Archie v. Frank Cockrell Body Shop, Inc.
MEMORANDUM OPINION AND ORDER, denying defendant's 40 Motion to Strike ; granting plaintiff's 42 Motion to treat his opposition as timely; and granting defendant's 34 Motion for Summary Judgment. Signed by Judge Callie V. S. Granade on 8/9/2013. (mab)
Archie v. Frank Cockrell Body Shop, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK COCKRELL BODY SHOP,
) CIVIL ACTION NO. 12-046-CG-M
MEMORANDUM OPINION AND ORDER
This matter is before the court on defendant’s motion for summary judgment
(Doc. 34), defendant’s opposition thereto (Doc. 38), defendant’s reply (Doc. 39),
defendant’s motion to strike plaintiff’s opposition (Doc. 40), plaintiff’s response to
the motion to strike (Doc. 41), plaintiff’s motion for the court to treat his opposition
as timely (Doc. 42), defendant’s response to the motion for timeliness (Doc. 43), and
plaintiff’s reply regarding his motion for timeliness (Doc. 44). For the reasons
explained below, the court finds that defendant’s motion to strike should be denied
and that plaintiff’s motion to treat his opposition as timely should be granted.
However, the court finds that plaintiff has not shown that defendant’s proffered
legitimate, non-discriminatory reason for terminating plaintiff is merely pretext.
Accordingly, defendant’s motion for summary judgment is due to be granted.
This case arises from plaintiff’s termination from the defendant company,
Frank Cockrell Body Shop, Inc. (“Cockrell’s”) after an incident that occurred in July
2011. Plaintiff asserts that he was discriminated against on the basis of race in
violation of both Title VII and 42 U.S.C. § 1981. The plaintiff, Eric Archie, worked
for Cockrell’s as a “detail man” – inspecting, untaping and prepping cars – until the
incident made the basis of this suit. (Doc. 34-2, p. 5; Doc. 38-6, ¶ 1). According to
plaintiff, he was treated fairly up until that time and even received a promotion and
pay raise three months prior to the incident. (Doc. 34-2, pp. Doc. 38-6, ¶¶ 2, 3).
In July 2011, plaintiff had an altercation with another employee, Nick
Edwards. (Doc. 38-6, ¶ 20). Plaintiff and Edwards are both African-American. (Doc.
38-6, ¶ 21). The altercation was witnessed by another employee, Ronald Crawford,
who is also African-American. (Doc. 38-6, ¶¶ 20, 21). After the incident, Crawford
reported to a manager, Paige Howell, that he and plaintiff had gone into a paint
room – where Edwards was working on a vehicle – to smoke marijuana. (Doc. 34-1,
p. 18; Doc. 38-6, ¶¶ 8, 22). Crawford reported that they had shut the door to the
room and Edwards got mad. (Doc. 34-1, p. 18). Crawford reported that the plaintiff
and Edwards cussed each other and the plaintiff choked Edwards and that
Crawford had to pull plaintiff off of Edwards. (Doc. 34-1, p. 18). According to
Crawford and Edwards, the plaintiff grabbed Edwards and laid him on the hood of
the car and was choking him. (Doc. 34-4, p. 7; Doc. 34-5, p. 5). The plaintiff admits
that he grabbed Edwards around the neck with both hands for a few seconds, but
plaintiff claims it was in self defense – that Edwards ran towards plaintiff and
plaintiff stuck his hand out to defend himself and pushed him back onto the hood of
the car. (Doc. 38-6, ¶ 27; Doc. 34-2, pp. 11, 13-14).
Immediately after the incident, Edwards went to Ms. Howell’s office and
reported what had happened. (Doc. 34-1, p. 2). Plaintiff clocked out, left the
building, got in his vehicle and reports that he called Ms. Howell from the parking
lot. (Doc. 34-2, pp. 11-12, 15). Plaintiff states that he called and asked Howell if he
still had a job and was told to call back later. (Doc. 34-2, p. 16). According to
plaintiff, he received a call from Howell a couple hours later and was told he was
fired for putting his hands on another employee. (Doc. 34-2, p. 16). Plaintiff says
Howell asked him why he did it and he told her “I defended myself.” (Doc. 34-2, pp.
