Brown et al v. Bibb County Properties, LLC

Filing 58

ORDER granting Defendant's 41 Motion for Summary Judgment re:Ronnie Harris, 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
RONNIE HARRIS,
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 Harris’
claim of race discrimination and retaliation (Docs. 41-42), Plaintiff’s Response (Doc. 51), and
Defendant’s Reply (Doc. 53). For reasons state infra, the motion is GRANTED.
I.

Findings of Fact1
Plaintiff Ronnie Harris (“Harris”) is an African-American who was briefly employed by

Defendant Bibb County Properties, LLC (“Bibb”), a sawmill and mulch processing plant in
Grove Hill, Alabama. In August 2011, Bibb transferred one of its employees, Jose Victor Zetino
(“Zetino”), who is Hispanic, to the Grove Hill plant to be the Plant Manager. (Doc. 42-1 at 2
(Dep. Zetino at 6-7); Doc. 51-1 at 1).
Subsequently, Zetino hired Harris on Wednesday, March 7, 2012, as the plant’s only onsite electrician and to perform maintenance at the plant. (Doc. 42-2 at 2-3, 5, 7 (Dep. Harris at
24-28, 42, 49)). Harris worked Wednesday-Friday, but did not work over the first weekend. (Id.
at 5 (Dep. Harris at 42)). On Monday, March 12, 2012, Zetino told Harris that he had incorrectly
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

installed a coil in a band saw control panel box at the plant (it had stopped working), instructing
him to fix the problem. (Id. at 4, 5, 6, 8 (Dep. Harris at 37-41, 42, 47-48, 61)). Harris explained
that the problem was that Zetino had placed 480 volts into a 110 volt transformer and keeping it
that way would damage the saw motor. (Id.) Zetino told Harris to fix the saw as he instructed:
“[y]ou just do what the f[*#@] I tell you to do. I’m your boss[]” as “[w]e just need to make it
through the day.” (Id. at 4 (Dep. Harris at 40)). Harris fixed the saw as instructed. When the
saw became operational it blew the motor. Zetino blamed Harris and fired him on March 12,
2012. Zetino stated, “you don’t know what the f[*#@] you doing. You’re not an electrician.
Come on get your tools[]” and “I think this job is too much for you….Get your tools. You’re
fired.” (Doc. 42-2 at 4-6 (Dep. Harris at 40-43, 48)). Zetino said nothing to Harris about his
race. Rather, “[h]e just said…the job was too big for me. I’m too young for this job....” (Id. at 5
(Dep. Harris at 42-43)). Harris testified that he felt mistreated by Zetino because Zetino acted
like he knew “a lot more” about electricity than Harris when he did not. (Id. at 6 (Dep. Harris at
47-48)).
During Harris’ employment, there were no Caucasian or Hispanic electricians at the plant
(and no other electricians in general). (Id. at 7 (Dep. Harris at 49)). During the five (5) days
Harris was employed, he heard Zetino refer to Hispanic employees as “my guys” on three (3) of
those days. Harris stated that Zetino “felt like his guys was better workers[]” and “[h]e wouldn’t
really talk to you. He wouldn’t talk directly to you[]” but “if he felt like it was something his guys
could do and … like they could do it faster or better than you, he’ll put his guys on it. That’s just
how he was.” (Id. at 8 (Dep. Harris at 61-62)). Harris admitted there were no other employees
2

that could perform the job he was hired to perform. (Id. (Dep. Harris at 62-63)). Nevertheless,
Harris believes that how Zetino treats people has “a lot to do” with them being black. (Doc. 42-2
at 6 (Dep. Harris at 47)).
Regarding overtime, Harris contends that he was denied the opportunity to work overtime
during the first weekend he was employed (March 10-11, 2012), and that someone later told him
that Zetino did not allow any African American men to work at the Grove Hill plant during the
March 17-18, 2012 weekend, after he was fired. (Id. at 8 (Dep. Harris at 41, 63-64)). However,
Harris simultaneously testified that “Big E,” an African American employee, “works mostly all
weekends.” (Id. at 8-9 (Dep. Harris at 64-65)). Regardless, Harris testified that he asked Zetino
if he could work overtime during his first weekend, and Zetino told him no (“I’m not going to
need you, or We’re not going to run[]”). However, when Harris reported to work that Monday,
he learned that others had worked over the weekend (but not maintenance or electricians). (Id. at
9 (Dep. Harris at 65-66)).
On April 25, 2013, Harris 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 AfricanAmerican 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

