January v. Outukumpu Stainless USA, LLC
ORDER GRANTING Dft's 26 Motion for Summary Judgment as set out. Signed by Senior Judge Callie V. S. Granade on 7/28/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
OUTOKUMPU STAINLESS USA,
) CIVIL NO. 15-00040-CG-C
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s motion for summary judgment
(Doc. 26), Plaintiff’s opposition thereto (Doc. 33), and Defendant’s reply (Doc. 34).
For the reasons explained below, the Court finds that Defendant’s motion is due to
This case arises from Plaintiff’s employment with and termination from
Defendant’s facility in Calvert, Alabama. The Complaint claims that Defendant
discriminated against Plaintiff, an African-American male, on the basis of his race
in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. (Doc.
1). The Complaint alleges that several incidents created a hostile work
environment and that Plaintiff was terminated due to his race.
Plaintiff began working for ThyssenKrupp on June 22, 2008 and remained in
that job after Defendant, Outokumpu Stainless USA1, took over the facility. (Doc.
27-1, pp. 3-4). The Defendant Company maintained a Code of Conduct, which
Plaintiff recalls seeing in the Employee Handbook. (Doc. 27-1, pp. 47-48; Doc. 27-2,
¶ 4). The Code of Conduct provided that use of “abusive, inflammatory, or
intimidating language” or “threatening to engage in any type of physical altercation
with anyone on company premises” would result in either a final written warning or
termination of employment. (Doc. 27-2, pp. 10, 15). Plaintiff was aware that
engaging in threatening conduct could result in such discipline. (Doc. 27-1, p. 47).
In 2010, Darren Gates became the manager of the APL Department and
Plaintiff began reporting to him. (Doc. 27-1, pp. 7-8). Plaintiff testified that Mr.
Gates never made any racial slurs or other statements that Plaintiff thought were
racially offensive. (Doc. 27-1, pp. 9-10).
In early 2013, An electrician at the facility, Allen Jordan, commented to
Vernon Phelps, in Plaintiff’s presence, that only black people wear gold teeth and if
a white employee spent too much time around the Plaintiff, he would begin wearing
gold teeth also. (Doc. 27-1, pp. 127-129). Plaintiff did not report the comment. (Doc.
27-1, p. 129).
On April 2, 2013, Plaintiff and another employee, Vernon Phelps, who is
The complaint and docket sheet in this case reflect an incorrect spelling of the
defendant’s name. In its corporate disclosure statement, (Doc. 8), the defendant
noted the correct spelling for its name: Outokumpu. The Clerk is directed to correct
the docket entries to reflect the correct spelling of Defendant’s name.
white, were engaged in a discussion about “people running their mouth for no
reason and getting their butt beat.” (Doc. 27-1, pp. 22-23). According to Plaintiff,
the conversation was not racial. (Doc. 27-1, pp. 23-24; Doc. 32, ¶ 6). Mr. Phelps,
unbeknownst to him, was sitting on his radio and their conversation went out over
the radio. (Doc. 27-1, p. 22). Plaintiff reports that Mr. Phelps told him he was
called to the office and Mr. Gates asked Phelps if he was okay. (Doc. 27-1, p. 26).
Mr. Gates spoke separately with Mr. Phelps and Plaintiff about the incident and
informed Plaintiff that someone had reported it to HR. (Doc. 27-1, pp. 27-28). The
HR manager, Traci Nix, who is black, later spoke to Plaintiff and Mr. Phelps
together about the incident. (Doc. 27-1, pp. 13, 29). Phelps and Plaintiff wrote out
statements about the incident together. (Doc. 27-1, p. 28). Plaintiff told Ms. Nix
that he felt like he was being railroaded and discriminated against. (Doc. 27-1, p.
33). Nix and Gates conferred about the incident and decided to place both Mr.
Phelps and Plaintiff on a Final Written Warning for violating the Company’s Code
of Conduct, its Company’s Mutual Respect policy and the core values of the
Company. (Doc. 27-3, ¶ 6). On May 16, 2013, Gates presented Plaintiff with a
Coaching Report/Final Warning that stated that Plaintiff had been “overheard on
the radio using derogatory words and discriminating phrases.” (Doc. 27-1, pp. 19-21,
30-32). Plaintiff refused to sign the document. (Doc. 27-1, pp. 19-20, 31-32). The
Coaching Report stated that “[a]ny further violation of Company policy may result
in termination.” (Doc. 27-3, p. 7). Mr. Phelps received an identical Coaching
Report/Final Warning. (Doc. 27-2, pp. 23-24; Doc. 27-3, p. 6). The Code of Conduct
provides that such disciplinary actions “will remain active in a Team Member’s file
for a period of 18 months” and that “[o]nly active corrective actions will be
considered in employment related decisions.” (Doc. 27-2, p 11).
