Powell v. American Remediation & Environmental, Inc.

Filing 66

ORDER granting 46 ARE's Motion for Summary Judgment; granting 47 Eubanks' and Wallace's Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 11/20/2014. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID J. POWELL,
Plaintiff,
v.
AMERICAN REMEDIATION &
ENVIRONMENTAL, INC., et al.,
Defendant.

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CIVIL ACTION NO. 13-00497-KD-C

ORDER
This matter is before the Court on Defendant ARE’s Motion for Summary Judgment
(Docs. 43, 46), Plaintiff’s Response (Doc. 52, 54, 55), and Defendant’s Reply (Doc. 61-1 to 619, 62, 63); and Defendants Eubanks’ and Wallace’s Motion for Summary Judgment (Docs. 44,
47), Plaintiff’s Response (Docs. 57-60), and Defendants’ Reply (Doc. 64, 65).
As alleged, this case is about Plaintiff David J. Powell’s (“Powell”) Title VII and Section
claims for race discrimination (drug testing and termination) against his former employer
Defendant American Remediation & Environmental, Inc., (“ARE”).1 This case is a swearing
match between ARE and Powell, as to whether he smoked synthetic marijuana (“spice”) in a
company van on January 18, 2012 or whether such “false pretenses” were fabricated by ARE to
“get him fired” so that a Caucasian relative of one of the higher-ups could take his job.
I.

Findings of Fact2
1

ARE is an environmental service company that performs environmental cleanup, industrial cleanup,
hazardous waste hauling, pipeline service work, heavy wreck and demolition work, and pneumatic excavation.
(Doc. 54-1 (Dep. George at 20)).
2

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

On August 19, 2010, Powell, an African American, applied for employment with ARE.
(Doc. 43-1; Doc. 54-5 (Dep. Powell at 42)).3 Powell was hired and on September 20, 2010,
started as a technician. (Doc. 46-2; Doc. 59-1 (Aff. Powell SEALED); Doc. 43-5 (Dep. Wallace
at 23); Doc. 43-6 (Dep. Corbeil at 42-43)).4 While Powell had “absolutely no [prior] experience”
in this position, he eventually became a leadman for a crew (the person with whom a contractor
will directly communicate regarding job issues), in addition to his technician duties. (Id. (Dep.
Corbeil at 18-19, 42-43); Doc. 43-5 (Dep. Wallace at 23-35); Doc. 43-7 (Dep. Powell at 58)).
The facts from this point forward are disputed at every turn. Without itemizing each and
every dispute, the following is a brief synopsis of the varying versions of events.
According to ARE, on January 17, 2012, employee Jason Bishop (“Bishop”) was driving
the company van filled with other employees to a job site in Mississippi, when he smelled
something, looked in the rearview mirror, and saw Powell and a Caucasian employee Scott
Kondroski (“Kondroski”) “passing what appeared to be a joint back and forth[--]” smoking
something “did not look like a cigarette.” (Doc. 43-9 (Dep. Bishop at 31-43, 51); Doc. 43-6
(Dep. Corbeil at 34, 36); (Doc. 61-4 (Dep. Bishop at 47)). According to Bishop, because he
“didn’t want to get in trouble[,]” that evening he called his supervisor Martin Corbeil (“Corbeil”)
to report what had happened, and Corbeil told Bishop he would “take care of it” and immediately
called his supervisor Lee Eubanks (“Eubanks”). (Doc. 43-9 (Dep. Bishop at 38-40, 50-51); Doc.
3

Powell acknowledged in his application that the information contained therein was correct and that he
would be subject to dismissal if he provided false or misleading information and/or otherwise failed to provide the
information requested in his application. (Doc. 43-1). Powell also acknowledged that he understood that his
employment would be at-will and that he or ARE may terminate the employment at any time and for any reason.
4

Random employee drug testing was part of being employed at ARE. Powell’s initial drug test result
during the hiring process was negative. (Doc. 43-13). On September 24, 2010, Powell acknowledged ARE’s DrugFree Workplace Policy and Alcohol Policy, each of which state that employees must be free of alcohol and drugs.
(Doc. 43-3). On September 24, 2010 and January 21, 2011, Powell acknowledged that he would be subject to ARE’s
Drug-Free Workplace Policy. (Id.) Powell was drug tested on February 4 and 7, 2011 and July 15 and 20, 2011,
and the results were negative. (Doc. 43-13).