16-17). When plaintiff applied for unemployment benefits, his application was
denied because he had been discharged “for fighting on the job.” (Doc. 38-5).
Plaintiff claims that white employees were treated differently after a similar
incident that occurred earlier in the year. The prior incident involved an altercation
between two Caucasians, Wesley Clements and Frank Cooley. (Doc. 38-6, ¶ 6).
According to Cooley, the incident consisted of he and Clements getting into an
argument which culminated in Cooley pushing Clements and walking off. (Doc. 343
3, pp. 2-3). Plaintiff witnessed the incident and according to plaintiff’s testimony
now, Cooley hit Clements in the face and then walked off. (Doc. 38-2, p. 8).
Clements also reports that Cooley hit him in the face. (Doc. 38-7, ¶ 3). There were
other witnesses to the incident. (Doc. 34-1, pp. 8-9). Another employee, Russell
Adcock, reported that Cooley and Clements argued, but that Cooley was walking
away when Clements commented something else and got in Cooley’s face and
Cooley shoved Clements out of his face. (Doc. 34-1, p. 9). Plaintiff reports that after
the incident Ms. Howell came in looking for Clements and was worried that Cooley
was going to get his gun and kill Clements. (Doc. 38-2, p. 10).
After the incident, Howell spoke to both Clements and Cooley about what had
occurred. (Doc. 34-1, p. 6; Doc. 38-6, ¶ 9). Ms. Howell believed that both parties
were at fault for the confrontation and considered them both to be good employees.
(Doc. 34-1, p. 15). Ms. Howell reports that she sent both Clements and Cooley home
for a full week. (Doc. 34-1, pp. 10, 15). Ms. Howell decided the two should not work
together and that Clements would be relocated, as the only opening they had
available was a “detail” position at their Theodore, Alabama location. (Doc. 34-1, p.
12, 13, 16; Doc. 38-3, pp. 3-4). But, Ms. Howell reports that Clements turned her
down because the facility was too far for him to drive. (Doc. 34-1, p. 13). Cooley was
a “body man” and they did not have an open position anywhere for him. (Doc. 34-1,
p. 16). Clements reports that he had not been called back into work yet, when he
discovered that Cooley was back to work a little less than a week after the incident.
(Doc. 38-7, ¶¶ 7, 8, 9). About two weeks after the incident, Howell called Clements
and offered him a position at another location, but Clements reports that he had
already started working somewhere else. (Doc. 38-7, ¶ 9).
I. Timeliness of Plaintiff’s Opposition
Defendant moves to strike plaintiff’s opposition as untimely and plaintiff
moves for the court to treat his motion as timely. This court previously granted
plaintiff an extension until April 29, 2013 to file his response to summary judgment.
(Doc. 37). Plaintiff did not file his response until April 30, 2013. Plaintiff
reportedly attempted to file his response beginning around 10:30 on the night of
April 29, but was unable to file the response due to the court’s electronic filing
system being out. The court’s electronic filing system was out for approximately 13
hours beginning shortly before 7:00 p.m. on April 29 due to an AT&T outage in the
downtown Mobile area. (Doc. 44-1, ¶ 1). While defendant asserts that plaintiff
should not have waited until the last minute to file, the court finds it appropriate
under the circumstances to grant plaintiff’s motion to treat the response as timely.
Defendant cites Weatherly v. Ala. State Univ., 2012 WL 2998316 at *1 (M.D.
Ala. 2012) for the proposition that courts in Alabama have stricken untimely filings
where counsel waited until the last minute to file and technical difficulties
prevented timely filing. However, in Weatherly, counsel had attempted to file only
three or four minutes before midnight when counsel encountered technical
difficulties and there was no suggestion that the court’s filing system was down for
any period of time. In the instant case, plaintiff’s counsel attempted to file his
response with plenty of leeway to deal with any minor technical problems he might
anticipate could arise and it was only because of the malfunctioning of the filing
system at the court’s end that he was unable to do so. Furthermore, the filing in
Weatherly was a renewed motion for judgment as a matter of law under Rules 50
and 59 which have a 28-day time limit that may not be extended by the court. Id. at
*2 (citing FED. R. CIV. P. 6(b)(2) and Cavaliere v. Allstate Ins. Co., 996 F.2d 111, 113
(11th Cir.1993)). The court is not prohibited from extending response times for
summary judgment motions, such as is at issue here. Accordingly, plaintiff’s motion
for the court to treat his opposition as timely (Doc. 42), is GRANTED. Additionally
defendant’s motion to strike (Doc. 40) is DENIED in part to the extent that it seeks
for the court to strike plaintiff’s response as untimely (the remainder of defendant’s
motion to strike is discussed below).
