’re welcome back after you’ve had the baby,’ is direct
evidence of pregnancy discrimination.” Ferrell, 97 F. Supp. 2d at 1123 (quoting Wal-Mart
Stores, Inc., 156 F.3d at 990-92). By contrast, “a comment by a partner of a law firm to a
plaintiff that ‘if you were my wife, I would not want you working after having children,’ does
not constitute direct evidence of pregnancy discrimination concerning the firm’s decision to
terminate the plaintiff after her pregnancy.” Id. (quoting Kennedy v. Schoenberg, Fisher, &
Newman, Ltd., 140 F.3d 716, 724 (7th Cir. 1998)).
Plaintiff presents sufficient direct evidence of discrimination to avoid summary judgment
on her claim of discriminatory termination. Pugh had become manager of the Store during the
week Plaintiff was out on medical leave. In her affidavit, Rivers describes a conversation
between her and Pugh, occurring sometime between Pugh becoming manager and the morning
Pugh allegedly found the store left open. Pugh stated that “she didn’t think it was going to work
that [Plaintiff] was pregnant[,] . . . that she couldn’t have her go out on maternity leave[,] . . . and
that she was going to have to get rid of [Plaintiff].” (Doc. 46-4 at 2). The day after Plaintiff
returned to work, Pugh alleged that Plaintiff committed an offense against the company.
Plaintiff disputes Pugh’s allegations. This alleged misconduct resulted first in Plaintiff’s
suspension and ultimately in her termination, with Pugh, as the Store’s manager, being directly
involved in the decision to terminate.
Pugh’s statements constitute direct evidence that Plaintiff’s “termination was prompted
by her pregnancy.” See Ferrell, 97 F. Supp. 2d at 1122. They are precisely the type of “blatant
remarks, whose intent could mean nothing other than to discriminate on the basis of some
impermissible factor, [that] constitute direct evidence of discrimination.” Wilson, 376 F.3d at
1086; Rojas, 285 F.3d at 1342, n.2; Carter v. City of Miami, 870 F.2d at 582. See also Damon,
196 F.3d at 1359 (“An example of ‘direct evidence would be a management memorandum
saying, “Fire Earley--he is too old.”’” (quoting Earley, 907 F.2d at 1082)). Pugh’s statements to
Rivers regarding Plaintiff’s pregnancy are not “subject to more than one interpretation,” see
Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d at 1083 n.2, and no reasonable factfinder could
conclude “that the statement[s] w[ere] nothing more than [ ] observation[s] of a fact.” Wilson,
376 F.3d at 1086. Indeed, they amount to “direct evidence of discrimination as evidence which
reflects a discriminatory . . . attitude correlating to the discrimination” of which Plaintiff
complains. See id. at 1086; Damon, 196 F.3d at 1357; Carter v. Three Springs Residential
Treatment, 132 F.3d at 641; Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990).
Moreover, Pugh’s statements constitute direct evidence of discrimination because there is
evidence that she was involved in the decision to terminate Plaintiff shortly after making them.
See Bass v. Bd. of Cnty. Comm'rs, 256 F.3d 1095, 1105 (11th Cir. 2001) (“For statements of
discriminatory intent to constitute direct evidence of discrimination, they must be made by a
person involved in the challenged decision.” (internal quotations omitted)), overruled on other
grounds by Crawford v. Carroll, 529 F.3d 961, 971 (11th Cir. 2008); Ogletree v. City of Auburn,
619 F. Supp. 2d 1152, 1171 (M.D. Ala. 2009) (“[T]he ‘[d]isparate treatment analysis requires
that none of the participants in the decision-making process be influenced by racial bias.’”
(quoting Jones v. Gerwens, 874 F.2d 1534, 1541 n.13 (11th Cir. 1989)). Accordingly, summary
judgment as to Plaintiff’s claim of discriminatory termination is DENIED.
For the reasons set forth above, it is ORDERED that Defendant’s Motion for Summary
Judgment (Doc. 40) is DENIED. It is also ORDERED that Section B of Defendant’s Motion to
Strike (Doc. 51 at 4-6) is DENIED as to the portion of Rivers’ affidavit (Doc. 46-4) quoted
above. The remainder of Defendant’s Motion to Strike (Doc. 51) is MOOT.
DONE and ORDERED this the 4th day of May, 2011.
/s/ Kristi K. DuBose
KRISTI K. DUBOSE
UNITED STATES DISTRICT JUDGE
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