Marshall et al v. Total System Services Inc

Filing 134

ORDER granting in part and denying in part 54 Motion for Summary Judgment; granting 88 Motion to Strike. Ordered by Judge Clay D. Land on 06/30/2011. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
GINGER HOOPER and
LARRY MARSHALL,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:08-CV-159 (CDL)
*

TOTAL SYSTEM SERVICES, INC.,
*
Defendant.
*
O R D E R
Plaintiffs
employees

of

Ginger

Hooper

Defendant

Total

and

Larry

System

Marshall

Services,

are

Inc.

former

(“TSYS”).

Hooper claims that TSYS discriminated against her because of her
gender.

Specifically, she maintains that she was paid less than

similarly situated male employees, that she was fired because of
her

gender,

and

that

TSYS

retaliated

against

complained about gender discrimination.
TSYS

discriminated

against

him

her

when

she

Marshall contends that

because

of

his

race.

Specifically, he maintains that he was paid less than similarly
situated

white

employees,

that

he

was

denied

promotional

opportunities because of his race, and that he was terminated
due

to

his

unlawful
which

race

and

discrimination.

Plaintiffs

argue

in

retaliation
In

addition

supports

for
to

their

complaining
comparator

disparate

about

evidence
treatment

claims, Plaintiffs also rely on the expert testimony of Michael

Daniels, Ph.D. who opines that a statistical analysis of TSYS
employment data supports Plaintiffs‟ disparate treatment claims.
TSYS
Plaintiffs

denies

Plaintiffs‟
failed

have

claims.
identify

to

TSYS

argues

similarly

that

situated

comparators to support their disparate treatment claims, that no
evidence exists that Plaintiffs were paid less due to their race
or gender, and that the undisputed evidence establishes that it
terminated Plaintiffs for legitimate non-discriminatory reasons.
TSYS also seeks to exclude Daniels‟s testimony because it is not
probative of any of the issues in the case.
For the reasons set forth below, TSYS‟s Motion to Strike
the Testimony of Daniels (ECF No. 88) is granted, and TSYS‟s
Motion for Summary Judgment (ECF No. 54) is granted in part and
denied

in

part.

The

Court

denies

summary

judgment

as

to

Hooper‟s Equal Pay Act and Title VII wage discrimination claims
but grants summary judgment as to all of Hooper‟s other claims.
The

Court

denies

summary

judgment

as

to

Marshall‟s

discriminatory discharge claims but grants summary judgment as
to all of Marshall‟s other claims.
MOTION TO STRIKE
Plaintiffs make a sweeping allegation that women and black
employees in the TSYS Output Services Group were discriminated
against based on their race and gender.

The Output Services

Group

Services,

consisted

of

three

divisions—Card

2

Statement

Services, and Specialty Services—and was managed by Plaintiffs‟
ultimate boss, Group Executive Rick St. John during the relevant
time

period.

Plaintiffs

rely

on

the

testimony

of

Michael

Daniels, Ph.D. to support their contention that a statistical
analysis
Output

of

TSYS‟s

Services,

employment

women

and

data

black

establishes

employees

that,

received

within
smaller

percentage salary increases than white males and that black male
employees

were

terminated

at

a

higher

rate

than

white

male

employees. TSYS contends that Daniels‟s opinion is not probative
of any issues in the case and asks the Court to strike his
testimony.
The Court finds that Daniels is qualified to perform the
statistical analysis that he performed and that

some of

precise opinions are reliably supported by his analysis.

his
The

Court also finds, however, that his opinions and analysis do not
support the position advanced by Plaintiffs.
is

not

probative

or

reliable

on

the

issue

Daniels‟s analysis
of

whether

TSYS

engaged in disparate treatment of black and female employees
based upon their race and gender.

Quite simply, his analysis

failed to take into consideration the essential factors used by
TSYS

in

its

employment

policies

advancement, and termination.
not

reliably

support

the

to

determine

compensation,

Therefore, Daniels‟s opinions do
allegations

proffer them.

3

for

which

Plaintiffs

It is undisputed that Daniels assumed that pay increases
should have been roughly the same percentage for all employees,
regardless of the employee‟s division, job responsibilities, or
any other factor.
that

TSYS

The TSYS Compensation Guide, however, states

considers

the

following

factors

in

making

salary

adjustments: performance, job responsibilities, salary history,
salary budget, and measures specific to the division or job
function.

Def.‟s Ex. D-1 to Daubert Hr‟g, TSYS Compensation

Guide 19, ECF No. 114 [hereinafter TSYS Comp. Guide]; accord
Pls.‟ Ex. P-1 to Daubert Hr‟g, TSYS 2008 Team Member Guide 24 §
2.7, ECF No. 113 [hereinafter 2008 Team Member Guide] (stating
that TSYS‟s compensation program measures individual performance
and

recognizes

“that

difficulty,

scope,

“individual

team

performance”).

and

jobs

impact

members

report

is

discriminated

on

in

degree

business

achieve

of

complexity,

results”

different

and

levels

that
of

Daniels did not consider any of these other

factors in his analysis.
his

vary

not

Therefore, the Court concludes that

probative

against

on

Plaintiffs

the

issue

with

of

whether

TSYS

regard

to

their

compensation.1

1

In response to the Court‟s questions during the Daubert hearing
regarding whether Daniels should have considered factors like division
and grade in his analysis, Daniels “reformatted” his report.
The
Court finds that the “reformatted” report is still not probative on
the issues in this case.
First, Daniels “reformatted” his report to compare compensation
by division, and he concluded that there was no statistically
significant difference in compensation between Card Services and

4

It

is

also

undisputed

that

Daniels

assumed

that

the

distribution of terminations for each group of employees would
mirror

the

population

as

a

whole.

In

other

words,

Daniels

assumed that the percentage of black male employees who were
terminated by TSYS would be roughly the same as the percentage
of black male employees in the overall TSYS work force.
undisputed

that

Daniels

did

not

consider

other

factors

It is
that

would affect an employee‟s likelihood of termination, such as
division, job function, and job level.