II. Motion to Strike Plaintiff’s Supporting Documents
Defendant moves to strike several exhibits plaintiff filed in support of his
opposition to summary judgment. The court notes that most of the information
contained in the exhibits is also contained in the deposition testimony submitted by
the parties. Moreover, for reasons that will be explained below, the court finds that
even after considering the documents, that defendant’s motion for summary
judgment is due to be granted. Accordingly, the court finds that defendant’s motion
to strike plaintiff’s exhibits is MOOT. Thus defendant’s motion to strike (Doc. 40)
is DENIED in its entirety.
III. Merits of Summary Judgment Motion
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall
be granted: “if 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 “to 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 mere
existence of some evidence to support the non-moving party is not sufficient for
denial of summary judgment; there must be ‘sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.’” Bailey v. Allgas, Inc.,
284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted." Anderson, at 249-250. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
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). “If 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 "must 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 non-movant must
“demonstrate 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 “may not rest on the mere allegations or denials of the [non-moving]
party’s pleading, but .... must set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e) “A 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). “[T]he nonmoving party may avail itself of all facts
and justifiable inferences in the record taken as a whole.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 998 (11th Cir. 1992). “Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
at 587 (1986) (internal quotation and citation omitted).
B. Plaintiff’s Claims
Plaintiff asserts that he was discriminated against on the basis of race in
violation of both Title VII and 42 U.S.C. § 1981. Title VII prohibits an employer from
discriminating against a person based on race. 42 U.S.C. §2000e-2(a)(1). Likewise, 42
U.S.C. §1981 prohibits intentional race discrimination in the making and enforcement
of public and private contracts, including employment contracts. See, e.g., Johnson v.
Railway Express Agency, 421 U.S. 454 (1975) (holding unequivocally that §1981
protects against racial discrimination in private employment). A plaintiff may prove
discrimination by relying on either direct, circumstantial, or statistical evidence. See
Walker v. Nationsbank of Florida N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). Direct
evidence is evidence which, “if believed, proves the existence of discriminatory motive
‘without inference or presumption’” Hamilton v. Montgomery County Bd. of Educ., 122
F.Supp.2d 1273, 1279 (M.D. Ala. 2000) (quoting Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 641 (11th Cir. 1998)). As the U.S. District Court for the
Middle District of Alabama explained:
Not only must it be evidence of discriminatory ‘actions or statements of
an employer’ but the actions or statements at issue must ‘correlate to the
discrimination or retaliation complained of by the employee.’ Further, the
statements ‘must be made by a person involved in the challenged
decision’ and must not be subject to varying reasonable interpretations.
Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D. Ala.
1998)). Plaintiff has submitted no direct evidence of discrimination or retaliation.
None of the evidence offered proves without inference or presumption that the person
who made the employment decisions did so based on plaintiff’s race. Plaintiff has also
not attempted to show discrimination through statistical evidence, but relies instead
on circumstantial evidence.
A plaintiff may attempt to show discrimination based on circumstantial
evidence through the application of the McDonnell Douglas burden-shifting analysis
established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the McDonnell Douglas framework, a plaintiff must first raise an
inference of discrimination by establishing a prima facie case. See Chapman v. AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation Patterns,
106 F.3d 1519, 1527-28 (11th Cir. 1997)).
In order to make out a prima facie case of discrimination, a plaintiff
(1) [ ]he is a member of a protected class; (2) [ ]he suffered an adverse job
action; (3) h[is] employer treated similarly situated employees outside
h[is] classification more favorably; and (4) [ ]he was qualified to do the
Barnes v. Crowne Investments, Inc., 391 F.Supp.2d 1108, 1115 (S.D. Ala. 2005)
The first prong is satisfied as it is undisputed that plaintiff is a member of a
protected class. It is also undisputed that plaintiff was qualified to do the job.
