Parker v. CGI Technologies and Solutions Inc.
Filing
24
ORDER granting defendant CGI Technologies and Solutions, Inc. 20 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 5/11/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ALMA PARKER,
)
Plaintiff,
)
v.
)
CGI TECHNOLOGIES AND
SOLUTIONS, INC.,
)
Defendant.
CIVIL ACTION NO. 2:11-0288-KD-N
)
ORDER
This action is before the Court on defendant CGI Technologies and Solutions, Inc.’s (CGI)
motion for summary judgment, statement of undisputed material facts, brief, and evidentiary
materials in support (docs. 20, 21, 22). Upon consideration, and for the reasons set forth herein,
CGI’s motion for summary judgment is GRANTED.
I.
Background
In April 2011, plaintiff Alma Parker filed a complaint against CGI in the Circuit Court of
Dallas County, Alabama. (Doc. 1). In Count One, Parker alleges that CGI discriminated against her
on basis of race and religion in violation of Title VII of the Civil Rights Act, in Count Two, Parker
alleges “wrongful termination/ discharge of employment” also based on race and religion, and in
Count Three, Parker alleges a state law claim of breach of quasi-contract. (Doc. 1-1, p. 4-8).
CGI removed this action on basis that Parker’s claims arise under federal law and that this
Court has supplemental jurisdiction over the state law claim. See 28 U.S.C. § 1331, 28 U.S.C.
§1441(a), 28 U.S.C. § 1367. CGI also asserts that this Court has diversity jurisdiction. See 28
U.S.C. § 1332. CGI has now filed its motion for summary judgment and supporting evidentiary
materials. Parker did not respond to the motion.
Findings of fact
1
Because Parker failed to respond to the motion for summary judgment and consequently
failed to identify any disputed facts in CGI’s statement of undisputed material facts, her A[f]ailure to
do so will be considered an admission that no material factual dispute exists@. S.D. Ala. L.R. 7.2(b);
see Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1302–03 (11th Cir. 2009) (giving deference to
interpretation of local rule which provides that if a Aparty responding to a summary judgment
motion does not directly refute a material fact set forth in the movant's Statement of Material Facts
with specific citations to evidence, or otherwise fails to state a valid objection to the material fact
pursuant to Local Rule 56.1B(2), such fact is deemed admitted by the respondent.@); see Patton v.
City of Hapeville, Ga., 162 Fed. Appx. 895, 896 (11th Cir.2006) (“We conclude from the record,
however, that the district court properly held that the defendants' statement of undisputed facts filed
with their motion for summary judgment were admitted when Patton failed to respond to the
statement of facts in accordance with the Federal Rules of Civil Procedure and the Local Rules for
the United States District Court for the Northern District of Georgia.@). The Court, having
determined that CGI’s statement of undisputed material facts are deemed admitted, makes the
following factual findings (doc. 21, p. 2-11):
1. Parker’s Hire and Employment With CGI
CGI is a full service information technology provider that supplies its clients with, among
other things, technical employee staffing. (Doc. 22-1, Declaration of Dawn Champ, Exhibit A, ¶ 2.)
In or about December or January, 2010, Parker submitted an electronic application for employment
with CGI for a Call Center/Collections Representative position at the Dell facility in Bedford,
Texas. (Doc. 22-2, Deposition of Alma Parker, Exhibit B, at 53.) CGI was providing call center
support to Dell. (Doc. 22-2, Parker Dep. at 69.) In response to her employment application, Parker
received an email from CGI requesting an interview. (Id., at 57-58.) Parker had two separate
interviews with CGI employees. (Id., at 58.) Both interviews took place at the Dell facility. (Id., at
2
58.)
On January 14, 2011, Parker received a letter with a contingent offer of employment from
CGI. (Id., at 61; Doc. 22-2, p. 29-31, Ex. 1 to Parker Dep.) The contingent offer letter expressly
stated that the offer of employment and continued employment with CGI was contingent on passing
a background check. (Doc. 22-2, p. 31, Ex. 1 to Parker Dep.). The offer letter also expressly stated
that the employment relationship between Parker and CGI was terminable at the will of either party,
with or without cause or advance notice. (Id., p. 31). Parker electronically signed the offer letter on
January 15, 2010. (Doc. 22-2, Parker Dep. at 63; Doc. 22-2, p. 29-31, Ex. 1 to Parker Dep.) Parker
understood that employment with CGI was contingent on successfully passing a background check.