Therefore, the Court

concludes that Daniels‟s report is not probative on the issue of
whether TSYS discriminated against Marshall in terminating him.
For these reasons, TSYS‟s Motion to Strike (ECF No. 88) is
granted, and the Court will not consider Daniels‟s reports or
testimony in ruling on TSYS‟s summary judgment motion.

Statement Services.
Pls.‟ Supplemental Br. Ex. 2, Daniels Aff. ¶ 8,
ECF No. 128-2.
He also compared one type of compensation—
developmental increases—across grade but did not compare other types
of compensation. Id. In his “reformatted” report, Daniels still did
not compare compensation by grade and division, he did not consider
all types of compensation by grade, and he did not consider any other
factors.
Second, in his prior reports, Daniels analyzed compensation by
year; in some years, he found statistically significant differences,
and in other years he did not. In response to the Court‟s questions
during the Daubert hearing regarding the probative value of this
analysis, Daniels “reformatted” his report to aggregate the data
across all years. Id. ¶¶ 11-12. He did not “reformat” the report to
consider any of the TSYS compensation factors, including salary
budget, which varies from year to year.

5

SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P.

56(a).

Fed. R.

In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

DISCUSSION
The Court begins its discussion with the facts common to
both Plaintiffs.
separately,

It then addresses the claims of each Plaintiff

focusing

on

the

facts

analysis of each Plaintiff‟s claims.

that

are

relevant

to

an

The Court views the record

in the light most favorable to Plaintiffs.2

2

In opposition to summary judgment, Plaintiffs submitted Hooper‟s
second affidavit to the Court on May 18, 2011—three months after their
summary judgment response and a month-and-a-half after their surreply
brief and their response to TSYS‟s motion to strike Daniels‟s
testimony.
The affidavit was attached to a supplemental brief that
was supposed to address the narrow issues raised in the Daubert
hearing, namely whether Plaintiffs‟ expert had considered all of the
pertinent variables in conducting his analysis.
Hooper‟s second affidavit contains some speculation by Hooper as
to whether her superiors considered the TSYS compensation guidelines,

6

I.

Common Facts
A.

TSYS‟s Output Services Division

As part of its business, TSYS produces private-label credit
cards for its clients.

Def.‟s Mot. for Summ. J. Attach. 17,

Walker Aff. ¶ 3, ECF No. 54-17.

Hooper and Marshall worked in

the Card Services division, which is responsible for producing
those

private-label

credit

cards.

Id.

¶¶

10-11.

The

Card

Services division is part of a group called Output Services.
During the relevant timeframe, Output Services was comprised of
three

divisions:

Specialty
stores

Card

Services.

blank

Services,

Id.

plastic

¶

10.

credit

Statement
The

cards

Card
in

Services,

Services
a

and

division

secure

vault,

personalizes the blank cards for TSYS clients, and mails the
cards to clients or card holders.

Id. ¶ 11.

Statement Services

generates, prints, and mails credit card statements on behalf of
TSYS

clients.

Specialty

Id.

Services,

¶

12.

which

During
has

now

the
been

relevant

timeframe,

eliminated,

specialty mail design, production, and mailing.

handled

Id. ¶ 13.

but Hooper did not have personal knowledge of what her superiors
considered. E.g., Pls.‟ Supplemental Br. Ex. 1, Hooper Aff. ¶ 6, ECF
No. 128-1 [hereinafter Hooper Aff. II] (“I never heard that employees
in higher grade levels were given higher percentage merit or
developmental increases because they were in these higher grade
levels.”).
The rest of the affidavit addresses matters that were at
issue when Plaintiffs filed their summary judgment opposition and when
Plaintiffs responded to TSYS‟s motion to strike. The Court considers
the affidavit to be an untimely summary judgment response and declines
to consider it in ruling on TSYS‟s summary judgment motion.

7

During the relevant timeframe, Rick St. John, a white male,
was the group executive responsible for Output Services.
14; accord St. John Dep. 7:4-12, ECF No. 101.

Id. ¶

St. John reports

to Colleen Kynard, a white female who is the executive vice
president of customer care.
Dep. 8:16-19.

Walker Aff. ¶ 14; accord St. John

Plaintiffs‟ central theory of the case is that

St. John wanted the leadership of Output Services to be all
white males and that he engineered Plaintiffs‟ terminations to
bring

about

this

vision.

TSYS

asserts

that

Kynard

was

the

decisionmaker with regard to certain decisions, but Plaintiffs
contend that St. John was the real decisionmaker.

The Court is

satisfied that there is sufficient evidence to create a genuine
fact dispute that St. John made the employment decisions in this
case

and

that

Kynard

merely

ratified

them;

the

undisputed

evidence shows that St. John recommended or signed off on each
of

the

employment

decisions

at

issue

in

this

action.

The

remaining question is whether there is a genuine fact dispute as
to

whether

St.

John‟s

decisions

were

motivated

by

Hooper‟s

gender and Marshall‟s race.
B.

The Card Services Division

In the Card Services division, there are several areas of
responsibility, including the card vault and the card production
areas.

E.g., Walker Aff. ¶¶ 17-19; Def.‟s Mot. for Summ. J.

8

Attach. 15, St. John Aff. ¶¶ 5-7, ECF No. 54-15.3

TSYS asserts

that Plaintiffs were ultimately terminated because of serious
mistakes that were made under their supervision.

Plaintiffs do

not dispute that they were responsible for the card vault, among
other things.

The card vault employees are responsible for the

pre-production phase of the production process; they receive and
securely store blank plastic credit cards (“plastics”), account
for the plastics inventory, sometimes apply graphic images to
the plastics, and pull blank plastics from the vault and send
them to other areas based on customer requests.

