Frazier v. Safelite Group, Inc.

Filing 36

ORDER dismissing Count II of the complaint with prejudice; granting 12 Safelite's motion for summary judgment as to Count I. The Clerk shall enter judgment in favor of Defendant Safelite Group, Inc. and against Plaintiff Jameel Frazier. The Clerk shall close the file. Signed by Judge Timothy J. Corrigan on 6/5/2019. (SEJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMEEL FRAZIER,
Plaintiff,
v.

Case No. 3:17-cv-1366-J-32MCR

SAFELITE GROUP, INC.,
Defendant.

ORDER
This employment discrimination lawsuit is before the Court on Defendant
Safelite Group, Inc.’s 1 motion for summary judgment (Doc. 12), to which
Plaintiff Jameel Frazier responded (Doc. 15). With the Court’s permission, the
parties filed a reply and sur-reply. (Docs. 20, 22). On March 20, 2019, the Court
held a hearing on the motion, the record of which is incorporated herein. (Doc.
31). On March 21, 2019, the Eleventh Circuit issued an opinion in Lewis v. City
of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019) (en banc), which provides
a new test for evaluating comparator evidence. Both parties submitted
supplemental briefing regarding Lewis’s impact on this case. (Docs. 34, 35).

Safelite states that Frazier incorrectly identified it in the Complaint,
and its proper name is Safelite Fulfillment, Inc. (Doc. 12 at 1).
1

I.

BACKGROUND
Safelite is a national provider of auto glass products and services,

including repairing and replacing broken or damaged windshields. (Doc. 12-1
¶ 2). Safelite maintains glass installation policies and procedures to which all
technicians must adhere, including Operating Practice 7.3 (Doc. 12-1 at 13-25)
and the SIKA AGR Technical Training Manual (Doc. 12-1 at 26-31), which are
both incorporated into the Installation Compliance Agreement (“ICA”) (Doc. 121 at 32-38). (Doc. 12-1 ¶ 7). These documents explain that technicians must
properly prepare the glass area and the pinch weld by using required cleaners,
primers, and Aktivators. 2 (Doc. 12-1 ¶ 8). Aktivator is a cleansing and
activating agent which is designed to ensure a strong and durable bond between
the polyurethane adhesive and the windshield. (Doc. 12-1 ¶ 9). A technician’s
failure to use Aktivator during the installation process may result in bond
failure and ultimately jeopardize customer safety. (Doc. 12-1 ¶¶ 10-11). Thus,
Safelite has a zero-tolerance policy for a technician’s failure to use Aktivator or
primer. (Doc. 12-1 ¶ 11).
In April 2016, Safelite hired Frazier, a black male, as a technician trainee
at its Jacksonville location. (Doc. 17-1 at 33:24-34:5). As a trainee, Frazier

The record contains references to “Aktivator,” which appears to be a
branded product, and “activator,” which appears to be a generic name for the
same substance. The Court will use Aktivator to refer to both, as it does not
affect the merits of the case.
2

2

completed a training program and passed a certification exam, thereafter
becoming a technician around August 2016. (Doc. 17-1 at 69:13-24). As a mobile
technician, Frazier received work orders on his phone, obtained supplies from
Safelite’s Jacksonville location, and went to customers to replace their
windshields. (Doc. 17-1 at 99:19-25). Frazier understood that a necessary step
in installing windshields included using the required cleaners, activators, and
primers. (Doc. 17-1 at 78:23-79:2). However, he was unaware that failing to use
Aktivator might result in his termination, despite the language in the manuals
explaining that failure to comply with Safelite’s installation procedures might
result in dismissal. (Doc. 17-1 at 79:3-12).
During his tenure as a Safelite technician, Frazier states that no
supervisor or manager ever made inappropriate comments to him based on
race. (Doc. 17-1 at 134:1-4). However, at some point, a coworker said in Frazier’s
presence, “Well, that’s if you ain’t black. Oh, I’m just playing, Jameel.” (Doc. 171 at 132:14-133:4). Frazier does not know who made the remark, (Doc. 17-1 at
132:25-133:1), and he did not report it to anyone (Doc. 17-1 at 137:15-16).
Following Frazier’s October 4, 2016 windshield installation on a
customer’s vehicle, on November 14, 2016, the customer brought her vehicle
back to Safelite for repair under the Safelite warranty because she heard wind
noises coming from the windshield. (Doc. 17-1 at 109:10-12; Doc. 17-2 at 70:1923; Doc. 17-3 at 43:3-15). Another Safelite technician, Thomas Klepke,
3

