Townsend v. Genuine Parts Company

Filing 76

ORDER granting 62 Defendant's Motion for Summary Judgment. The Clerk of the Court is directed to enter JUDGMENT in favor of Defendant Genuine Parts Company and against Plaintiff Rodney Kenneth Townsend. See Order for details. Signed by Judge Marcia Morales Howard on 5/31/2017. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RODNEY KENNETH TOWNSEND,
Plaintiff,
Case No. 3:14-cv-1436-J-34MCR
vs.
GENUINE PARTS COMPANY,
(NAPA AUTO PARTS STORES),
Defendant.
/
ORDER
THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment
and Incorporated Memorandum of Law (Doc. 62; Motion), filed on September 13, 2016. In
the Motion, Defendant Genuine Parts Company requests that the Court enter summary
judgment in its favor pursuant to Rule 56, Federal Rules of Civil Procedure (Rule(s)). See
Motion at 1. Townsend filed a response in opposition to this request on September 26,
2016.

See Memorandum of Law Opposing Defendant’s Motion for Summary

Judgment/Reply & Responses (Doc. 64; Response). Accordingly, this matter is ripe for
review.
I.

Procedural History
Plaintiff Rodney Kenneth Townsend (Townsend) initiated this action, pro se, against

Defendant Genuine Parts Company (NAPA) on November 25, 2014. See Complaint (Doc.
1).

Because Townsend sought to proceed in forma pauperis, the Magistrate Judge

reviewed his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Order (Doc. 4),
entered December 11, 2014. Although the Magistrate Judge found that Townsend’s initial

Complaint was insufficient to satisfy the requirements of § 1915(e)(2)(B), he provided
Townsend with the opportunity to amend the Complaint. See Order (Doc. 4). Townsend’s
first attempt at amendment was still deficient, but after additional amendments, the
Magistrate Judge determined that Townsend’s Third Amended Complaint (Doc. 13;
Amended Complaint), filed on May 28, 2015, adequately stated a claim to warrant granting
him leave to proceed in forma pauperis. See Order (Docs. 6, 12, 15). In the Amended
Complaint, Townsend alleges that NAPA discriminated against him on the basis of his age,
in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, and
section 34-1-2 of the Georgia Code, as well as on the basis of his race, in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. and the Florida Civil
Rights Act (FCRA), Fla. Stat. § 760.01 et seq. See Amended Complaint at 6.
In the instant Motion, NAPA seeks the entry of summary judgment in its favor
pursuant to Rule 56. As required by the Rule, NAPA supports its Motion with evidence in
the form of deposition testimony, sworn declarations, and business records. See Motion,
Exs. 1-4; see also Rule 56(c)(1)(A). In his Response, Townsend argues that many of the
factual assertions set forth in NAPA’s Motion are “controverted,” however, he presents no
evidence to support his arguments. See generally Response. This is significant because
neither the arguments in Townsend’s unsworn Response, nor the allegations in the
Amended Complaint, are evidence for purposes of summary judgment. See Rule 56(c)(1).
Therefore, in determining whether there are genuine disputes of fact for trial, the Court
does not consider Townsend’s unsupported statements or allegations.1 See Holloman v.

1

Of course, the Court still reviews NAPA’s assertions and evidentiary submissions to determine whether the
facts set forth in the Motion are properly supported by the evidence.

2 

Jacksonville Housing Auth., No. 06-10108, 2007 WL 245555, at *2 (11th Cir. 2007)
(“[U]nsworn statements, even from pro se parties, should not be ‘consider[ed] in
determining the propriety of summary judgment.’” (second alteration in original) (quoting
Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980))).2
Notably, Townsend was aware of the evidentiary requirements for responding to a
summary judgment motion prior to filing his Response. Indeed, when NAPA filed the
Motion, the Court promptly entered a notice explaining to Townsend the import of a
summary judgment motion and the proper procedures for responding to one.

See

Summary Judgment Notice (Doc. 63), filed September 14, 2016. Specifically, the Court
advised Townsend, inter alia, that “all material facts asserted by the movant in the
motion(s) will be considered to be admitted by you unless controverted by proper
evidentiary materials (counter-affidavits, depositions, exhibits, etc.) filed by you,” and “you
may not rely solely on the allegations of the issue pleadings (e.g., complaint, answer, etc.)
in opposing these motion(s).” See id. at 2 (emphasis added) (citing Griffith v. Wainwright,
772 F.2d 822, 825 (11th Cir. 1985)). The Court also cautioned Townsend that “if the Court
grants the motion(s) for summary judgment, such would be a final decision of the Court .
. . [and] [a]s a result of such final decision, there would be no trial or other proceedings in
this case . . . .” Id. Despite these admonitions, rather than oppose the Motion with
evidence, Townsend appears to contend that he is entitled to a trial in this case based on
the Court’s prior finding that the Amended Complaint was sufficient to permit Townsend to
proceed in forma pauperis, the issuance of a summons, the designation of this case as a

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted
as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business
on September 30, 1981.

3 

“Track Two” case under the Local Rules, and the entry of a Case Management Scheduling
Order (Doc. 29). See Response at 1-3, 21-23. Townsend is mistaken. The Court’s
determination that Townsend had sufficiently alleged a cause of action such that he could
proceed with this case and subsequent orders on case management procedures has no
bearing on the question of whether there are genuine issues of material fact necessitating
a trial. As Townsend received notice of the requirements of Rule 56, and has had the
opportunity to present every factual and legal argument available to him, the Court finds it
appropriate to take up the Motion at this time.
II.