2

61-4 (Dep. Bishop at 58); Doc. 43-6 (Dep. Corbeil at 35-37); Doc. 43-4 at 4). “I told him
basically what I had seen and …I couldn’t be a hundred percent positive but that’s what I
thought it was and he said he would look into it in the morning.” (Doc. 43-9 (Dep. Bishop at
38)). “My personal opinion was a joint… synthetic or real marijuana, I couldn’t tell you….to my
opinion, it was a joint[,]” but Bishop never told anyone (including Corbeil) that he saw
Kondroski and/or Powell smoking “spice.” (Doc. 43-9 (Dep. Bishop at 42-43)).
According to Bishop, he never told Eubanks anything directly. (Doc. 43-9 (Dep. Bishop
at 49)). Specifically, Bishop testified that he never told Eubanks that he observed Powell and
Kondroski smoking some form of marijuana on the van. (Doc. 61-4 (Dep. Bishop at 49-52)).
According to Eubanks, Bishop called him directly and reported the incident. And per
Corbeil, he talked with Eubanks about the allegations and they decided to protect Bishop’s
identity and say it was “an anonymous caller.” (Doc. 54-4 (Dep. Corbeil at 43)). Eubanks told
Corbeil that they would talk to the employees in the morning but unless someone confessed, “it’s
not much we can do, because you cannot test for spice.” (Doc. 43-6 (Dep. Corbeil at 37)).
The next day, January 19, 2012, Eubanks interviewed Bishop, as he “wanted to hear it
from the horse’s mouth.” (Doc. 43-10 (Dep. Eubanks at 80-85)). Eubanks then interviewed
Kondroski and asked him to tell him the truth or be drug tested; per Eubanks, Kondroski
admitted to smoking spice in the company van on January 18, 2012 and signed an ARE
Employee Warning Notice admitting such. (Doc. 43-10 (Dep. Eubanks at 82-86); Doc. 43-4 at 34). Eubanks testified that Kondroski told him that Powell was also smoking spice with him in
the van and stated as such in the ARE Employee Warning Notice, which Kondroski signed, and
which included the following statement: “Scott admitted that h[e] and David Powell were
smoking synthetic marijuana in the van on the previous day!..” (Doc. 43-10 (Dep. Eubanks at
3

84)). ARE’s General Manager and Vice-President Robert Wallace (“Wallace”) was notified
about the situation and reported same to ARE’s Owner Hunter George (“George”), who
responded: “[t]hey [Kondroski and Powell] both need to be let go immediately.” (Doc. 43-11
(Dep. George at 39-40)). George “had the ultimate decision” to let them go. (Id.) On January
19th, Kondroski was terminated. (Doc. 43-10 (Dep. Eubanks at 81-86); Doc. 43-4 at 3).
According to Kondroski, he never smoked real or synthetic marijuana with Powell, and
never told Eubanks or anyone else at ARE that he did. (Doc. 54-9 (Aff. Kondroski)). Kondroski
even states in his Affidavit that when he signed the ARE Employee Warning Notice, “nothing
was written on the Notice about me smoking synthetic marijuana with David Powell. That part
must have been written on the document after I signed it and was never shown to me.” (Id.
(emphasis added)). Kondroski asserts further, that he was not even sitting in the back of the van
with Powell, but rather two (2) rows in front of him. (Id.)
George testified that the Kondroski statement, while signed by Kondroski, was actually
written in Eubanks’ handwriting. (Doc. 43-11 (Dep. George at 37-38)). Nevertheless, concerning
Powell’s suggestion that Eubanks wrote up the descriptive statement after Kondroski signed the
Notice, George testified that Kondroski “wouldn’t have been fired if he hadn’t admitted to
smoking synthetic marijuana[]” and he is “sure” it was written up before he signed the Notice.
(Id. (Dep. George at 39-40)). George testified that after Kondroski’s termination, Kondroski told
him that he had been smoking spice and said nothing about Powell. (Doc. 43-11 (Dep. George at
70-71)).
Following Kondroski’s termination, Eubanks asked an ARE supervisor, Sidney Madise,
Jr. (“Madise”), to accompany him to interview Powell. (Doc. 43-4 at 5-6; Doc. 43-6 (Dep.
Corbeil at 40-41)). Eubanks and Madise asked Powell what happened, and presented him with
4

Kondroski’s statement.

