Nettles et al v. Daphne Utilities

Filing 118

ORDER granting in part and denying in part 80 Motion for Summary Judgment entered as further set out; denying 108 Motion to Strike. Signed by Chief Judge William H. Steele on 3/24/2015. (mbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VONEKA Q. NETTLES, et al.,
Plaintiffs,
v.
DAPHNE UTILITIES,
Defendant.

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CIVIL ACTION 13-0605-WS-C

ORDER
This matter comes before the Court on defendant’s Motion for Summary Judgment (doc.
80) with respect to the claims of plaintiff Cedric Goodloe. The Motion has been briefed and is
now ripe for disposition.1
I.

Relevant Background.
Cedric Goodloe is one of three plaintiffs who brought this action alleging race-based

employment discrimination by defendant, Daphne Utilities.2 As pleaded in the Amended
Complaint, Goodloe, who is African-American, has asserted causes of action against Daphne
1

Also pending is defendant’s filing styled “Motion to Strike and Correct a Portion
of Plaintiff Cedric Goodloe’s Response in Opposition to Defendant’s Motion for Summary
Judgment” (doc. 108). In that Motion, defendant takes umbrage at the heading for Goodloe’s
statement of facts in his brief, which reads, “Plaintiff Cedric Goodloe’s Statement of Undisputed
Facts.” (Doc. 88, at 1.) Defendant observes that Goodloe’s factual presentation is not
“undisputed,” but merely constitutes Goodloe’s version of the facts. Be that as it may, formal
judicial corrective action (i.e., striking the word “undisputed” from the brief) is unnecessary.
Defendant is not bound by Goodloe’s characterization of whether particular facts are undisputed;
moreover, the Court is confident that defendant will take appropriate steps to identify pertinent
factual disputes. For these reasons, the Motion to Strike (doc. 108) is denied.
2

The other two plaintiffs, Voneka Q. Nettles and Carlos Butler, assert claims that
are factually (and in some instances, legally) distinct from Goodloe’s. In light of the individualspecific nature of each plaintiff’s claims, the Court has ordered that separate trials will be held
for each plaintiff. (See doc. 18.) Defendant filed three plaintiff-specific Motions for Summary
Judgment, each of which has been briefed independently. This Order is confined to the claims of
plaintiff Goodloe, and neither considers nor adjudicates the claims of plaintiffs Nettles or Butler.

Utilities for wage discrimination, alleging that he was paid less than white employees, in
violation of 42 U.S.C. §§ 1981 and 1983 (“Count VI”); and for retaliation, alleging that Daphne
Utilities fired him “due to his complaints of racial unfairness on the job,” again in violation of §§
1981 and 1983 (“Count VII”). (See doc. 6, at 10.) Daphne Utilities contends that it is entitled to
judgment as a matter of law with respect to both of these claims.
The relevant record facts are as follows:3 Goodloe began working at Daphne Utilities as a
Payroll/Benefits Coordinator/Trainer in 2006. For some period of time, he was assigned to
defendant’s workplace by a temporary employment agency; however, Daphne Utilities hired him
as a full-time employee in December 2012, subject to a six-month probationary period.
(Goodloe Decl. (doc. 90), at 1.) Goodloe’s duties included payroll, benefits, interviewing,
training/development, terminations, safety, and conflict resolution, among others. (Id. at 2.) His
direct supervisor was Danny Lyndall, the Operations Manager for Daphne Utilities. (Goodloe
Dep. (doc. 82, Exh. 1), at 21.) Neither Goodloe’s job title nor his duties changed when he
became a full-time, direct Daphne Utilities employee. (Id.; Goodloe Decl., at 2.)4
Paradoxically, the seeds of discontent were sown when Goodloe received Daphne
Utilities’ offer of full-time employment on December 21, 2012. That offer included
compensation of $17.31 per hour; however, Goodloe, Lyndall, and Deloris Brown (Human
3

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, Goodloe’s evidence
is taken as true and all justifiable inferences are drawn in his favor. Also, federal courts cannot
weigh credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707
F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by
one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of
credibility choices.”). Therefore, the Court will “make no credibility determinations or choose
between conflicting testimony, but instead accept[s] [Goodloe]’s version of the facts drawing all
justifiable inferences in [his] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
4

In its reply, Daphne Utilities disputes Goodloe’s evidence that his job title stayed
the same, and offers contrary evidence that his title actually morphed from “Payroll/ Benefits
Coordinator/Trainer” in 2006 to “HR Generalist” in March 2011 to “Operations and Benefits
Coordinator” in December 2012. (Doc. 109, at 2.) This dispute is not material to the issues
raised by defendant’s Rule 56 Motion. Likewise, disputes between the parties as to the source of
funding for Goodloe’s position and whether he was “replacing” an employee named Tom Nettles
who had worked in an entirely different department doing an entirely different job are not
material to the Motion.