Standard of Review
Under Rule 56, “[t]he court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Rule 56(a). The record to be considered on a motion for summary
judgment may include “depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).3 An issue is
genuine when the evidence is such that a reasonable jury could return a verdict in favor of
the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)
(quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]
mere scintilla of evidence in support of the non-moving party’s position is insufficient to

3

Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding summary-judgment
motions.” Rule 56 advisory committee’s note 2010 Amendments.
The standard for granting summary judgment remains unchanged. The language of
subdivision (a) continues to require that there be no genuine dispute as to any material fact
and that the movant be entitled to judgment as a matter of law. The amendments will not
affect continuing development of the decisional law construing and applying these phrases.
Id. Thus, case law construing the former Rule 56 standard of review remains viable and is applicable here.

4 

defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington,
381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)).
The party seeking summary judgment bears the initial burden of demonstrating to
the court, by reference to the record, that there are no genuine issues of material fact to be
determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
“When a moving party has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.
1995) (internal citations and quotation marks omitted). Substantive law determines the
materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson,
477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must
view all evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing
Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.
1994)).
III.

Factual Background4
In May of 2010, Townsend, a black male in his forties, began working for NAPA in

Atlanta, Georgia as a delivery driver. See Wright Decl. ¶ 4, Ex. A. On September 16,

4

Despite Townsend’s failure to submit any evidence in support of his Response, to resolve NAPA’s Motion,
the Court still views any properly disputed facts and makes all reasonable inferences in the light most
favorable to Townsend. The Court notes that these facts may differ from those that could ultimately be
proved at a trial. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

5 

2011, NAPA laterally transferred Townsend from its “retail store on Pryor Road in Atlanta,
Georgia, to [its] retail store on Fulton Industrial Boulevard in Atlanta, Georgia.” Id. ¶ 5.
According to Townsend, Pryor Road is a “larger volume store” and the store to which he
was transferred, Fulton Industrial, was a “small store.” See Motion, Ex. 3: Deposition of
Rodney Kenneth Townsend (Doc. 62-3; Townsend Dep.) at 139. In addition, Townsend
maintains that while working for NAPA in Atlanta, Georgia he was “left out of store
meetings,” id. at 137-38, asked to sign a sheet saying he did attend such meetings, and
treated differently than younger employees, id. at 138, 140-41.
Townsend began a scheduled vacation in Florida.

On June 14, 2013,

See Wright Decl. ¶ 7; see also

Townsend Dep. at 107. Townsend did not return to work in Atlanta, Georgia.
While in Florida, Townsend contacted Linda Wright, NAPA’s Human Resources
Manager for Jacksonville, Florida, to inquire about employment opportunities with NAPA in
Jacksonville. See Townsend Dep. at 108; Wright Decl. ¶¶ 7, 9. Townsend told Wright that
he had been a delivery driver for NAPA in Atlanta, Georgia and was interested in obtaining
another full-time delivery driver position with NAPA in Jacksonville, Florida. See Wright
Decl. ¶¶ 9, 10; Response at 7. Townsend explained that he was only interested in full-time
positions because he wanted the medical benefits. See Wright Decl. ¶ 10; Response at 7.
Wright informed Townsend, however, that “the only Delivery Driver positions available in
the Jacksonville operation were part-time positions.” See Wright Decl. ¶ 11; Response at
7. Wright told Townsend that the only full-time position available in Jacksonville was a
position at NAPA’s Ocean Way store. See Wright Decl. ¶ 11. According to Wright, she
advised Townsend that the Ocean Way position was that of a “Stocker/Delivery Driver,”
which would have some delivery driver responsibilities, but “the primary job responsibilities

6 

would be those of a Stocker.” See id. Although Townsend disputes this characterization
of the position, he concedes that NAPA told him that it did not have delivery driver jobs
available, and he would be doing stocker duties in the Ocean Way position. See Response
at 7-8; Townsend Dep. at 111-13 (“Q. So when you accepted the job, what did you believe
the job would entail? A. Well, I was told that I could be hired and keep my benefits as a
delivery driver, full-time delivery driver and that they really didn’t have delivery driver jobs
available. Q: And so that meant you would have to do stocker duties as well; is that-- A.
It’s not ‘as well’ in there. It’s just I will be doing stocker duties.”).
After an interview with Charles Davis, the Ocean Way store manager, Wright and
Davis offered the position to Townsend, he accepted, and began work on June 23, 2013.
See Wright Decl. ¶¶ 14-15. Townsend acknowledges that upon starting his employment
with the Ocean Way store he was shown how to perform the duties of a stocker. See
Townsend Dep. at 112. Notably, although the starting salary for the position at the Ocean
Way store was $8.35 per hour, because Townsend was a former NAPA employee,
“management agreed to compensate Mr. Townsend at $10.00 per hour, the same hourly
rate he had earned working for NAPA in Atlanta, Georgia.” See Wright Decl. ¶ 16;
Townsend Dep. at 113 (affirming that he was compensated at $10.00 per hour). NAPA
viewed this change as a termination from his Georgia employment and a “new hire” in
Florida. See Wright Decl. ¶¶ 18-19.5 Townsend characterizes this move as a voluntary
“transfer” between NAPA stores, and insists that his position in Florida was that of a full-

5
Because Townsend obtained employment with NAPA in Jacksonville, Florida before NAPA had processed
his termination paperwork from the Atlanta, Georgia position, Townsend’s change of stores was labeled a
“transfer” for payroll purposes. See Wright Decl. ¶ 18. “However, this designation was only used for
administrative purposes within the payroll department,” id., and it is undisputed that on June 26, 2013,
Townsend attended new-hire orientation and completed new-hire paperwork for the Ocean Way store
position. See Wright Decl. ¶ 19, Ex. A; Townsend Dep. at 113; Response at 10-11.