(Doc. 22-2, Parker Dep. at 64-65.)
On February 8, 2010, CGI permitted Parker and four other employees to begin work at the
Dell facility after their criminal background checks were completed, but before completion of the
full background check. (Id., at 100-01; Doc. 22-1, Champ Decl. ¶ 9.) When she began working at
CGI, Parker understood that her continued employment with CGI was contingent on her
successfully passing the full background check. (Doc. 22-2, Parker Dep. at 64-65.)
2. CGI’s Background Check Process
Pursuant to CGI’s Background Investigation Policy, “CGI initiates background
investigations on all applicants extended an offer of employment. Commencement of employment
is contingent upon successfully completing and meeting the criteria established by CGI (and/or the
client) for the background investigation.” (Doc. 22-1, Ex. A to Champ. Decl.) The Policy provides
that an individual may be disqualified for employment with CGI if the background investigation
reveals material misrepresentations or falsifications or “omission of factual disclosures or false
certifications to completeness or accuracy of disclosures.” (Doc. 22-1, Ex. A to Champ Decl.) The
Policy also states that CGI will use an independent screening provider to conduct the background
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investigations. (Doc. 22-1, Ex. A. to Champ Decl.) CGI uses Verifications, Inc. as its screening
provider. (Doc. 22-1, Champ Decl. ¶ 5; Doc. 22-2, Parker Dep. at 104-05.) CGI provides
Verifications, Inc. with a completed background questionnaire for each employee. (Doc. 22-1,
Champ Decl. ¶ 5.) Verifications, Inc. conducts the background check and contacts CGI with the
results. (Doc. 22-1, Champ Decl. ¶ 5.)
3. Parker’s Failure To Pass The Background Check
As part of the background check process, Parker completed an electronic background
questionnaire. (Doc. 22-2, Parker Dep. at 66; Doc. 22-2, p. 32-36, Ex. 2 to Parker Dep.) Under the
“Employment History” section, Parker identified several previous employers and dates of
employment with each. (Doc. 22-2, Parker Dep. at 74-75; Doc. 22-2, p. 32-33. Ex. 2 to Parker Dep.)
Among the employers she included, Parker listed Hidden Acres as her employer from July 2003 to
April 2005 and Adjustable Bureau Collection1 as her employer from January 2002 to July 2003.
(Doc. 22-2, Parker Dep. at 76; Doc. 22-2, p. 32-33, Ex. 2 to Parker Dep.) After Parker signed the
offer letter, CGI sent her background questionnaire and related documents to Verifications, Inc. to
begin the background check process. (Doc. 22-1, Champ Decl. ¶ 6.)
On February 1, 2010, before Parker began working for CGI, Dawn Champ, a Human
Resources Administrator for CGI, contacted Parker by email to inform her of several unresolved
issues relating to her background check. (Doc. 22-2, Parker Dep. at 73-74; Doc. 22-2, p. 37, Ex. 3 to
Parker Dep.) In particular, Champ informed Parker that Verifications, Inc. had been unable to
verify the dates of employment she had provided for Hidden Acres and Adjustable Bureau
Collection in her background questionnaire. (Doc. 22-2, Parker Dep. at 74; Doc. 22-2, p. 37, Ex. 3
1
Parker listed “Adjustable Bureau Collection” as an employer on her background
questionnaire. (Doc. 22-2, p. 33, Ex. 2 to Parker Dep.) Apparently, the correct name for this entity
is “Regional Adjustment Bureau” as reflected in the wage and income transcripts later provided by
Parker to CGI. (Doc. 22-2, p. 40, Ex. 6 to Parker Dep.)
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to Parker Dep.) Champ requested that Parker fax copies of her W-2 forms as proof of her dates of
employment with these employers. (Id.)
On February 2, 2010, Parker provided Champ with the following documents: a 2003 Wage
and Income Transcript for Regional Adjustment Bureau; a 2003 Wage and Income Transcript for
Integrated Park Systems; and a 2005 Wage and Income Transcript for Talladega Clay Randolph
Child Care. (Doc. 22-2, Parker Dep. at 79, 81; Doc. 22-2, p. 39-50, Ex. 5, 6 to Parker Dep.) None
of these documents reflected employment by Parker with Hidden Acres in 2004 and 2005 or with
Adjustable Bureau Collection in 2003. (Doc. 22-2, p. 4-50, Ex. 6 to Parker Dep.) In response,
Champ asked Parker to clarify the relationship between Hidden Acres and the documentation
supplied for 2003 and 2005. (Doc. 22-2, p. 39, Ex. 5 to Parker Dep.)