E.g., Walker

Aff. ¶ 17; St. John Aff. ¶ 5; Pls.‟ Resp. to Def.‟s Mot. for
Summ. J. [hereinafter Pls.‟ Resp.] Ex. 1, Hooper Aff. ¶ 51, ECF
No. 61-1 [hereinafter Hooper Aff. I] (stating that card vault
employees are responsible for “pulling, verifying, and balancing
each card order”).
When a TSYS client orders private-label credit cards, the
card vault employees pull the blank plastic cards from the card
3

Plaintiffs argue that the Court should not consider the testimony of
Rick St. John and Tracy Walker regarding the structure and functions
of Output Services because “they did not know the details about how
the production process worked.”
Pls.‟ Resp. to Def.‟s Statement of
Alleged Undisputed Material Facts 6, ECF No. 67 [hereinafter Pls.‟
SMF].
Similarly, Plaintiffs contend that the Court should disregard
the affidavit of Colleen Kynard because Kynard “had no knowledge of
any facts” related to Plaintiffs‟ jobs or termination.
Id. at 24.
Kynard was the executive vice president of customer care, and she was
involved in the investigation of the error that TSYS contends was the
basis for Hooper‟s termination. St. John was the group executive for
Output Services.
Walker was a director in TSYS‟s human resources
department, and she provided support to Output Services. The Court is
satisfied that these individuals have sufficient knowledge to provide
the high-level overview that they provided in their affidavits and
depositions.

9

vault and send them to the production area.
area,

the

graphics,

cards

are

holograms,

personalized
and

magnetic

with

In the production

characters,

stripes.

Def.‟s

colors,
Reply

in

Supp. of Summ. J. Attach. 3, Davis Aff. ¶ 10, ECF No. 86-3.
Then,

mailers

are

printed,

and

the

personalized

cards

are

attached to mailers and inserted into envelopes, along with any
inserts.
C.

Walker Aff. ¶ 19; St. John Aff. ¶ 7.
TSYS Job Titles

Since Plaintiffs rely upon job titles in support of their
comparator analysis, it is necessary to understand the TSYS job
title

nomenclature.

TSYS

uses

the

same

general

across its business units and departments.
Under

this

system,

report

to

associate

team

leads

directors,

report

to

associate

job

titles

Walker Aff. ¶ 5.
managers,

directors

directors, and directors report to senior directors.

managers
report

Id.4

to

TSYS

also uses the same basic job descriptions across its business
units.

Id.

¶

6;

see

also,

e.g.,

Pls.‟

Resp.

Ex.

3

at

HOOPER/MARSHALL000136, Job Summary for Director, Production, ECF
4

Plaintiffs appear to suggest that the Court should disregard the
portions of Walker‟s affidavit regarding TSYS job titles and
compensation. First, Plaintiffs argue that Walker did not establish a
foundation for her affidavit statements regarding TSYS‟s job titles
and compensation.
Pls.‟ SMF 2.
Second, Plaintiffs contend that
Walker‟s statements are unsupported legal conclusions.
Id.
Walker
stated in her affidavit that she is employed as “Director, Human
Resources” for TSYS.
Walker Aff. ¶ 1.
She also stated that in
preparing the affidavit, she “relied upon [her] personal knowledge and
information obtained through review of documents and other information
kept and maintained in the regular course of business.” Id. ¶ 2. The
Court is satisfied that Walker‟s affidavit has sufficient foundation,
and the Court finds it appropriate to rely on the facts set forth in
the affidavit.

10

No. 61-3 (statements in job summaries “are intended to describe
the

general

nature

and

level

of

work

being

performed

by

employees, and are not to be construed as an exhaustive list of
responsibilities, duties, and skills required of personnel so
classified”).
II.

Ginger Hooper’s Claims
A.

Background and Overview of Claims

Ginger Hooper is a white female.
TSYS as a manual operator in 1987.
Hooper

held

various

positions,

“Director, Production”
director,

she

During her tenure at TSYS,
and

reported

asserts

she

in Card Services.
to

Senior

that

TSYS

ultimately

became

When Hooper was a

Director

reported to Group Executive St. John.
Hooper

She began working for

Glen

Dean,

who

Walker Aff. ¶¶ 15, 37.

paid

her

less

than

similarly

situated male employees and that the pay disparity constitutes
wage discrimination under the Equal Pay Act, 29 U.S.C. § 206(d)
(“EPA”)

and

Title

VII

of

the

Civil

Rights

Act

of

amended, 42 U.S.C. § 2000e et seq., (“Title VII”).

1964,

as

Hooper also

maintains that she was terminated because of her gender and in
retaliation
Hooper

also

for

complaining

asserts

a

claim

about

unlawful

for

intentional

discrimination.
infliction

of

emotional distress.5

5

Hooper alleged a Title VII failure to promote claim, but she withdrew
it. Therefore, the Court grants TSYS‟s motion for summary judgment as
to that claim.

11

TSYS responds that Hooper failed to identify a similarly
situated

comparator

in

support

of

her

wage

discrimination

claims, so those claims fail as a matter of law.

TSYS also

contends that Hooper made a serious error when 45,630 blank
credit cards were misplaced in her area of responsibility.

TSYS

maintains that Hooper was terminated as a result of that error,
combined

with

received

for

a

final

baring

written

her

warning

breasts

attended as a TSYS representative.

at

a

Hooper
charity

had

previously

function

she

Finally, TSYS denies that it

intentionally inflicted Hooper with emotional distress.
B.

Hooper‟s EPA Claim
1.

Equal Pay Act Standards

To prevail on her EPA claim, Hooper must demonstrate that
TSYS paid Hooper less than it paid men “for equal work for jobs
which require equal skill, effort, and responsibility, and which
are performed under similar working conditions.” Steger v. Gen.
Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003) (internal
quotation marks omitted).

If she establishes this prima facie

case, then TSYS may avoid liability by proving that the pay
differences are based on one of the EPA‟s four exceptions: “„(i)
a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv)
. . . any other factor other than sex.‟”
29 U.S.C. § 206(d)(1)).

Id. at 1078 (quoting

If TSYS meets this burden, Hooper “must

12

rebut the explanation by showing with affirmative evidence that
it is pretextual or offered as a post-event justification for a
gender-based

differential.”

Id.

(internal

quotation

marks

omitted).
2.

Hooper’s Wage Claim Comparators

Hooper contends that she was paid less than the following
male employees:

Will Allred, Blake Barker, Steve Davis, Tommy

Langley, Peter Muroski, James Reid, and Pat Riccinto.6

Hooper

was never paid less than Riccinto, so Hooper cannot make out an
EPA claim based on Riccinto‟s pay.