performed the warranty work on the vehicle and discovered that Aktivator had
not been used. (Doc. 17-1 at 107:6-18). Not knowing who performed the original
work on the vehicle, Klepke reported the omission to Safelite’s quality manager,
Jacob Grajeda. (Doc. 17-1 at 107:12-14). Upon learning of his mistake, Frazier
did not dispute that he failed to use Aktivator on the vehicle, though he stated
that it was unintentional and apologized for the error. (Doc. 17-1 at 107:13-16,
109:19-20).
Safelite placed Frazier on administrative leave on November 15, 2016,
pending an investigation into the incident. A committee consisting of Frazier’s
local management team, managers and executives at the district and regional
levels, and human resources representatives held a conference call on
November 18, 2016 to review the matter. (Doc. 17-3 at 50-53, 76). They
discussed Frazier’s failure to activate the windshield and decided to terminate
him pursuant to Safelite’s zero-tolerance policy for failure to use Aktivator.
That same day, the local Safelite management team, including operations
manager Randy Kenyon, store manager Andres Briceno, and Grajeda met with
Frazier and terminated his employment. (Doc. 17-1 at 126:20-127:8).
In early 2017, Frazier filed a charge of discrimination with the EEOC and
the Florida Commission on Human Relations (“FCHR”). (Doc. 20-1 at 64-67).
On September 29, 2017, Frazier filed a complaint against Safelite in the Circuit
Court of the Fourth Judicial Circuit in and For Duval County, Florida. (Doc. 2).
4

On December 7, 2017, Safelite removed the case, invoking this Court’s diversity
jurisdiction. (Doc. 1). The complaint contains two counts brought under the
Florida Civil Rights Act of 1992, Fla. Stat. § 760.10 et seq. (“FCRA”): (1) race
discrimination (Count I); and (2) color discrimination (Count II).3 (Doc. 2).
II.

LEGAL FRAMEWORK
The FCRA protects employees from racial discrimination in the

workplace, providing that “[i]t is an unlawful employment practice for an
employer to discharge or to fail or refuse to hire any individual, or otherwise to
discriminate against any individual . . . because of such individual’s race . . . .”
Fla. Stat. § 760.10(1)(a). A plaintiff can establish a prima facie case for
discrimination either by direct evidence, which requires actual proof that the
employer acted with a discriminatory motive when making the employment
decision in question, Scholz v. RDV Sports, Inc., 710 So. 2d 618, 624 (Fla. Dist.
Ct. App. 1998), or by circumstantial evidence, which typically requires a
plaintiff to satisfy the four-prong test established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).4 Florida courts follow the framework set forth in

Frazier stipulates that his color discrimination allegations are the same
as his race discrimination allegations and that he is only pursuing a race
discrimination claim under the FCRA. (Doc. 17-1 at 197:1-6). Thus, Count II is
due to be dismissed.
3