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Resources Manager) had previously agreed that $23.00 would be a fair hourly rate “based on
[Goodloe’s] contributions to the organization.” (Goodloe Decl., at 2; Goodloe Dep., at 41-43.)
Goodloe promptly objected to Lyndall that the stated compensation did not comport with the
prior agreement, and indicated that he thought it was “unfair” and “seemed to be discriminatory.”
(Goodloe Dep., at 44, 46.) Goodloe suggested to Lyndall that there was a “pay disparity”
between himself and a white employee named David Sadberry, who was hired at around the
same time. (Goodloe Decl., at 2.) Goodloe balked that he was being hired at the low end of the
pay scale for his job, while Sadberry had been hired at the top of his corresponding pay scale,
despite Goodloe’s superior education (master’s degree versus high school diploma) and
experience (several years versus none). (Id. at 2-3.)5
Notwithstanding this hiccup on the date of Goodloe’s hire, the next three months passed
without incident. Goodloe’s “attitude and disposition” in the workplace did not change; indeed,
he “worked well with everyone” at Daphne Utilities. (Goodloe Decl., at 3.) At no time between
December 21, 2012 and March 26, 2013 did Lyndall or anyone else at Daphne Utilities
discipline, reprimand or counsel Goodloe (either orally or in writing) for subpar performance,
disrespectful conduct, a poor attitude or any other work-related deficiency. (Id.) To the
contrary, Lyndall “often” stated that Goodloe was “a great employee.” (Id.)6 No upper manager

5

Sadberry was hired as the Maintenance Manager for Daphne Utilities at a starting
salary of $56,000 per year. (Klump Aff. (doc. 82, Exh. 2), ¶ 3.) With regard to the references to
“pay scale,” Daphne Utilities uses a formal pay scale, on which positions are arranged from
Grade 1 through Grade 16, with positions generally ascending the pay scale based on the level of
responsibility or the importance of the position to the company’s operations. (Lyndall Aff. (doc.
82, Exh. 3), ¶ 6.) Each pay grade has a defined range of compensation, from a minimum point to
a maximum point. Where a new hire falls within that range for his or her job’s pay grade “is
discretionary based on the judgment of the hiring supervisor,” but generally considers both the
amount budgeted and the candidate’s qualifications, education, work history and background.
(Id., ¶ 7.)
6

When asked in his deposition what type of employee Goodloe was prior to March
27, 2013, Lyndall answered, “I thought he was a great employee. … In all the times I had known
Mr. Goodloe, I thought he was a great employee.” (Lyndall Dep., at 76.) Lyndall testified that
he had considered Goodloe to be a “friend,” and concurred with plaintiff’s counsel’s
characterization of Goodloe as “a very pleasant individual.” (Id. at 76, 78.) Indeed, Lyndall
went so far as to acknowledge that “there was some sadness” among the staff of Daphne Utilities
after Goodloe’s dismissal. (Id. at 78-79.)

-3-

at Daphne Utilities expressed concerns to Goodloe about his job performance during this period.
(Id. at 5.)
The events culminating in Goodloe’s termination began, innocuously enough, at 6:29
a.m. on March 25, 2013, when he sent an email to Lyndall and two other Daphne Utilities
employees. The message read as follows: “I will be out of the office today 3/25/13. However, I
can be reached on my cell if you require my assistance. Thanks.” (Doc. 82, Exh. 5.)7 Two days
later, on the morning of March 27, 2013, Lyndall summoned Goodloe to his office. (Goodloe
Dep., at 49.) When Goodloe arrived, Lyndall asked why he had not called to report his absence,
to which Goodloe responded that he had sent an email. (Id.) Goodloe then pointed out what he
perceived to be disparity in Lyndall’s treatment of black and white employees. He mentioned
that a white employee named Tim Jones (whom Lyndall also supervised) routinely failed to call
in to report absences, and in some cases did not even send emails; however, Jones had never
been disciplined for this infraction. Meanwhile, Lyndall had called Goodloe into his office to
rebuke him for reporting in via email rather than telephone. (Goodloe Decl., at 4-5; Goodloe
Dep., at 50.) Continuing with the theme of perceived disparate treatment, Goodloe again
expressed objection to Lyndall that Goodloe had been treated differently than Sadberry as to
compensation. (Goodloe Decl., at 5; Goodloe Dep., at 50.) He also complained that Daphne
Utilities was not paying African-American employees at the same level as white employees.
(Goodloe Decl., at 5.) He noted that a black employee named Carlos Butler had filed a grievance
alleging race discrimination as to annual raises in the Wastewater Field Services Department.
(Id.) Lyndall became “visibly angry” as Goodloe voiced these concerns. (Goodloe Dep., at 53.)
However, plaintiff’s evidence is that Goodloe conducted himself in a calm, controlled manner at
all times. The discussion never became “heated,” and neither Goodloe nor Lyndall raised their
7

Goodloe had sent similar emails to Lyndall and others at Daphne Utilities on no
fewer than eight occasions in 2012, with no adverse repercussions, disciplinary action, or
reprimand. (See doc. 90, Exh, D; Goodloe Decl., at 4.) Goodloe’s evidence is that no one at
Daphne Utilities had ever informed him that electronic notification of absences was insufficient
or unacceptable, much less that telephonic notification was mandatory. (Goodloe Decl., at 4.)
Daphne Utilities’ rejoinder is that the 2012 emails were not on the same footing as the March 25,
2013 email, because in 2012 Goodloe was a temp agency employee assigned to Daphne Utilities,
while in 2013 he was a direct full-time employee of Daphne Utilities. (Lyndall Dep. (doc. 82,
Exh. 4, at 15-16.) At least in part, the discussion between Lyndall and Goodloe on the morning
of March 27 related to the fairness, relevance or significance of that purported distinction.