Walker Aff. Ex. 13, Job and

Annual Rate of Pay Report, ECF No. 54-19 at 28-31 of 31.
It is undisputed that Hooper was, for at least one year,
paid

a

lower

salary

than

Allred,

Barker,

Davis,

Langley,

Muroski, and Reid, so the Court must determine whether Hooper‟s
job was equal to their jobs in terms of skill, effort, and
responsibility.
“The standard for determining whether jobs are equal in
terms of skill, effort, and responsibility is high.” Waters v.
Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799 (11th
Cir.

1989).

“When

Congress

enacted

the

Equal

Pay

Act,

it

substituted the word „equal‟ for „comparable‟ to show that the
jobs involved must be virtually identical, that is, they would
6

Hooper asserts that she was paid less than male employees from at
least 2003 until her termination.
The Court focuses on Hooper‟s pay
from 2005 to her termination because Hooper filed her Complaint on
September 5, 2008, and the maximum statute of limitations for Hooper‟s
EPA claims is three years. See 29 U.S.C. § 255(a).

13

be

very

much

alike

or

closely

related

to

each

other.

The

restrictions in the Act were meant to apply only to jobs that
are substantially identical or equal.”

Id. (internal quotation

marks omitted); accord Mulhall v. Advance Sec., Inc., 19 F.3d
586, 592 (11th Cir. 1994) (“The plaintiff need not prove that
her job and those of the comparators are identical; the test is
one of substantiality, not entirety.”)
In

determining

whether

the

jobs

are

equal,

the

courts

“compare the jobs, not the individual employees holding those
jobs.”
and

Mulhall, 19 F.3d at 592.

qualifications

considered.”

actually

Id.

Therefore, “[o]nly the skills

needed

(internal

to

perform

quotation

the

marks

jobs

are

omitted).

Furthermore, the courts focus only “on primary, as opposed to
incidental or insubstantial job duties.”

Id.

“Job titles are a

factor for consideration, but are not dispositive.”
When

Hooper

was

a

director

in

Card

Id.

Services,

approximately forty-six employees reporting up to her.
Walker Aff. ¶ 36.
approximately

she

had

E.g.,

Hooper managed an annual expense budget of

$2 million.

Id.

Hooper

was

responsible

for

overseeing the main and working card vaults and for making sure
that blank plastics were accounted for and sent to production
for

personalization.

Id.

Hooper

was

also

responsible

for

express mail, plastics purchasing, client relations, and card
quality control.

Id.

Hooper did not point to evidence of what

14

specific tasks she had with regard to her responsibilities or
how much effort her responsibilities required.
Hooper asserts that her job was substantially identical or
equal

to

contends

the

jobs

that

of

the

the

proffered

comparators

male

proffered

comparators.
by

Hooper

TSYS

were

not

similarly situated because they had different job duties, their
jobs

required

more

specialized

experience,

and

they

responsibility for more employees and larger budgets.
focuses

on

job

titles

and

asserts

production directors all had the same

that

Output

title and

had

Hooper
Services

generic job

description, so she should have been paid the same as the male
directors in Output Services.

She also contends that she should

have

all

been

directors.

paid

more

than

Output

The Court disagrees.

Services

associate

While “[j]ob titles are a

factor for consideration, [they] are not dispositive.”
19 F.3d at 592.

Mulhall,

Given that the job titles and job descriptions

at TSYS were generic and meant to be used across business units,
Walker

Aff.

¶¶ 5-6,

the

Court

must

focus

on

the

actual

job

duties of the employees.
Hooper did not, however, point the Court to any evidence of
the actual job duties of any of the proffered comparators, and
she did not point to evidence that her job required the same
skill,

effort,

and

responsibility

as

the

comparators‟

jobs.

With regard to Allred, Barker, Langley, and Reid, it would be

15

sheer speculation for the Court to conclude that Hooper‟s job
was

substantially

identical

or

equal

to

their

jobs.

As

discussed above, Hooper pointed to evidence of her general areas
of

responsibility,

specific

job

but

duties

she

or

pointed

the

amount

responsibility they required.

to

no

of

evidence

effort,

of

her

skill,

and

Moreover, there is nothing in the

record that establishes how Hooper‟s job duties compared to the
duties of Allred, an associate director of business systems in
the

business

management

support

and

department,

risk

and

American

which

compliance

Mastercard[,]

and

Express

inspections.”

Walker Aff. ¶ 45.

included

working

through

“project

with

audits

VISA,

and

site

Likewise, there is no evidence

of how Hooper‟s job duties compared to Langley‟s director role
in

Statement

compliance,

Services,
digital

which

included

document

services,

services for Statement Services.

U.S.

Postal

Service

and

other

support

Walker Aff. ¶ 43.

There is

also no evidence of how Hooper‟s job duties compared to Reid‟s
associate

director

job

in

Statement

Services,

which

included

responsibility for fifty employees, the production lines on one
shift in statement production, and a client relationship role.
Walker Aff. ¶ 53.
evidence of

Finally, Hooper did not point the Court to

Barker‟s

actual job duties, so the Court cannot

compare Hooper‟s job to his job.

Moreover, the record suggests

that Barker, a production director in Statement Services, had

16

significantly more responsibility than Hooper even though he had
the same generic

title and worked in a similar environment.

Barker had approximately 191 employees and an annual expense
budget of $26.5 million, Walker Aff. ¶ 42, while Hooper had only
forty-six employees and an annual expense budget of $2 million,
id. ¶ 36.

For all of these reasons, Allred, Barker, Langley,

and Reid are not appropriate comparators.
With regard to Davis, it is undisputed that Davis, like
Hooper, was a production director in Card Services, though he
was

responsible

for

the

card

personalization

and

mail

preparation phases of production, while Hooper was responsible
for the card vault phase, among other things.

Hooper contends

that she and Davis worked hand in hand to get production done,
so there is no real difference in their responsibilities, even
though they oversaw different areas.

Even if Hooper‟s area was

comparable to Davis‟s area in terms of complexity, the record
still

shows

that

Davis

had

significantly

more

responsibility

than Hooper even though he had the same generic title and worked
in a similar environment.

Davis had approximately 128 employees

and an annual expense budget of $15 million, Walker Aff. ¶ 20,
while Hooper had only forty-six employees and an annual expense
budget of $2 million, id. ¶ 36.
appropriate comparator.