4

Frazier’s claim is based solely on circumstantial evidence. (Doc. 15 at 8-

21).
5

McDonnell Douglas for establishing a discrimination claim based on disparate
treatment in the workplace through circumstantial evidence. See St. Louis v.
Fla. Int’l Univ., 60 So. 3d 455, 458 (Fla. Dist. Ct. App. 2011); see also Pritchard
v. Shands Jacksonville Med. Ctr., Inc., No. 3:04-CV-1229-J-32HTS, 2005 WL
2077310, at *2 (M.D. Fla. Aug. 26, 2005) (“Florida courts have held that
decisions construing Title VII are applicable when considering claims under the
FCRA since the FCRA was patterned after Title VII.”).
To establish a prima facie case of discrimination based on circumstantial
evidence, a plaintiff must show that he: (1) belongs to a protected class; (2) was
qualified to do the job; (3) was subjected to an adverse employment action; and
(4) the employer treated similarly situated employees outside the class more
favorably. McDonnell Douglas, 411 U.S. at 802. After a plaintiff has shown a
prima facie case of discrimination and, thereby, has raised the presumption of
discrimination, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions. See Rojas v. Florida, 285 F.3d 1339,
1342 (11th Cir. 2002); Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir. 1997). The employer “need not persuade the court that it was actually
motivated by the proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981); Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.
2000). “If the employer successfully articulates such a reason, then the burden
shifts back to the plaintiff to show that the proffered reason is really pretext for
6

unlawful discrimination.” Corning v. LodgeNet Interactive Corp., 896 F. Supp.
2d 1138, 1144 (M.D. Fla. 2012) (citation omitted).
III.

ANALYSIS
A.

Prima Facie Case

Safelite argues that Frazier cannot establish a prima facie case because
he has failed to satisfy the fourth element of the McDonnell Douglas test.5 (Doc.
12 at 13-18). Thus, the issue before the Court is whether Frazier has identified
a comparator of another race that was treated more favorably.
“When comparing the plaintiff’s treatment to a non-protected employee,
the plaintiff and the employee he identifies as a comparator must be ‘similarly
situated in all material respects.’” McQueen v. Ala. Dep’t of Transp., No. 1713405, 2019 WL 1773270, at *3 (11th Cir. Apr. 23, 2019) (quoting Lewis, 918
F.3d at 1238-39). Ordinarily, similarly situated comparators “will have engaged
in the same basic conduct (or misconduct) as the plaintiff;” “will have been
subject to the same employment policy, guideline, or rule as the plaintiff;” “will
ordinarily (although not invariably) have been under the jurisdiction of the
same supervisor as the plaintiff;” and “will share the plaintiff’s employment or
disciplinary history.”6 Lewis, 918 F.3d at 1227-28. Frazier and his comparators

Because the first three elements of the McDonnell Douglas test are not
in dispute, the Court will address them no further.
5

Frazier states that “although it is not clear if the comparators ‘share the
plaintiff’s employment or disciplinary history,’ it is clear that Plaintiff did not
6

7

must be “sufficiently similar, in an objective sense, that they ‘cannot reasonably
be distinguished.’” Id. at 1228 (quoting Young v. United Parcel Serv., Inc., 135
S.Ct. 1338, 1355 (2015)). “An employer is well within its rights to accord
different treatment to employees who are differently situated in ‘material
respects’—e.g., who engaged in different conduct, who were subject to different
policies, or who have different work histories.” Id.
Safelite states that Frazier was terminated because he failed to use
Aktivator when installing a customer’s windshield. Frazier argues that there
are three white technicians who committed comparable acts but were not fired.
(Doc. 15 at 5). The Court first addresses Frazier’s most similar proffered
comparator: Kirk Pruett, a technician who allegedly failed to use Aktivator
during a windshield installation. (Doc. 17-1 at 163:12-164:2). Frazier testified
that he was working with Pruett on a vehicle in a corporate parking lot, and
when Frazier reached for the Aktivator, Pruett said, “I don’t activate.” (Doc. 171 164:1-7). Other than that, Frazier could not recall many specific details of the
occurrence. Despite Frazier’s allegations, Pruett testified that there has never
been a time that he did not use Aktivator (Doc. 12-6 at 5:18-23), and neither
have any disciplinary history, thus it would be impossible for any comparator
to have less disciplinary history. Moreover, previous employment history would
not be material here, where the relevant issue is termination for violation of a
rule (Operating Practices [sic] 7.3) as opposed to a comparison of comparators’
qualifications.” (Doc. 35 at 3). As Frazier has not pointed to any evidence for the
Court to evaluate on this point, the Court will not consider it further.
8