In response, Powell became agitated, denied smoking spice, said

Kondroski’s statement was false, and demanded to be drug tested. (Id.) (Doc. 55-1 (Aff.
Powell-SEALED)). Powell asserts in his Affidavit that on the van ride, he was actually “asleep
most of the ride back to Mobile. Nothing unusual happened on the ride that I noticed.” (Id.)
Eubanks did not believe Powell. (Doc. 43-10 (Dep. Eubanks at 87-88)). Nevertheless,
Eubanks communicated Powell’s request to be drug tested to Wallace. (Doc. 43-4 at 6; Doc. 4310 (Dep. Eubanks at 85)). Wallace then contacted the drug testing facility ARE used, and the
facility’s consultant advised there was only a 50/50 chance of receiving accurate results
(Eubanks and other ARE employees believed that spice was undetectable when tested). (Doc.
43-10 (Dep. Eubanks at 86); Doc. 43-6 (Dep. Corbeil at 37); Doc. 43-5 (Dep. Wallace at 111114); Doc. 43-9 (Dep. Bishop at 41-43)). ARE declined to pay for a drug test for Powell on
January 19, 2012. (Doc. 43-5 (Dep. Wallace at 111-114)). Wallace denied the request because
the “chances of synthetic marijuana being the result [detected] was a fifty-fifty chance[]” and his
drug test consultants at Safety Plus “would not recommend me do the drug test because there’s a
fifty-fifty-chance that he’ll pass or not pass.” (Doc. 43-5 (Dep. Wallace at 111-113)). Eubanks
also believed at that time there was no test for spice. (Doc. 43-10 (Dep. Eubanks at 86)).
According to Eubanks, Wallace told him that he was not going to send Powell for a drug test
“when he had a signed statement from another employee stating what had happened!” (Doc. 434 at 6-7; Doc. 43-10 (Dep. Eubanks at 86, 92)). Eubanks agreed with the decision. (Doc. 43-10
(Dep. Eubanks at 93)). According to George, “there’s no detection for synthetic marijuana. There
was no need to do it [a drug test for Powell]. We had a written statement from Scott Kondroski
that him and David [Powell] were smoking synthetic marijuana.” (Doc. 43-11 (Dep. George at
37)). George testified that Powell just wanted to take a drug test “because he knew that there
5

was no detection for synthetic marijuana.” (Doc. 43-11 (Dep. George at 42)).
Powell did not have a drug test on his own, testifying he did not know that was a
possibility. (Doc. 43-7 (Dep. Powell at 186-187)). According to Powell, Eubanks told him that
he had spoken with Wallace and they had decided that there was no need to drug test him as they
already had an employee’s statement. (Doc. 55-1 (Aff. Powell-SEALED)). Per Powell: “I
never, on any occasion, engaged in illicit activity with Scott Kondroski. I did not smoke
synthetic marijuana [i]n the company van on January 18, 2012.” (Id.)
After conducting an investigation without drug testing Powell, ARE concluded that the
story told by Bishop and Kondroski was truthful whereas the story told by Powell was not.
(Doc. 43-10 (Dep. Eubanks at 88); Doc. 43-11 (Dep. George at 44-45)). ARE prepared an
Employee Warning Notice for Powell, formally terminating him, which Powell signed. (Doc.
43-4 at 1-2). On the Notice, Eubanks wrote: “I confronted David about what Scott…said and his
reply was – Scott’s not telling the truth, that – that did happen in the van but that he didn’t
participate.” (Id.) On the Notice, Powell wrote: “in all my years of doing industrial work I know
what to do and what not to do and that will not be professional. Thanks for the chance.” (Id.)
Wallace instructed Eubanks to confiscate Powell’s work gear and escort him out and terminate
him. (Doc. 43-4 at 6-7; Doc. 43-10 (Dep. Eubanks at 86, 92)). Eubanks told Powell he was
terminated; Powell responded it was a bunch of “B.S.” (Id.) Thus, on January 19, 2012, Powell
was terminated for violating ARE’s drug-free policy by smoking spice in the company van while
on the job. (Doc. 43-4; Doc. 59-1 (Aff. Powell SEALED)).
Whether the other van passengers (employees) submitted statements regarding what
transpired in the van on January 18, 2012 is yet another factual dispute, and if so, whether those
statements were provided during discovery and to the EEOC, and/or even still exist:
6

•

Eubanks recalls Wallace discussing “something” about getting statements from the other
van passengers but does not recall if he has ever seen them. (Doc. 43-10 (Dep. Eubanks
at 90-91)).