17

Therefore, Davis is not an

Turning

to

Muroski,

it

is

undisputed

that

TSYS

paid

Hooper‟s successor, Peter Muroski, $75,000 in June 2007 and paid
Hooper $68,766 until April 2007.

It is also undisputed that

when he started at TSYS, Muroski had the exact same job as
Hooper, under the same working conditions.

Though TSYS contends

otherwise, Muroski is an appropriate comparator because “[t]he
employees whose pay is the subject of comparison may hold jobs
in succession as well as simultaneously.”

Pearce v. Wichita

Cnty. Hosp. Bd., 590 F.2d 128, 133 (5th Cir. 1979).7
the court of

In Pearce,

appeals found that the female plaintiff‟s male

successor—whose starting salary was more than the plaintiff‟s
salary

at

the

time

of

her

termination—was

an

appropriate

comparator for purposes of the plaintiff‟s EPA claim.

Id.

For

these reasons, the Court finds that Hooper has established a
prima

facie

case

of

wage

discrimination

under

the

EPA

with

regard to Muroski.
The next question is whether TSYS has established as a
matter of law that the salary disparity existed because of “any
other

factor

other

than

sex.”

(internal quotation marks omitted).

Steger,

318

F.3d

at

1078

The burden to prove this

defense “is heavy and must demonstrate that the factor of sex
provided no basis for the wage differential.”
7

Id. (internal

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

18

quotation marks omitted).

“Although an employer may not rely on

a general practice as a factor other than sex, it may consider
factors such as the unique characteristics of the same job; . .
. an individual's experience, training or ability; or . . .
special exigent circumstances connected with the business.” Id.
(citation omitted) (internal quotation marks omitted).
TSYS claims that it paid Muroski more than Hooper because
(1) he had more experience than she did, and (2) TSYS had to pay
him $75,000 so he would take the job.

The record does not

establish as a matter of law that Muroski had more experience
than Hooper.

It is undisputed that Hooper had twenty years of

experience in card production at TSYS.

Muroski had seventeen

years of card production experience, none of them at TSYS.

See

generally Walker Aff. Ex 10, Muroski Application for Employment,
ECF No. 54-19.

When he applied to TSYS, Muroski had been out of

the card production industry for several years.

Id.

The record also does not establish as a matter of law that
TSYS had to pay Muroski $75,000 to induce him to accept the job.
According to Muroski‟s job application, Muroski‟s desired salary
was “75,000 range.”

Id. at TSYSHOOPER001447.

represented

TSYS

$85,000

and

represented
application.

on

his

$100,000
that

he

at

application
various

earned

points

$35,000

Id. at TSYSHOOPER001445.

19

that

at

Although Muroski

he
in

the

earned
his

time

between

career,
of

his

he

TSYS

Again, TSYS has the burden to prove its affirmative defense
by

a

preponderance

of

the

evidence.

Based

on

the

present

record, the Court cannot conclude that there is no genuine fact
dispute

on

the

affirmative

defense;

a

reasonable

factfinder

could conclude that Muroski did not have more experience than
Plaintiff and that TSYS did not have to offer Muroski $75,000 to
induce him to accept the job.

Accordingly, summary judgment is

not appropriate on Hooper‟s EPA claim based on Muroski‟s pay.
C.
In

Title VII Wage Discrimination
addition

to

her

EPA

claim,

Hooper

discrimination claim under Title VII.

brings

a

wage

To establish a prima

facie case of intentional compensation discrimination,

Hooper

must establish that: (1) she belongs to a protected class; (2)
she

received

low

wages;

(3)

similarly

situated

comparators

outside the protected class received higher compensation; and
(4) she was qualified to receive the higher wage.

Lee v. Mid-

State Land & Timber Co., 285 F. App‟x 601, 606 (11th Cir. 2008)
(citing Cooper v. S. Co., 390 F.3d 695, 734-35 (11th Cir. 2004),
overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.
454

(2006)).

“„In

a

comparator

analysis,

the

plaintiff

is

matched with a person or persons who have very similar jobrelated characteristics and who are in a similar situation to
determine if the plaintiff has been treated differently than
others who are similar to him.‟” Id.

20

(quoting Cooper, 390 F.3d

at 735-36).

If the plaintiff establishes a prima facie case of

wage discrimination, then the burden shifts to the employer to
articulate a legitimate nondiscriminatory reason for the alleged
discrimination.
proffers

a

Mulhall, 19 F.3d at 597-98.

legitimate

nondiscriminatory

If the employer

reason,

then

the

plaintiff must establish that the proffered reason is pretext
for discrimination.

Id.

Though the standard for “similarity” in Title VII cases is
“relaxed” compared to the EPA standard and does not require a
showing that the job be substantially identical, Hooper still
must prove that her job was “substantially similar” to a higher
paid

comparator.

standard,

Hooper

Id.
has

substantially

similar

Langley,

Reid;

and

at

598.

not
to

established

the

Hooper

Even

jobs

relies

of

under
that

Allred,

merely

on

this
her

relaxed
job

Barker,

a

was

Davis,

comparison

of

generic job titles and points to little or no evidence regarding
the actual job functions and the skill and effort required to
perform

those

functions.

Therefore,

Hooper

cannot

Title VII wage claim on these purported comparators.

base

her

Also, as

discussed above, Hooper failed to show that she was paid less
than Riccinto.
claim

on

Therefore, Hooper cannot base her Title VII wage

Riccinto‟s

pay.

The

Muroski.

21

only

remaining

comparator

is

As discussed above, Hooper made out a prima facie case of
wage discrimination under the EPA based on the disparity between
her pay and Muroski‟s; this is sufficient to make out a prima
facie case of Title VII wage discrimination.

Mulhall, 19 F.3d

at 598 (“[I]f plaintiff makes a prima facie case under the EPA,
she simultaneously establishes facts necessary to go forward on
a Title VII claim.”).
proffered

legitimate

Muroski more.

Therefore, the Court turns to TSYS‟s
nondiscriminatory

reasons

for

paying

TSYS claims that it paid Muroski more than Hooper

because (1) he had more experience than she did, and (2) TSYS
had to pay him $75,000 so he would take the job.