On August 14, 2013, Plaintiff was transferred to the Central Maintenance
Department or “MTC” and began reporting to Scott Flowers, who is white. (Doc. 271, pp. 10-12). Plaintiff testified that he got along with Mr. Flowers and could not
recall any times that Mr. Flowers made any racial comments or used racial slurs or
other racially charged language. (Doc. 27-1, pp. 13-14). Five or six months after
transferring to MTC, Plaintiff became a Shift Leader Trainee, which was supported
by Mr. Flowers. (Doc. 27-1, pp. 18, pp. 38-39).
In early 2014, Plaintiff overheard, Trey Rowland, who is a shift leader in
another department, make a comment that black people will never be promoted and
“need to stay in their positions and do their damn jobs.” (Doc. 27-1, pp. 135-136).
In mid 2014, another employee, Jeremy Johnson, referred to Plaintiff as
“black ass” and said, “you [and Mario Johnson] think that you all got it going on.”
(Doc. 27-1, pp. 110-111). Plaintiff responded with “whatever” and went back to
work. The statement did not impact Plaintiff’s job performance or his ability to do
his job. (Doc. 27-1, pp. 111). No one else heard the statement, but Plaintiff told
Mario Johnson about it and a few days after the incident Plaintiff told Ms. Nix what
was said. (Doc. 27-1, pp. 112-114). Ms. Nix said she would look into it. (Doc. 27-1, p.
In June 2014, Jeremy Johnson asked Plaintiff why he wore gold teeth and
said “only black people wore that shit.” (Doc. 27-1, pp. 115-116). Plaintiff did not
respond to the comment or report it to Human Resources. (Doc. 27-1, p. 117).
Plaintiff testified that he told Mario Johnson about it but does not recall when he
did so or how Mario Johnson responded. (Doc. 27-1, p. 117). Plaintiff continued
working after the comment was made and admits it did not impact his job
performance. (Doc. 27-1, pp. 117-118).
On another occasion, Jeremy Johnson commented on the wheels on the golf
cart that Plaintiff and Mario Johnson were using as being “black” and said it was a
“black thing.” (Doc. 27-1, pp. 131-132). Plaintiff did not respond to the comment
and did not report it. (Doc. 27-1, p. 132). After the comment was made, Plaintiff
took a 30 min break, “drunk a soda and just sat there for a minute and thought
about a few things that [he] had going on for the rest of the day” before returning to
work. (Doc. 27-1, pp. 133-134).
Sometime in 2014, another employee, Mark Green, made a comment that “all
black people eat bananas like monkeys.” (Doc. 27-1, pp. 122, 126). Plaintiff
overheard Mr. Green make the comment to a group of maintenance workers when
he walked into the meeting room where they were gathered. (Doc. 27-1, pp. 1235
124). Plaintiff did not respond to the comment but resumed work, handing out
work orders, and Plaintiff admits that the comment did not impact his ability to
perform his job. (Doc. 27-1, pp. 124-125). Prior to that, Mr. Green had used the
term “nigger-rigging” in Plaintiff’s presence. (Doc. 27-1, pp. 125-126). Plaintiff told
Mario Johnson about the comments but did not report them to Human Resources or
Mr. Flowers. (Doc. 27-1, pp. 126-127).
Jimmy Garner once referred to Mario Johnson as a “black ass” when
complaining about his performance as a Shift Leader and expressed that Plaintiff
would be a good candidate for Mario Johnson’s job. (Doc. 17-1, pp. 130-131). On
another occasion, Mr. Garner said, “I guess it’s a black thing” that Mario Johnson
and Plaintiff “stick together.” (Doc. 27-1, pp. 131-133). Plaintiff did not respond to
the comment or report it but resumed working. (Doc. 27-1, p. 133).
On August 22, 2014, a situation arose between Plaintiff and another shift
leader trainee, Stacy Bass. (Doc. 27-1, pp. 49-50). When Plaintiff went to check on
workers, he observed Angus Whetstone, an electrician, in an area other than where
he had been assigned. (Doc. 27-1, pp. 53-54). Plaintiff asked Mr. Whetstone what
was going on and Whetstone replied that Mr. Bass had directed him to do another
job – to answer calls and respond to them. (Doc. 27-1, pp. 54-55). Plaintiff asked
Mr. Bass about the work assignment change for Mr. Whetstone and Mr. Bass
denied responsibility. (Doc. 27-1, p. 56). Plaintiff said “somebody’s lying” and,
according to Plaintiff, Mr. Bass responded “fuck off, Willie January.” (Doc. 27-1, pp.