Grajeda nor Kenyon recalled Pruett failing to ever use Aktivator on a
customer’s vehicle (Doc. 17-2 at 74:12-14; Doc. 17-3 at 41:24-42:6).
Notably, Frazier testified that he did not report Pruett’s failure to use
Aktivator to anyone either at the time of the incident (Doc. 17-1 at 174:9-11), or
when he was terminated for the same conduct (Doc. 17-1 at 178:20-180:24). He
further testified that he was unaware if any manager was ever notified of the
incident. (Doc. 17-1 at 202:21-25). For these reasons, as a matter of law, Pruett
is not a valid comparator, as the Eleventh Circuit has determined that
“proffered comparators’ actions are only relevant if it is shown that the decision
maker knew of the prior similar acts and did not discipline the rule violators.”
Summers v. City of Dothan, 444 F. App’x 346, 348 (11th Cir. 2011) (citing Jones
v. Gerwens, 874 F.2d 1534, 1542 (11th Cir. 1989)). “Knowledge of a prior act
cannot be imputed on a decision maker, because ‘[d]iscrimination is about
actual knowledge, and real intent, not constructive knowledge and assumed
intent.’” Id. (quoting Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262 (11th
Cir. 2001)). As Frazier has failed to demonstrate that any Safelite decision
maker was aware of Pruett’s alleged failure to use Aktivator, Pruett is not a
relevant comparator. See Embry v. Callahan Eye Found. Hosp., 147 F. App’x
819, 829 (11th Cir. 2005) (“Where employees have engaged in similar conduct,
but the supervisor is not aware of one employee’s conduct, this conduct may not
be considered in determining whether the employees are ‘similarly situated.’”).
9

Frazier also identifies as comparators three Safelite individuals who he
states failed to use the proper tools for windshield installations. He names Tim
O’Quinn and Steven Salts, who allegedly used a cold knife during installations
instead of a Safelite proprietary tool called EZI-wire, but were not terminated
for that conduct. 7 (Doc. 15 at 17-9). He also proffers Pruett again, but for
different conduct: hand-setting a windshield. (Doc. 15 at 18). Frazier attempts
to equate his own conduct with that of O’Quinn, Salts, and Pruett by describing
them as “violations of safety-related provisions of Operating Practice 7.3.” (Doc.
15 at 5, 17). However, his argument is unavailing; simply because the conduct
falls under the same heading in the Safelite handbook or involves safety does
not make it sufficiently similar to satisfy Lewis, which instructs that similarly
situated comparators will have engaged in the same basic conduct as the
plaintiff. Here, the comparators’ conduct is fundamentally different than
Frazier’s: use of tools and methods that Frazier believed to be unsanctioned by
Safelite is not similar in “all material respects” to Frazier’s failure to use
Aktivator, a critical bonding agent that helps ensure the windshield remains in
place following installation.

Frazier testified that a cold knife is a tool that helps a technician “speed
up the process.” (Doc. 17-1 at 143:2-4). Presumably, the process he refers to is
windshield installation.
7

10

Indeed, courts in the Eleventh Circuit routinely find that where a
comparator’s conduct or violation is “less serious,” he is not similarly situated.
See Ganpath v. Advance Stores Co., No. 10-60036-CIV, 2011 WL 6069336, at *9
(S.D. Fla. Dec. 6, 2011); Miller-Goodwin v. City of Panama City Beach, Fla., No.
5:08-CV-228/RS/EMT, 2009 WL 10697303, at *5 (N.D. Fla. Apr. 20, 2009)
(“Employees who commit more or less serious violations are not similarly
situated comparators.”), aff’d, 385 F. App’x 966 (11th Cir. 2010). Even the
dissent in Lewis recognizes that a proper comparator must have been involved
in “only acts of ‘comparable seriousness’—that is, behavior that, when
considered by the employer, would necessarily trigger the same employment
decision” by the employer. Lewis, 918 F.3d at 1246 (Rosenbaum, J., dissenting).
Here, Frazier uses the concept of “safety” as a red herring to make using a cold
knife or hand-setting a windshield seem more comparable to his failure to use
Aktivator. (Doc. 15 at 18). However, the undisputed record proves otherwise.
Safelite requires the use of Aktivator because failure to do so jeopardizes
the customer’s safety. (Doc. 17-2 at 25:6-12). By contrast, Safelite discourages
use of the cold knife primarily because it is a branding issue—Safelite wants to
distinguish itself from other auto glass companies by touting that it uses the
EZI-wire, which causes less damage to the pinch weld. (Doc. 17-3 at 40-41). In
addition, the EZI-wire is safer for installers, resulting in fewer shoulder injuries
for technicians. (Doc. 17-3 at 41:12-15). As such, Grajeda and Kenyon testified
11