As discussed

above, a reasonable factfinder could conclude that Muroski did
not actually have more experience than Hooper and that TSYS did
not have to pay Muroski $75,000 to induce him to accept the job.
The

record

does

not

conclusively

reveal

any

other

nondiscriminatory reason for the pay disparity, so the Court
finds that there is a genuine fact dispute as to whether TSYS‟s
reasons for paying Muroski more than Hooper were pretext for
discrimination.
on

Hooper‟s

Therefore, summary judgment is not appropriate

Title

VII

wage

discrimination

claim

based

on

Muroski‟s pay.
D.

Hooper‟s Termination Claims

The next question is whether Hooper demonstrated a genuine
fact dispute regarding her Title VII termination claim.

22

“To

establish a prima facie case of discriminatory discharge, the
plaintiff must show that she (1) was a member of a protected
class, (2) was qualified for the job, (3) suffered an adverse
employment action, and (4) was replaced by someone outside the
protected class.”

Cuddeback v. Fla. Bd. of Educ., 381 F.3d

1230, 1235 (11th Cir. 2004).

Once a plaintiff establishes a

prima facie case of discriminatory discharge, the burden shifts
to

the

employer

to

articulate

a

legitimate

reason for the alleged discrimination.

nondiscriminatory

Id. at 1235.

If the

employer proffers a legitimate nondiscriminatory reason, then
the

plaintiff

must

establish

pretext for discrimination.
1.
TSYS

that

the

proffered

a

is

Id.

Hooper’s Prima Facie Case

cannot

seriously

dispute

that

Hooper

prima facie case of discriminatory discharge.
of

reason

protected

class,

was

qualified

terminated, effective May 1, 2007.

for

established

a

She was a member
the

job,

and

was

It is undisputed that George

Wolbert, a white male, temporarily assumed Hooper‟s role from
May

2007

until

TSYS

hired

Peter

Muroski,

a

white

male,

as

Hooper‟s permanent replacement on June 25, 2007.
2.

TSYS’s Proffered Nondiscriminatory Reasons

TSYS claims that Hooper was fired because she was partly
responsible for a significant error and because she had in her
file a final written warning for a serious infraction.

23

It is

undisputed that TSYS would not have terminated Hooper for either
of these reasons standing alone.
Hooper argues that neither of these proffered reasons is
true.

First, she contends that her final written warning was no

longer in effect, so TSYS could not consider it in deciding her
punishment.

Second, she asserts that she was not in any way

responsible for the significant error TSYS claims she made.

The

Court addresses each argument in turn.
i.

HOOPER‟S FINAL WRITTEN WARNING

In August 2004, Hooper attended a vendor-sponsored charity
event as a TSYS representative.

E.g., Walker Aff. ¶ 25.

Hooper

acknowledges that she “used poor judgment” at the event.

Hooper

Aff. I ¶ 66.

During the event, which included a concert by the

band Lone Star, Hooper removed her bra and threw it onstage for
band members to sign.

Id.

When it came time to retrieve the

autographed bra, the band members asked whose bra it was, and
Hooper “pulled up [her] shirt” to show them that it was her bra.
Id.

Hooper then attached the bra to her cowboy hat.

Id.

After the event, a member of the charity‟s board complained
to a TSYS executive about Hooper‟s behavior, and Human Resources
Director Tracy Walker conducted an investigation.
¶¶ 26, 28.

Walker Aff.

Hooper admitted that her behavior at the charity

event was inappropriate.

Id. ¶ 29; Hooper Aff. I ¶ 66.

As a

result of the incident, Hooper was given a final written warning

24

on September 3, 2004, and she was demoted to associate director.
Walker

Aff.

reinstated

¶

to

32;

Hooper

director

reinstatement,

he

Aff.
2006;

in

I

when

emphasized

that

“rescind the final warning.”

¶ 68.

Hooper

St.

the

John

was

later

approved

promotion

the

would

not

Dean Dep. Ex. 93, Email from R.

St. John to S. Edwards & G. Dean, Mar. 15, 2006, ECF No. 125-4.
Hooper does not quarrel with TSYS‟s decision to issue the
final written warning in 2004.

She does, however, contend that

it was no longer in effect in 2007, so the final written warning
could

not

undisputed

serve
that

as

a

reason

disciplinary

for

her

actions,

warnings, can lead to termination.
that

written

disciplinary

employee‟s file.

actions

termination.
such

as

It

final

is

written

TSYS pointed to evidence
are

never

purged

from

an

E.g., Myhand Dep. 42:1-8, ECF No. 107 (TSYS

human resources representative stating that written disciplinary
actions are never taken out of the personnel file); Williams
Dep. 47:12-22, ECF No. 100 (TSYS human resources representative
stating

that

final

written

warnings

are

never

purged

from

employees‟ files).
Hooper

contends

that

“the

disciplinary

process

recycles

every six months, and no discipline is supposed to be in effect
or held against an employee past the six-month period.”
SMF 3.
argument

Pls.‟

However, the evidence Hooper cited in support of this
suggests

that

the

“six

25

month

rule”

means

that

an

employee is ineligible to post for a new job for six months
after receiving written discipline, not that the discipline can
never be considered again after six months.

Walker Dep. 69:20-

70:20, 72:23-74:20, ECF No. 102 (explaining that employees who
have

had

written

discipline

in

the

previous

six

months

are

ineligible to post for another job unless the group executive
overrides the rule); id. at 83:10-23 (explaining that six-month
“recycling”

only

applies

to

posting);

Williams

Dep.

47:12-22

(stating that final written warnings are never purged from the
file); see also Dean Dep. Ex. 93, Email from R. St. John to S.
Edwards

&

G.

Dean,

Mar.

15,

2006,

ECF

No.

125-4

(approving

promotion of Hooper to director but stating that promotion would
not

“rescind

the

final

warning”).

Not

every

employee

who

receives a final written warning is automatically terminated if
the employee has another behavior or performance problem; the
level of discipline depends on the circumstances of the case.
Walker

Dep.

118:23-120:5;

accord

St.

John

Dep.