However, defendant disputes the second and third prong, that he suffered an adverse
job action and that similarly situated employees outside his classification were treated
more favorably. As to the second prong, the court finds there is ample evidence that
plaintiff suffered an adverse job action. Although defendant contends that Ms. Howell
simply assumed plaintiff quit since he clocked out and left after the fight, there is also
evidence that Ms. Howell called plaintiff to tell him he was fired. As such, the court
finds the second prong of a prima facie case has been met.
As to the third prong, plaintiff asserts that two white employees, Frank Cooley
and Wesley Clements were treated differently after they had an altercation at work.
After the altercation, both of the white employees were suspended for about a week
and Clements was transferred or offered a position at another location. The court
agrees that being terminated is a harsher discipline than a one week suspension and
being transferred. However, defendant asserts that the two situations are not
comparable because the altercations and the reasons for the discipline were not the
same or nearly identical.
To be appropriate comparators, the employees must be “similarly situated in all
aspects.” Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997). “[T]he individuals
must be similarly situated in all relevant respects besides race, since different
treatment of dissimilarly situated persons does not violate civil rights laws.” Jackson
v. BellSouth Telecommunications, 372 F.3d 1250, 1273-1274 (11th Cir. 2004) (internal
citations and quotation omitted). “In determining whether employees are similarly
situated for purposes of establishing a prima facie case, it is necessary to consider
whether the employees are involved in or accused of the same or similar conduct and
are disciplined in different ways.” Holifield, 115 F.3d at 1562 (citing Williams v. Ford
Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994)).
In the instant case, defendant argues that the circumstances and severity of the
prior altercation between two non-minority employees and plaintiff’s altercation are
not comparable. Defendant asserts that the prior altercation involved only a push,
where as the plaintiff’s altercation involved the plaintiff choking a fellow employee.
Defendant further contends that plaintiff was considered to have left the workplace
after the altercation without permission in violation of company policy.
Plaintiff, citing Alexander v. Fulton County, 207 F.3d 1303 (11th Cir. 2000) and
Anderson v WBMG-42, 253 F.3d 561 (11th Cir. 2001), contends that the misconduct
complained of does not have to be the same or nearly identical, but only similar.
However, the Eleventh Circuit has expressly set aside cases that held that only
similar, rather than “nearly identical” conduct must be proved. See Stone & Webster
Const., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012) (citing Silvera
v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (holding that a
“comparator's misconduct must be nearly identical to the plaintiff's”) and Burke–
Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 n. 2 (11th Cir. 2006) (per curium)
(holding that “we are bound to follow Maniccia’s1 ‘nearly identical’ standard rather
than the standard articulated in Alexander because when a later panel decision
contradicts an earlier one, the earlier panel decision controls.”) see also Phillips v.
McHugh, 2013 WL 2257121, *1 (11th Cir. May 23, 2013) (“We require that the quantity
and quality of the comparator's misconduct be nearly identical to prevent courts from
second-guessing employers' reasonable decisions ....” quoting Maniccia); Foster v.
BioLife Plasma Services, LP, 2013 WL 3864338, *12 (N.D. Ala. July 24, 2013) (“Both
the ‘quantity and the quality of the comparator's misconduct must be nearly identical
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“We require that the
quantity and quality of the comparator's misconduct be nearly identical to prevent
courts from second-guessing employers' reasonable decisions and confusing apples
to prevent courts from second-guessing employer's reasonable decisions and confusing
apples and oranges.’” quoting Maniccia); but see King v. Piggly Wiggly Alabama
Distribution Co., Inc., --- F.Supp.2d ---, 2013 WL 839869, *6 (N.D. Ala. March 1, 2013)
(recognizing the disagreement and concluding that “within the Eleventh Circuit (and
if and until the Supreme Court or the Eleventh Circuit en banc holds otherwise), the
misconduct engaged in does not have to be identical or even nearly identical in order
for another employee to be a valid comparator.” footnote omitted)). This court agrees
that the current standard in the Eleventh Circuit requires that the “quantity and the
quality of the comparator's misconduct must be nearly identical to prevent courts from
second-guessing employer's reasonable decisions and confusing apples and oranges.”
Maniccia, 171 F.3d at 1368.