•

George testified that he was not aware of any other written statements taken after
Kondroski and Powell were fired. (Doc. 43-11 (Dep. George at 44)).

•

According to Powell, Wallace told him that he was going to call “everybody in” that
Friday to get statements from them and that “if everyone said that I didn’t have anything
to do what went on, he was going to call me personally and give me my job back.” (Doc.
54-5 (Dep. Powell at 151)). While Wallace called everyone in the office and obtained
statements, that did not happen. (Id.) See also (Doc. 55-1 (Aff. Powell-SEALED)).

•

Per Wallace, on January 20, 2012, at the Friday safety meeting, he requested that the
other van passengers were asked to write reports about the van incident. (Doc. 54-3
(Dep. Wallace at 88, 132, 150); Doc. 61-4 (Dep. Bishop at 45-47); Doc. 54-8 (Aff.
Clark); Doc. 60-2 (Aff. Temple); Doc. 54-13 (Aff. Crawford)).

•

Bishop testified that he saw the van passengers who were asked to provide statements
turn the statements in to Wallace, and then Wallace read them out loud to everyone; one
(1) statement said Powell and Kondroski had engaged in the suspected activity. (Doc.
61-4 (Dep. Bishop at 48-49)).
Regardless, on summary judgment, Powell has submitted affidavits from van passengers

Teddy Clark, Richard Temple, and Anthony Crawford. Clark, Temple, and Crawford attest that
they “did not see David Powell smoking any illegal substance in the company van on January 18,
2012[,]” “didn’t see David smoking anything[,]” or “didn’t see David Powell smoking synthetic
marijuana that day[--]” adding that they had already provided statements to this effect to ARE.
(Doc. 54-8 (Aff. Clark); Doc. 60-2 (Aff. Temple); Doc. 54-13 (Aff. Crawford); Doc. 54-12).
According to Clark, Wallace called them “liars and gave us an opportunity to change our story,
since everybody, aside from David Bishop, had said that David Powell was innocent of any
wrongdoing. Everyone refused to change their story, so Robert Wallace sent us all to be drug and
alcohol tested. Wallace told me I wouldn’t have to take the drug test if I changed my story and
lied about what happened on the van. I refused to lie, so I was made to take a drug test with the
7

rest of the guys.” (Docs. 54-8 (Aff. Clark)).
A few months later, on May 3, 2012, Powell filed an EEOC Charge of Discrimination,
claiming Wallace terminated his employment and he was discriminated against due to his race
(African American), was falsely accused of using an illegal substance, and was replaced by a
Caucasian male. (Doc. 43-12). Powell did not name or mention Eubanks in the EEOC Charge.
(Id.) While he alleges such in his Complaint, Powell did not allege in his EEOC Charge that he
was terminated to promote a member of Eubanks’ family or that ARE required him to submit to
an abnormal amount of drug testing. (Cf. Doc. 43-12 with Doc. 24). On July 16, 2013, the
EEOC mailed the Notice of Suit rights to Powell. (Doc. 43-12).
On October 15, 2013, Powell sued ARE, Eubanks, and Wallace, alleging disparate
treatment under Title VII of the Civil Rights Act of 1964 based on race (for false pretenses
termination and abnormal amounts drug testing) (Count One), and intentional discrimination in
violation of 42 U.S.C. § 1981 based on race (Count Two). (Doc. 24 (as amended)).
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.
8

(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,
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 Law5

5

While Defendants have moved for summary judgment on what appear to be claims for disparate pay,
written warnings, job assignments, bereavement pay, and failure to promote, Powell has not alleged these claims in
his Complaint and thus, they are simply not before this Court in this case. (Doc. 24). Indeed, claims asserted in
depositions or otherwise, but not included in a complaint, have not been considered and will not be addressed. See,