92:22-94:4

(stating that effect of final written warning depends on the
situation).
One
Services,

TSYS

employee,

testified

that

Pino
it

Davis,
was

her

a

director

in

understanding

Output
that

an

employee had a “clean slate” six months after receiving written
discipline unless the final written warning states otherwise.
P. Davis Dep. 72:6-73:17, ECF No. 74.

26

Plaintiffs did not point

to

any

evidence

regarding

the

basis

for

Ms.

Davis‟s

understanding, and Ms. Davis testified that she did not recall
receiving any training on TSYS‟s policy regarding final written
warnings.

Id. at 71:8-11.

representative,

and

she

Ms. Davis was not a human resources

did

not

participate

decisions at issue in this action.

in

any

of

the

Furthermore, St. John made

it clear in 2006 that Hooper‟s 2004 final written warning, which
is at issue in this case, was not rescinded.

For all of these

reasons, the Court concludes that Ms. Davis‟s testimony does not
create a genuine fact dispute regarding the effect of Hooper‟s
final written warning in this case.

The Court finds that Hooper

has not demonstrated a genuine fact dispute on the “six month
rule,” so TSYS was not barred from considering the 2004 final
written warning more than six months after it was issued.
In the alternative, Hooper argues that the final written
warning

was

no

longer

in

effect

after

she

received

a

merit

increase in 2005 and was reinstated to her director position in
2006.

TSYS pointed to evidence that it is possible to receive

pay increases, stock awards, and bonuses despite a final written
warning and that a TSYS employee with a final written warning in
her record may post for another job after six months.
Dep. 70:3-20, 117:4-25.
stated

in

her

affidavit

Walker

In response to this argument, Hooper
that

she

once

consulted

with

HR

regarding the permissible discipline for one of her employees.

27

Hooper Aff. I ¶ 24.

According to Hooper, HR representative Pat

Myhand said that the employee could not be terminated despite a
final written warning in his file because he had been given a
pay increase since he received the final written warning, so
“the final written warning was no longer in effect.”

Id.

This

statement does not create a genuine fact dispute on this issue
because

it

is

undisputed

that

the

employee

in

question

was

terminated in September 2006 after he had a conflict with one of
his

coworkers;

the

employee‟s

termination

counseling

record

referenced the employee‟s prior discipline for similar problems:
a

February

counseling,
Objection

2003

final

and
to

a

written

January

Pls.‟

warning,

2005

verbal

Supplemental

Br.

a

other

evidence

in

support

of

her

2004

verbal

counseling.

Ex.

A,

Counseling Record for B. Creed, ECF No. 130.
no

June

TSYS

Def.‟s
Employee

Hooper pointed to

argument

that

a

final

written warning is no longer in effect after a pay raise or a
promotion,

so

the

Court

concludes

that

Hooper

has

not

demonstrated a genuine fact dispute on this issue, and TSYS was
not barred from considering the 2004 final written warning after
Hooper received a pay raise and a promotion.
In
create

summary,
a

genuine

Hooper
fact

has

not

dispute

pointed
that

her

warning was no longer in effect in 2007.

to

any

2004

evidence

final

to

written

Rather, the evidence

establishes that a final written warning is always in effect and

28

that a final written warning may impact the level of discipline
for a new infraction.

For these reasons, the Court concludes

that Hooper has failed to establish that TSYS‟s explanation that
the

2004

final

written

warning

played

a

role

in

Hooper‟s

termination is untrue or implausible.
ii.
TSYS

asserts

THE BOA ERROR
that

Hooper

was

fired

as

a

result

of

a

significant error, which the Court refers to as the “BOA Error.”
Hooper contends that she was not in any way responsible for the
BOA Error, so it could not serve as a basis for her termination.
Hooper also argues that even if she were partly responsible for
the BOA Error, she was disciplined more harshly than similarly
situated male employees.
a.

What Happened

In March 2007, TSYS received an order from a large client,
Bank of America (“BOA”) for delivery of 45,630 embossed credit
cards (“BOA Job”).

Kynard Aff. ¶ 5; accord Hooper Aff. I ¶ 12.

The cards were due to be delivered before April 1, 2007.

Kynard

Aff. ¶ 5; accord Hooper Aff. I ¶ 12 (stating that the job had a
mail due date of March 25, 2007).
On March 13, 2007, card vault employees, who reported up to
Hooper and Marshall, pulled 45,630 blank plastic cards, placed
them in a large blue cage, and transferred the plastics to the
card production area for embossing.

29

Kynard Aff. ¶ 6; accord

Dean Dep. 56:8-13, ECF No. 106 (stating that when cards are
pulled from the vault, they are transferred to the production
area).

At that time, the plastics were scanned so that TSYS‟s

computerized tracking system would show that they had been moved
to the production area.

E.g., Dean Dep. 56:4-10.

It is undisputed that Saundra Tatum, an associate director
who reported to Steve Davis in the card production area, ordered
that

the

BOA

Job

be

put

on

hold.

Tatum

told

card

vault

employees Jason Gentry and Tim Hudson that the cage needed to
stay in the vault.

Pls.‟ Resp. Ex. 28, TSYS Employee Counseling

Record for S. Tatum, Apr. 27, 2007, ECF No. 63-8; accord St.
John Dep. Ex. 47 at TSYSMARSHALL000514, Handwritten Statement of
J.

Gentry.

It

is

undisputed

that

Gentry

and

Hudson,

who

reported up to Plaintiffs, placed the blue cage with the 45,630
blank plastic cards in the main card vault and not the working
vault.

Gentry and Hudson moved the cage into the main vault, as

opposed to the working vault, because space in the working vault
was

limited.

St.

John

Dep.

Ex.

47

at

TSYSMARSHALL000514.

According to Gentry, Tatum said that she would email Hooper and
Marshall and ask them to hold the cards until production asked
for them.

Id.

It is undisputed that Tatum did not do so.

The parties appear to agree that it would not have been a
violation
45,630

of

blank

TSYS

standard

plastic

cards

operating
in

30

the

procedures

working

to

vault.

keep

the

It

was,

however, unusual for blank plastics that had been scanned out of
the main vault and were awaiting production to be returned to
the main vault.
are

typically

vault.”);

Kynard Aff. ¶ 7 (“All jobs awaiting production

cf.

housed
Pls.‟

in
SMF

the

working

31-32

vault,

(emphasizing

not

that

the

main

Gentry

and

Hudson put a “prominent sign” on the blue cage once it was
placed in the main vault).