56-58). Plaintiff called Mario Johnson and told him about the issue with Mr. Bass
and explained that the situation “had gotten a little out of hand,” and that Mr. Bass
told him to “fuck off.” (Doc. 27-1, pp. 59-61, 74-75). Mr. Johnson confirmed that
what Plaintiff assigned Mr. Whetstone to do was the higher priority and told
Plaintiff he would talk with Mr. Bass. (Doc. 27-1, pp. 60-61). A short time later, Mr.
Bass came into the office and said he wanted to talk with Plaintiff. (Doc. 27-1, p.
61). Plaintiff told Mr. Bass that he had already spoken with Mr. Johnson about the
situation and “[t]here’s really nothing to talk about.” (Doc. 27-1, p. 61). Mr. Bass
reportedly responded that Plaintiff was “too sensitive” and Plaintiff replied that
“[he] wasn’t” and got up and left the office. (Doc. 27-1, pp. 61-62). Later that day,
Plaintiff returned to the office to try to find Mr. Bass to discuss further changes of
plans. (Doc. 27-1, p. 62). Mr. Bass said, “look, the guy’s trying to get me and you at
each other. I didn’t tell Whetstone that.” Plaintiff responded, “look, don’t worry
about it. It’s over and done” and the two then shook hands. (Doc. 27-1, pp. 62-63).
The next day, Jimmy Garner told Plaintiff he had heard that Plaintiff and Mr. Bass
had an argument that was so severe that Mr. Bass had to go home. (Doc. 27-1, p.
68). Plaintiff responded that the story Mr. Garner heard was a lie and that Mr.
Bass left early to pick up his daughter (Doc. 27-1, p. 69). Mr. Garner replied “that’s
not what he heard. Paper thin walls …” (Doc. 27-1, pp. 96-70). Plaintiff was then off
for a few days and returned to work on Wednesday, August 27, 2014. That day, Mr.
Bass informed Plaintiff that John had asked Mr. Bass why he did not report the
matter with Plaintiff to Human Resources and asked whether he was “alright.”
(Doc. 27-1, p. 77). Mr. Bass told Plaintiff that he told Mr. Carter that he and
Plaintiff had already shaken hands and there was no reason for him to take the
matter to Human Resources. (Doc. 27-1, pp. 77-78). Mario Johnson later met with
Plaintiff and Mr. Bass about the incident and let them know that he had informed
Mr. Flowers of it, that it had been “taken care of” and that it did not need to happen
again. (Doc. 27-1, pp. 71-72).
According to Michael Carter, an investigation into the incident between
Plaintiff and Mr. Bass was begun because of rumors that Plaintiff had threatened
Mr. Bass and concerns expressed by other employees about what may have
transpired between Plaintiff and Mr. Bass. (Doc. 27-5, ¶ 2). Mr. Carter had recently
been hired by Defendant and had assumed the role as Director of Cold Rolling
Works. (Doc. 27-5, ¶ 1). Carter reports that he conferred with Human Resources
Specialist, Kelvin Nobles, who is black, about the matter and they decided to
conduct an investigation. (Doc. 27-1, p. 129; Doc. 27-5, ¶ 2). John Carter and Scott
Flowers interviewed Mr. Bass and Mr. Bass provided a written statement that
detailed the manner in which he alleges Plaintiff threatened him on August 22,
2014. (Doc. 27-5, ¶ 3). Mr. Bass’ statement alleged that during the incident Plaintiff
said “y’all are some sorry MF” and that after Mr. Bass tried to explain the
circumstances, Plaintiff threw his radio down and stood over him and said “shut
your mouth MF don’t say another word cause I don’t want to be responsible what I
might do to you.” (Doc. 27-5, pp. 9-10). Mr. Bass reported that he then gathered his
things and left. (Doc. 27-5, p. 10).
On August 28, 2014, Michael Carter, Kelvin Nobles and Scott Flowers met
with Plaintiff about the incident with Mr. Bass. (Doc. 27-1, p. 83). At the outset of
the meeting Plaintiff reportedly volunteered that he had not threatened Mr. Bass.
(Doc. 27-5, ¶ 4). Michael Carter informed Plaintiff that he was being suspended for
three days while the Company investigated. (Doc. 27-1, p. 82, 83). Plaintiff provided
his account of the incident. (Doc. 127-1, pp. 67, 84, 85, 160; Doc. 27-5, ¶ 5). Toward
the end of the meeting, Plaintiff reportedly changed his demeanor and body
language and appeared angry. (Doc. 27-5, ¶5). According to Michael Carter, he was
concerned that Plaintiff might act aggressively toward him. (Doc. 27-5, ¶ 5).
