Brown et al v. Bibb County Properties, LLC

Filing 56

ORDER granting Defendant's 38 Motion for Summary Judgment re: Sammie Hunt, as set out. Signed by Judge Kristi K. DuBose on 5/20/2014. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SAMMIE HUNT,
Plaintiff,
v.
BIBB COUNTY PROPERTIES, LLC,
Defendant.

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CIVIL ACTION NO. 13-00241-KD-M

ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment on
Plaintiff’s claims of race discrimination, hostile work environment and retaliation (Docs. 38-39),
Plaintiff’s Response (Doc. 49), and Defendant’s Reply (Doc. 53). For the reasons stated infra,
the motion is GRANTED.
I.

Findings of Fact1
Plaintiff Sammie Hunt (“Hunt”) is an African-American who was employed by Defendant

Bibb County Properties, LLC (“Bibb”), a sawmill and mulch processing plant in Grove Hill,
Alabama. The Bibb plant was open Monday-Thursday for normal hours of operation, but most
every Friday also operated as an overtime day. (Doc. 39-1 (Dep. Zetino at 17, 26-27); Doc. 39-2
at 1 (Aff. Zetino)).
In August 2011, Jose Victor Zetino (“Zetino”), who is Hispanic, became the Grove Hill
Plant Manager. (Doc. 39-1 at 2 (Dep. Zetino at 6-7)). Zetino was tasked with increasing
production. (Id. at 3, 12 (Dep. Zetino at 10, 45); Doc. 39-2 at 1 (Aff. Zetino)). As Plant Manger,
1

At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208
F.3d 919, 925 n. 3 (11th Cir. 2000).

1

Zetino determined when/whether the plant would operate overtime, on Friday and Saturday,
departing from the Monday-Thursday normally operating days, as well as assigned overtime in
general. (Id. (Aff. Zetino)). According to Zetino, performance and reliability were the two
biggest criteria for assigning overtime. (Doc. 39-1 at 17 (Dep. Zetino at 83-84)).
On November 14, 2011, Hunt was hired by Bibb; he started on the knuckleboom loader
and was then moved to an older front-end loader (which had a broken air conditioner). (Doc. 394 at 3, 5 (Dep. Hunt at 18-20, 27, 34); Doc. 39 at 7 at ¶24)). Hunt sometimes worked on the new
loader when he helped with mulching before normal morning operating hours. (Id. at 5 (Dep.
Hunt at 27-28)). While employed, Hunt also operated a Kubota tractor, drove a truck, and
worked on “the green chain” for a few weeks. (Id. at 6 (Dep. Hunt at 32-34)). According to
Hunt, the green chain is physically the most difficult job at the plant and if the machine he was
working on broke down, he would be sent to work on the green chain until it was fixed, and the
same happened for other African American workers; however, “white and hispanic workers were
usually given a break when their machines broke down.” (Doc. 49-1 at 18 at ¶3 (Aff. Hunt)).
On May 2, 2012, Hunt voluntarily quit because of what he describes as discrimination due to his
loader’s air conditioner never being fixed even though Hispanics workers had theirs fixed, and
Zetino never giving him a raise despite one being repeatedly requested. (Doc. 39-4 at 7, 14, 1718, 20 (Dep. Hunt at 38, 64, 79-80, 84-86, 90-91)).

During his less than 6 months of

employment, Hunt worked 404.31 hours of overtime primarily on the front-end loader, and
general cleaning. (Id. at 14 (Dep. Hunt at 62); Doc. 39-3 at 1 at ¶10 (Aff. Fournier)).
Concerning hostile work environment, Hunt testified that Zetino reprimanded him about
“feeding” the mill, and one day told him he would be fired if he was the worker who had hit a
2