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
3

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
weighing the evidence and making credibility determinations of the truth of the matter. Instead,
4

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 Harris 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
Harris’ 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, Harris’ 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 Harris’ race discrimination
claim is based on being denied overtime as he states in the complaint that “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.
Harris 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
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.
3

Any race claims based on general treatment, reprimands, and disparate work conditions (a lack of air
conditioning) (Doc. 1 at 3 at ¶17) appear to have been abandoned.

5

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 v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393–1394 (11th Cir. 1997).
“[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are
not direct evidence of discrimination.” 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).

6

While Harris contends that he has direct evidence4 of discrimination per the “mountain of
evidence” in the co-plaintiff’s affidavits (Doc. 51 at 7), the Court disagrees. Harris’ “direct
evidence” consists of evidence submitted by other co-plaintiffs that indicates they heard Zetino,
say “you guys” or “my Hispanic guys” and Harris’ experience of hearing Zetino say “you guys” on
three occasions.

(Doc. 51 at 7 at ¶16).

However, this is not direct evidence of race

discrimination. While Harris might prevail in convincing a jury that “you guys” indicated a
preference for a certain group of Hispanic employees, such a conclusion can only be made by
inference or presumption. As explained supra, direct evidence does not allow for inferential
leaps.5
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
4

Despite Harris’ contention (Doc. 51 at 5-6), which relies upon and quotes Judge Tjoflat's opinion in
Wright v. Southland 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 v. Masland Carpets, Inc., 97 F. Supp.2d 1114, 1123 (S.D. Ala. 2000):
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
discriminatory motive is circumstantial evidence by definition).

7

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, 680 F.3d at 1320.
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 v. B/E Aerospace, Inc., 376 F.3d
1079, 1091 (11th Cir. 2004). 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 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

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 (11th Cir. 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

8

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).
Harris’ race discrimination claim is premised on the fact that during the five days of his
employment with Bibb he was refused overtime work on one weekend due to his race, AfricanAmerican, while Hispanic and Caucasian employees received overtime.

Harris 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). Harris’ claims are not part of a class suit alleging
a “pattern or practice” of discrimination.7 However, “[e]ven though a suit seeks only individual

an earlier one, the earlier panel decision controls.' “
7
To the extent this is a belated attempt by Harris 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.
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 F. App'x 364, 371 (5th Cir. 2012) (“[W]e hold that [Plaintiff]

9

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.” Burns 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).
Harris has submitted the employee data for Bibb County Properties over the course of
one year, July 2011-2012. (Doc. 51-1 at 1-6)

Harris also submitted summaries/tables,

presumably prepared by Harris’ counsel, that break down the employees by race and the number
of overtime hours received. (Doc. 51-1 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 twentynine percent (29%) of average weekly overtime earners.
meaningless.

This conclusion is virtually

Harris’ statistical evidence did not even attempt to analyze treatment of

comparable employees or take into account surrounding circumstances such as availability or
waived her disparate impact claims by presenting them for the first time in her response to a motion for summary
judgment.”)

10

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).

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 and the past record of the employee regarding his
willingness to work overtime. Considering the brevity of Harris’ employment and the lack of
any evidence of an employee with a comparable job that received overtime pay, Harris’ reliance
on these statistics does not support a prima facie case of race discrimination in overtime
assignments. See Burke–Fowler v. Orange County, Fla., 447 F.3d 1319, 1325 (11th Cir. 2006)
(“[H]olding 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)).
Moreover, even if the “statistical data” and the Zetino’s reference to “my guys” could
establish a prima facie case, Bibb has articulated a legitimate non-discriminatory reason for
Harris’ not receiving overtime assignments and for his termination: Zetino did not think Harris’
was qualified to perform the job. If the employer articulates a legitimate, nondiscriminatory
reason for its actions, the plaintiff must then show that the employer's alleged reason was a
pretext for unlawful discrimination. Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th
Cir. 2007).
11