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voices. (Goodloe Dep., at 53-54; Goodloe Decl., at 4.) Ultimately, Goodloe indicated that he
wished to present his concerns about “unethical things going on within the organization” to the
Board of Daphne Utilities. (Goodloe Dep., at 53.) At that remark, Lyndall became “enraged”
and stated, “This meeting is over.” (Id. at 53-54.)8
A short time later, Lyndall discussed the situation with Deloris Brown, defendant’s
Human Resources Manager. (Lyndall Dep. (doc. 82, Exh. 4), at 21.) Lyndall informed Brown
that he considered Goodloe’s behavior to be “inappropriate.” (Id.) Lyndall and Brown decided
to meet with Goodloe later that day to terminate his employment. (Id. at 22-23.) Lyndall
prepared a Termination Notice, reading in relevant part as follows:
“Cedric Goodloe is within his six-month probation period as a new employee. …
Daphne Utilities uses this probation period to evaluate capabilities, work habits
and overall performance. Consequently, Mr. Goodloe has not met the required
performance standards of Daphne Utilities and is dismissed effective March 27,
2013.”
(Doc. 90, Exh. B.) Later in the day on March 27, 2013, Goodloe was called into Brown’s office.
(Lyndall Dep., at 32.) When Goodloe walked in, Lyndall handed him the Termination Notice.
(Id. at 32-33; Goodloe Dep., at 56.) Other than the vague text of that document, Goodloe was
given no explanation for this personnel action. (Goodloe Dep., at 56.) Goodloe asked whether
he could initiate an appeal or grievance, to which Brown replied that such mechanisms were
unavailable to probationary employees. (Lyndall Dep., at 116.)
Daphne Utilities’ only record evidence as to specific reasons for Goodloe’s termination is
Lyndall’s averment that Goodloe “was only marginally effective in his payroll and benefits
duties” and that “[d]ue to his probationary status, combined with his argumentative attitude and
mediocre performance, he was terminated.” (Lyndall Aff., ¶ 4.) On summary judgment, Daphne

8

In their briefs, the parties squabble about whether Goodloe also spoke with
Lyndall about an anonymous letter alleging race discrimination at Daphne Utilities. (See doc.
88, at 12; doc. 109, at 10.) The Goodloe Declaration (which plaintiff cites as the sole record
source of this allegation) lacks any mention of such an “anonymous letter.” Because plaintiff
cites no valid record basis for his contention that this issue was raised, the Court will not
consider it on summary judgment.

-5-

Utilities endorses Lyndall’s words almost verbatim as the purportedly “legitimate business
reasons for Goodloe’s termination.” (Doc. 81, at 29.)9
II.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “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.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “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 GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
The Eleventh Circuit has expressly rejected the notion that summary judgment should
seldom be used in employment discrimination cases because they involve issues of motivation
and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the
summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to
be placed on either side of the scale.” Id. at 1086 (citation omitted); see also Williamson v.
Clarke County Dep’t of Human Resources, 834 F. Supp.2d 1310, 1318 (S.D. Ala. 2011)

9

Indeed, defendant’s principal brief states as follows: “Daphne Utilities has
asserted legitimate business reasons for Goodloe’s termination. … Goodloe was only marginally
effective in his payroll and benefits duties. Due to Goodloe’s probationary status combined with
his argumentative attitude and mediocre performance, he was terminated.” (Doc. 81, at 29.)

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(recognizing and applying rule that summary judgment standard is applied equally in
employment discrimination cases as in other kinds of federal actions).
III.

Analysis.
A.

The McDonnell Douglas Standard.

Absent direct evidence of discrimination or retaliation, Goodloe must make a showing of
circumstantial evidence that satisfies the test set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).10 Under this familiar burden-shifting
analysis, plaintiff is required to make out a prima facie case of race discrimination and/or
retaliation. If he does so, that showing “creates a rebuttable presumption that the employer acted
illegally.” Underwood v. Perry County Com’n, 431 F.3d 788, 794 (11th Cir. 2005). At that
point, “the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason
for the adverse employment action. ... If the employer does this, the burden shifts back to the
plaintiff to show that the employer’s stated reason was a pretext for discrimination.” Crawford
v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (citations and internal quotation marks omitted);
see also Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997) (outlining similar procedure for
Title VII retaliation claims). A plaintiff may establish pretext “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.” Brooks v. County Com'n of
Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation omitted). “The ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Springer v. Convergys Customer Management
Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007).
10

Although plaintiff’s claims are nominally brought under 42 U.S.C. § 1981 rather
than Title VII, the applicable legal standard is identical. See, e.g., Brown v. Alabama Dep’t of
Transportation, 597 F.3d 1160, 1174 n.6 (11th Cir. 2010) (“The analysis under [§ 1981] claims
mirrors that under Title VII.”); Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836, 843
n.11 (11th Cir. 2000) (“The elements of a claim of race discrimination under 42 U.S.C. § 1981
are also the same as a Title VII disparate treatment claim in the employment context.”); Turnes v.
AmSouth Bank, NA, 36 F.3d 1057, 1060 (11th Cir. 1994) (“The McDonnell Douglas scheme for
the allocation of burdens and the order of presentation of proof also applies in § 1981 cases
involving discriminatory treatment in employment situations.”); Brown v. School Bd. of Orange
County, Florida, 459 Fed.Appx. 817, 819 (11th Cir. Feb. 28, 2012) (“Title VII and § 1981 have
the same requirements of proof and utilize the same analytical framework.”).

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B.

Wage Discrimination Claim.