On February 3, 2010, Parker left Champ a voicemail informing her that Hidden Acres and
Integrated Park Systems were the same entity. (Doc. 22-2, Parker Dep. at 91; Doc 22-2, p. 38, Ex. 4
to Parker Dep.) Champ then emailed Parker to request that she provide W-2 information for Hidden
Acres from 2005 and Regional Adjustment Bureau for 2003. (Doc. 22-2, Parker Dep. at 90; Doc.
22-2, p. 38, Ex. 4 to Parker Dep.)
Parker responded to this email and informed Champ that the W-2 for Hidden Acres was the
W-2 for Integrated Park Systems. (Doc. 22-2, Parker Dep. at 91.) Parker also informed Champ that
she only worked at Hidden Acres for part of 2004, not from July 2003 to April 2005 as she
indicated in her background questionnaire. (Doc. 22-2, Parker Dep. at 91-92; Doc. 22-2, p. 51, Ex. 7
to Parker Dep.) In addition, Parker told Champ that she was unemployed for a period before she
was hired by Talladega Clay Randolph Child Care in 2004. (Doc. 22-2, Parker Dep. at 91; Doc. 222, p. 51, Ex. 7 to Parker Dep.) As to Regional Adjustment Bureau, Parker told Champ that she had
only worked there from December 2002 to early 2003, not from January 2002 to July 2003 as she
stated on her background questionnaire. (Doc. 22-2, Parker Dep. at 92; Doc. 22-,. p. 51, Ex. 7 to
5
Parker Dep.)
In response to Parker’s email, Champ requested that Parker provide a W-2 for Regional
Adjustment Bureau for 2003 and proof of income in 2004 from Integrated Park Services. (Doc. 222, Parker Dep. at 93; Doc. 22-2. p. 51, Ex. 7 to Parker Dep.) Parker then submitted a 2004 Wage
and Income Transcript to Champ. The transcript did not show that Parker received any income from
Hidden Acres or Integrated Park Services in 2004. (Doc. 22-2, p. 40-50, Ex. 6 to Parker Dep.; Doc.
22-2, Parker Dep. at 87, 88.)
Parker’s W-2 Wage and Income Transcript for the year 2004 also revealed that Parker
worked for several other employers that year which she had not disclosed on her background
questionnaire or on her application for employment with CGI. (Doc. 22-2, Ex. 2, Ex. 6 to Parker
Dep.) In particular, the transcript showed that Parker worked for Circulation III Promotions, Inc.,
Guaranteed Marketing Solutions, Mt. Sinai Community Baptist, Certified Payment Processing,
Freedom Trail, and Capital Chevrolet and Imports in 2004. (Doc. 22-2, Parker Dep. at 82-86; Doc.
22-2, p. 40-50, Ex. 6 to Parker Dep.)
On February 7, 2010, Parker provided additional information to Champ. (Doc. 22-2, Parker
Dep. at 93-94; Doc. 22-2, p. 52, Ex. 8 to Parker Dep.) Specifically, Parker admitted to Champ that
she worked at Regional Adjustment Bureau in 2002 only, not from 2002 to 2003 as she indicated on
her background questionnaire and previously told Champ. (Doc. 22-2, Parker Dep. at 94; Doc. 22-2,
p. 52, Ex. 8 to Parker Dep.) In addition, she admitted that she worked at Hidden Acres in 2003
only, not 2004 or 2005 as indicated on her background questionnaire. (Doc. 22-2, Parker Dep. at 97;
Doc. 22-2, p. 52, Ex. 8 to Parker Dep.) Parker acknowledged that she had made several “errors” in
listing her employment history on the background questionnaire. (Doc. 22-2, p. 52, Ex. 8)
On February 9, 2010, Champ sent Parker a letter informing her that “CGI was in the process
of deciding the status of your offer of employment based on the information contained in your
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report.” (Doc. 22-2, p. 54-64, Ex. 10, Ex. 11 to Parker Dep.) Champ included a copy of the
background check from Verifications, Inc. and a summary of rights under the Fair Credit Reporting
Act with the letter. (Doc. 22-2, Parker Dep. at 103; Doc. 22-2, p. 53-63, Ex. 9 & 10 to Parker Dep.)