To meet his burden of showing a pretext under McDonnell Douglas, the plaintiff must
rebut all legitimate non-discriminatory reasons that the employer proffers for the adverse action.
Id. A plaintiff can accomplish this by pointing to “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the employer's explanation, Brooks v. County Comm’n of
Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006), and/or by “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[,]”
Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). Additionally, the
plaintiff may produce evidence that “permits the jury to reasonably disbelieve the employer's
proffered reason.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003). “But a reason
cannot ... be ‘a pretext for discrimination ‘unless it is shown both that the reason was false, and
that discrimination was the real reason.'' St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993) (emphasis in original). The plaintiff “must meet [the] reason head on and rebut it, and the
employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman, 229
F.3d at 1030. The court's inquiry, ultimately, “is limited to whether the employer gave an honest
explanation of its behavior.” Id. A plaintiff's showing that the employer was simply incorrect in
its decision is insufficient: if the employer honestly believed that the employee engaged in
misconduct, even if mistaken, no discrimination exists. Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991).
Harris has wholly failed to rebut Bibb’s explanation for terminating Harris and failing to

12

assign him overtime.8 Statistics alone is insufficient. Further, Harris 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.
B.

Title VII/Section 1981 Hostile Work Environment-Race9

With regard to Harris’ hostile work environment claim, this is not a class action and the
Complaint does not allege “pattern and practice”; thus, Harris (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 Sprial Pipe Corp., 2011 WL 3610646, *14 (S.D. Ala. Aug. 17, 2011). Support
for Harris’ discrimination case can only be based on evidence regarding his specific experiences
during the 5 days he was employed 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 Harris’
8

The court notes that plaintiff’s evidence indicates that Harris received 5.5 overtime hours.
Harris 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. 51 at 8)). Nevertheless, out of an abundance of caution, the
Court addresses this claim.
9

13

reference to and reliance upon “the mountain of evidence” provided in his co-plaintiffs affidavits
(Doc. 51 at 7 at ¶16), the Court has only considered the evidence about which Harris testified
that he was aware while employed at Bibb for his hostile work environment claim.
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).
Harris’ 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, his deposition reveals that Harris’
allegations consist only of his claim that during the 5 days of employment at Bibb, he heard
Zetino refer to Hispanic employees as “his guys” on 3 days.
The parties do not dispute that Harris belongs to a protected group – African American.
However, to be actionable as severe or pervasive, the harassment “must result in both an
14

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 that the purported
harassment was sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment. There is not sufficient evidence that
Harris even subjectively perceived his work environment to be hostile. Harris has not testified
that he felt harassed by overhearing the “his guys” comment by Zetino, or on any other basis.
There is no evidence that the “his guys” comment was even directed to Harris, much less was
hostile to him based on his race. Even assuming Harris had presented such evidence, 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, Harris 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
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Bibb’s motion for summary judgment on this claim is GRANTED.
C.

Retaliation10

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
connection11 between the protected activity and the materially adverse action.12 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, Harris alleges that Bibb violated Title VII/Section 1981 because he was
constructively discharged on the basis of his race in retaliation for his engagement in protected
activity. (Doc. 1 at 3 at ¶14). Harris has submitted no evidence of any statutorily protected
activity during the 5 days he was employed at Bibb, or that Bibb took any adverse employment
action against him in response to him engaging in any such activity. Thus, Bibb’s motion for
summary judgment on Harris’ Title VII/Section 1981 retaliation (including constructive
discharge) claim is GRANTED.
IV.

Conclusion13
Accordingly, it is ORDERED that Defendant’s Motion for Summary Judgment (Docs.

10

Harris 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. 51 at 8)). Nevertheless, out of an abundance of caution, the Court addresses this claim.
11
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).
12
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).
13
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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41, 42) is GRANTED.
DONE and ORDERED this the 20th day of May 2014.
S/Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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