In Count VI of the Amended Complaint, Goodloe asserts a claim of compensation
discrimination against Daphne Utilities pursuant to 42 U.S.C. § 1981, made actionable through
42 U.S.C. § 1983.11 Defendant now moves for summary judgment on Count VI, reasoning that
Goodloe cannot make out a prima facie case of wage discrimination. Specifically, Daphne
Utilities argues that Goodloe has failed to meet his burden of identifying an appropriate
comparator in support of this claim. (See doc. 81, at 23-25.)12
To establish a prima facie case of intentional compensation discrimination based on race,
Goodloe must show that: (i) he belongs to a racial minority; (ii) he received low wages; (iii)
similarly situated comparators outside the protected class received higher compensation; and (iv)
he was qualified to receive the higher wage. See Cooper v. Southern Co., 390 F.3d 695, 735
(11th Cir. 2004); Hill v. Emory University, 346 Fed.Appx. 390, 395 (11th Cir. Aug. 25, 2009).
11

The Amended Complaint also cites “the Due Process Clause of the 14th
Amendment to the United States Constitution” as a legal basis for Count VI. (Doc. 6, ¶ 54.)
Subsequently, however, Goodloe has informed the Court and opposing counsel that the “Due
Process” component of the claim “was an error and should have been listed as an ‘Equal
Protection’ claim.” (Doc. 100.) Plaintiff has neither suggested nor shown that the distinction is
material to the summary judgment analysis of Count VI.
12

This argument is the sole ground for dismissal of Count VI identified in Daphne
Utilities’ principal brief; therefore, the Motion for Summary Judgment as to the wage
discrimination claim stands or falls on whether Goodloe has made a sufficient showing of
comparators to satisfy his prima facie burden. To be sure, Daphne Utilities argues for the first
time in its reply that it has a legitimate nondiscriminatory reason for paying Goodloe differently
than any comparators, for which plaintiff cannot show pretext. (See doc. 109, at 6-7.) But
“[n]ew arguments presented in reply briefs are generally not considered by federal courts.”
Brown v. CitiMortgage, Inc., 817 F. Supp.2d 1328, 1332 (S.D. Ala. 2011) (citations omitted); see
also Abrams v. Ciba Specialty Chemicals Corp., 663 F. Supp.2d 1220, 1232 n.16 (S.D. Ala.
2009) (“new arguments are impermissible in reply briefs”); Adams v. Homeward Residential,
Inc., 2014 WL 460936, *5 n.10 (S.D. Ala. Feb. 5, 2014) (“Federal courts generally do not
consider new arguments presented for the first time in a reply brief.”). Accordingly, this Court’s
consideration of the Rule 56 Motion as to Count VI is limited to the comparator / prima facie
case issue presented in movant’s principal brief. Even if the new argument set forth in the reply
were considered on the merits, it would not help Daphne Utilities’ Motion. Defendant has
articulated no explanation (and pointed to no evidence) for why it selected the initial wage for
Goodloe that it did when he was hired on a full-time basis. Daphne Utilities identifies the pay
grade for Goodloe’s position, but says nothing about how it chose the particular point for
Goodloe within that grade’s pay range. Of course, the Court will not speculate as to why
Daphne Utilities paid Goodloe the wage that it did.

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“The comparators must perform jobs similar to the plaintiff’s; thus, the plaintiff must show that,
in her job, she shared the same type of tasks as the comparators.” Cooper, 390 F.3d at 735
(citation and internal quotation marks omitted).13 Thus, a black plaintiff makes a prima facie
showing of wage discrimination by showing that he “received lower wages than a white coworker despite performing substantially the same work.” Lindsey v. Board of School Com’rs of
Mobile County, 491 Fed.Appx. 8, 10 (11th Cir. Sept. 25, 2012).
As noted, defendant’s Rule 56 Motion asserts that Goodloe’s prima facie claim fails
because he “has simply not provided an appropriate comparator.” (Doc. 81, at 25.) Plaintiff’s
summary judgment brief fails to address this issue (or his wage discrimination claim) at all.
Indeed, Goodloe’s brief does not identify who his comparators are, why he contends those
individuals satisfy the relevant legal standard, or how he has established a prima facie case of
wage discrimination. He neither references nor addresses Count VI, much less Daphne Utilities’
asserted ground for summary judgment as to that cause of action. Such an omission is at his
peril. To be sure, “the district court cannot base the entry of summary judgment on the mere fact
that the motion was unopposed, … but must ensure that the motion itself is supported by
evidentiary materials.” United States v. One Piece of Real Property Located at 5800 SW 74th
Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). It is also true, however, that “district
courts cannot concoct or resurrect arguments neither made nor advanced by the parties.” Fils v.
City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011).14
13

See also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 n.18
(11th Cir. 1992) (in pay discrimination cases, “[f]actors such as experience and education operate
as a defense to liability rather than as part of a plaintiff’s prima facie case”); Sharpe v. Global
Sec. Int’l, 766 F. Supp.2d 1272, 1295 (S.D. Ala. 2011) (in Title VII context, “a plaintiff satisfies
his prima facie burden of comparability simply by showing that he ‘occupies a job similar to that
of higher paid’ persons outside the protected class”) (citing Meeks v. Computer Associates Int’l,
15 F.3d 1013, 1019 (11th Cir. 1994)).
14