As part of the investigation, John Carter and Kelvin Nobles interviewed
Jimmy Garner. Garner said he did not witness the incident but that engaging in
threatening behavior would be consistent with Plaintiff’s prior behavior. (Doc. 27-5,
¶ 4). Michael Carter, Mr. Nobles and Mr. Flowers also interviewed Jeremy
Johnson. (Doc. 27-5, ¶ 7). Jeremy Johnson also said he did not witness the incident
but indicated that it would not be out of character for Plaintiff to act in a
threatening and intimidating manner and that many Team Members were afraid of
him. (Doc. 27-5, ¶ 7). Jeremy Johnson also relayed a situation in which Plaintiff
threatened him and told him that he had “beaten a co-worker at his last job. (Doc.
27-5, ¶ 7). Michael Carter and Mr. Nobles met with the Maintenance Team
Members. During the meeting, multiple Team Members volunteered personal
accounts of Plaintiff engaging in intimidating behavior and making threatening
remarks. (Doc. 27-5, ¶ 8).
At the time of the incident, Mr. Bass had no active disciplinary actions in his
personnel file and has never been disciplined for violating the Mutual Respect policy
or engaging in threatening behavior. (Doc. 27-2, ¶ 11). Mr. Bass had received one
disciplinary action, which was a verbal coaching for attendance issues administered
on or about November 20, 2012. (Doc. 27-2, ¶ 7).
On September 3, 2014, Plaintiff met Michael Carter, Mr. Flowers and Mr.
Nobles and was informed that he was terminated. (Doc. 27-1, 86-87). No one said
anything that was racial in nature or offensive at the meeting. (Doc. 27-1, pp. 81,
87-88). Michael Carter made the final decision to terminate Plaintiff with input
from, and the support of, Mr. Nobles and Mr. Flowers, who all believed that
Plaintiff had threatened Mr. Bass. (Doc. 27-1, p. 88; Doc. 27-5, ¶ 10, Doc. 27-4, ¶ 7).
Plaintiff is unaware of Michael Carter ever saying anything about Plaintiff’s race.
(Doc. 27-1, p. 95). Plaintiff also states that he does not remember anybody ever
saying anything to him that led him to believe that the decision to discipline him
and not Mr. Bass had something to do with race. (Doc. 27-1, p. 98). Plaintiff denies
engaging in the reported threatening conduct but admits that such conduct would
be prohibited by Outokumpu’s Code of Conduct. (Doc. 127-1, pp. 89-91). Plaintiff
also admitted that in light of the threat Mr. Bass reported, there was nothing wrong
with Mr. Carter asking Mr. Bass if he was “alright.” (Doc. 27-1, pp. 78-79).
On or about February 2012, the Company administered a final written
warning to another employee, William “Billy” Jones, in connection with an incident
where he placed a piece of tape on the locker of another employee, Corey Sutherlin,
which said “try that shit again.” (Doc. 27-1, pp. 106-107). Plaintiff had heard
rumors and believed Mr. Jones and Mr. Sutherland were already on a final warning
of some kind, but doesn’t remember exactly what that was all about. (Doc. 27-1, pp.
169-170). Plaintiff has no personal knowledge of any threats or altercations
involving Mr. Sutherlin and Mr. Jones or what action the Company may have taken
in response. (Doc. 27-1, pp. 102-103). According to the Vice President of Human
Resources, prior to February 28, 2012, Mr. Jones had never been administered
formal discipline by the Company and Outokumpu is unaware of Mr. Jones ever
engaging in threatening conduct or violating other policy or Code of Conduct since
the February 28, 2012 final warning. (Doc. 27-2, ¶ 16). Mr. Sutherlin, who is no
longer employed with the Company, was never administered formal discipline
during his employment. (Doc. 27-2, ¶ 13).
II. Plaintiff’s Declaration
Defendant objects to portions of Plaintiff’s declaration on the basis that they
lack foundation, are not based on personal knowledge, or conflict with prior
deposition testimony. An affidavit or declaration can be “used to support or oppose
a motion” as long as they are “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 matter stated.” FED. R. CIV. P. 56(c)(4). Additionally, an affidavit
must generally set forth facts and show affirmatively how the affiant obtained
personal knowledge of those facts. See Ward v. First Federal Savings Bank, 173
F.3d 611, 617-18 (7th Cir. 1999) (“The Malkowski affidavit merely asserts that he is
‘aware’ of the alleged instruction by Pavlic; it does not reveal the source of
Malkowski's awareness-be it a written directive from Pavlic, a conversation with
him, or merely water-cooler gossip. As such, the affidavit fails to establish that
Malkowski has personal knowledge on the subject of Pavlic's purported
instruction.”); see also 3 Am.Jur.2d Affidavits § 8 (“An affidavit must set forth facts
and show affirmatively how the affiant obtained personal knowledge of those
Defendant first objects to paragraph 6 of Plaintiff’s deposition in which
Plaintiff states that “[t]here was nothing racial about the April 2, 2013,
conversation” between him and Vernon Phelps. Defendant asserts that this
conflicts with Plaintiff’s deposition testimony. At his deposition, Plaintiff testified
that the statements referred to both white and black people. However, such
testimony does not indicate that the statements were racial. Plaintiff’s statements
could have simply referred to all employees, regardless of race, or if comments were
made about specific employees then both black and white people were named. In
fact Plaintiff testified at his deposition that there were no racial terms used in the
conversation. (Doc 27-1, pp. 23-24). The Court does not find Plaintiff’s prior
statements to be contradictory.