9

Powell asserts a race claim against Defendant ARE under Title VII of the Civil Rights
Act of 1964 for disparate treatment due to “false pretenses” termination and “abnormal” amounts
drug testing (Count One); and a general Section 1981 claim against Defendants ARE, Eubanks
and Wallace, for intentional discrimination “intentionally perpetrated” because of his race (Count
Two).6 (Doc. 24). Title VII and Section 1981 have the same requirements of proof; thus,
Powell’s claims are analyzed under the same framework. Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998).
Title VII (and thus Section 1981) makes it is unlawful for an employer to discharge any
individual because of that individual's race or national origin. See 42 U.S.C. § 2000e–2(a)(1).7 A
plaintiff may use direct evidence, circumstantial evidence, or statistical evidence of
discriminatory intent. See, e.g., Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1330 (11th
Cir.1998). See also Rioux v. City of Atlanta, Ga. 520 F.3d 1269, 1274 (11th Cir. 2008).8 Suncoast
e.g., Smith v. Books-A-Million, 398 Fed. Appx. 437 (11th Cir. 2010) (claims not included in the complaint are not
required to be considered); Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998) (“parties frame
the scope of the litigation at the time the complaint is filed[]”). Similarly, on summary judgment Powell argues a
discriminatory working conditions claim and an entirely new drug test discriminatory discipline claim. These were
likewise not alleged in the Complaint and thus, such claims are also not before this Court and will not be addressed.
6

In the Complaint, Powell has asserted no different or more specific allegations as to his Section 1981
claim (i.e., nothing separate and apart from this Title VII allegations). As such, his Section 1981 claim is based on
the same specific allegations of his Title VII claim.
7

Under Title VII, it is unlawful for an employer “to discharge any individual ... because of such
individual's race....” 42 U.S.C. § 2000e–2(a). Under § 1981, “[a]ll persons ... shall have the same right ... to make
and enforce contracts ... as is enjoyed by white citizens....” 42 U.S.C. § 1981(a).
8

Direct evidence 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). It 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

10

Beverage Sales, Ltd., 295 F.3d 1223, 1227-1228 (11th Cir. 2002). Powell does not allege direct
evidence or statistical proof, nor has he retained an expert in this case. Thus, the Court is
concerned only with circumstantial evidence.
Where there is only circumstantial evidence, 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. 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 or that he was replace by a
person outside his protected class; and 4) he was qualified to do the job. Holifield v. Reno, 115
F.3d 1555, 1561–1562 (11th Cir. 1997).
Additionally, 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.
Rather, “[t]he 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
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.
By contrast, evidence that merely suggests a discriminatory motive is, by definition, circumstantial. 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 Bev. Sales, Ltd., 295
F.3d 1223, 1227-1228 (11th Cir. 2002).

11

discrimination by the decisionmaker. Id. See generally Hamilton v. Southland Christian School,
Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).
A.

Discriminatory Drug Testing

Powell alleges that he was discriminated against by ARE because he had to undergo “an
abnormal amount of drug tests[.]” (Doc. 24 at 4, 6). Defendants moved for summary judgment
on this claim. Powell failed to address this claim on summary judgment. Instead, Powell
endeavors to assert a new claim for discrimination in drug testing: ARE “refused” to drug test
him when investigating whether he had smoked synthetic marijuana (i.e., he was denied the
opportunity to be drug tested even though he requested such before his termination). (Doc. 53 at
21). This is simply another argument for Powell’s discriminatory termination claim, which is
addressed separately below.

As such, Powell’s “abnormal amount” of drug testing

discrimination claim is deemed abandoned on summary judgment.9 Thus, Defendants’ motions,

9

As explained in Rossi v. Fulton Cty., Ga. 2013 WL 1213243, *13 (N.D. Ga. Feb. 13, 2013) (discussing
a line of Eleventh Circuit cases regarding abandonment of claims on summary judgment):
……Edmondson v. Bd. of Trustees of Univ. of Ala., 258 Fed. Appx. 250, 253 (11th Cir. Dec. 4, 2007) (“In
opposing a motion for summary judgment, a party may not rely on her pleadings to avoid judgment against
her. There is no burden upon the district court to distill every potential argument that could be made based
upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate
arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.”) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995). A party
has an obligation to respond to an argument raised in a motion for summary judgement. See Orquiola v.
Nat'l City Mortg. Co., 510 F.Supp.2d 1134, 1139 (N.D.Ga.2007) (Forrester, J.) (granting summary
judgment as to plaintiff's state law claims because plaintiff did not respond to defendant's summary
judgment motion on those claims); Burnett v. Northside Hosp., 342 F.Supp.2d 1128, 1140 (N.D.Ga.2004)
(Duffey, J.) (“Failure to respond to the opposing party's summary judgment arguments regarding a claim
constitutes an abandonment of that claim and warrants the entry of summary judgment for the opposing
party.”); Welch v. Delta Air Lines, 978 F.Supp. 1133, 1137 (N.D.Ga.1997) (Hull, J.) (“Plaintiff's failure to
respond to [d]efendant's argument alone entitles [d]efendant to summary judgment on these claims.”). This
Court is not under a duty to exercise imagination or conjure what a party might have argued, but did not
argue; nor is this Court obliged to do Plaintiff's (or her counsel's) work. See Resolution Trust Corp., 43 F.3d
at 599 (noting that “[t]here is no burden upon the district court to distill every potential argument that could
be made based upon the materials before it”); Bowden ex rel. Bowden v. Wal–Mart Stores, Inc., 124
F.Supp.2d 1228, 1236 (M.D.Ala.2000) (holding that “[i]t is not for the court to manufacture arguments on
Plaintiff's behalf”).