See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (“There is no burden upon the district court to distill every potential argument that could
be made based on 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.”); Quinn v. Deutsche Bank Nat’l Trust Co., 2014 WL 977632,
*6 (S.D. Ala. Mar. 12, 2014) (in performing summary judgment analysis on issues to which no
response has been made, “a court is not obligated to read minds and ordinarily will not construct
arguments or theories that a party has failed to raise”); Godfrey v. Nationwide Vinyl Siding &
Home Imp., LLC, 912 F. Supp.2d 1320, 1330 (S.D. Ala. 2012) (“On summary judgment, the
(Continued)
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Upon careful review of Goodloe’s brief (doc. 88), the undersigned concludes that the
only possible comparator identified therein as to the Count VI wage discrimination claim is a
white employee named David Sadberry, whom Daphne Utilities hired a few months before
employing Goodloe on a full-time basis. (Doc. 88, at 4, 12.) Plaintiff objects in his brief that
Daphne Utilities compensated Sadberry at a higher point on the pay scale than it did Goodloe,
despite the latter’s greater education and experience. (Id.) Thus, it appears (although Goodloe
never said as much on summary judgment) that Sadberry is the comparator anchoring his prima
facie case of wage discrimination.
The record does not support any contention that Sadberry is a similarly situated
comparator to Goodloe for a prima facie case of wage discrimination. Sadberry was hired as
Maintenance Manager, responsible for maintaining Daphne Utilities’ facilities and infrastructure,
with supervisory authority over at least seven employees in the maintenance division. (Goodloe
Dep., at 47-48.) By contrast, Goodloe was hired as Payroll/Benefits Coordinator/Trainer, whose
duties were “to assist the Human Resources Manager in administering human resources
programs and functions and to coordinate payroll administration, benefits administration,
training and related functions.” (Klumpp Aff. (doc. 82, Exh. 2), ¶ 2 & Exh. A.) Goodloe did not
supervise any employees. (Goodloe Dep., at 48.) In the Daphne Utilities 16-grade pay scale,
Sadberry’s position was assigned Grade 11, while Goodloe’s was assigned Grade 6. (Klumpp
Aff., ¶ 8 & Exh. D.) On their face, these facts demonstrate that Sadberry and Goodloe performed
vastly dissimilar tasks, such that Sadberry is not a viable comparator to Goodloe for purposes of
establishing a prima facie case of wage discrimination. Again, Goodloe has not responded to
such an argument, much less explained why (or even if) he believes Sadberry falls within the
legal parameters of a comparator for his prima facie case.
Because the lone potential comparator mentioned in his summary judgment brief is not
viable, and because he has articulated no other argument through which he might prevail,

Court cannot ‘fill in the blanks’ to formulate a legal argument that a party has not.”); Pears v.
Mobile County, 645 F. Supp.2d 1062, 1081 n.27 (S.D. Ala. 2009) (“The parties ... cannot be
heard to balk if the undersigned does not perform their research and develop their arguments for
them.”); Minemyer v. B–Roc Representatives, Inc., 695 F. Supp.2d 797, 809 (N.D. Ill. 2009)
(“[T]his is an adversarial system. It is not a court’s task to research legal arguments on a party’s
behalf”).

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Goodloe has failed to satisfy the “similarly situated comparator” prong of his prima facie
burden.15 Perhaps other arguments could have been made as to potential comparators; however,
plaintiff has not voiced them, and has not explained why, given defendant’s unrebutted evidence
of dissimilarity, any of those persons would be properly deemed comparators. Likewise, perhaps
other arguments could have been made for establishing plaintiff’s case without comparators. See
generally Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“the plaintiff’s
failure to produce a comparator does not necessarily doom the plaintiff’s case” on summary
judgment). Again, plaintiff made no such assertions. This Court will not “fill in the blanks” to
make plaintiff’s arguments for him as to which white employees might pass as comparators, how
and why they might meet the “similarly situated” test (notwithstanding defendant’s evidence to
the contrary), or how he might overcome summary judgment without comparators. See Case v.
Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (noting that a litigant “cannot readily complain
about the entry of a summary judgment order that did not consider an argument they chose not to
develop for the district court at the time of the summary judgment motions”) (citation omitted).

15

To be sure, there are references in the record (albeit not in plaintiff’s brief) to
various other white employees whom Goodloe contends were paid more than he was. The Court
has no idea – because plaintiff has not said – whether Goodloe purports to rely on any of these
individuals as comparators on summary judgment to bolster his prima facie case. Defendant’s
uncontroverted evidence is that (i) none of these white employees worked in the same position
that Goodloe did, and (ii) many of these white employees were employed in supervisory
positions at higher grade levels on the Daphne Utilities pay scale. Such persons would appear
unsuitable as comparators. Moreover, insofar as Goodloe balks that Daphne Utilities hired white
individuals at the “mid to high point of the pay scale” (Goodloe Decl., at 6), his wage
discrimination claim fails because he was hired very close to the midpoint of the applicable pay
scale. Undisputed record evidence shows that Goodloe’s job (which he says was Payroll/
Benefits Coordinator/Trainer) was in Grade 6 of defendant’s pay scale, with a salary range of
between $30,895 to $43,253 for the year 2013. (Klumpp Aff., at ¶ 8 & Exh. D.) Goodloe was
hired in December 2012 at an hourly rate of $17.31, “which equates with an annual pay of
approximately $36,004.” (Doc. 110, Exh. 3.) Thus, Daphne Utilities paid Goodloe a starting
wage that was just slightly below the midpoint of the Grade 6 pay scale. This fact belies
plaintiff’s claim of disparate treatment predicated on the notion that Daphne Utilities hired white
employees at the “mid to high point of the pay scale,” inasmuch as Goodloe himself was hired at
nearly the exact midpoint of his pay grade. Goodloe cannot advance a viable wage
discrimination claim based on white employees with patently dissimilar job duties or nearly
identical “midpoint” starting salaries.

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For all of these reasons, defendant’s Motion for Summary Judgment is granted as to
Goodloe’s wage discrimination claim found at Count VI of the Amended Complaint. That claim
will be dismissed for failure to establish a prima facie case.
C.

Retaliation Claim.