Plaintiff believes that defendant has mischaracterized the nature of both the
prior altercation and the altercation between Plaintiff and Edwards. According to
plaintiff, the prior altercation involved more than a push. Both plaintiff and Clements
report that Cooley hit Clements in the face and then walked off. Ms. Howell
apparently believed the incident was serious enough that the two should not work at
the same facility. Plaintiff also reports that after the incident Ms. Howell was worried
that Cooley had left to get his gun and kill Clements. If this statement is believed,
then clearly immediately after the incident between Clements and Cooley, Ms. Howell
thought the situation might have been very serious.
Plaintiff also describes his altercation differently, contending that he merely
acted in self-defense when Edwards ran towards plaintiff. According to both Edwards
and a witness, plaintiff choked Edwards and plaintiff had to be pulled off of Edwards.
However, according to plaintiff, he grabbed Edwards around the neck with both hands
for a few seconds and then pushed him back onto the hood of the car in self-defense.
Plaintiff, by all accounts, then clocked out and left the facility. There is some dispute
over where plaintiff ran to and how long he waited before calling in, but looking at the
facts in the light most favorable to plaintiff, the court must assume that plaintiff
simply went to his car and called Ms. Howell from there.
Defendant asserts that plaintiff was considered to have left the workplace
without permission in violation of company policy. While the fact that he ran out
immediately following the altercation may have added to the perceived seriousness of
the incident, the fact that he violated a company policy by doing so does not appear to
have been a reason relied on by Ms. Howell when she decided to terminate plaintiff.
Similarly, the fact that it was reported to Ms. Howell, that the incident started when
plaintiff went into the paint room to smoke marijuana, also adds to the circumstances
surrounding the altercation, but plaintiff’s alleged marijuana use at work, while
presumably a legitimate reason by itself for terminating plaintiff, was not apparently
relied upon by Ms. Howell.
Looking at the two incidents in the light most favorable to plaintiff, the court
cannot say that they are not nearly identical in the quantity and the quality of the
comparators’ actual misconduct.2 While it is hard to directly compare the two
incidents, they both consist of arguments and brief physical fights between two
employees at work. Although there is evidence that plaintiff’s confrontation may have
been more serious, looking at the evidence in the light most favorable to plaintiff, his
conduct consisted merely of plaintiff putting up his hands and pushing Edwards back
when Edwards charged at plaintiff. Since there are two witnesses that claim that the
prior incident between the white employees involved one punching the other in the
face and then running off, the court finds for the purpose of this summary judgment
motion that a prima facie case has been met.
Once a plaintiff establishes a prima facie case of discrimination, the burden
shifts to the defendant, who must “proffer a legitimate, non-discriminatory reason for
the adverse employment action. The employer’s burden is exceedingly light.”
The court notes that what actually happened may be irrelevant towards the ultimate
burden of persuasion, since generally only what the employer knew or understood to
have occurred can reveal the reasons behind the employer’s actions. See Hudson v.
Blue Cross Blue Shield of Alabama, 431 Fed.Appx. 868, 869 (11th Cir. 2011) (“[a]n
employer who fires an employee under the mistaken but honest impression that the
employee violated a work rule is not liable for discriminatory conduct.” citing Damon
v. Fleming Supermarkets of Florida, 196 F.3d 1354, 1363 n. 3 (11th Cir.1999)); see
also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)
(“employer may fire an an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a discriminatory
reason” emphasis added).
Hamilton, 122 F.Supp.2d at 1280 (quoting Meeks v. Computer Assoc. Int’l, 15 F.3d
1013, 1021 (11th Cir. 1994) (internal quotations omitted)). In the instant case,
defendant asserts that plaintiff was terminated because he got in a fight at work and
attempted to choke another employee. There is varying evidence regarding whether
plaintiff actually tried to strangle Edwards or just put his hands on Edwards’ neck in
self-defense. However, the evidence is clear that plaintiff was involved in an
altercation and that it was reported to the manager that plaintiff choked Edwards and
that another employee had to pull plaintiff off of Edwards. The proffered reason is
clearly a legitimate non-discriminatory reason for terminating plaintiff.