7 

time delivery driver. See Townsend Dep. at 108-09; Response at 7-10. Regardless, it is
undisputed that it was Townsend’s choice to move to Florida, see Townsend Dep. at 17,
109, and he accepted the Florida position knowing it required him to work as a stocker, id.
at 113, 132-33.
Soon after he began work at the Ocean Way store, Townsend “submitted paperwork
to NAPA’s Employee Service Center seeking reimbursement for the moving expenses
associated with his personal decision to relocate from Georgia to Florida.” See Wright
Decl. ¶ 20; Response at 11; see also Amended Complaint, Ex. B. NAPA denied this
request.

See Wright Decl. ¶¶ 22-25; Amended Complaint, Ex. B.

Wright spoke to

Townsend and informed him that “he was not eligible for relocation reimbursement
because NAPA did not direct him to move from Georgia to Florida, and because relocation
reimbursement is reserved for executive-level employees and not hourly employees.” See
Wright Decl. ¶ 24. Wright asserts that she has “never seen an hourly employee receive
reimbursement from the Company for moving expenses.” Id.
While working at the Ocean Way store, Townsend alleges that he heard other
employees making disparaging comments based on his race. See Amended Complaint
¶¶ 39-41. During his deposition, Townsend testified that a delivery driver named Keith told
him when he first started at Ocean Way that there were opportunities with NAPA in
Jacksonville. See Townsend Dep. at 121-22. According to Townsend, the allegedly
inappropriate comments occurred later when Keith came back to Townsend while
Townsend was putting up stock and said:
something to the degree, he [Keith] hoped that I didn’t think I was going to
move up the ladder because he said they weren’t looking . . . that I needed
to be looking for another place to work because there were no opportunities,
which means he says something and then he took it back at a later time.
8 

See Townsend Dep. at 121-22. In addition, Townsend testified that on a different occasion
he overheard Keith state “I don’t know why that ‘N word’ is still at the store,” but Townsend
did not know to whom Keith was speaking. Id. at 124-25. Townsend never informed
anyone of this incident. Id. According to Townsend’s deposition testimony, on one other
occasion, while Townsend was putting up stock, he heard “someone” from the front of the
store say “where is that ‘N word,’” and believes the comment was in reference to him as
he was the only black employee in the store. See id. at 125-26. Townsend did not tell
anyone about this incident or otherwise report the matter to NAPA administration. Id. at
127.
Townsend’s employment with NAPA ended on August 2, 2013, when Davis and
Wright made the decision to terminate Townsend for “insubordination and substandard job
performance.” See Motion, Ex. 2: Declaration of Charles Davis (Doc. 62-2; Davis Decl.) ¶
19; Wright Decl. ¶ 26. In his Declaration, Davis states that “Townsend would leave the
Ocean Way store while on the clock during his scheduled shift without permission, and he
would not tell anyone where he was going.” Id. ¶ 10. Davis also describes an incident
where he found Townsend washing Townsend’s personal car in the parking lot behind the
store while on the clock. Id. ¶ 13. According to Davis, he counseled Townsend on multiple
occasions that: he could not conduct personal matters while on the clock, he needed to let
management know if he was going to leave the store during his shift for any reason, and a
failure to improve his behavior could result in termination. Id. ¶¶ 9-14. Davis ultimately
terminated Townsend after discovering Townsend using the computer located in Davis’

9 

office to conduct a search for Davis’ personal information on a website called Intellius. See
id. ¶¶ 15-19, Ex. A.6
IV.

Count I – Age Discrimination in Georgia
In Count I of the Amended Complaint, Townsend alleges that NAPA discriminated

against him on the basis of age when it “involuntarily transferred” him from the Pryor Road
store in Atlanta, Georgia, an allegedly “high volume” store, to the Fulton Industrial store in
Atlanta, Georgia, a purportedly “low sales volume” store. See Amended Complaint ¶¶ 2124. In addition, Townsend maintains that while working at the Fulton Industrial store he
was subjected to “disparate treatment” on the basis of age. Id. ¶ 27. For example, he
alleges that he “was isolated from all store employee meetings and social events.” Id. ¶¶
27-32. Townsend asserts that these actions amounted to age discrimination in violation of
the ADEA and section 31-1-2 of the Georgia Code. Id. at 6. However, regardless of
whether Townsend has any evidence to support these allegations, his age discrimination
claims fail as a matter of law.
As to his Georgia law claim, Townsend is correct that section 31-1-2 does prohibit
businesses from discriminating against employees on the basis of age. See Ga. Code
Ann. § 34-1-2. However, section 31-1-2 is a penal statute which provides that a violation
of its prohibition on age discrimination constitutes a misdemeanor, punishable by a fine.
Id. “Penal statutes in Georgia do not give rise to a private cause of action for the conduct
proscribed.” See Calhoun v. Fed. Nat’l Mortg. Assoc., 823 F.2d 451, 455 (11th Cir. 1987).