wall at the plant. (Doc. 39-4 at 9 (Dep. Hunt at 42-43)). Additionally, once Zetino told Hunt to
be more careful and watch what he was doing after he backed up the loader and hit some logs,
denting the loader. (Id. at 9-10 (Dep. Hunt at 44-45)). Zetino never made any racial comments
or slurs to Hunt or anyone else. (Id. at 10-11 (Dep. Hunt at 46, 52)). Hunt told Zetino that he
thought a coworker “Ron” was getting away with more stuff and would get off easy because he
was white. (Id. at 13 (Dep. Hunt at 59)). Hunt believes Zetino was harder on the African
American workers than the Hispanics, letting Hispanic employees “goof off” when things needed
to be done and Zetino would not “get on them.” (Id. at 15-17 (Dep. Hunt at 72-78)). Hunt heard
Zetino say “my guys” very regularly, and sometimes said “my Mexican guys” when referring to a
group of workers at the plant. (Doc. 49-1 at 18 at ¶2 (Aff. Hunt)).
Hunt never complained to Zetino about discrimination, just about working him too hard,
making him do too many things. (Doc. 39-4 at 13 (Dep. Hunt at 58-59)).
Regarding overtime, Hunt testified that he asked Zetino for overtime work 2-3 times per
week, every week. (Doc. 39-4 at 20 (Dep. Hunt at 92)). Hunt testified that several times,
another manager (Andy) would tell him that he could work overtime on Saturday but then later
Zetino would tell him “we don’t need you tomorrow” and so he would not work; on Monday his
co-workers would ask where he had been telling him “everybody else came.” (Id. at 6, 11-12, 14
(Dep. Hunt at 30-31, 50-51, 53, 62-63)). Zetino would tell Hunt when he asked to work
overtime on Saturdays, “I got my guy. They going to come in. They going to clean up. I ain’t
going to need all of y’all.” (Id. at 10-12 (Dep. Hunt at 46, 50-51, 53)). For Hunt, this was the
“[o]nly problem I really had” with Zetino. (Id. at 11 (Dep. Hunt at 50)). He personally thought
3

this was discrimination. (Id. at 12 (Dep. Hunt at 53)). “[H]e wouldn’t let us make no overtime
[on Saturdays] when we had the chance to. I mean, we made some [overtime] but it was a lot of
time we could have made overtime and he wouldn’t let us.” (Id. at 13 (Dep. Hunt at 57-58)).
Hunt testified however, that “a lot of time when we knock off at four, he let me work till five or
six. But then when we leave…the Mexicans will still be there working…work ten, eleven o’clock
at night[]” – “[c]leaning up there….” (Doc. 39-4 at 13 (Dep. Hunt at 58)). “[H]e wouldn’t let me
get enough overtime[.]” (Id. (Dep. Hunt at 60)). See also Doc. 49-1 at 18 at ¶2, 4-5 (Aff.
Hunt)). Hunt never turned down overtime and always showed up for overtime work on Saturdays
when he was told to be at work. (Doc. 39-4 at 15 (Dep. Hunt at 71-72)).
As for retaliation, Hunt testified that he alleges retaliation because he complained to
another supervisor about Zetino having promised him a raise but not receiving one, and that
“they was putting too much work on me and that the other loader should have been helping me
out more[;]” he was told it would be looked into but the supervisor never got back to Hunt.
(Doc. 39-4 at 19 (Dep. Hunt at 87-88)).
On April 25, 2013, Hunt sued Bibb for Title VII/Section 1981 violations for race
discrimination (disparate treatment in connection with overtime opportunities), hostile work
environment based on race, and retaliation -- claiming that Bibb discriminates against AfricanAmericans in favor of Hispanic or Caucasian employees. (Doc. 1). The relief requested includes
a declaratory judgment, a permanent injunction, back/front pay, punitive, compensatory damages
and/or nominal damages, benefits, costs, fees and expenses. (Id. at 9).
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

4

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). Rule 56(c) provides as follows:
(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
the fact.
(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
stated.

FED.R.CIV.P. Rule 56(c) (Dec. 2010). 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 its burden, the court must stop short of
5

weighing the evidence and making credibility determinations of the truth of the matter. Instead,
the evidence of the non-movant 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) (internal
citations and quotations omitted).
III.

Conclusions of Law
At the outset, the parties agree that Hunt has exhausted his administrative remedies and

thus satisfied a condition precedent to filing suit. (Doc. 1 at 1-2 at ¶3; Doc. 5 at 1).2
Hunt’s disparate treatment, hostile work environment, and retaliation claims are based on
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.
Because Title VII and Section 1981 have the same requirements of proof, Hunt’s claims are
analyzed under the same framework. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998).
A.