However, the Court finds that Defendant’s remaining objections to Plaintiff’s
declaration are well founded and that those portions are due to be stricken. Some of
Plaintiff’s statements consist of arguments questioning the logic of certain facts
alleged by Defendant. Plaintiff also repeatedly speculates about the feelings or
beliefs of others and avers about occurrences that Plaintiff did not witness. Plaintiff
has not offered any facts to demonstrate how he obtained personal knowledge of
these assertions. Accordingly, the Court will not consider those portions of
Plaintiff’s Declarations because they lack foundation and are not based on personal
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “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.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The mere existence of a factual dispute will not
automatically necessitate denial; rather, only factual disputes that are material
preclude entry of summary judgment. Lofton v. Sec’y of Dep’t of Children & Family
Servs., 358 F.3d 804, 809 (11th Cir. 2004). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted." Anderson, at 249250. (internal citations omitted).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
party "must make a sufficient showing to establish the existence of each essential
element to that party's case, and on which that party will bear the burden of proof
at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that
precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The non-moving party “may not rely merely on allegations or
denials in its own pleading; rather, its response .... must be by affidavits or as
otherwise provided in this rule be set out specific facts showing a genuine issue for
trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). In
reviewing whether a non-moving party has met its burden, the Court must draw all
justifiable inferences in favor of the non-moving party. Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 998 – 99 (11th Cir. 1992) (internal citations and quotations
omitted). Thus the inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52.
B. Plaintiff’s Claims
Plaintiff claims he was subjected to a racially hostile work environment and
that his termination was motivated, at least in part, by racial discrimination.
1. Hostile Work Environment
Defendant asserts that Plaintiff’s hostile work environment claim should be
dismissed because he cannot establish that he was subjected to a racially hostile
work environment and cannot establish a basis for holding Defendant liable for the
alleged harassment. In his response, Plaintiff concentrates solely on his claim for
discriminatory discharge and does not address Defendant’s arguments with regard
to his hostile work environment claim.
“In opposing a motion for summary judgment, a ‘party may not rely on his
pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust
Corp., 516 U.S. 817 (1995)(citing Ryan v. Int’l Union of Operating Eng’rs., Local
675, 794 F.2d 641, 643 (11th Cir. 1986)). Moreover, “ [t]here 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 [or answer] but not relied
upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
The Court notes that the evidence presented also does not support hostile
work environment claim. A plaintiff wishing to establish a hostile work
environment claim must show:
(1) that he belongs to a protected group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment must have been
based on a protected characteristic of the employee, such as national
origin; (4) that the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of
vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (citation
omitted). There is no dispute that Plaintiff, as an African American, is a member of
a protected group. As to the second criteria of a prima facie case, the Court finds
that there is testimony indicating that Plaintiff has been subjected to some
unwelcome harassment. As to the third element, the Court also finds that there is
evidence that the harassment was racially based. However, Defendant asserts that
Plaintiff cannot establish the fourth and fifth prongs.
With regard to the fourth element, factors to consider include “the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 2223 (1993). An analysis of this issue was stated by the Eleventh Circuit Court of
Appeals as follows:
To succeed at trial with her hostile environment claim Edwards must
demonstrate that the actions of the defendants altered the condition of
the workplace, creating an objectively abusive and hostile atmosphere.
Harris v. Forklift Sys., Inc., 510 U.S. 17, ----, 114 S.Ct. 367, 370-71, 126
L.Ed.2d 295 (1993) (“When the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment,’ Title VII is violated.”)
(internal citations omitted). For example, the racial slurs allegedly
spoken by co-workers had to be so “commonplace, overt and
denigrating that they created an atmosphere charged with racial
hostility.” E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068
(11th Cir. 1990). In deciding whether a hostile environment was
created factors to consider include the frequency of the discriminatory
conduct, the severity of the discriminatory conduct, whether the
conduct is threatening or humiliating, and whether the conduct
unreasonably interferes with the plaintiff’s performance at work.