12

as to this claim, are GRANTED.
B.

Discriminatory Termination

Powell alleges discrimination based on his race (African American) claiming that he was
terminated on January 19, 2012 under “false pretenses” (that someone made up a story that he
was smoking synthetic marijuana in the company van on January 18th so his supervisor’s
Caucasian relative could be promoted to his job). In support Powell alleges “he was… replaced
by Jason Bishop, a white male[]” “no later than March 22, 2012” (who he claims is related to
Eubanks).10 (Doc. 53 at 18; Doc. 24 at 5; Doc. 43-7 (Dep. Powell at 158-159)).
The parties do not dispute that Powell is a member of a protected class (African
American) and that he suffered an adverse employment action (he was fired). Likewise, there
does not appear to be a dispute as to whether Powell was qualified for his position (leadman and
technician).
Powell claims that he was replaced by Caucasian employee, Jason Bishop. ARE’s
evidence indicates that Powell was not replaced by Bishop, but rather was replaced by a
Caucasian employee named Kyle Clark. (Doc. 43-6 (Dep. Corbeil at 27); Doc. 43-7 (Dep.
The undersigned recognizes that these cases appear to conflict with another line of Eleventh Circuit cases
which direct district courts to review a motion for summary judgment and supporting documents to
determine whether genuine issues of material fact exist despite a party's failure to respond. See Trs. of the
Cent. Pension Fund of the Int'l Union of Operating Eng'rs and Participating Employers v. Wolf Crane
Serv., Inc., 374 F.3d 1035, 1039–40 (11th Cir.2004); United States v. One Piece of Prop., 5800 S.W. 4th
Ave., Miami, Fla., 363 F.3d 1099, 1101–02 (11th Cir.2004). The Court finds, however, that the apparent
[conflict] may be resolved in the following manner: Where a party wholly fails to respond to a summary
judgment motion, the district court must make sure that it nonetheless is appropriate to enter summary
judgment against the party that did not respond; in contrast, where the non-moving party fails to address a
particular claim asserted in the summary judgment motion but has responded to other claims made by the
movant, the district court may properly consider the non-movant's default as intentional and therefore
consider the claim abandoned.
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Powell does not explain how being replaced by a relative of Eubanks would constitute unlawful
discrimination. Regardless, Bishop is not related to Eubanks but Bishop’s wife is the sister of ARE employee Clay
Hough’s wife and Hough who is the first cousin once removed of Eubanks. (Doc. 43-9 (Dep. Bishop at 8); Doc. 4310 (Dep. Eubanks at 95); Doc. 43-16); Doc. 43-6 (Dep. Corbeil at 25)). Per Eubanks, Bishop is “my second
cousin’s [Clay Hough] wife’s sister’s husband, whatever you want to qualify that is…” (Doc. 43-10 (Dep. Eubanks
at 95)).

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Powell at 85); Doc. 62-1 (Aff. George-SEALED)).