Disparate Treatment -Title VII/Section 1981 Race Discrimination

While the Complaint is not a model of clarity, it appears that Hunt’s race discrimination
claim is based on being denied all the overtime he wanted, as he states in the complaint:
“Hispanic and white counterparts were allowed to work substantially more overtime.”3 (Doc. 1 at
3 at ¶18). The Court considers this race discrimination claim as one for disparate treatment in
connection with overtime opportunities.

However, Hunt worked over 404 overtime hours

(before operating hours, “after hours”, on Friday, and on some Saturdays). Thus, this is not a
2

The parties have not submitted the EEOC Charge. The Court thus presumes the parties are in agreement
as to the propriety of the claims before the Court as they relate to the allegations contained in the Charge.
Any race claims based on general treatment and reprimands (Doc. 1 at 3 at ¶17) appear to have been
abandoned.
3

6

claim for a denial of any/all overtime, but a claim for denial of some of his overtime requests,
primarily to work every Saturday (i.e., “I didn’t get as much overtime as I wanted”).
Hunt may support his claims with direct evidence, circumstantial evidence, or statistical
proof. Rioux v. City of Atlanta, Ga. 520 F.3d 1269, 1274 (11th Cir. 2008). Direct evidence of
discrimination is “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). Specifically, direct evidence is evidence, which if
believed, proves the existence of a fact in issue without inference or presumption. Taylor v.
Runyon, 175 F.3d 861, 867 (11th Cir. 1999); Jones v. Bessemer Carraway Med. Ctr., 151 F.3d
1321, 1323 n. 11 (11th Cir. 1998); Burrell v. Board of Trustees of Ga. Military College, 125 F.3d
1390, 1393 (11th Cir. 1997). Direct evidence consists of “only the most blatant remarks, whose
intent could be nothing other than to discriminate on the basis of [race].” Van Voorhis v.
Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008). As enunciated
by this Court in Ferrell v. Masland Carpets, Inc., 97 F. Supp.2d 1114, 1123 (S.D. Ala. 2000):
“It is a rare case, however, where there exists actual direct evidence of discrimination.”
Copley v. Bax Global, Inc., 80 F.Supp.2d 1342, 1348 (S.D. Fla. 2000). The reason that
“true” direct evidence is the exception rather than the rule is that courts have found
“[o]nly the most blatant remarks, whose intent could be nothing other than to
discriminate” as constituting direct evidence of discrimination. Clark v. Coats & Clark,
Inc., 990 F.2d 1217, 1223 (11th Cir.1993)… there must be a direct correlation between
the adverse employment action and the discriminatory comment for such a statement to
constitute direct evidence.
Moreover, evidence that merely suggests a discriminatory motive is, by definition, circumstantial
evidence. Burrell, 125 F.3d at 1393-1394.

“[R]emarks by non-decisionmakers or remarks

unrelated to the decisionmaking process itself are not direct evidence of discrimination.”
7

Standard 161 F.3d at 1330.

“To be direct evidence, the remark must indicate that the

employment decision in question was motivated by race.” Scott v. Suncoast Beverage Sales,
Ltd., 295 F.3d 1223, 1227-1228 (11th Cir. 2002).
Hunt contends that he has direct evidence4 of discrimination per the “mountain of
evidence” in the co-plaintiff’s affidavits. (Doc. 49 at 8). Hunt’s “direct evidence” consists of his
and other co-plaintiffs’ statements that they heard Zetino say “you guys”, my “Hispanic guys” or
“my Mexican guys” in reference to assigning overtime. (Doc. 49; Doc. 49-1 at 12-17, 19)).
However, this is not direct evidence of race discrimination.

While Hunt might prevail in

convincing a jury that these comments indicated a preference for a certain group of Hispanic
employees, such a conclusion can only be made by inference or presumption. In sum, Zetino’s
comments are at best circumstantial evidence that he favored a certain group of Hispanic
employees. As explained supra, direct evidence does not allow for inferential leaps.5