Goodloe’s other cause of action is Count VII, a retaliation claim brought under 42 U.S.C.
§§ 1981 and 1983. This claim is framed in the pleadings as follows: “By terminating …
Goodloe’s employment due to his complaints of racial unfairness on the job the defendant has
violated 42 U.S.C. Section 1981, and the Due Process Clause of the 14th Amendment to the
United States Constitution made actionable by 42 U.S.C. Section 1983.” (Doc. 6, ¶ 55.)16
As an initial matter, Daphne Utilities seeks dismissal of Count VII by reasoning that (i) a
§ 1981 retaliation claim is actionable only through § 1983 as to Daphne Utilities, (ii) no
constitutional right to equal protection is implicated by the alleged retaliation, and (iii) absent a
viable constitutional claim, Goodloe cannot proceed under either § 1981 or § 1983 on his
retaliation theory. (See doc. 81, at 25-26.) The Court disagrees. To be sure, it appears that
Daphne Utilities, as a municipal utility, qualifies as a “state actor,” such that Goodloe must use
the § 1983 mechanism to pursue relief for a § 1981 violation. See, e.g., Butts v. County of
Volusia, 222 F.3d 891, 893 (11th Cir. 2000) (Ҥ 1983 constitutes the exclusive remedy against
state actors for violations of the rights contained in § 1981”).17 It is also true, however, that §
1981 and Title VII claims have the same elements, and that “Title VII and section 1983 claims
have the same elements where the claims are based on the same set of facts.” Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008). Daphne Utilities would have this Court
disregard that principle and engraft additional elements on § 1981 retaliation claims brought
16

Goodloe has since admitted that his “Due Process” claim “was an error” and that
he instead intended to bring an equal protection claim. (See doc. 100.) He has also
acknowledged that he has no viable retaliation claim on an equal protection theory. (Doc. 88, at
19.) In light of those concessions, the constitutional aspects of Goodloe’s retaliation claim are
dismissed. What remains is the portion of Goodloe’s retaliation claim alleging a § 1981
violation through the vehicle of § 1983.
17

See also Campbell v. Forest Preserve Dist. of Cook County, Ill., 752 F.3d 665,
671 (7 Cir. 2014) (“§ 1983 remains the exclusive remedy for violations of § 1981 committed by
state actors”); Brown, 459 Fed.Appx. at 818-19 (“Claims against state actors under § 1981 must
be brought pursuant to 42 U.S.C. § 1983.”).
th

-12-

against state actors. Under Daphne Utilities’ theory, a plaintiff complaining of § 1981 retaliation
by a state actor could not prevail without establishing both a § 1981 violation and an additional
constitutional violation. The Court is aware of no authority embracing such an onerous,
counterintuitive requirement, and Daphne Utilities has cited none.18 Rather, it has long been
recognized that a violation of § 1981 is all that is necessary for a plaintiff to succeed on a § 1983
claim against a state actor. See, e.g., Whiting v. Jackson State University, 616 F.2d 116, 121 (5th
Cir. 1980) (“Section 1983 serves as a basis for relief for violations of federal law under color of
state law. Insofar as it is used as a parallel remedy for transgression of section 1981 …, the
elements of the causes of action do not differ ….”). For all of these reasons, the Court rejects as
contrary to law defendant’s argument that Goodloe must prove something more than an ordinary
§ 1981 retaliation claim in order to hold Daphne Utilities liable pursuant to § 1983.19
Next, Daphne Utilities urges dismissal of Count VII for failure to make out a prima facie
case. To establish a prima facie case of retaliation under § 1981, Goodloe must show that “(1)
he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and
(3) he established a causal link between the protected activity and the adverse action.” Bryant v.
Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009); see also Butler v. Alabama Dep’t of Transp.,
536 F.3d 1209, 1212-13 (11th Cir. 2008) (“To establish a claim of retaliation under Title VII or
section 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a
materially adverse action, and there was some causal relation between the two events.”) (citation
omitted). Defendant does not challenge Goodloe’s ability to satisfy the second and third
18

In its principal brief, Daphne Utilities erroneously relies on Braswell v. Allen, 586
F. Supp.2d 1297 (M.D. Ala. 2008), for this point. (See doc. 81, at 26.) In fact, the Braswell
court examined the plaintiff’s § 1981 retaliation claim against state-actor defendants through the
lens of § 1983, but said nothing about the plaintiff having to prove up a constitutional
deprivation above and beyond the § 1981 violation in order to sustain a viable claim under §
1983. See 586 F. Supp.2d at 1310-11. To the contrary, that court acknowledged that “Title VII,
section 1981 and section 1983 claims have the same legal elements when the claims are based
on the same set of facts.” Id. at 1308 (emphasis added).
19

Of course, it is pellucidly clear that a plaintiff may sue under § 1981 for
retaliation. See, e.g., CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457, 128 S.Ct. 1951, 170
L.Ed.2d 864 (2008) (“We consequently hold that 42 U.S.C. § 1981 encompasses claims of
retaliation.”); Bryant v. Jones, 575 F.3d 1281, 1309 (11th Cir. 2009) (“it is well-established in
this circuit that claims for retaliation are cognizable pursuant to § 1981”).