Thus, Powell prevails on his prima facie

case because he was in fact replaced by a person outside his protected class.
Also, when an employee claims that he did not violate the work rule, the Eleventh Circuit
has instructed as follows:
… in lieu of evidence of a similarly-situated comparator, a plaintiff may make out a
prima facie case of racial bias in the application of discipline for a violation of work rules
by showing that he did not actually violate the work rule. Jones v. Gerwens, 874 F.2d
1534, 1540 (11th Cir.1989). However, when an employee argues that he did not actually
violate the rule in question, “an employer may rebut this allegation by showing its good
faith, honest belief that the employee violated [the] rule.” Stone & Webster Constr., 684
F.3d at 1136. If an employer terminates an employee “because it honestly believed that
the employee had violated a company policy, even if it was mistaken in such belief, the
discharge is not ‘because of race.’ ” Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53
(11th Cir.1987).
Winborn v. Supreme Beverage Co., Inc., 572 Fed. Appx. 672, 674 (11th Cir. 2014).
Powell contends that he did not violate the work rule and has submitted evidence in
support. Still, ARE may prevail if it establishes that it honestly believed that Powell violated the
company policy, even if mistaken. This is because under such circumstances, the termination is
not “because of race.” See supra. “The inquiry…centers on the employer’s beliefs, not the
employee’s beliefs.” Alvaraz v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)
(“Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (inquiry is limited to
whether employer believed employee was guilty of misconduct and if so, whether that was
reason behind discharge; that employee did not actually engage in misconduct is irrelevant[]”)).
The evidence indicates that there is a genuine issue of material fact as to whether ARE
had a good faith, honest belief that Powell had violated its drug policy. Powell has presented
sufficient evidence, through deposition testimony and affidavits, to contradict ARE’s claim that
it “honestly believed” that he smoked spice in the company van on January 18, 2012. See supra
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Section I.
However, “[a] reason is not a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason. Brooks v. County Com'n of
Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir.2006).” Taylor v. On Tap Unlimited,
Inc., 282 Fed. Appx. 801, 803 (11th Cir. 2008) (emphasis added). Our “sole concern is whether
unlawful discriminatory animus motivate[d] a challenged employment decision.” Gamboa v.
American Airlines, 170 Fed. Appx. 610, 612-613 (11th Cir. 2006). The Court does not sit “as a
‘super-personnel department,’ and it is not [the Court's] role to second-guess the wisdom of an
employer's business decisions—indeed the wisdom of them is irrelevant—as long as those
decisions were not made with a discriminatory motive.” Id. (quoting Chapman v. AI Transport,
229 F.3d 1012, 1030 (11th Cir.2000)).
Powell alleges that he was fired to make way for Eubanks’ relative to take his job. He
then summarily asserts that this constitutes racial discrimination. To support his race claim,
Powell further asserts that because Wallace took Bishop’s and Eubanks’ word over his without
investigating it, this shows that his termination was based on his race. However, Powell does not
reference any racial remarks, comments, environment, behavior, actions, etc. by ARE, Wallace
and/or Eubanks. Instead, Powell simply equates what could (at best) be construed as “taking
sides” and/or “failing to investigate” as “being racist,” simply because ARE believed the person
who reported the prohibited behavior.

This does not adequately support a claim for race

discrimination.
In sum, Powell has failed to submit sufficient evidence from which a reasonable
factfinder could find that ARE’s termination decision was based on race. “Unless something
links the actions to the employee's race, that a decisionmaker singles an employee out does not
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permit a jury to infer intentional discrimination based on race.” Turner v. Florida Prepaid Coll.
Bd., 522 Fed.Appx. 829, 833 (11th Cir.2013). Thus, while ARE (and/or Eubanks or Wallace)
may have acted unfairly -- and perhaps even dishonestly -- Powell has shown no evidence of
race being the motivating factor for his termination, or the presence of any discriminatory intent.
See, e.g., Burch v. Coca-Cola Bottling Co., United, Inc., 2014 WL 4926181 (N.D. Ala. Sept. 30,
2014) (finding similarly).
In the end, as presented to the Court, Powell’s claim is not one of race discrimination.
Rather, in Powell’s own words, his claim is about preferential treatment from a higher-up to one
of his relatives (i.e., nepotism): “I knew Lee [Eubanks] was trying to get rid of me to move Jason
[Bishop] in, his relative in.” (Doc. 43-7 (Dep. Powell at 159)). Nepotism is not actionable under
Title VII or Section 1981, and “[i]f anything, this evidence weakens Plaintiff[’s] argument by
suggesting that the true motivation for … [Powell’]s termination was not racism, but nepotism.”
Lawson v. KFH Indus., Inc., 767 F. Supp. 2d 1233 (M.D. Ala. 2011). As such, Defendants’
motions, as to this claim, are GRANTED.
IV.

Conclusion
Accordingly, it is ORDERED that Defendant ARE’s Motion for Summary Judgment

(Docs. 43, 46) and Defendants Eubanks’ and Wallace’s Motion for Summary Judgment (Docs.
44, 47) are GRANTED.
DONE and ORDERED this the 20th day of November 2014.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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