4. Parker’s Termination
On February 11, 2010, CGI terminated Parker’s employment because she did not pass the
background check. (Doc. 22-2, Parker Dep. at 109; Doc. 22-2, p. 65, Ex. 12 to Parker Dep.) Of the
four employees who began work with Parker, three were terminated for failing their background
checks: Morgan Helm, who is African-American; Richard LeCroy, who is Caucasian; and Sheila
Ward, who is also Caucasian. (Doc. 22-1, Champ Decl. ¶ 10.) CGI did not know the religious
affiliations, if any, of these employees. (Doc. 22-1, Champ Decl. ¶ 10.)
After being informed of her termination, Parker contacted Champ and provided additional
information about her employment with Marvin’s, Inc. and a traffic ticket she received for an
expired license tag. (Doc. 22-2, p. 64, Ex. 11 to Parker Dep.) Champ informed Parker that it was
the discrepancies in her employment history, not her traffic ticket, that concerned CGI. (Doc. 22-2,
p. 64, Ex. 11 to Parker Dep.)
Parker also contacted Jenny Osborne, a Human Resources Specialist for CGI, following her
termination. (Doc. 22-2, Parker Dep. at 126.) She explained to Osborne that the information in her
background check was not correct and that she “wanted it to be correct for my records.” (Doc. 22-2,
Parker Dep. at 126.) CGI provided Parker with a corrected background report from Verifications,
Inc. (Doc. 22-2, Parker Dep. at 112-13; Doc. 22-2, p. 66-75, Ex. 13 to Parker Dep.) The corrected
background report included the changes requested by Parker to the Marvin’s, Inc. information.
(Doc. 22-2, Ex. 13 to Parker Dep.)
Parker never heard any CGI employee make disparaging comments about her race or
religion. (Doc. 22-2, Parker Dep. at 131, 145.) Parker’s affiliation with a Christian ministry is listed
7
on her resume, which was submitted to CGI at the time she applied. (Doc. 22-2, Parker Dep. at 14041, 143, 145; Doc. 22-2, p. 91-92, Ex. 24 to Parker Dep.) She never discussed her religion, which is
Christian, with anyone at CGI during the three days she worked for CGI. (Doc. 22-2, Parker Dep. at
143, 145.) Parker claims to have discussed working on Sundays with a CGI employee (whom she
was unable to identify), but admits that she did not tell the employee that she could not work
Sundays because of her religion. (Doc. 22-2, Parker Dep. at 142.) She was supposed to work one
Sunday per month and was agreeable to doing so. (Doc. 22-2, Parker Dep. at 143-44.)
Following her termination, Parker applied for unemployment compensation benefits from
the State of Alabama. (Doc. 22-2, Parker Dep. at 156-57.) She was initially denied benefits, but
benefits were granted on appeal. (Doc. 22-2, p. 76-78, Ex. 15, Ex. 16 to Parker Dep.; Doc. 22-2,
Parker Dep. at 156-57, 160.)
Parker subsequently applied for unemployment compensation benefits in Texas after her
Alabama benefits ended. (Doc. 22-2, Parker Dep. at 173; Doc. 22-2, p. 86-88, Ex. 20 to Parker
Dep.) She was granted benefits, but CGI’s account was not charged because Parker had not worked
at CGI for a sufficient period of time. (Doc. 22-2, Parker Dep. at 175; Doc. 22-2, p. 86-88, Ex. 20 to
Parker Dep.) Parker did not apply for reinstatement with CGI. (Doc. 22-2, Parker Dep. at 163).
5. Parker’s Administrative Charge and Complaint
On January 3, 2011, Parker filed a charge of discrimination with the Texas Workforce
Commission Civil Rights Division alleging that CGI discriminated against her because of her race
and religion by terminating her employment. (Doc. 22-2, p. 79-81, Ex. 17 to Parker Dep.) This was
326 days after her employment with CGI ended. (Doc. 22-2, Parker Dep. at 109; Doc. 22-2, P. 65,
Ex. 12 to Parker Dep.) The EEOC issued a Dismissal and Notice of Rights on January 4, 2011.
(Doc. 22-2, p. 82-83, Ex. 18 to Parker Dep.)
At all times relevant to this case, CGI had in place policies prohibiting discrimination and
8
retaliation. (Doc. 22-2, Parker Dep. Ex. 19) Parker never complained during her employment to
anyone at CGI that she thought she was being discriminated against because of her race or religion.
(Doc. 22-2, Parker Dep. at 128-29.)
III.
Conclusions of law
A. Summary Judgment Standard
Summary judgment should 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.” Fed. R. Civ. P.