Harris, 510 U.S. at ----, 114 S.Ct at 372. ... A plaintiff may have a
viable hostile environment claim even if the racial remarks were not
directed at her. Busby, 931 F.2d at 785.
Edwards v. Wallace Community College, 49 F.3d 1517, 1521-22 (11th Cir. 1995).
Here, Plaintiff’s hostile work environment is premised on only the following
(1) early 2013 – Allen Jordan’s comment to Vernon Phelps about black
people wearing gold teeth;
(2) early 2014 – Plaintiff overheard Trey Rowland comment about
black people needing to stay in their positions;
(3) mid-2014 – Jeremy Johnson’s “black ass” comment to Plaintiff;
(4) June 2014 – Jeremy Johnson’s comment to Plaintiff about black
people wearing gold teeth;
(5) Jeremy Johnson’s comment about black wheels on the golf cart
being a “black thing;”
(6) 2014 – Plaintiff overheard Mark Green comment that “black people
eat bananas like monkeys;”
(7) Mark Green’s use of the term, “nigger-rigging,” on two to four
occasions in Plaintiff’s presence;
(8) Jimmy Garner’s “black ass” comment to Plaintiff about Mario
(9) Jimmy Garner’s comment about Mario Johnson and Plaintiff
sticking together being a “black thing.”
These comments were made over a period of approximately 20 months by five
different individuals, none of whom were members of management. None of the
comments were threatening and many were not directed at Plaintiff. Most of the
comments were not severe and Plaintiff’s testimony indicates that they did not
interfere with or affect his work performance. The Court finds that the alleged
harassment was not sufficiently severe or pervasive to alter the terms and
conditions of Plaintiff’s employment and create a discriminatorily abusive working
2. Discriminatory Termination
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for an employer ... to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
Section 1981 protects individuals from racial discrimination during the making and
enforcing of contracts. 42 U.S.C. § 1981. In analyzing a claim for employment
discrimination under § 1981, courts apply the same analysis applied to claims
brought under Title VII. Phillips v. Aaron Rents, Inc., 262 F. App'x 202, 207 (11th
A plaintiff may prove discrimination by relying on either direct,
circumstantial, or statistical evidence. See Walker v. Nationsbank of Florida N.A.,
53 F.3d 1548, 1555 (11th Cir. 1995). Direct evidence is evidence which, “if believed,
proves the existence of discriminatory motive ‘without inference or presumption’”
Hamilton v. Montgomery County Bd. of Educ., 122 F.Supp.2d 1273, 1279 (M.D. Ala.
2000) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641
(11th Cir. 1998)). As the U.S. District Court for the Middle District of Alabama
Not only must it be evidence of discriminatory ‘actions or statements of
an employer’ but the actions or statements at issue must ‘correlate to
the discrimination or retaliation complained of by the employee.’
Further, the statements ‘must be made by a person involved in the
challenged decision’ and must not be subject to varying reasonable
Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D. Ala.
1998)). No direct evidence of discrimination or retaliation has been submitted to
the Court. None of the evidence offered proves without inference or presumption
that the person who made the employment decisions did so based on Plaintiff’s race.
Plaintiff has also not attempted to show discrimination through statistical evidence.
A plaintiff may attempt to show discrimination based on circumstantial
evidence through the application of the McDonnell Douglas burden-shifting analysis
established by the Supreme Court.2 McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise
an inference of discrimination by establishing a prima facie case. See Chapman v.
AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation
Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997)).
In order to make out a prima facie case of discrimination, a plaintiff must
(1) he is a member of a protected class; (2) he suffered an adverse
job action; (3) [his] employer treated similarly situated employees
outside h[is] classification more favorably; and (4) he was qualified to
do the job.
Barnes v. Crowne Investments, Inc., 391 F.Supp.2d 1108, 1115 (S.D. Ala. 2005)
(citations omitted). The first prong is satisfied, as it is undisputed that Plaintiff is a
member of a protected class. There is also no dispute that Defendant suffered an
adverse job action by being terminated.
As to whether similarly situated employees outside his classification were
treated more favorably, Plaintiff points to Defendant’s failure to discipline William
Jones, Corey Sutherlin and their supervisor Gates as well as Defendant’s failure to
discipline Stacy Bass for his interference with work orders and his part in the
The same McDonnell Douglas analysis applies to both Title VII and § 1981 claims. See
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1314 n. 6 (11th Cir. 2000). Therefore, the
Court will discuss plaintiff’s Title VII and § 1981 claims together.
dispute with Plaintiff.3 As happened with Plaintiff, a final written warning was
issued to William Jones in February 2012, in connection with a dispute between
Jones and Corey Sutherlin. And unlike Plaintiff, Jones was never terminated.