4

Despite Hunt contention (Doc. 49), which relies upon and quotes Judge Tjoflat's opinion in Wright v.
Corp, 187 F.3d 1287 (11th Cir. 1999), this Court does not agree that the Eleventh Circuit has adopted a broader
definition of direct evidence based on a “preponderance” standard. Rather, the undersigned agrees with the
conclusion in Ferrell, 97 F. Supp.2d at 1123:
The court disagrees. Judge Tjoflat's definition of direct evidence “is mere obiter dictum, as it was not
necessary to the resolution of the case, and neither of the two other members of the panel joined that
portion of the opinion.” Copley v. Bax Global, Inc., 80 F.Supp.2d 1342, 1348 (S.D.Fla.2000). Indeed, as the
Copley court observes, the Eleventh Circuit has not since applied Judge Tjoflat's definition of direct
evidence. See Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1358–59 (11th Cir.1999). See also
Beaver v. Rayonier, Inc., 200 F.3d 723, 729–30 (11th Cir.1999). Accordingly, the court declines to adopt
the definition of direct evidence propounded by Judge Tjoflat in Wright and urged by Ferrell in this case.
See also East v. Clayton Cty., Ga., 436 Fed. Appx. 904, 910 (11th Cir. 2011) (noting that even though no published
opinion had overruled Wright, no published opinion directly applied that standard since Wright issued in 1999);
Kilpatrick v. Tyson Foods, Inc., 268 Fed. Appx. 860, 862 (11th Cir. 2008) (noting that neither of the other 2
members of the panel joined in Judge Tjoflat’s opinion and stating that “our case law, both before and since Wright,
has used the standard…that direct evidence…means ‘evidence which if believed, proves existence of fact in issue
without inference or presumption’”).
5
Accord Burrell, 125 F.3d at 1393–1394 (a statement that merely suggests, but does not prove, a

8

Where there is only circumstantial evidence, as in this case, courts apply the framework
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Chapman v. AI Transp.,
229 F.3d 1012, 1024 (11th Cir. 2000). Under McDonnell Douglas, the plaintiff has the initial
burden of establishing a prima facie case of race discrimination. Id. Thus, the plaintiff must
establish that: 1) he belongs to a racial minority; 2) he was subjected to adverse job action; 3) his
employer treated similarly situated employees outside his classification more favorably; and 4)
he was qualified to do the job. Holifield v. Reno, 115 F.3d 1555, 1561–1562 (11th Cir. 1997).
Further, in Sims v. MVM, Inc., 704 F.3d 1327, 1332-1333 (11th Cir. 2013), the Eleventh
Circuit clarified that the McDonnell Douglas framework is not the sine qua non for a plaintiff to
survive summary judgment in a discrimination case. See Smith, 644 F.3d at 1328. “The plaintiff
will always survive summary judgment if he presents circumstantial evidence that creates a
triable issue concerning the employer's discriminatory intent.” Id. A triable issue of fact exists if
the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination by the
decisionmaker. Id. See generally Hamilton v. Southland Christian School, Inc., 680 F.3d 1316,
1320 (11th Cir. 2012).
As previously stated, plaintiff must show that his employer treated similarly situated
employees outside his classification more favorably. The employee identified as a comparator
“must be similarly situated in all relevant respects.” Wilson, 376 F.3d at 1091. See also e.g.,
Drake–Sims v. Burlington Coat Factory Warehouse of Ala., Inc., 330 Fed. Appx. 795, 803 (11th
Cir. 2009). It is necessary that a comparator must be “nearly identical” to the plaintiff “to prevent

discriminatory motive is circumstantial evidence by definition).

9

courts from second-guessing a reasonable decision by the employer.” Wilson, 376 F.3d at 1091.6
See also e.g., Head v. Pitts Enterp , Inc., 2010 WL 2773376, *13 (M.D. Ala. Jul. 14, 2010);
Drake–Sims, 380 Fed. Appx. at 803; Sylva–Kalonji v. Board of School Comm'rs of Mobile Cty.,
2009 WL 1418808, *5–6 (S.D. Ala. May 20, 2009); Hill v. Emory Univ., 346 Fed. Appx. 390,
395 (11th Cir. 2009); Beard v. 84 Lumber Co., 206 Fed. Appx. 852, 857 (11th Cir. 2006) (finding
the plaintiff and a proposed comparator had different numbers of years of experiences such that
they were not similarly situated in all relevant respects).
Hunt’s race discrimination claim is premised on the fact that he did not receive as much
overtime as he would have liked. Hunt does not point to a specific comparative employee, but
rather simply points to all the Hispanics who received more overtime than he did. This is
insufficient to sustain his burden. The Court can not even determine whether the comparators
held similar jobs, much less whether they were similarly situated.
Hunt primarily relies on “statistical data” in his attempt to establish a prima facie case of
discrimination and presumably to show pre-text.