6

In his Response, Townsend disputes Davis’ account, insists he only left the store on his ten-minute breaks
or for a one-hour lunch, maintains that Davis never counseled him, and denies conducting a personal
information search on Davis. See Response at 14-18. However, as explained above, Townsend’s unsworn
Response is not evidence in this case, and thus, does not create an issue of fact for purposes of summary
judgment as to the statements made in Davis’ unrebutted Declaration. See infra Part I.

10 

As such, Townsend may not rely on this statute to assert a civil cause of action for age
discrimination against NAPA. Id.; see also Reilly v. Alcan Aluminum Corp., 528 S.E. 2d
238, 240 (Ga. 2000) (“[W]hen the General Assembly enacted Georgia’s age discrimination
statute in 1971, it did not provide a civil remedy, but instead only provided for criminal
misdemeanor penalties.” (footnote omitted)). Having determined that Townsend cannot
recover under section 34-1-2, the Court turns next to Townsend’s other statutory basis for
his age discrimination claim, the ADEA.
Townsend contends that NAPA’s 2011 decision to transfer him to a different store
in Atlanta, Georgia, and the “disparate treatment” at the Fulton Industrial store violated the
ADEA. See Amended Complaint ¶¶ 21-22, 27-31. Prior to filing a lawsuit, “[t]he ADEA
requires that an individual exhaust all available administrative remedies by filing a charge
of unlawful discrimination” with the Equal Employment Opportunity Commission (EEOC).
See Bost v. Fed. Exp. Corp., 372 F.3d 1233, 1238 (11th Cir. 2004); Kelly v. Dun &
Bradstreet, Inc., 557 F. App’x 896, 898 (11th Cir. 2014). A charge of age discrimination
must be filed within the requisite timeframe, and must “at a minimum, ‘be in writing and . .
. name the prospective respondent and . . . generally allege the discriminatory act(s).’”
Bost, 372 F.3d at 1238 (alterations in original) (quoting 29 C.F.R. § 1626.6). Significantly,
a plaintiff’s discrimination claims in any subsequent lawsuit will be “limited by the scope of
the EEOC investigation that can reasonably be expected to grow out of the charge of
discrimination.” Kelly, 557 F. App’x at 899 (citing Gregory v. Ga. Dep’t of Human Res., 355
F.3d 1277, 1280 (11th Cir. 2004)). This means that a plaintiff “may not raise ‘[a]llegations
of new acts of discrimination’ in the judicial proceedings.” Hillemann v. Univ. of Central
Fla., 167 F. App’x 747, 749 (11th Cir. 2006) (quoting Wu v. Thomas, 863 F.2d 1543, 1547

11 

(11th Cir. 1989)); see also Kelly, 557 F. App’x at 899 (“[A]llegations of new acts of
discrimination that are offered as the essential basis for requested judicial review are not
appropriate absent prior EEOC consideration.”). However, because courts are “‘extremely
reluctant to allow procedural technicalities to bar’” discrimination claims, the scope of an
EEOC complaint is not “‘strictly interpreted.’” See Gregory, 355 F.3d at 1280 (quoting
Sanchez v. Std. Brands, Inc., 431 F.2d 455, 460-61, 465 (5th Cir. 1970)); Kelly, 557 F.
App’x at 899. Rather, “[t]he proper inquiry is whether the complaint is like or related to, or
grew out of, the allegations contained in the relevant charge.” Kelly, 557 F. App’x at 899.
Stated another way, “[j]udicial claims are allowed if they ‘amplify, clarify, or more clearly
focus’ the allegations in the EEOC complaint . . . .” Gregory, 355 F.3d at 1279 (quoting
Wu, 863 F.2d at 1547).
Townsend filed his EEOC charge of discrimination against NAPA in August of 2013.
See Amended Complaint, Ex. A (EEOC Charge); Wright Decl. ¶ 27.7 In his EEOC Charge,
Townsend indicates that the discriminatory conduct took place between June 21, 2013,
and August 2, 2013. See EEOC Charge. In recounting the particulars of his claim,
Townsend begins by stating that: “On May 2010, I was hired by [NAPA] as a Delivery
Driver. On June 21, 2013, I was transferred from the Atlanta Georgia District as a Delivery
Driver to Jacksonville, Florida.” See id. Thus, Townsend’s account of the discriminatory
treatment in his EEOC Charge does not include his time working for NAPA in Atlanta,
Georgia. Indeed, the EEOC Charge does not reference the Pryor Road or Fulton Industrial

7

In his Response, Townsend argues that he filed a complaint with the EEOC “on or about June 21, 2013.”
See Response at 19. However, Townsend presents no evidence to support this assertion. According to
Wright, NAPA learned of Townsend’s complaints of age and race discrimination “upon receipt of his Charge
of Discrimination filed with the [EEOC] on or about August 21, 2013.” See Wright Decl. ¶ 27. The only
charge of record is the undated EEOC Charge attached to the Amended Complaint which references
Townsend’s termination on August 2, 2013, and thus could not have been filed prior to that date. See
Amended Complaint, Ex. A.