However, to be an appropriate comparator, the employee must be “similarly
situated in all aspects.” Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997).
“The comparator must be nearly identical to the plaintiff to prevent courts from
second-guessing a reasonable decision by the employer." Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (internal citations omitted). Jones is not
an appropriate comparator because there is no evidence that Jones engaged in any
threats or altercations or violated a Code of Conduct after he received a final
written warning. According to the Vice President of Human Resources, Jones was
not disciplined at any other time and Mr. Sutherlin did not receive a written
warning and was never administered formal discipline during his employment.
Plaintiff reports that he had heard rumors and believed Mr. Jones and Mr.
Sutherland were already on a final warning of some kind, but doesn’t remember
exactly what that was all about and has no personal knowledge of any threats or
As support for a prima facie case, Plaintiff also argues that Defendant failed to
show that Plaintiff actually violated the work rule he was accused of violating.
However, to establish a prima facie case Plaintiff must show there is an appropriate
comparator outside his protected class that was treated more favorably. Even if
Plaintiff’ could show that Defendant’s were mistaken in concluding that he violated
the work rule, that does not show that a similarly situated employee outside of his
protected class was treated more favorably. However, the Court will address this
contention later with regard to whether Defendant’s stated reason for discharged is
altercations involving Mr. Sutherlin and Mr. Jones or what action the Company
may have taken in response. Without citing to appropriate evidence, Plaintiff also
argues that Mr. Gates was involved in the dispute between Jones and Sutherlin.
However, the Court finds that Plaintiff has not shown that Jones, Sutherlin or
Gates are appropriate comparators as there is no evidence that Jones, Sutherlin or
Gates were disciplined or should have been disciplined for conduct that occurred
after a final written warning was issued or should have been issued against them.
Plaintiff’s reliance on Stacy Bass as a comparator is also flawed. Mr. Bass
was not on an active final warning at the time the incident between Bass and
Plaintiff occurred. Plaintiff does not dispute that he was on a final warning and
understood that misconduct during the eighteen-month period would result in
termination of his employment. Thus, Defendant correctly argues that the quantity
of the misconduct was not “nearly identical” and for this reason alone, Plaintiff
cannot show he was similarly situated to Mr. Bass. See e.g., Maniccia v. Brown, 171
F.3d 1364, 1369 (11th Cir. 1999) (Concluding that misconduct of alleged
comparators was “easily distinguished” from the plaintiff where plaintiff’s
disciplinary record included more policy violations).
Accordingly, the Court finds that Plaintiff has failed to provide evidence that
Defendant treated similarly situated employees outside h[is] classification more
favorably. Additionally, the conduct Plaintiff is alleged to have engaged in was
extremely threatening behavior: Plaintiff allegedly said “y’all are some sorry MF”
and then after Mr. Bass tried to explain the circumstances, Plaintiff allegedly threw
his radio down and stood over him and said “shut your mouth MF don’t say another
word cause I don’t want to be responsible what I might do to you.” While Plaintiff
contends that during their exchange, Mr. Bass stated, “fuck off Willie January” to
him, such a comment, even if made, is not threatening and is certainly much less
severe than the conduct attributed to Plaintiff. For this additional reason, Plaintiff
cannot properly rely on Mr. Bass as a comparator as the quality of Plaintiff’s
conduct is not nearly the same as that which he attributes to Mr. Bass. See e.g.,
Rioux v. City of Atlanta, 520 F.3d 1269, 1280-82 (11th Cir. 2008) (observing that
that the “standard for similar conduct is a fairly rigorous one” and that even
misconduct that is “similar to the misconduct of the disciplined plaintiff is
Even if Plaintiff could establish a prima facie case, the Court finds that his
discrimination claim would still fail. If Plaintiff could establish a prima facie case of
discrimination, the burden would then shift to the Defendant, who must “proffer a
legitimate, non-discriminatory reason for the adverse employment action. The
employer’s burden is exceedingly light.” Hamilton, 122 F.Supp.2d at 1280 (quoting
Meeks v. Computer Assoc. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994) (internal
quotations omitted)). In this case, Defendant has clearly met its burden of
proffering a legitimate, non-discriminatory reason for firing Plaintiff – Michael
Carter made the final decision to terminate Plaintiff with input from, and the
support of, Mr. Nobles and Mr. Flowers, who all believed that Plaintiff had
threatened Mr. Bass in violation of the Code of Conduct while there was an active
final warning in Plaintiff’s file.