that although Safelite opposes the use of a cold knife, the company has not
banned it. (Doc. 17-2 at 73:10-17; Doc. 17-3 at 39:3-41:15).
Similarly, the record reflects that hand-setting windshields is not
prohibited and even may be required in certain situations. (Doc. 17-1 at 152:920; Doc. 17-2 at 59:2-24). Grajeda testified that while a technician’s use of handsetting, rather than using Tru Seal,8 presents an opportunity for coaching and
correction because this technique may disturb the Aktivator, it is not part of
Safelite’s zero-tolerance policy. 9 (Doc. 17-2 at 56-58). Only failure to use
Aktivator or primer falls under the zero-tolerance policy, as it is a much more
serious offense than use of a cold knife or hand-setting a windshield. (Doc. 17-2
at 25:20-26:7). Frazier has set forth no evidence that O’Quinn, Salts, or Pruett’s
conduct was as serious as his in that it jeopardized customer safety, Safelite’s
chief concern when a technician fails to use Aktivator. (Doc. 17-2 at 25:6-12).
On this record, Frazier has failed to meet his burden of demonstrating
that the conduct of O’Quinn, Salts, or Pruett was similar in all material respects
to his own. By offering these individuals as comparators, Frazier asks the Court

Grajeda testified that Tru Seal is a device that is applied to the driver’s
side door glass, and it has an arm attached to the windshield. When the two
arms are connected, Tru Seal swings the glass around and helps the technician
set it. (Doc. 17-2 at 55-56).
8

According to Grajeda, contamination of the Aktivator may result in
leaks but will not result in complete bond failure, as is the case with a failure
to use Aktivator at all. (Doc. 17-2 at 57-58).
9

12

to second-guess Safelite’s disciplinary decisions by comparing apples with
oranges, a practice impermissible in the Eleventh Circuit. See Smalley v.
Holder, No. 09-21253-CIV, 2011 WL 649355, at *7 (S.D. Fla. Feb. 22, 2011)
(granting summary judgment where plaintiff failed to establish a prima facie
case of discrimination because he failed to offer proper comparators).
Accordingly, Frazier cannot demonstrate that he was treated less favorably
than a similarly-situated individual outside his race, and thus, he fails to
establish a prima facie case of race discrimination.
B.

Circumstantial Evidence of Discrimination

Although Frazier’s case fails under the McDonnell Douglas framework,
he argues that he can still survive summary judgment if he provides “a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Smith v. Lockheed–Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (citations omitted); Chapter 7 Tr. v.
Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012) (“The McDonnell
Douglas framework is not, however, the only way to use circumstantial evidence
to survive a motion for summary judgment, and a ‘plaintiff's failure to produce
a comparator does not necessarily doom [her] case.’”) (citation omitted); (Doc.
15 at 10-20).
Safelite argues that no Florida court has adopted the “convincing mosaic”
standard under the FCRA, and therefore the Court should decline to apply it
13