56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must
(A) cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) show[] that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)(B).
Summary judgment should be granted only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). 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 nonmovant to
show the existence of a genuine issue of material fact. Id. However, “[a] moving party is entitled to
summary judgment if the nonmoving party has ‘failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d
1161, 1163 (11th Cir. 1995) quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
9
2552 (1986). “In reviewing whether the nonmoving party has met its burden, the court must stop
short of weighing the evidence and making credibility determination of the truth of the matter.
Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal
citations and quotations omitted). However, the mere existence of any factual dispute will not
automatically necessitate denial of a motion for summary judgment; rather, only factual disputes
that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and
Family Services, 358 F.3d 804, 809 (11th Cir.2004).
B. Analysis
By failing to respond, Parker has not met her burden to present evidence upon which the
Court could find that there is a genuine issue of material fact. However, the “mere failure of the
non-moving party to create a factual dispute does not automatically authorize the entry of summary
judgment for the moving party.” Dixie Stevedores, Inc. v. Marinic Maritime, Ltd., 778 F.2d 670,
673 (11th Cir.1985). The Eleventh Circuit Court of Appeals has held that “[t]he district court
cannot base the entry of summary judgment on the mere fact that the motion was unopposed but,
rather, must consider the merits of the motion”, and noted the provision in Fed.R.Civ.P. 56(e) that
when “‘the adverse party does not respond, summary judgment, if appropriate, shall be entered
against the adverse party.’” United States v. One Piece of Property, 5800 S.W. 4th Ave., Miami,
Florida, 363 F.3d 1099, 1101 (11th Cir.2004) (italics in original) (citation omitted); see also
Trustees of the Central Pension Fund of the International Union of Operating Engineers and
Participating Employers v. Wolf Crane Service, Inc., 374 F.3d 1035, 1040 (11th Cir.2004) (vacating
and remanding the district court's grant of summary judgment, in part, “[b]ecause summary
judgment cannot be granted as a sanction for merely failing to file a response to a motion for
summary judgment[.]”)
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The Eleventh Circuit further explained that
[t]he district court need not sua sponte review all of the evidentiary materials on file
at the time the motion is granted, but must ensure that the motion itself is supported
by evidentiary materials. [ ] At the least, the district court must review all of the
evidentiary materials submitted in support of the motion for summary judgment. The
district court cannot grant a motion for summary judgment merely for lack of any
response by the opposing party, since the district court must review the motion and
the supporting papers to determine whether they establish the absence of a genuine
issue of material fact. In addition, so that there can be an effective review of the case
on appeal, the district court's order granting summary judgment must indicate that
the merits of the motion were addressed.
One Piece of Real Property, 363 F.3d at 1101-1102 (citations, internal quotations and footnote
omitted).
Therefore, the Court “must review all of the evidentiary materials submitted in support of
the motion for summary judgment” to “ensure that the motion itself is supported by evidentiary
materials” id. at 1102, and review CGI’s “citations to the record to determine if there is, indeed, no
genuine issue of material fact@ such that granting summary judgment would be appropriate. Mann,
588 F.3d at 1303 (citing Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008)). AEven in an
unopposed motion” CGI as the movant “still bears the burden of identifying >the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,=
which it believes demonstrates the absence of a genuine issue of material fact.@ Id. (quoting Celotex
Corp., 477 U.S. at 323, 106 S.Ct. at 2553).
1. Parker’s complaint
Construing Parker’s pro se complaint liberally and in the interests of justice,2 the complaint
2
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.2006) (APro se pleadings are held to a
less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.@) (quotations omitted), cert. denied, 549 U.S. 1323, 127 S.Ct. 1908 (2007); See Fed. R.
Civ. P. 8(e) (APleadings must be construed so as to do justice.@).
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appears to contain three claims: 1) That CGI discriminated against Parker on basis of race and
religion by failing to hire Parker to a permanent position and wrongfully terminating her
employment because she requested to be off work on Sundays and without lawful or justifiable
reason; 2) that CGI retaliated against Parker for exercising her rights because GGI denied Parker the
right to receive unemployment compensation and refused to reinstate her “after [she] filed for
unemployment and it was determined that [she] was not at fault in being terminated”; 3) that CGI
breached a quasi-contract, i.e., an employment agreement, by terminating Parker. (Doc. 1-1, p. 3-8).