-13-

prongs.20 However, Daphne Utilities does maintain that Goodloe did not engage in protected
activity (as required by the first prong), inasmuch as “he cannot show an objectively reasonable
perception he was opposing an unlawful employment practice.” (Doc. 81, at 28.)
A Title VII / Section 1981 plaintiff complaining of retaliation need not prove that he
opposed an employment law practice that was actually unlawful; rather, the plaintiff need only
show “that he had a good faith, reasonable belief that the employer was engaged in unlawful
employment practices. … A plaintiff must not only show that he subjectively (that is, in good
faith) believed that his employer was engaged in unlawful employment practices, but also that
his belief was objectively reasonable in light of the facts and record presented.” Dixon v. The
Hallmark Companies, Inc., 627 F.3d 849, 857 (11th Cir. 2010) (citation omitted); see also
Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Thus, the critical question is
whether Goodloe had a subjectively and objectively reasonable basis for complaining of race
discrimination at Daphne Utilities on the morning of March 27, 2013, so as to constitute
protected activity.
The sum total of Daphne Utilities’ summary judgment argument that Goodloe cannot
satisfy this element is a conclusory statement that it “was not objectively reasonable” for
Goodloe to believe that Daphne Utilities was engaged in unlawful employment practices. (Doc.
81, at 28-29.) This contention is not persuasive. After all, binding precedent leaves no doubt
that “the plaintiff’s prima facie burden is not onerous.” Vessels v. Atlanta Independent School
System, 408 F.3d 763, 769 (11th Cir. 2005); see also Turlington v. Atlanta Gas Light Co., 135
F.3d 1428, 1432 (11th Cir. 1998) (“a plaintiff’s burden in proving a prima facie case is light”).
Goodloe’s evidence shows that, on the morning of his discharge, he presented Lyndall with
specific, detailed examples of circumstances in which he believed Daphne Utilities treated black
employees less favorably than their white counterparts, including (i) differential enforcement of
call-in notification policies, (ii) differential compensation of Goodloe as compared to a white
20

Nor could Daphne Utilities have effectively argued otherwise. After all, it cannot
be seriously disputed that termination of employment constitutes an “adverse employment
action.” Furthermore, Goodloe’s evidence that he was fired within hours after complaining to
his supervisor of racially discriminatory practices establishes the necessary “causal link.” See,
e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“The burden of
causation can be met by showing close temporal proximity between the statutorily protected
activity and the adverse employment action.”).

-14-

employee (Sadberry), and (iii) co-worker Carlos Butler’s grievance alleging widespread racial
disparities in annual raises in the Wastewater Field Services Department. Irrespective of whether
such matters actually constituted racially discriminatory employment practices, the record
reveals a sufficient factual basis for concluding that Goodloe harbored a good-faith, reasonable
belief that they were. These record facts (which are not countered by any persuasive argument
from Daphne Utilities that Goodloe lacked an objectively reasonable basis for his remarks)
satisfy the “statutorily protected activity” prong of plaintiff’s prima facie case. Simply put, it
was protected activity for Goodloe to notify Lyndall of what he believed to be systematic
differences in how Daphne Utilities compensated and disciplined employees of different races,
and to place Lyndall on notice of Goodloe’s intention to raise such concerns to the Board.
Goodloe having met his initial burden of showing a prima facie case of retaliation in
violation of § 1981 (through § 1983), the burden of production shifts to Daphne Utilities to set
forth a legitimate, nonretaliatory reason for terminating Goodloe’s employment. Daphne
Utilities has done so, via Lyndall’s averments that Goodloe was fired because he “was only
marginally effective in his payroll and benefits duties,” he had “probationary status,” and he had
displayed an “argumentative attitude and mediocre performance.” (Lyndall Aff., ¶ 4.)
Where, as here, the employer articulates legitimate reasons for the challenged actions, the
plaintiff must “show that the employer’s proffered reasons for taking the adverse action were
actually a pretext for prohibited retaliatory conduct.” McCann v. Tillman, 526 F.3d 1370, 1375
(11th Cir. 2008) (citation omitted). “In order to avoid summary judgment, a plaintiff must
produce sufficient evidence for a reasonable factfinder to conclude that each of the employer’s
proffered nondiscriminatory reasons is pretextual.” Chapman v. AI Transport, 229 F.3d 1012,
1037 (11th Cir. 2000). To show that the stated reason is pretext for unlawful retaliation, the
plaintiff “must reveal such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable
factfinder could find them unworthy of credence.” Vessels, 408 F.3d at 771 (quotation
omitted).21

21

See also Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th
Cir. 2010) (plaintiff may satisfy burden of showing pretext “by showing that [defendant’s]
proffered reasons are not credible”); Rioux, 520 F.3d at 1278 (“The plaintiff must demonstrate
(Continued)
-15-

Weaknesses, implausibilities and inconsistencies in Daphne Utilities’ proffered
explanations abound. Lyndall’s statement that Goodloe was fired for “mediocre performance”
because he was “only marginally effective” at his job encounters stiff headwinds in the record.
If Goodloe was “mediocre” and “marginally effective” in performing payroll and benefits duties,
then why did Daphne Utilities hire him on a full-time basis in December 2012 (three months
before he was fired) when he had been performing those same duties for approximately six years
in a contract / temp capacity? Defendant does not say. Also, Daphne Utilities has not pointed to
a scrap of paper or an iota of testimony that Goodloe had ever been disciplined, reprimanded,
counseled, coached or spoken to by Lyndall or anyone else concerning alleged performance
deficiencies during that three-month period, or indeed the five years that preceded it.22 To the
contrary, Lyndall emphatically testified that Goodloe “was a great employee” and remained so
“[i]n all the times” that Lyndall had known him. (Lyndall Dep., at 76.) There is an obvious
tension between Lyndall’s statement that Goodloe was fired for being a “marginal” or
“mediocre” performer, on the one hand, and Lyndall’s deposition testimony that Goodloe had
always been a “great employee,” on the other. What’s more, Lyndall testified that he considered
Goodloe to be a “friend.” (Id.) If a supervisor’s “friend” were underperforming, one might
reasonably expect the supervisor to alert that “friend” to the problem before summarily showing
him the door. Yet plaintiff’s evidence is that Lyndall did not. These kinds of inconsistencies
and implausibilities support a pretext determination on summary judgment.
More generally, Daphne Utilities’ proffered explanation is so vague that it essentially
amounts to a label devoid of underlying factual content that might lend credence to it. The
Termination Notice stated only that Goodloe “has not met the required performance standards”
(doc. 90, Exh. B), without offering any inkling as to how and in what respects Goodloe’s

weaknesses or implausibilities in the employer’s proffered legitimate reasons for its action
sufficient for a reasonable factfinder to disbelieve the reasons.”).
22