In individual Title VII claims, statistical

evidence is “relevant and important” but cannot alone sustain a case of individual discrimination.
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984). Hunt’s claims are
not part of a class suit alleging a “pattern or practice” of discrimination.7 However, “[e]ven

6

The Eleventh Circuit held in Cuevas v. American Exp. Travel Related Services Co., Inc., 256 Fed. Appx.
241, 243 (11th Cir. 2007) that “[a]lthough the ‘nearly identical’ misconduct requirement was called into question by
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1334 (11thCir. 2000), we are ‘bound to follow Maniccia's ‘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.'”
7
To the extent this is a belated attempt by Hunt to assert a disparate impact claim, as statistical disparity
data is required in such claims, such attempt is improper. See, e.g., Gilmour v. Gates, McDonald and Co., 382 F.3d
1312, 1314 (11th Cir. 2004) (explaining that the liberal pleading standard under Fed.R.Civ.P. 8(a)(2) does not afford
plaintiffs with an opportunity to raise new claims at summary judgment); Huddleston v. Sunshine Mills, Inc., 965 F.

10

though a suit seeks only individual relief for an individual instance of discrimination, and is not a
“pattern or practice” suit by the government or a class action, the past history of [employment
practices] is surely relevant information.” Burns v. Thiokol Chemical Corp., 483 F.2d 300,
306 (5th Cir. 1973). As the Fifth Circuit explained over forty years ago, “‘[i]n the problem of
racial discrimination, statistics often tell much, and Courts listen.’ Our wide experience with
cases involving racial discrimination in education, employment, and other segments of society
have led us to rely heavily in Title VII cases on the empirical data which show an employer's
overall pattern of conduct in determining whether he has discriminated against particular
individuals or a class as a whole.” Id. at 305 (citation omitted). “Statistical evidence is an
appropriate method for demonstrating both a prima facie case of discrimination and pretext….
Statistics…, however, without an analytic foundation, are virtually meaningless.” Brown v.
American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir. 1991).
Hunt has submitted the employee data for Bibb County Properties over the course of one
year, July 2011-2012. (Doc. 49-1 at 1-6). Hunt also submitted summaries/tables, presumably
prepared by Hunt’s counsel, that break down the employees by race and the number of overtime

Supp.2d 1298, 1310 (N.D. Ala. 2013) (concluding that the court would not consider a plaintiff’s disparate impact
theory of discrimination on summary judgment because he raised it for the first time in his response brief); Smith v.
Horner, 839 F.2d 1530, 1534–35 (11th Cir.1988) (holding that the district court was not required to analyze the facts
under a disparate impact theory when plaintiff made no mention of that theory in pre-trial and post-trial filings, and
only barely alluded to the theory during trial); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th
Cir. 2012) (providing “[i]t is well-settled in this circuit that a plaintiff may not amend the complaint through
argument at the summary judgment phase of proceedings.”); King v. ST Aerospace Mobile, Inc., 2013 WL 2635926,
8 (S.D. Ala. June 11, 2013) (noting that plaintiff cannot amend the pleading via summary judgment to add new
causes of action); Godfrey v. Nationwide Vinyl Siding & Home Imp., LLC, 2012 WL 6569292, *12 n.23 (S.D. Ala.
Dec. 14, 2012) (“Plaintiffs cannot use their summary judgment brief as a de facto amendment to their pleadings.”
See also Criner v. Texas—New Mexico Power Co., 470 Fed. Appx 364, 371 (5th Cir. 2012) (“[W]e hold that
[Plaintiff] waived her disparate impact claims by presenting them for the first time in her response to a motion for
summary judgment.”)