Once the Defendant proffers a legitimate reason for the employment
decisions, the burden then shifts back to Plaintiff, who must show that the
employer’s proffered reasons are pretextual, or merely a cover for discrimination. Id.
“At the pretext stage, in order to survive summary judgment, Plaintiff must provide
sufficient evidence to allow a reasonable fact finder to conclude, at a minimum, that
the proffered reasons were not actually the motivation for the employer’s decision.”
Miller v. Bed, Bath & Beyond, Inc., 185 F.Supp.2d 1253, 1270 (N.D. Ala. 2002)
(citing Combs, 106 F.3d at 1538). Plaintiff may do this “(1) by showing that the
employer’s legitimate nondiscriminatory reasons should not be believed; or (2) by
showing that, in light of all of the evidence, a discriminatory reason more likely
motivated the decision.” Id. (citations omitted). “This is done by pointing to ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons . . . that a reasonable factfinder could find
them unworthy of credence.’” Hamilton, 122 F. Supp.2d at 1281 (quoting Combs,
106 F.3d at 1539). The ultimate burden of persuasion remains with the plaintiff at
all times in cases involving merely circumstantial evidence. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In satisfying the ultimate burden of proving that the adverse employment
action was on account of race, a plaintiff need not establish that race was the sole
reason for the action, but that it was a determinative factor in the employer’s
decision. See Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.
1982) (citing Haring v. CPC International, Inc., 664 F.2d 1234, 1239-40 (5th Cir.
1981)). However, it should be noted that federal courts “do not sit as a superpersonnel department that reexamines an entity’s business decisions.” Chapman,
229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991)). It is not appropriate for either the Plaintiff or this Court to “recast an
employer’s proffered non-discriminatory reasons or substitute his business
judgment for that of the employer.” Chapman, 229 F.3d at 1030.
In the instance case, Plaintiff is unaware of the decision maker, Michael
Carter, ever saying anything about Plaintiff’s race. Plaintiff also states that he does
not remember anybody ever saying anything to him that led him to believe that the
decision to discipline him and not Mr. Bass had something to do with race. Plaintiff
denies engaging in the reported threatening conduct, but admits that such conduct
would be prohibited by Outokumpu’s Code of Conduct. Even if Plaintiff could show
that Defendant was mistaken because Plaintiff did not engage in the alleged
threatening behavior, a mistake in fact does not show pretext. See Lee v. GTE Fla.,
Inc., 226 F.3d 1249, 1253 (11th Cir.2000) (providing that “[a] plaintiff must show
not merely that the defendant's employment decisions were mistaken, but that they
were in fact motivated by [the protected characteristic]”); Alexander v. Fulton
County, Ga., 207 F.3d 1303, 1339 (11th Cir.2000) (holding that “[a] plaintiff must
show not merely that the defendant's employment decisions were mistaken but that
they were in fact motivated by race.”) overruled on other grounds, Manders v. Lee,
338 F.3d 1304 (11th Cir. 2003). Similarly, if Defendant was mistaken in its
assessment of the prior incident that resulted in Plaintiff being put on final
warning, that mistake would also not show pretext. “[W]hether an employment
decision was prudent or fair is irrelevant. Hudson v. Blue Cross Blue Shield of
Alabama, 431 Fed.Appx. 868, 869 (11th Cir. 2011) (citing Rojas v. Florida, 285 F.3d
1339, 1342 (11th Cir.2002) and Elrod, 939 F.2d at 1470 (noting courts do not
reexamine an employer's business judgment and that the key inquiry is “whether
the employer gave an honest explanation of its behavior”)). Defendant investigated
the incident between Plaintiff and Mr. Bass and believed that Plaintiff had engaged
in the threatening behavior. While Plaintiff contends that some of the employees
Defendant interviewed during its investigation were racially motivated, it is clear
that Defendant attempted to conduct a thorough investigation and obtain Plaintiff’s
side of the story before making a decision. The decision maker did not simply follow
the recommendation of someone who was biased without investigating the
complaint.4 As such, the Court finds that Defendant has proffered legitimate nondiscriminatory reasons for its decisions and Plaintiff has not shown that the
proffered reasons are pretextual.
For the reasons stated above, Defendant’s motion for summary judgment
(Doc. 26) is GRANTED.
DONE and ORDERED this 28th day of July, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
Through a cat’s paw theory, a plaintiff may establish that the discriminatory
animus of a non-decision-maker actually caused the decision to terminate the
plaintiff. See Stimpson v. City of Tuscaloosa, 186 F. 3d 1328, 1331-32 (11th Cir.
1999). However, to do so, the plaintiff must show that the decision-maker “followed
the biased recommendation without independently investigating the complaint
against the employee.” Id. at 1332.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?