To be sure, it does not appear that Daphne Utilities’ policies required it to engage
in any progressive discipline / formal counseling of probationary employees such as Goodloe.
Nonetheless, common sense suggests that if Daphne Utilities really had a problem with
Goodloe’s performance, Lyndall would have mentioned it prior to his termination meeting.
Plaintiff’s evidence is that no such communications ever happened, and that the Termination
Notice was his first indication of Daphne Utilities’ purported dissatisfaction with his work.

-16-

performance had been substandard. Similarly, Lyndall’s use of the terms “mediocre” and
“marginal” conveys virtually nothing about what he maintained Goodloe was doing wrong. The
cursory, shadowy, nonspecific nature of the explanation itself calls into question its credibility in
the pretext analysis.23
The bottom line is this: Goodloe’s version of the evidence is that he was a well-liked
employee who had successfully performed payroll and benefits work for Daphne Utilities for
years, with such diligence and acumen that Daphne Utilities rewarded him with a full-time job in
December 2012, performing the same duties. Goodloe was on friendly terms with his
supervisor, who characterized him as a “great employee,” and had not been alerted to any
performance deficiencies by anyone at Daphne Utilities since 2007. Then, one day, Goodloe
complained to his supervisor of multiple instances of what he believed to be race-based
disparities in how the company treated black and white employees. He notified his supervisor
that he intended to bring these matters up to the Board. Hours later, Daphne Utilities summarily
fired Goodloe, citing “marginal” and “mediocre performance.” A reasonable finder of fact could
conclude that Daphne Utilities’ stated reasons for terminating Goodloe’s employment were
pretextual, and that the real reason was his statutorily protected activity, to-wit: complaining of
alleged racially discriminatory employment practices at Daphne Utilities.

23

Lyndall’s Affidavit also cites Goodloe’s “argumentative attitude” as a reason for
firing him. (Goodloe Aff., ¶ 4.) However, the Termination Notice says nothing about attitude
problems; thus, there is an apparent tension/inconsistency between what Daphne Utilities wrote
in the Termination Notice and what Lyndall now says is the reason for discharging Goodloe.
Furthermore, the only “argument” mentioned by Lyndall’s Affidavit is the conversation on
March 27, 2013, in which Goodloe complained of alleged racially discriminatory practices.
Saying that Goodloe was terminated for having an argumentative attitude on March 27 sounds
uncomfortably close to saying that he was terminated for arguing with his supervisor about his
reasonable belief of race discrimination, which would of course violate § 1981’s prohibition on
retaliation. Plaintiff’s evidence is that Goodloe did not conduct himself in an inappropriate,
insubordinate or unprofessional manner during the conversation with Lyndall, and that he never
raised his voice. For all of these reasons, Lyndall’s post-termination reference to “argumentative
attitude” as a justification for Goodloe’s firing raises genuine issues of material fact as to
whether that reason was a pretext for unlawful retaliation or, worse, “code” for retaliation itself.

-17-

For all of these reasons, defendant’s Motion for Summary Judgment is denied as to the
retaliation claim brought by Goodloe pursuant to 42 U.S.C. § 1981, by and through the
procedural vehicle of 42 U.S.C. § 1983, in Count VII of the Amended Complaint.24
IV.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendant’s “Motion to Strike and Correct a Portion of Plaintiff Cedric Goodloe’s
Response in Opposition to Defendant’s Motion for Summary Judgment” (doc.
108) is denied;

2.

Defendant’s Motion for Summary Judgment (doc. 80) is granted in part, and
denied in part;

3.

Plaintiff’s claim of wage discrimination (Count VI) is dismissed because there
are no genuine issues of material fact and defendant is entitled to judgment as a
matter of law;

4.

Plaintiff’s claims of due process and/or equal protection violations in his
retaliation claim (Count VII) are dismissed;

5.

The Motion for Summary Judgment is denied as to the remainder of Count VII, a
claim brought under 42 U.S.C. § 1983 in which plaintiff alleges that defendant
violated 42 U.S.C. § 1981 by firing him in retaliation for statutorily protected
activity (complaining of racially discriminatory employment practices); and

6.

The Motion for Summary Judgment is denied as to punitive damages because the
Amended Complaint reflects that no such damages are sought herein.

DONE and ORDERED this 24th day of March, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
24

At the end of its principal brief, Daphne Utilities contends that it is entitled to
judgment as a matter of law on “any claim for” punitive damages that Goodloe is asserting.
(Doc. 81, at 30.) The Amended Complaint is devoid of any reference to punitive damages;
rather, the ad damnum clause requests that Goodloe be awarded a declaratory judgment;
$300,000 in compensatory damages; back pay and benefits dating back to the termination of his
employment; and costs and fees. (Doc. 6, at 10-11.) As the Amended Complaint lacks any
indication that punitive damages are being sought, Daphne Utilities’ Motion for Summary
Judgment is denied insofar as it seeks dismissal of a nonexistent element of damages.

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