Once the defendant proffers a legitimate reason for the employment decision,
the burden then shifts back to plaintiff, who must show that the employer’s proffered
reasons are pretextual, or merely a cover for discrimination. Id. “At the pretext stage,
in order to survive summary judgment, Plaintiff[s] must provide sufficient evidence to
allow a reasonable fact finder to conclude, at a minimum, that the proffered reasons
were not actually the motivation for the employer’s decision.” Miller v. Bed, Bath &
Beyond, Inc., 185 F.Supp.2d 1253, 1270 (N.D. Ala. 2002) (citing Combs, 106 F.3d at
1538). Plaintiff may do this “(1) by showing that the employer’s legitimate
nondiscriminatory reasons should not be believed; or (2) by showing that, in light of all
of the evidence, a discriminatory reason more likely motivated the decision.” Id.
(citations omitted). “This is done by pointing to ‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons . . . that a reasonable factfinder could find them unworthy of credence.’”
Hamilton, 122 F. Supp.2d at 1281 (quoting Combs, 106 F.3d at 1539). The ultimate
burden of persuasion remains with the plaintiff at all times in cases involving merely
circumstantial evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
Plaintiff contends that Mr. Cooley’s conduct in the prior incident may have been
more serious than plaintiff’s conduct, yet Mr. Cooley was merely suspended for one
week. However, it was reported to Ms. Howell that plaintiff choked Edwards and that
another employee had to pull plaintiff off of Edwards. The circumstances surrounding
the altercation as reported to Ms. Howell, were that plaintiff had gone into the paint
room to smoke marijuana when he got into an argument with Edwards and that
plaintiff ran off and left the facility after he was pulled off of Edwards. As reported to
Ms. Howell, the incident was very serious. While there is evidence that Ms. Howell
also believed the prior incident was serious at least immediately following the
incident, there are more culpable circumstances surrounding plaintiff’s confrontation.
Additionally, there were multiple witnesses to the confrontation between Cooley and
Clements that described the physical contact as merely a push or a shove, whereas the
descriptions reported to Howell about plaintiff’s confrontation were that plaintiff
choked Edwards and had to be pulled off. Plaintiff denies that his confrontation
happened as reported and says he told Ms. Howell that he did it in self-defense, but
that was not until Ms. Howell called to inform plaintiff he was fired. At that time,
Howell had heard more than one person describe the confrontation as plaintiff having
choked Edwards and she had made the decision to terminate plaintiff. The court does
not find it to have been unreasonable for Ms. Howell not to have changed her decision
at that time merely because plaintiff stated that “I defended myself” while not
specifically denying the alleged conduct. Moreover, a mistake in fact does not show
pretext. See Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir.2000) (providing that
“[a] plaintiff must show not merely that the defendant's employment decisions were
mistaken, but that they were in fact motivated by [the protected characteristic]”);
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir.2000) (holding that
“[a] plaintiff must show not merely that the defendant's employment decisions were
mistaken but that they were in fact motivated by race.”) overruled on other grounds,
Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).
It should be noted that federal courts “do not sit as a super-personnel
department that reexamines an entity’s business decisions.” Chapman, 229 F.3d at
1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). It
is not appropriate for either the plaintiff or this court to “recast an employer’s
proffered non-discriminatory reasons or substitute his business judgment for that of
the employer.” Chapman, 229 F.3d at 1030. “[W]hether an employment decision was
prudent or fair is irrelevant. Hudson v. Blue Cross Blue Shield of Alabama, 431
Fed.Appx. 868, 869 (11th Cir. 2011) (citing Rojas v. Florida, 285 F.3d 1339, 1342 (11th
Cir.2002) and Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir.1991)
(noting courts do not reexamine an employer's business judgment and that the key
inquiry is “whether the employer gave an honest explanation of its behavior”)).
The court notes that no action was taken against Edwards, who is also a black
employee. This supports a finding that defendant was not biased against black
employees, but honestly believed that plaintiff was the aggressor in the confrontation.
Additionally, by all accounts, defendant treated plaintiff well over the course of his
After reviewing all of the evidence, the court finds that plaintiff has not shown
that defendant’s proffered legitimate reason for its decision to terminate plaintiff is
For the reasons stated above, defendant’s motion for summary judgment (Doc.
34) is GRANTED.
DONE and ORDERED this 9th day of August, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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