12 

stores, any previous transfer occurring in Georgia, or any allegedly discriminatory
treatment that occurred at those locations.

Rather, Townsend focuses solely on his

“transfer” to Florida, the change from a driver position to a stock position, NAPA’s refusal
to reimburse him for his travel expenses, and discriminatory events that allegedly occurred
in Florida thereafter.

See id.

Notably, when Townsend responded to the EEOC

investigator’s letter summarizing NAPA’s position, Townsend mentions that he was
“involuntarily” transferred from the Pryor Road store to the Fulton Industrial store, but does
not assert that this transfer was in any way discriminatory or even an adverse action. See
Amended Complaint, Ex. D. And, while Townsend recounts conversations he had with the
store manager at the Fulton Industrial store, he does not allude to any of the discriminatory
treatment which he now alleges took place at that store. Compare id. with Amended
Complaint ¶¶ 27-32.
In light of the foregoing, even broadly construing the statements in the EEOC
Charge, the Court finds that Townsend’s age discrimination claims are not properly
exhausted. The EEOC could not reasonably be expected to conduct an investigation into
undisclosed discriminatory acts in Georgia that occurred at an unmentioned store location,
predated the timeframe set forth in the EEOC Charge, and were unrelated to the events or
people described. See Rodriguez v. Sec’y of the Dep’t of Veterans Affairs, 605 F. App’x
957, 958 (11th Cir. 2015) (“[T]he exhaustion requirement exists in part to ensure that the
EEOC has notice and the first opportunity to investigate and mediate all employment
discrimination claims . . . .”); Stuart v. Jefferson Cnty. Dep’t of Human Res., 152 F. App’x
798, 801 (11th Cir. 2005). As such, Townsend’s claims regarding the Georgia stores
plainly constitute “new acts of discrimination” which he is attempting to raise for the first

13 

time in this lawsuit. As such, Townsend’s age discrimination claims premised on the events
that occurred in Georgia are procedurally barred for failure to exhaust.8 See Giles v.
BellSouth Telecomm’ns, Inc., 542 F. App’x 756, 758-59 (11th Cir. 2013); Lambert v. Ala.
Dep’t of Youth Servs., 150 F. App’x 990, 993-94 (11th Cir. 2005); Chaoudi v. Workforce
Central Fla., No. 6:13-cv-1140-Orl-37DAB, 2014 WL 2155217, at *2 (M.D. Fla. May 22,
2014). Accordingly, NAPA is entitled to summary judgment in its favor on Count I of the
Amended Complaint in its entirety.
V.

Count II – Race Discrimination in Florida
A. Applicable Law9
Title VII provides “that it is unlawful 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.’” Holifield v. Reno,
115 F.3d 1555, 1561 (11th Cir. 1997) (quoting 42 U.S.C. §§ 2000e-2(a)(1)). A plaintiff may

8

With respect to the 2011 transfer within Georgia, the Court notes that regardless of whether Townsend had
included this transfer in his 2013 EEOC Charge, this claim would be procedurally barred. NAPA transferred
Townsend to the Fulton Industrial store in September of 2011. See Wright Decl. ¶ 5; Response at 4. This
purportedly undesirable, involuntary transfer constitutes a discrete act of alleged discrimination. See Meidling
v. Walgreen Co., No. 8:12-cv-2268-T-30TBM, 2014 WL 2700742, at *4 (M.D. Fla. June 13, 2014); Jones v.
Heritage-Crystal Clean, LLC, No. 8:16-cv-623-T-33JSS, 2016 WL 4063396, at *3-4 (M.D. Fla. July 29, 2016).
Thus, under both the Georgia and Florida deadlines for filing, any claim regarding the September 2011
transfer was time-barred by 2013 when Townsend filed his EEOC Charge. See Brooks v. CSX Transp., Inc.,
No. 3:09-cv-379-J-25TEM, 2013 WL 12091685, at *4 (M.D. Fla. Mar. 29, 2013) (“‘[D]iscrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.’”
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002))) aff’d 555 F. App’x 878 (11th Cir.
2014); see also Kelly, 557 F. App’x at 898 (“In Georgia, a charge of discrimination must be filed within 180
days after the alleged unlawful practice.”); Brooks v. CSX Transp., Inc., 555 F. App’x 878, 880 (11th Cir.
2014) (“For a charge to be timely in a deferral state like Florida, it must be filed within 300 days of the last
discriminatory act.”).
9

Townsend asserts parallel race discrimination claims under Title VII and the FCRA. See Amended
Complaint ¶ 46. “Because the FCRA is modeled after Title VII, and claims brought under it are analyzed
under the same framework, the state-law claims do not need separate discussion and their outcome is the
same as the federal ones.” See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010)
(internal citation omitted); Gray v. City of Jacksonville, Fla., 492 F. App’x 1, 3 (11th Cir. 2012).

14 

establish a Title VII discrimination claim through the introduction of direct or circumstantial
evidence or statistical proof of discrimination.10 Lee v. U.S. Steel Corp., 450 F. App’x 834,
839 (11th Cir. 2012) (citing Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010)).