2. Statute of limitation
CGI argues that Parker filed her charge with the Equal Employment Opportunity
Commission twenty-six days late and therefore, her claims of discrimination based on race and
religion under Title VII are time barred. Parker was terminated on February 11, 2010. She filed a
charge of discrimination with the Texas Workforce Commission, Civil Rights Division on January
3, 2011, which was 326 days after the termination. (Doc. 22-2, p. 81). Parker’s time to file a
charge of discrimination began to run on February 20, 2010 when she was terminated. Grayson v.
K–Mart Corp., 79 F.3d 1086, 1100 n. 19 (11th Cir.1996) (“More accurately, the time for filing an
EEOC charge begins to run when the employee receives unequivocal notice of the adverse
employment decision”). In a deferral state, such as Texas, Parker must file her charge within 300
days of CGI’s wrongful conduct. 42 U.S.C. § 2000e-5(e)(1). Thus, Parker’s charge of
discrimination was not timely filed and this action could be barred on that basis alone. See Crayton
v. Alabama Dept. of Agriculture & Industries, 589 F.Supp.2d 1266 (M.D. Ala. 2008) ("By choosing
this relatively short deadline, Congress clearly intended to encourage the prompt processing of all
charges of employment discrimination. . . . Thus, if a plaintiff fails to file an EEOC charge before
the 180-day limitations period, the plaintiff's subsequent lawsuit is barred and must be dismissed for
failure to exhaust administrative remedies.”) (internal citations and quotations omitted).
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3. Parker’s Title VII claim for race and religious discrimination
Parker’s failure to timely file her EEOC charge is a sufficient basis to grant summary
judgment in favor of CGI. However, even if timely, summary judgment is due to be granted in
favor of CGI on the merits of Parker’s claims. Parker alleges that CGI discriminated against her on
basis of race and religion by terminating her employment because she requested to be off work on
Sundays. (Doc. 1-1). Parker also alleges that “similarly situated Caucasian service representatives
were allowed to retain their jobs without preference to their race or religious affiliation.” (Doc. 1-1,
p. 6).
CGI argues that Parker was terminated because she failed the background check and not
because of her race or religion. CGI states that Parker and four other customer service
representatives were allowed to start work before their background checks were complete but on the
express condition that they pass the background check to keep their jobs. CGI provided evidence
that of these five, four were terminated for failing their background checks: two were Caucasian and
two were African-American, including Parker. (Doc. 21, p. 15; Champ Declaration, ¶ 10 (Doc. 221). Therefore, CGI argues that Parker cannot make her prima facie case because there are no
similarly situated Caucasian employees that were treated differently. CGI also argues that even
should Parker make a prima facie case, she cannot rebut CGI’s legitimate non-discriminatory
reason to terminate Parker’s employment: Parker failed the background check.
Under Title VII, it is unlawful for an employer to discriminate as to an employee's
“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). Parker, as the plaintiff, “bears
the burden of proving” that CGI discriminated against her on basis of race and religion. Cooper v.
Southern Co., 390 F.3d 695, 723 (11th Cir.2004), overruled on other grounds, Ash v. Tyson Foods,
Inc., 546 U.S. 454, 456–457 (2006); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.
13
Ct. 1089 (1981). Where there is no direct evidence of such discrimination or evidence of a
statistical pattern of discrimination, the burden shifting analysis of Burdine and McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) applies.
Under this framework, Parker must establish a prima facie case of intentional race and
religious discrimination. Cooper, 390 F. 3d at 802; see also e.g., E.E.O.C. v. Joe's Stone Crabs,
Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). In the alternative, Parker may present “circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory intent.” Edmond v.
University of Miami, 441 Fed Appx. 721, 723 (11th Cir. 2011) (citing Smith v. Lockheed-Martin
Corp., 644 F. 3d 1321, 1325 (11th Cir. 2011) (stating that “the McDonnell-Douglas framework is
not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment
motion in an employment discrimination case.”)).
In order to establish a prima facie case of disparate treatment based on race and religion,
Parker must show that “ (1) she belongs to a protected class; (2) she was qualified to do the job; (3)
she was subjected to an adverse employment action; and (4) her employer treated similarly situated
employees outside her class more favorably.” Crawford v. Carroll, 529 F.3d 961, 969 -970 (11th
Cir. 2008).
Parker’s burden “is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094.
