Brown et al v. Bibb County Properties, LLC

Filing 59

ORDER granting Defendant's 43 Motion for Summary Judgment re: Marlon Pritchett, 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
MARLON PRITCHETT,
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 racial discrimination and retaliation (Docs. 43-44), Plaintiff’s Response
(Doc. 52), and Defendant’s Reply (Doc. 53).

For the reasons stated infra, the motion is

GRANTED.
I.

Findings of Fact1
Plaintiff Marlon Pritchett (“Pritchett”) 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. 44-1 (Dep. Zetino at
17, 26-27); Doc. 44-2 at 1 (Aff. Zetino)).
In August 2011, Jose Victor Zetino (“Zetino”), who is Hispanic, became the Grove Hill
Plant Manager. (Doc. 44-1 at 2 (Dep. Zetino at 6-7)). Zetino was tasked with increasing
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

production. (Id. at 3, 12 (Dep. Zetino at 10, 45); Doc. 44-2 at 1 (Aff. Zetino)). As Plant
Manager, 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. (Doc. 44-2 at 1 (Aff. Zetino)). According to Zetino, performance and
reliability were the two biggest criteria for assigning overtime. (Doc. 44-1 at 17 (Dep. Zetino at
83-84)).
On November 21, 2011, Pritchett was hired by Bibb; he started as a front end loader and
was assigned to the (old) front end loader that had a non-functioning air conditioner. (Doc. 44-4
at 2, 15 (Dep. Pritchett at 18-20, 77-78)). About twice weekly, when Hispanic co-worker Victor
Vasquez’s saw was not operating, Zetino would move Pritchett from the loader to “the green
chain” and have Vasquez operate the loader. (Id. at 3 (Dep. Pritchett at 21-22)). Pritchett alleges
that the green chain was physically the most difficult job, and “Black workers were always sent
to the Green Chain when their machines broke down while white and [H]ispanic workers were
usually given a break when their machines broke down.” (Doc. 52-1 at 14 (Aff. Pritchett)).
After 4 months of employment, Zetino moved Pritchett to the bagging machine (which include
operating the new front end loader), and thereafter moved him to the fence post machine. (Doc.
44-4 at 3-4 (Dep. Pritchett at 23-24, 26)). Pritchett also operated a new edger. (Id. at 6 (Dep.
Pritchett at 38-39)). Pritchett was the only employee to run the bagging machine, the fence post
machine, and the new edger. (Id. at 12 (Dep. Pritchett at 67)).
At some point, Zetino reprimanded Pritchett because Pritchett did not want to stand on
the moving conveyor belt to remove slags ; Zetino told him “[m]y Spanish guys, I ain’t had no
trouble out of them standing out here getting it.” (Id. at 5 (Dep. Pritchett at 33-36)). Pritchett
2

told Zetino to “go get them[]” and Zetino responded that he could go home. (Id. at 7 (Dep.
Pritchett at 44)). Pritchett “just stayed there doing it.” (Id.) Zetino also reprimanded Pritchett for
causing a bagging machine motor to burn up. (Doc 44-4 (Dep. Pritchett at 42-43)). Pritchett
states that he had not been operating the machine at the time. (Id.)
In August 2012, Pritchett was terminated for failing a drug test. (Id. at 3, 10 (Dep.
Pritchett at 23, 57)). Pritchett testified that 2 Hispanic workers never had to give urine samples
for drug testing as they did not show up on test days. (Id. at 10-11, 13 (Dep. Pritchett at 58-61,
69-70)). While employed, Pritchett never complained to Bibb about racial discrimination. (Id. at
11 (Dep. Pritchett at 62)).
As to hostile work environment based on his race, Pritchett testified that the only
comment Zetino made that he considered racial was when he told Pritchett that the Hispanics did
a better job unloading slag from the conveyor belt and that they did not complain. (Id. at 7, 9
(Dep. Pritchett at 44, 56)). When anything went wrong, however, Zetino would comment that
his Hispanic guys would not have done this. (Id. at 8 (Dep. Pritchett at 51-52); Doc. 52-1 at 14
(Aff. Pritchett)). Pritchett also testified that he complained about the air conditioner not working
on the loader and that Zetino would yell at him for keeping the loader doors open. (Doc. 44-4 at
13 (Dep. Pritchett at 69-70)). Pritchett testified that Zetino also made a statement once, before
several employees, that he had Hispanics working instead of African-Americans because he did
not have to worry about Hispanics giving him any problems, they would work constantly, and do
whatever he told them. (Id. at 14-15 (Dep. Pritchett at 76-77); Doc. 52-1 at 14 (Aff. Pritchett)).
Pritchett testified that if Hispanics had problems with certain jobs, Bibb would put African
American workers on the job. (Doc. 44-4 at 15 (Dep. Pritchett at 79-80)). Pritchett also alleges
that Zetino regularly used “my guys” and sometimes said “my Hispanic guys.” (Doc. 52-1 at 14
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(Aff. Pritchett)).
Regarding overtime, while employed, Pritchett worked 454.78 overtime hours. (Doc. 443 at 1 at ¶9 (Aff. Fournier)). The majority of those hours were attained when Pritchett performed
his regular job duties and worked “after hours” overtime cleaning up, changing oil, and operating
the bagging machine. (Doc. 44-4 at 11-13 (Dep. Pritchett at 63, 68-69)). As such, Pritchett’s
overtime claim is based on his testimony that he wanted more overtime –essentially he wanted to
work overtime every time he requested it (for Saturdays as he already received “after hours” and
Friday overtime pay). Specifically, every Friday Pritchett asked Zetino to work overtime on
Saturday and was told no except on a couple of occasions, while the Hispanic employees were
allegedly allowed to work overtime every Saturday. (Doc. 44-4 at 9, 11, 13, 15 (Dep. Pritchett at
55-56, 62, 70, 80)). Additionally, Pritchett asked Zetino “all the time” to let him work but Zetino
usually responded “my guys have got it.” (Doc. 52-1 at 14 (Aff. Pritchett); Doc. 44-4 at 13 (Dep.
Pritchett at 70)). Pritchett also summarily concludes that the Hispanic workers who received
most of the overtime did not have any special skills “that the rest of us did not have.” (Id.)
Pritchett also relates that one weekend when he asked to work additional overtime, Zetino told
him he was not needed, but Pritchett later learned that Zetino had a Hispanic employee operate
Pritchett’s front end loader that weekend. (Id.)
On April 25, 2013, Pritchett 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
4