Where, as here, the plaintiff relies on circumstantial evidence of

discrimination,11 the Court applies the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Alvarez, 610 F.3d at 1264. However, a
plaintiff may also present “circumstantial evidence that creates a triable issue concerning
the employer’s discriminatory intent.” Edmond v. Univ. of Miami, 441 F. App’x 721, 723
(11th Cir. 2011) (citing Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011)).
When relying on the McDonnell Douglas framework to support a claim of
discrimination, the plaintiff bears the initial burden of establishing a prima facie case of
discrimination. A plaintiff establishes a prima facie case of discrimination under Title VII

10

Title VII encompasses disparate treatment discrimination claims as well as disparate impact claims.
Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994). Townsend has not alleged
disparate impact discrimination, which involves facially neutral employment practices which have significant
adverse effects on protected groups, the evidence of which usually focuses upon statistical disparities rather
than specific incidents. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807-08 (11th Cir.
2010). Here, Townsend’s race discrimination claims are premised on disparate treatment; he contends that
NAPA took a number of actions against him because of his race. See Reeves, 594 F.3d at 807.
11
A plaintiff may “present direct evidence of discriminatory intent in the form of actions or remarks of the
employer reflecting a discriminatory attitude.” Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539
(11th Cir. 1988), amended on reh’g on different grounds, 848 F.2d 1522 (11th Cir. 1988). “Direct evidence
is that which shows an employer’s discriminatory intent ‘without any inference or presumption.’” Hinson v.
Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000)(citation omitted). However, “only the most
blatant remarks, whose intent could be nothing other than to discriminate” will constitute direct evidence of
discrimination. Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989). Although Townsend testified
during his deposition that on one occasion a co-worker made a negative comment to him that he understood
to be racially motivated, and on two other occasions he overheard a co-worker using a racial slur, he does
not assert that any supervisor or other decision-maker made such statements, and he does not connect
those incidents to any adverse action taken against him. As such, this is not a direct evidence case. See
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks by non-decisionmakers
or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.”);
Singleton v. Auburn Univ. Montgomery, 520 F. App’x 844, 849 (11th Cir. 2013).

15 

by showing: “(1) [he] is a member of the protected class; (2) [he] was subjected to adverse
employment action; (3) [his] employer treated similarly situated [white] employees more
favorably; and (4) [he] was qualified to do the job.” McCann v. Tillman, 526 F.3d 1370,
1373 (11th Cir. 2008) (internal quotations omitted) (fourth alteration in original); see also
Holifield, 115 F.3d at 1562. “To make a comparison of the plaintiff’s treatment to that of
[an employee outside plaintiff’s protected class], the plaintiff must show that he and the
employees are similarly situated in all relevant respects.” Holifield, 115 F.3d at 1562. If a
plaintiff cannot identify a similarly situated comparator who was treated more favorably
than himself, “summary judgment is appropriate where no other evidence of discrimination
is present.” Id.
With respect to the second prong of the prima facie case, “not all conduct by an
employer negatively affecting an employee constitutes adverse employment action.” See
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001). Rather, the
Eleventh Circuit instructs that “to prove adverse employment action in a case under Title
VII’s anti-discrimination clause, an employee must show a serious and material change in
the terms, conditions, or privileges of employment.” Davis, 245 F.3d at 1239; see also
Crawford v. Carroll, 529 F.3d 961, 974 n.14 (11th Cir. 2008) (noting that the broader
standard applicable in retaliation claims has no application to substantive Title VII
discrimination claims).

While a plaintiff is not required to prove “direct economic

consequences in all cases, the asserted impact cannot be speculative and must at least
have a tangible adverse effect on the plaintiff’s employment.”

Id.

“Moreover, the

employee’s subjective view of the significance and adversity of the employer’s action is not
controlling; the employment action must be materially adverse as viewed by a reasonable

16 

person in the circumstances.” Id.; see also Holland v. Gee, 677 F.3d 1047, 1057 (11th Cir.
2012); Miller-Goodwin v. City of Panama City Beach, Fla., 385 F. App’x 966, 970 (11th Cir.
2010). “Otherwise . . . every trivial personnel action that an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrimination suit.” Doe v. DeKalb Cnty.
Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (internal quotations omitted).
If the plaintiff presents a prima facie case, that evidence “creates a presumption that
the employer unlawfully discriminated against the employee,” then the burden of production
shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse
employment action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981);
Alvarez, 610 F.3d at 1264. If the defendant meets this burden of production, the burden
shifts back to the plaintiff to show that the stated reason is a mere pretext for unlawful
discrimination and was not the “true reason for the employment decision.” Burdine, 450
U.S. at 256; Alvarez, 610 F.3d at 1264; Holifield, 115 F.3d at 1565 (“[T]he plaintiff has the
opportunity to demonstrate that the defendant’s articulated reason for the adverse
employment action is a mere pretext for discrimination.” (citing McDonnell Douglas, 411
U.S. at 804)). A plaintiff may satisfy this burden “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.” Burdine, 450 U.S. at
256. “Despite these shifts in the burden of production, the ultimate burden of persuasion
remains on the plaintiff to show that the defendant intentionally discriminated against [him].”
Alvarez, 610 F.3d at 1264.