Should Parker make her prima facie case, a presumption of unlawful discrimination arises, Burdine,
450 U.S. at 254, 101 S. Ct. at 1094, and the burden shifts back to CGI to “articulate some
legitimate, nondiscriminatory reason for the adverse employment action .... If [CGI] does this, the
burden shifts back to [Parker] to show that [CGI’s] stated reason was a pretext for discrimination.”
Crawford, 529 F.3d at 976 (citations and internal quotation marks omitted).
CGI presents evidence that Parker and four other persons started work as customer service
representatives before their background checks were complete with their continued employment
conditioned on passing the background check. CGI also presents evidence that it did not know their
14
religious beliefs (Doc. 22-1, Champ Decl. ¶10). CGI points out that four of the five were
terminated because they failed to pass their background checks - two Caucasians and two AfricanAmericans including Parker. (Doc. 22-1, Champ Decl. ¶ 10.) Thus, CGI has sufficiently articulated
a legitimate, non-discriminatory reason for terminating Parker.3
Parker did not rebut this evidence because she did not respond to the motion for summary
judgment. CGI also points out that at deposition, Parker admitted that she could not identify any
employee with similar discrepancies in their background check who was not terminated. (Doc. 22-2,
Parker Dep. at 129, 163-164). Therefore, Parker failed to establish her prima facie case. See
Marshall v. Mayor of Savannah, 366 Fed. Appx. 91, 98, 100 (11th Cir. 2010) (“The ultimate burden
lies on Marshall to show a similarity between her conduct and that of male employees who were
treated differently” . . . [w]ithout a valid comparator or other evidence of discrimination, Marshall’s
prima facie case fails.”)
Moreover, Parker has not presented any evidence to rebut as pretext, CGI’s legitimate nondiscriminatory reason for terminating her employment. To rebut as pretext, Parker would have to
show “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 v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per
curiam) (quotation omitted). By failing to respond to the motion for summary judgment, Parker has
not met her burden to overcome CGI’s legitimate, non-discriminatory reason for terminating her
3
CGI cites Boyd v. ChoicePoint, Inc., 2010 WL 5691503 (N.D. Ga. Dec. 14, 2010),
wherein the district court granted the employer’s motion for summary judgment and found that
Boyd’s failing the criminal background check was a legitimate non-discriminatory reason to
terminate his employment, and to Horton v. Nicholson, 435 F. Supp. 2d 429, 435 (D. Hi. 2006),
wherein the district court granted summary judgment in favor of the Secretary of Veterans Affairs
after discharging Horton from probationary position based on his failing the background check
because of misrepresentations relating to his employment history and false answers regarding his
criminal background.
15
employment.
4. Parker’s claim of retaliation
CGI first argues that the EEOC charge was untimely and thus any claim under Title VII
based on retaliation is barred. CGI also argues that Parker failed to exhaust her administrative
remedies because she did not include a retaliation claim or any allegation from which a retaliation
claim may be related or likely to grow out of, in her EEOC charge. Finally, CGI argues that
Parker’s prima facie case of retaliation fails because she did not engage in protected conduct.
Taking the latter first, Title VII’s anti-retaliation provision prohibits CGI from
discriminating against Parker because she “has opposed any practice made an unlawful employment
practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). “In order to establish a prima facie case for retaliation, a claimant must show that: (1) he
engaged in a statutorily protected activity; (2) he suffered a materially adverse employment action;
and (3) there was a causal link between the protected activity and the adverse action.” Cabrera v.
Secretary, Department of Transp., 2012 WL 1537921, 3 (11th Cir. May 3, 2012) (citing Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)). In the context of retaliation, the
adverse employment action or “type of employer conduct considered actionable has been broadened
from that which adversely effects the plaintiff’s conditions of employment or employment status to
that which has a materially adverse effect on the plaintiff, irrespective of whether it is employment
or workplace-related.” Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008) (citing Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)). Also,
and importantly, “[t]o establish a causal connection, a plaintiff must show that the decision-makers
were aware of the protected conduct and that the protected activity and the adverse action were not
wholly unrelated.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000).
16
(quotations and alterations omitted).