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.
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
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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,
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 Pritchett 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
Pritchett’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, Pritchett’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 Pritchett’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
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.

6

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, as Pritchett worked
over 454 overtime hours while employed (“after hours”, on Friday, and on some Saturdays), this
is not a claim for a denial of any/all overtime; rather, this is a claim for denial of some of his
overtime requests to work on some Saturdays (i.e., “I didn’t get as much overtime as I wanted”).
Pritchett 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
Any race claims based on general treatment and reprimands (Doc. 1 at 3 at ¶17) appear to have been
abandoned.
3

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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.”
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).
Pritchett contends that he has direct evidence4 of discrimination per the “mountain of
evidence” in the co-plaintiff’s affidavits. (Doc. 52 at 7). Pritchett’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.” (Doc. 52 at 7; Doc. 52-1 at 12-13, 16-19)). This is not direct evidence of
4

Despite Pritchett’s contention (Doc. 52 at 6-7), 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’”).

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race discrimination. While Pritchett might prevail in convincing a jury that these comments and
actions may indicate 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
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

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).

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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
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).
Pritchett’s overtime race discrimination claim is premised on the fact that he was not
allowed to work overtime every Saturday, and the Hispanic employees were allowed to work
every Saturday. Pritchett does not point to a specific comparative employee, but rather points to
all 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.
Pritchett relies primarily 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.
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
an earlier one, the earlier panel decision controls.' “

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Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984). Pritchett’s 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 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.

7

To the extent this is a belated attempt by Pritchett 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, 1534–1535 (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. Jun. 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.”)

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American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir. 1991).
Pritchett has submitted the employee data for Bibb County Properties over the course of
one year, July 2011-2012. (Doc. 52-1 at 1-6). Pritchett also submitted summaries/tables,
presumably prepared by Pritchett’s counsel, that break down the employees by race and the
number of overtime hours received. (Doc. 52-1 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. Pritchett’s statistical evidence did not even attempt to analyze treatment
of comparable employees or take in 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. Pritchett’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
12

Cir. 2000)).
Further, Pritchett 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-Race8

With regard to Pritchett’s hostile work environment claim, this is not a class action and
the Complaint does not allege “pattern and practice.” Thus, Pritchett (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 Pritchett’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
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Pritchett 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. 52 at 9)). Nevertheless, out of an abundance of caution, the
Court addresses this claim.

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and Howell, Inc., 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10, 2010). Thus, despite Pritchett’s
reference to and reliance upon “the mountain of evidence” provided in his co-plaintiffs affidavits
(Doc. 52 at 7 at ¶16), the Court has only considered the evidence about which Pritchett 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).
Pritchett’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, Pritchett’s deposition reveals his racial
allegations against Bibb are based on the following: Zetino told Pritchett that the Hispanics did a
better job and did not complain, and when anything went wrong, he would comment that his
Hispanic guys would not have done this; Pritchett complained about the loader’s air conditioner
14

not working and Zetino yelled at him for keeping the doors open; he and other African
Americans were placed on “the green chain” when their machines broke when Hispanics were
allowed to take a break; Zetino made a statement once, before several employees, that he had
Hispanics working overtime instead of African-Americans because he did not have to worry
about Hispanics giving him any problems, they would work constantly, and do whatever he told
them; if Hispanics had problems with certain jobs, Bibb would put African American workers on
the job; and Zetino regularly used the phrase “my guys” and sometimes said “my Hispanic guys.”
The parties do not dispute that Pritchett belongs to a protected group – African American.
However, to be actionable as severe or pervasive, the harassment “must result in both an
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 is insufficient for a reasonable jury to find for Pritchett on his hostile work
environment claim. Specifically, even when viewing the facts in the light most favorable to him,
15

a reasonable jury could not find that the purportedly harassing conduct was frequent and/or
severe. As a result, as Pritchett 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
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, Pritchett alleges that Bibb violated Title VII/Section 1981 by retaliating
against him for his engagement in protected activity. (Doc. 1). However, Pritchett has submitted
no evidence that he engaged in a statutorily protected activity and/or that Bibb took any adverse
employment action against him in response to such activity. The evidence reveals that Pritchett
was terminated for failing a drug test. Thus, Bibb’s motion for summary judgment on Pritchett’s
Title VII/Section 1981 retaliation claim is GRANTED.

9

Pritchett 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. 52 at 9)). Nevertheless, out of an abundance of caution, the Court addresses this claim.
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).

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IV.

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

(Docs. 43, 44) is GRANTED.
DONE and ORDERED this the 20th day of May 2014.
S/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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.

17