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B. Discussion
Although difficult to discern, Townsend appears to contend that NAPA took the
following adverse employment actions against him on the basis of race: (1) assigned him
stock duties rather than delivery driver duties, (2) refused to reimburse his moving
expenses when he relocated to Florida, and (3) terminated his employment. See Amended
Complaint at 4-5; see also EEOC Charge; Townsend Dep. at 132-37.12 Notably, Townsend
conceded at his deposition that he has no evidence that any of these incidents were based
on his race. See Townsend Dep. at 137. Townsend’s personal opinion that he was
discriminated against, without more, cannot satisfy his burden of establishing a prima facie
case of discrimination. See Holifield, 115 F.3d at 1564 (“While [plaintiff] has testified that
he felt discriminated against, his opinion, without more, is not enough to establish a prima
facie case of race discrimination.”). Indeed, upon consideration of each of these allegedly

12

The Court notes that Townsend’s EEOC Charge includes the allegation that he “overheard my co-workers
using racial derogatory words to describe me,” and he references these comments in his Amended
Complaint. See EEOC Charge; Amended Complaint at 4-5. In his Deposition, Townsend identifies the “racial
slurs” as one of the ways in which he was discriminated against. See Townsend Dep. at 133. Although not
specifically alleged, to the extent Townsend intends to assert a hostile work environment claim, he fails to
present sufficient evidence to survive the summary judgment stage of these proceedings. Specifically, the
only evidence before the Court as to a purportedly hostile work environment are the isolated incidents
recounted in Townsend’s deposition and described above. See Townsend Dep. at 121-27; infra pp. 8-9.
Those three incidents alone do not rise to the level of “severe or pervasive” harassment which would
constitute a hostile work environment. See Fortson v. Carlson, 618 F. App’x 601, 606-08 (11th Cir. 2015);
Barrow v. Ga. Pac. Corp., 144 F. App’x 54, 56-57 (11th Cir. 2005) (“‘Racial slurs spoken by co-workers ha[ve]
to be so commonplace, overt and denigrating that they create[] an atmosphere charged with racial hostility.’”
(alterations in original) (quoting Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995)).
Moreover, Townsend does not cite to any evidence that NAPA had actual or constructive notice of the
conduct. See Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003) (“When, as in this case, the
alleged harassment is committed by co-workers or customers, a Title VII plaintiff must show that the employer
either knew (actual notice) or should have known (constructive notice) of the harassment and failed to take
immediate and appropriate corrective action.”). It is undisputed that until he filed his EEOC Charge,
Townsend never complained about the comments to anyone, nor did he utilize the procedures outlined in
NAPA’s employee handbook for reporting harassment. See Amended Complaint, Ex. C at 16, 29; Townsend
Dep. at 101-02, 123, 125-27. Given the absence of evidence from which a reasonable juror could find that
Townsend was subjected to a hostile work environment for which NAPA is responsible, the alleged racial
slurs of Townsend’s co-workers do not constitute a viable discrimination claim.

18 

discriminatory acts, the Court finds no evidence to suggest that Townsend was the subject
of racial discrimination.
First, as to his work as a stocker, Townsend argues that he was discriminated
against because he “was placed in a position and asked to do something that didn’t pertain
to the job.” See Townsend Dep. at 132. However, NAPA presents unrebutted evidence
that Townsend voluntarily chose to move to Florida, was offered a position at the Ocean
Way store that entailed stocking duties, and elected to accept that employment. See
Wright Decl. ¶¶ 7-15. Indeed, Townsend concedes that after moving to Florida, he wanted
to continue with a full-time position at NAPA which meant “giving up” his delivery driver
duties and taking on stocker responsibilities. See Townsend Dep. at 133. Thus, regardless
of how Townsend characterizes his move to Florida, he does not dispute that the decision
to move was voluntary, and he accepted the new position knowing it required working as
a stocker. Because Townsend chose to move to Florida and accept this position, the Court
cannot discern how being made to then perform the stocking duties of the job could
constitute an adverse employment action. See Allen v. U.S. Postmaster Gen., 158 F. App’x
240, 243-44 (11th Cir. 2005). Moreover, as it was Townsend’s decision to move to Florida
and accept the position at the Ocean Way store, this voluntary “transfer” was not based on
his race, and thus cannot form the basis of a race discrimination claim. See Doe, 145 F.3d
at 1454 (“Of course, a finding that [plaintiff’s] transfer was purely voluntary would have
been dispositive in the [defendant’s] favor; a transfer cannot be ‘because of a [protected
category]’ if it occurred as the result of an employee’s own request.”); see also Entrekin v.
City of Panama City Fla., 376 F. App’x 987, 995 (11th Cir. 2010) (reasoning that because
a reassignment occurred at the plaintiff’s request, it was not an adverse action).