here. (Doc. 20 at 9) (citing Johnson v. Great Expressions Dental Ctrs. of Fla.,
P.A., 132 So. 3d 1174, 1178 (Fla. Dist. Ct. App. 2014) (noting that “no Florida
court has adopted or even mentioned the ‘convincing mosaic’ standard”)). Other
federal courts in Florida have encountered precisely this situation, and—like
this Court—have been “unable to locate . . . any case in which a Florida court
has adopted a ‘convincing mosaic’ standard under the FCRA.” Tulloch v.
Regions Bank, No. 9:17-CV-81024, 2018 WL 4003288, at *4 (S.D. Fla. Aug. 17,
2018).10 Similarly, Frazier has not identified any cases which fit this bill. As
other courts have held, “for this reason,” Frazier’s racial discrimination claim
fails as a matter of law.11 Id.
Even if the Court were to consider whether Frazier has presented
evidence that shows a “convincing mosaic” of racial discrimination, his evidence
is insufficient to create a genuine issue of material fact because he has not put
forth proof that is “comparably powerful” to evidence that the plaintiff was
treated less favorably than a similarly situated offender. Bell v. Crowne Mgmt.,
LLC, 844 F. Supp. 2d 1222, 1234 (S.D. Ala. 2012); see Holland v. Gee, 677 F.3d

The Tulloch court considered FMLA claims pursuant to its federal
question jurisdiction and FCRA claims under its supplemental jurisdiction.
10

However, Florida courts follow Title VII case law in evaluating FCRA
race discrimination claims, and the Eleventh Circuit allows for analysis of
convincing mosaic arguments. Therefore, the Court will alternatively address
Frazier’s claims under this framework.
11

14

1047, 1063 (11th Cir. 2012) (convincing mosaic found where the fired employee
was treated differently after she informed her employer of her pregnancy, her
employer even admitted that the employee was treated differently because of
her pregnancy, and the credibility of the ultimate decision-maker was heavily
challenged at trial even far beyond the evidence rebutting his proffered reasons
for firing the employee).
Here, Frazier identifies myriad reasons for which the Court should find
circumstantial evidence of discrimination, including: Safelite fails to follow its
progressive discipline policy; the zero-tolerance policy is unwritten and
inconsistently enforced or not enforced; Safelite engages in suspect business
practices; Frazier had excellent performance evaluations; all examples of
similarly situated employees outside the protected class who were fired for
failing to activate were terminated after Frazier and after he raised
discrimination concerns; and similarly situated employees were treated
differently. (Doc. 15). Frazier also argues that he was subjected to racially
offensive remarks in the work place. (Doc. 15 at 8, 20). For the following reasons,
his contentions are unavailing.
Without citing to the record, Frazier argues that Safelite engages in
“disparate application” of its progressive discipline policy because it metes out
different forms of punishment for violations of Operating Practice 7.3. (Doc. 15
at 17). He makes variations of the same argument regarding Safelite’s allegedly
15

inconsistent enforcement of the zero-tolerance policy and suspect business
practices.
Safelite has a progressive discipline policy that, according to Grajeda,
begins with a verbal coaching session, first written warnings, second written
warnings, final written warnings, and finally, termination. (Doc. 17-2 at 30:1319). Frazier argues that Grajeda’s statements that he has observed multiple
employees violate practices listed in Operating Practice 7.3 who were not
terminated constitute circumstantial evidence of discrimination. However, in
characterizing Safelite’s disciplinary decisions as “suspect,” Frazier ignores the
wide variety of practices listed—from failure to convey drive time information
to customers to failure to activate or prime—and the disparate severity of
potential infractions.
Moreover, where a company does not follow a progressive discipline policy
in every case, its failure to conform to the policy does not establish pretext. See
Ritchie v. Indus. Steel, Inc., 426 F. App’x 867, 874 (11th Cir. 2011); see also
Martin v. Estero Fire Rescue, No. 2:13-CV-393-FTM-29DN, 2014 WL 3400974,
at *10 (M.D. Fla. July 11, 2014) (where employer had discretion to terminate
employees for any failed drug test, the alleged failure to follow the progressive
discipline policy cannot show pretext); Vertrees v. Am. Vulkan Corp., No. 8:10CV-2164-T-24, 2012 WL 95306, at *8 (M.D. Fla. Jan. 12, 2012) (“Since the
disciplinary policy afforded discretion as to whether the steps could be skipped,
16