CGI argues that Parker cannot make her prima facie case of retaliation because there is no
causal connection between the protected activity and the alleged retaliation. CGI is correct that
Parker admitted she never complained to anyone at CGI about discrimination against her based on
race or religion before she was terminated in February 2010, and she did not file an EEOC charge
until January 2011. (Doc. 21, citing Parker Dep at 128-129, 143, 145). Moreover, the alleged
retaliation of CGI by opposing Parker’s application for unemployment compensation benefits
occurred from February 2010 until June 2010, again before any protected activity.4
In her complaint, Parker also alleges that CGI retaliated against her by refusing or failing to
reinstate her as a customer service representative after she was awarded unemployment
compensation. CGI argues that Parker admitted at deposition that she never reapplied or sought
reinstatement and admitted she was “not aware of any other employees who were offered
reinstatement after their employment was terminated for failing the background check.” (Doc. 21,
Doc. 22-2, Parker Dep. at 163-164). (Parker Dep. at 163) By failing to respond to the motion for
summary judgment, Parker admits the facts alleged by CGI. Therefore, there is no genuine dispute
of material fact that Parker did not apply for reinstatement; hence, CGI could not have retaliated
against her refusing to reinstate. Further, Parker presented no argument that CGI was obligated to
automatically reinstate her but failed to do so. This Court will not make her argument. Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("[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").
4
In the complaint, Parker alleges that CGI denied her unemployment compensation, that
there was a “(12) twelve week investigation”, and that for five months, from February 2010 until
June 2010, she was without any unemployment compensation. (Doc. 1-1, p. 6-7).
17
Parker’s state law claim of breach of quasi-contract
In the complaint, Parker alleges that a quasi-contract was formed by way of the offer of
employment and acceptance. She alleges that a breach occurred when she was terminated because
she had “falsified information” and then not reinstated after providing “additional information to
prove [her] credentials.” (Doc. 1-1, p. 7-9). CGI argues that no employment agreement, i.e., no
contract of any kind, was created by the offer of employment because the offer letter expressly
stated that employment was terminable at the will of either party. CGI argues that if the letter could
be construed as an agreement, it was not breached because the letter explained that employment was
conditioned upon Parker passing the background check.
Generally, under Alabama law, “[n]o contract is formed without an offer, an acceptance,
consideration, and mutual assent to terms essential to the contract.” Steiger v. Huntsville City Bd. of
Educ., 653 So.2d 975, 978 (Ala. 1995) (citation omitted). However, a “quasi contract is not a
contract at all. A quasi contractual obligation is one that is created by the law for reasons of justice,
without any expression of assent and sometimes even against a clear expression of dissent. . . . The
purpose of imposing these contractual obligations is to bring about justice. . . . Moreover, these
obligations are usually based on unjust enrichment or benefit; the defendant may be required to
surrender the benefit he has received or even restore the plaintiff to a former status. . . . As the law
may impose any obligations that justice requires, the only limit in the last analysis to the category of
quasi contracts is that the obligation in question more closely resemble those created by contract
than those created by tort.” Berry v. Druid City Hospital Bd. 333 So.2d 796, 798 -799 (Ala. 1976)
(internal citations and quotations omitted).
Thus, to succeed on a theory of quasi-contract, Parker must establish an “obligation that
justice requires” on the part of CGI to hire or reinstate her. This she cannot do. The allegations in
Count III of her complaint are simply that CGI offered her employment, she accepted, and then CGI
18
terminated her. However, Parker failed to rebut three now undisputed facts: That the offer of
employment was expressly conditioned on passing a background check; that the additional
information she provided served only to increase the discrepancies and inconsistencies in her
background; and that the offer letter expressly stated that either party may terminate the
employment at will. (See supra, at ¶ II. 2,3,4).5 CGI was not under any obligation to employ Parker
after she failed the background check or to reinstate her after she provided information which
created more discrepancies and inconsistencies in her background.
IV.
Conclusion
Upon consideration of the evidence and for the reasons set forth herein, the Court finds that
there is no genuine issue of material fact and CGI is entitled to judgment as a matter of law. See
McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (having resolved all issues of material
fact in favor of the non-movant, the court must “then determine the legal question of whether the
[movant] is entitled to judgment as a matter of law under that version of the facts.”) (citation
omitted). Accordingly, CGI’s motion for summary judgment is GRANTED.
Judgment shall be entered by separate document as provided in Rule 58 of the Federal Rules
of Civil Procedure.
DONE and ORDERED this the 11th day of May, 2012.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
5
For example, the undisputed facts show that after her termination, Parker contacted
Champ and provided additional information about her employment with Marvin’s, Inc. and a traffic
ticket she received for an expired license tag. (Doc. 22-2, p. 64, Ex. 11 to Parker Dep.) Champ
informed Parker that it was the discrepancies in her employment history, not her traffic ticket, that
concerned CGI. (Doc. 22-2, p. 64, Ex. 11 to Parker Dep.)
19
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