19 

Townsend next argues that NAPA’s refusal to pay Townsend’s moving expenses,
which he incurred as a result of his personal, voluntary decision to move to Florida, was
due to his race. Townsend fails to establish a prima facie case of race discrimination as to
this decision as well. To establish a prima facie case of race discrimination based on
circumstantial evidence, Townsend must present evidence that NAPA treated similarly
situated employees outside his protected class more favorably. See McCann, 526 F.3d at
1373. Townsend makes no attempt to do so. Specifically, Townsend presents no evidence
that other hourly employees who continued their employment with NAPA, after voluntarily
deciding to move to a different locale, were reimbursed for their moving expenses. Indeed,
Townsend conceded at his deposition that he did not know if there were any white
employees, similarly situated to him, who were reimbursed by NAPA for moving expenses.
See Townsend Dep. at 135-36. Thus, Townsend cannot satisfy his burden on summary
judgment with respect to this purportedly discriminatory action either.
Finally, Townsend contends that his termination was also the result of race
discrimination. However, once again, Townsend fails to meet his prima facie burden.
Specifically, Townsend does not identify any similarly situated comparator or present any
other probative evidence of disparate treatment. See Brooks v. CSX Transp., Inc., 555 F.
App’x 878, 883 (11th Cir. 2014) (“As for her claim under Title VII, [plaintiff] has failed to
establish a prima facie case of race discrimination based on her termination because she
relied on insufficient comparator evidence and presented no other probative evidence of
disparate treatment.”); Oliver v. Nat’l Beef Packing Co., LLC, 294 F. App’x 455, 457-58
(11th Cir. 2008) (“The district court properly found that [plaintiff] did not establish a prima
facie case of race discrimination regarding his termination claim because he did not satisfy

20 

the fourth element of the prima facie case—identification of a proper comparator.”).
However, even if Townsend could establish a prima facie case, he fails to offer any
evidence to rebut NAPA’s non-discriminatory reason for firing him.
According to the Declarations of Wright and Davis, they decided to terminate
Townsend as a result of his poor performance and insubordination. See Wright Decl. ¶ 26;
Davis Decl. ¶ 19. Specifically, Davis asserts that Townsend had engaged in personal
matters while on the clock, including leaving the premises without telling anyone, washing
his car in the store parking lot, and using the computer in Davis’ office. See Davis Decl.
¶¶ 10-18. The only evidence to the contrary is Townsend’s conclusory statement during
his deposition that his termination was discriminatory because “I had not broken policy. I
hadn’t done anything wrong.” See Townsend Dep. at 136. Aside from this general denial,
Townsend presents no evidence to rebut the account in Davis’ Declaration, signed under
penalty of perjury, that Townsend repeatedly conducted personal business while on the
clock during work hours. Notably, while Townsend denies that he was counseled about
this type of behavior, denies that he was conducting a background search on Davis, and
insists that he left the store only during breaks and the lunch hour, he concedes that on at
least one occasion he left the store while on the clock without telling anyone in
management he was leaving, on more than one occasion Davis was looking for Townsend
and could not find him, and once, when Davis was looking for Townsend he found him in
the parking lot behind the Ocean Way store washing his personal car. See Response at
14-18.13 Townsend also does not dispute that on the day he was fired, Davis found

13

Townsend argues that he only left the store while on the clock during a ten-minute break or on his lunch
hour. See Response at 14-15. However, these arguments themselves belie his contention that he did not
violate any company policy. According to the NAPA employee handbook, which Townsend attached to the
Amended Complaint, an employee is required to clock in and out at the “start and finish of [his] lunch breaks,”

21 

Townsend using the computer in Davis’ office. Id. at 17. As such, even considering
Townsend’s unsupported version of the facts, he fails to undermine Davis and Wright’s
stated reasons for terminating him. Significantly, Townsend does not identify any similarly
situated white employee who engaged in similar conduct, i.e., left the store without telling
management, washed his car at work, or used Davis’ office computer, but was not
terminated. Indeed, the record is devoid of any evidence which could indicate that Davis
and Wright’s decision to terminate Townsend’s employment was racially motivated.
Absent any evidence from which a reasonable juror could conclude that NAPA’s stated
reason for terminating Townsend’s employment was a pretext for race discrimination,
Townsend’s discriminatory termination also claim fails. In light of the foregoing, the Court
determines that NAPA is entitled to summary judgment on the entirety of Townsend’s race
discrimination claims as well.14 Accordingly, it is
ORDERED:
1. Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law
(Doc. 62) is GRANTED.

and “any time [he] leave[s] company property except when on company business.” See Amended Complaint,
Ex. C at 8. The handbook further instructs that employees are allowed “small breaks . . . throughout the day
based on customer flow,” but “[e]mployees should not leave the premises during their break periods.” Id. at
9.
14

The Court notes that at the conclusion of its Motion, NAPA requests an award of “its expenses and costs
incurred in defending against this action . . . .” See Motion at 25. Local Rule 4.18, United States District
Court, Middle District of Florida (Local Rule(s)), provides that:
In accordance with Fed. R. Civ. P. 54, all claims for costs or attorney’s fees preserved by
appropriate pleading or pretrial stipulation shall be asserted by separate motion or petition
filed no later than fourteen (14) days following the entry of judgment. The pendency of an
appeal from the judgment shall not postpone the filing of a timely application pursuant to
this rule.
See Local Rule 4.18(a) (emphasis added). Thus, because the Local Rules require NAPA’s request for costs
and expenses to be made by separate motion, the Court will not address its request at this time.

22 

2. The Clerk of the Court is directed to enter JUDGMENT in favor of Defendant
Genuine Parts Company and against Plaintiff Rodney Kenneth Townsend.
3. The Clerk of the Court is further directed to terminate any remaining pending
motions and deadlines as moot and close the file.
DONE AND ORDERED in Jacksonville, Florida, this 31st day of May, 2017.

lc11
Copies to:
Counsel of Record
Pro Se Parties

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