the failure to adhere to the steps is not evidence of pretext.”). Here, Grajeda
testified that “Safelite has the ability to fluctuate that [the progressive
discipline policy] at any time depending on the infraction.” (Doc. 17-2 at 30:1323). Moreover, the record reflects that Safelite’s ICA provides for the possibility
of immediate dismissal for failure to comply with its installation methods or
tool usage policy (Doc. 12-1 at 34, 36), and that Safelite has terminated
numerous employees of various races for violating the ICA, including failure to
prime or activate (Doc. 12-1 ¶ 13). Thus, this argument is unavailing.
Frazier’s arguments regarding enforcement of the zero-tolerance policy
are similarly unpersuasive. Although the zero-tolerance policy is not in writing,
the ICA provides that failure to adhere to the approved installation methods or
tool usage policy may result in immediate dismissal. (Doc. 12-1 at 36). Frazier
knew Safelite’s procedures required him to use Aktivator, and he admittedly
forgot to comply. (Doc. 17-1 at 78:23-79:2, 83:2-24). Moreover, Safelite has
submitted uncontroverted evidence that it fired similarly situated employees
outside the protected class for failure to activate or prime windshields both
before and after Frazier brought allegations of race discrimination against it.
(Doc. 12-1 ¶ 13). Kenyon testified that every technician who fails to apply
activator is automatically terminated. (Doc. 17-3 at 61:16-62:4). Accordingly,
Safelite convened a committee to confirm that Frazier had failed to activate a
windshield and take the appropriate disciplinary steps. (Doc. 17-3 at 50:1517

51:12, 53:1-5). It does not demonstrate, as Frazier asserts, that termination was
discretionary. (Doc. 15 at 16).
In addition to Safelite’s allegedly inconsistent disciplinary procedures,
Frazier states that he “was subjected to racially offensive remarks in the work
place.” 12 (Doc. 15 at 8, 20). Specifically, Frazier testified that at some time
during his employment with Safelite, he heard a co-worker, whose name he does
not remember, say “Well, that’s if you ain’t black. Oh, I’m just playing, Jameel.”
(Doc. 17-1 at 132:25-133:4). He could not specifically recall whether quality
manager Pat Midcap was present when the comment was made, and he did not
report the comment to anyone. (Doc. 17-1 at 136:5-16, 137:15-16). Further, he
could not recall any other race-related comments by colleagues nor managers,
stating that he “never really felt like [he] was uncomfortable in [his] own skin
until [he] . . . lost [his] job.” (Doc. 17-1 at 133:10-17, 134:1-4).
Under Eleventh Circuit precedent, this single, isolated remark is “too
weak to raise a genuine fact issue.” Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1268 (11th Cir. 2010) (single stray remark “Cubans are dumb,”
which was not made by one of the ultimate decision makers, was too weak to
raise a genuine fact issue); Ritchie, 426 F. App’x at 873 (“stray remarks that are
‘isolated and unrelated to the challenged employment decision’ are insufficient
Although Frazier states he was subjected to racially offensive
remarks—plural—he only describes one remark in his deposition testimony.
12

18

to establish pretext”) (citation omitted). Frazier has not shown that the remark,
which was not alleged to have been made by or reported to a decision maker,
was related temporally or substantively to his termination. As such, the stray
remark is insufficient to create a genuine issue of material fact.
Finally, the Court will briefly address Frazier’s remaining arguments.
Frazier states that all similarly situated employees outside the protected class
who were fired for failing to activate were terminated after Frazier was fired
and after he raised discrimination concerns. With this argument, Frazier
implies that after firing him and then becoming aware of his charges of racial
discrimination, Safelite fired numerous employees of all races to make it seem
like his discharge was pursuant to a zero-tolerance policy. (Doc. 15 at 17; Doc.
22 at 5). However, while Frazier was terminated in November 2016, he did not
raise allegations of race discrimination until he filed a Charge of Discrimination
with the EEOC and the FCHR on February 14, 2017.13 (Doc. 20 at 6; Doc. 17-1
at 139). The record reflects that similarly situated employees outside the
protected class were terminated under the zero-tolerance policy for failure to