11

hours received. (Doc. 49-1 at 7-11). Counsel then provides his own analysis of the statistics,
concluding that eighty percent (80%) of the Hispanic workers were in the top twenty-nine
percent (29%) of average weekly overtime earners. This conclusion is virtually meaningless.
Hunt’s statistical evidence did not even attempt to analyze treatment of comparable employees or
take into account surrounding circumstances, such as availability or desire to work overtime.
“The Supreme Court has emphasized the importance of looking to the proper base group when
making statistical comparisons and examining all of the surrounding facts and circumstances
which create the statistics themselves.” Cooper v. Southern Co., 390 F.3d 695, 717 (11th Cir.
2004) overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 456–457 (2006).
There is insufficient evidence that all employees were interchangeable for purposes of the
overtime needed. In fact the only evidence presented on the issue is from Bibb and shows the
opposite; the factors determining who worked overtime included the job that needed to be
performed, the past record of the employee regarding his willingness to work overtime
(including whether that employee had declined overtime previously), and reliability and
performance. Thus, Hunt’s reliance on his “statistics” does not support a prima facie case of race
discrimination in overtime assignments.

See Burke–Fowler, 447 F.3d at 1325 (“holding

employers liable for statistical imbalances per se is inconsistent with Title VII's plain language
and statutory purpose[]”) (quoting EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1276 (11th
Cir. 2000)).
Further, Hunt has failed to present a genuine issue of material fact indicating that there is
“a convincing mosaic” of circumstantial evidence raising a reasonable inference that Bibb
discriminated. Smith, 644 F.3d at 1328.
12

B.

Title VII/Section 1981 Hostile Work Environment-Race8

With regard to Hunt’s hostile work environment claim, this is not a class action and the
Complaint does not allege “pattern and practice.” Thus, Hunt (and the other plaintiffs) cannot
rely upon and/or base this claim on any evidence of the other co-plaintiffs’ experiences. See,
e.g., Brown v. Berg Spiral Pipe Corp., 2011 WL 3610646, *14 (S.D. Ala. Aug. 17, 2011).
Support for Hunt’s discrimination case can only be based on evidence regarding his specific
experiences his employment at Bibb or that which he became aware of while employed. This is
because “[t]o rely on the evidence, each [plaintiff] must show that he was aware of those
incidents at the relevant time he alleges the hostile work environment.” See, e.g., Melton v.
National Dairy, LLC, 705 F.Supp.2d 1303, 1342 (M.D. Ala. 2010) (citing Edwards Wallace
Comm. College, 49 F.3d 1517, 1522 (11th Cir. 1995)) (emphasis in original). See also e.g., Head
v. Pitts Enterp., Inc., 2010 WL 2773376, *8 (M.D. Ala. Jul. 14, 2010); McKenzie v. Citation
Corp., LLC, 2007 WL 1424555, *13 (S.D. Ala. May 11, 2007). Courts in the Eleventh Circuit
may consider statements not directed at a plaintiff and even hearsay statements, so long as the
plaintiff was aware of the statements at the time he was employed. See, e.g., Yeomans v. Forster
and Howell, Inc., 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10, 2010). Thus, despite Hunt’s
reference to and reliance upon “the mountain of evidence” provided in his co-plaintiffs affidavits
(Doc. 49), the Court has only considered the evidence about which Hunt testified that he was
aware while employed at Bibb for his hostile work environment claim.
8

Hunt appears to have abandoned this claim altogether on summary judgment as he fails to
substantivelyargue any claim other than “race discrimination” and presents no genuine issues of material fact to rebut
Bibb’s motion as to hostile work environment (the only reference to “hostile work environment” is placement of
those 3 words in the conclusion of his Response. (Doc. 49 at 9)). Nevertheless, out of an abundance of caution, the
Court addresses this claim.