The parties cite different dates for the filing of the Charge of
Discrimination with the EEOC and the FCHR. Safelite states the charge was
filed on February 14, 2017, but that is the date Frazier signed the document.
(Doc. 20-1 at 64-67). In his complaint, Frazier states that he filed the charge on
March 3, 2017. (Doc. 2 ¶ 7). The charge itself has a date received stamp of March
6, 2017. For the purposes of deciding this motion, the Court will use the earliest
date, February 14, 2017, which is most favorable to the non-moving party.
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activate or prime before February 14, 2017, including Edwin Reichardt
(December 15, 2016) and Jereme Price (January 26, 2017), both Caucasians,
and Angel Ortiz (December 16, 2016), 14 who is Hispanic or Latino, among
others. (Doc. 12-1 at 3-4; Doc. 17-2 at 26:8-12). Thus, while it is true that Safelite
has not provided evidence that it terminated any technicians for failure to
activate before Frazier was terminated, it fired several others after his
termination and before he filed charges of discrimination. Moreover, given
Frazier’s failure to present a prima facie case, it is not Safelite’s burden to show
that it fired technicians for the same conduct before it fired Frazier; rather, it
is Frazier’s burden to show there is sufficient circumstantial evidence to survive
summary judgment. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1320 (11th Cir. 2012) (the fundamental question then remains whether the
plaintiff has presented circumstantial evidence sufficient to raise a reasonable
inference of intentional discrimination). Given the lack of evidence supporting
the argument that Frazier’s termination was based on his race, the Court finds
this speculative argument insufficient to create a genuine issue of material fact.
Next, Frazier cites no evidence of “excellent performance evaluations,”
and therefore this argument does not support an inference of discrimination.

At the hearing, Safelite could not cite testimony confirming that Ortiz
was terminated for failure to activate. However, Grajeda testified at his
deposition that Ortiz was fired for such misconduct. (Doc. 17-2 at 26:8-12).
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(Doc. 15 at 14). Regardless, Safelite terminated Frazier for failure to follow its
policy of using Aktivator; he could have had positive performance reviews, but
his failure to use Aktivator was subject to the zero-tolerance policy, rendering
his past performance irrelevant. See Armor v. Fed. Express Corp., No. 1:12-CV2719-TWT-JSA, 2014 U.S. Dist. LEXIS 94429, at *33 (N.D. Ga. June 9, 2014)
(plaintiff’s consistently positive performance reviews did not show pretext
because he was terminated for perceived violations of the company’s acceptable
conduct policy and leadership failure, neither of which were contradicted by a
history of generally positive reviews). Further, for the reasons explained supra,
Part III.A., Frazier’s arguments concerning his alleged comparators are
unavailing.
Even taking all of Frazier’s arguments together, the Court sees no
evidence of a “convincing mosaic” of racial discrimination in this record. Safelite
technicians of various races were terminated for failure to activate windshields
in Florida before Frazier filed charges of racial discrimination. Frazier’s
termination was no different. Thus, he has failed to raise a genuine issue of
material fact, and Safelite is entitled to summary judgment.
Accordingly, it is hereby
ORDERED:

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1.

Count II of the Complaint (FCRA color discrimination) (Doc. 1 ¶¶

34-39), which Frazier stipulates is the same as Count I (FCRA race
discrimination), is DISMISSED with prejudice.
2.

Defendant Safelite Group, Inc.’s motion for summary judgment as

to Count I (Doc. 12) is GRANTED.
3.

The Clerk shall enter judgment in favor of Defendant Safelite

Group, Inc. and against Plaintiff Jameel Frazier.
4.

The Clerk shall close the file.

DONE AND ORDERED in Jacksonville, Florida the 5th day of June,
2019.

TIMOTHY J. CORRIGAN
United States District Judge
sej
Copies:
Counsel of record

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