13

Racial harassment is actionable where the conduct is sufficiently severe or pervasive to
alter the conditions of employment and create an abusive working environment. Freeman v. City
of Riverdale, 330 Fed. Appx. 863, 865 (11th Cir. 2009). To establish a prima facie case of hostile
work environment and/or racial harassment, the plaintiff must prove that: 1) he belongs to a
protected group; 2) he has been subject to unwelcome harassment; 3) the harassment was based
on a protected characteristic of the employee (such as race); 4) the harassment was sufficiently
severe or pervasive to alter the terms and conditions of employment and create a discriminatorily
abusive working environment; and 5) the employer is responsible for such environment under a
theory of vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx.
544, 545–546 (11th Cir. 2010); McCann v. Tillman, 526 F .3d 1370, 1378 (11th Cir. 2008); Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Mendoza v. Borden, Inc.,
195 F.3d 1238, 1245 (11th Cir. 1999).
Hunt’s Title VII/Section 1981 specific hostile work environment allegations in the
Complaint are unclear, as the complaint is framed combining all of plaintiffs’ collective (and
vague) allegations together. (Doc. 1 at 5-7). However, Hunt’s deposition reveals his racial
allegations against Bibb are based on the following: Zetino’s comments about “his guys” or “his
Mexican guys”; Zetino not fixing the air conditioner on Hunt’s loader; Zetino threatening to fire
Hunt if he lied about not damaging a wall with the loader and then not firing Reyes, a Hispanic,
who admitted damaging the wall; Hunt not receiving a raise, and the Caucasian loader operator
not helping Hunt unless Zetino made him.
The parties do not dispute that Hunt belongs to a protected group – African American.
However, to be actionable as severe or pervasive, the harassment “must result in both an
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environment that a reasonable person would find hostile or abusive and an environment that the
victim subjectively perceive[s] ... to be abusive.” Miller, 277 F.3d at 1276 (internal citation and
quotation marks omitted). In other words, the severe or pervasive element has an objective and
subjective component. McCann, 526 F.3d at 1378. To determine the objective severity of the
harassment, courts look at the totality of the circumstances and consider: 1) the frequency of the
discriminatory conduct; 2) the severity of the conduct; 3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and 4) whether the conduct
unreasonably interferes with an employee's job performance. Reeves, 395 Fed. Appx. at 546.
See also Faragher v. City of Boca Raton, 524 U.S. 775, 787–788 (1998); Allen v. Tyson Foods,
121 F.3d 642, 647 (11th Cir.1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“The conduct is considered cumulatively instead of in isolation.” Reeves, 395 Fed. Appx. at 546.
The evidence in this case is insufficient for a reasonable jury to find for Hunt on his
hostile work environment claim. Specifically, even when viewing the facts in the light most
favorable to him, a reasonable jury could not find that the purportedly harassing conduct was
frequent and/or severe. As a result, as Hunt has failed to satisfy his prima facie case for Title
VII/Section 1981 hostile work environment, the Court need not reach the fifth element (employer
liability) and Bibb’s motion for summary judgment on this claim is GRANTED.
C.

Retaliation9

To establish a prima facie case of retaliation, a plaintiff must prove that: 1) he engaged in
statutorily protected activity; 2) he suffered a materially adverse action; and 3) there was a causal
9

Hunt appears to have abandoned this claim altogether on summary judgment as he fails to substantively
argue any claim other than “race discrimination” and presents no genuine issues of material fact to rebut Bibb’s
motion as to retaliation (the only reference to “retaliation” is placement of that 1 word in the conclusion of his
Response (Doc. 49 at 9)). Nevertheless, out of an abundance of caution, the Court addresses this claim.

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connection10 between the protected activity and the materially adverse action.11 Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Nichols v. CSG Sys., Inc., 245 Fed.
Appx. 937, 940 (11th Cir. 2007); Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006).
In the Complaint, Hunt alleges that Bibb violated Title VII/Section 1981 by retaliating
against him for his engagement in protected activity. (Doc. 1). Hunt testified that he was
retaliated against because he complained to another supervisor about Zetino having promised
him a raise but not receiving one, and because he was getting “too much work.” (Doc. 39-4 at 19
(Dep. Hunt at 87-88)). Hunt has submitted no evidence that he engaged in any statutorily
protected activity and/or that Bibb took any adverse employment action against him in response
to such activity. Thus, Bibb’s motion for summary judgment on Hunt’s Title VII/Section 1981
retaliation claim is GRANTED.
IV.

Conclusion12
Accordingly, it is ORDERED that Defendant Bibb’s Motion for Summary Judgment

(Docs. 38-39) is GRANTED.
DONE and ORDERED this the 20th day of May 2014.
S/ Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

10

To establish a causal connection, a plaintiff must show that the decision maker was aware of the
protected conduct at the time of the adverse action. Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th
Cir. 2000); Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
11
An action that “well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern, 548 U.S. at 68 (quotation omitted).
12
The practice of filing motions to reconsider has become commonplace. Considering the heightened
burden that must be met for the court to reconsider, the court has found most such motions to be a waste of the
court’s and the parties’ resources.

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