Gentry put a prominent sign on the

cage: “B of A Reissue Job Needs to Stay Back Here Until Asked
For Jay.”
St.

John

St. John Dep. Ex. 47 at TSYSMARSHALL000522; accord
Dep.

Ex.

47

at

TSYSMARSHALL000514.

There

were,

however, many other blue cages holding jobs in the working vault
and the main vault.

Hooper Aff. I ¶ 13.

It is undisputed that on March 27, 2007, a machine operator
named LeArtis Allen, who reported up to Steve Davis, made an
entry into TSYS‟s computerized tracking system reflecting that
the

BOA

Job

had

been

completed

and

mailed,

even

though

the

45,630 cards were still in the main vault awaiting production.
It

is

also

undisputed

that

Allen

did

not

supporting paperwork to make this entry.
Allen

simply

made

a

mistake,

though

have

the

proper

TSYS contends that

Plaintiffs

pointed

to

evidence that Allen stated that someone (who remains unnamed)
told him to make the entry.

Pls.‟ Resp. Ex. 29, TSYS Employee

Counseling Record for L. Allen, ECF No. 63-9.

It is undisputed

that after Allen made the entry in the system, the system showed

31

that the BOA Job was complete, so TSYS‟s daily reports did not
reflect that the BOA Job still needed to be processed.8
It is undisputed that the 45,630 cards remained in the main
vault until April 12, 2007, although they were supposed to be
delivered to BOA by April 1, 2007.

BOA inquired about the

status of the order at least three times.

Kynard Aff. ¶ 12.

In

response to those inquiries, Hooper investigated the issue and
had her employees look for the blue cage containing the 45,630
cards.

Hooper Aff. I ¶ 13.

the cage in the main vault.

Ultimately, Hooper‟s team located
Id.

The cards were delivered to BOA, though they were late.
According to Kynard, the late delivery of the BOA Job “caused
TSYS extreme embarrassment and jeopardized its relationship with
Bank of America.”

Kynard Aff. ¶ 14; id. ¶ 19 (stating that BOA

Error caused BOA “to question whether it wanted to retain its
business with TSYS”).

Plaintiffs deny this assertion but point

to no evidence to rebut it.

Plaintiffs point to no evidence

regarding the communications between TSYS and BOA.

Plaintiffs

point

SVP

to

evidence

that

BOA

Debit

Card

Services

Stacy

Maschsoff sent Rick St. John a complimentary letter about Steve
Davis‟s work, which was incorporated into Glen Dean‟s October
2007

recommendation

that

Davis

8

receive

a

developmental

pay

According to Hooper, it was a continuing problem for production
employees, who reported to Steve Davis, to “mail jobs off the system”
before the cards were actually processed and mailed. Hooper Aff. ¶ 15.
In February 2007, Hooper expressed her concerns about this issue to
Glen Dean, but the problem was not resolved at that time. Id.

32

increase.

St.

John

Dep.

Ex.

51,

TSYS

At-Desk

Promotion/

Developmental Increase Evaluation Form for S. Davis, Oct. 8,
2007, ECF No. 121-8.

The letter does not establish that the BOA

Error had no negative impact on TSYS‟s relationship with BOA in
April 2007.
b.
It

is

undisputed

The Investigation
that

investigated the BOA Error.

HR

representative

Susan

Edwards

It is also undisputed that Kynard,

St. John, Dean, Edwards, and HR Director Tracy Walker met to
discuss

the

BOA

Error

on

April

26,

2007.

Finally,

it

is

undisputed that a number of TSYS employees were disciplined as a
result

of

the

BOA

Error.

There

is

a

ultimately made the employment decisions.
was Kynard.

Kynard Aff. ¶¶ 18, 21.

dispute

about

who

According to TSYS, it
Plaintiffs point to a

“Memorandum For Record” from St. John and note that St. John
recommended each of the disciplinary actions that Kynard later
approved.

St. John Dep. Ex. 47 at TSYSMARSHALL000524 to 529,

Memorandum For Record from R. St. John, Apr. 18, 2007, ECF No.
54-16 at 96-101 [hereinafter St. John Memo].

Based on this

evidence, the Court finds that there is a genuine fact dispute
that St. John made the employment decisions related to the BOA
Error and that Kynard merely ratified them.

33

c.

Hooper’s Discipline for the BOA Error

It is undisputed that St. John recommended to Kynard that
Hooper be given a second final written warning and be terminated
as a result of the BOA Error.
recommendation.
terminating

Kynard concurred with St. John‟s

According

Hooper

to

St.

John,

he

recommended

because

in

his

view,

the

error

was

“critical,” it jeopardized a “huge client‟s business,” and it
was “completely avoidable.”

E.g., St. John Dep. 59:7-12; accord

St. John Dep. Ex. 47 at TSYSMARSHALL000479 to 480, Employment
Determination for G. Pair (Hooper).

St. John found that Hooper

“fostered an environment within which the error could occur.”
St. John Memo at TSYSMARSHALL000525 to 526.

He also found that

Hooper “failed in [her] responsibilities resulting in an error
of such magnitude that it could warrant termination under normal
circumstances.”

Id. at TSYSMARSHALL000528.

In addition, Hooper

already had a final written warning in her file for embarrassing
TSYS.

St.

John

Dep.

59:12-14;

accord

St.

John

Memo

at

TSYSMARSHALL000528 to 529 (recommending termination “in light of
previous disciplinary problem”).

As discussed above, the 2004

final written warning was still in effect.
Hooper contends that she had no responsibility for the BOA
Error and that it could not be a basis for her termination.

As

discussed above, for purposes of her wage claim, Hooper argues
that there is no real distinction between her job and Steve

34

Davis‟s card production job.

Hooper and Marshall both emphasize

that

hand

they

worked

production

done.

Plaintiffs

seek

hand
With
to

in

regard

distance

with
to

Davis‟s

the

themselves

BOA

team

Error,

from

to

get

however,

Davis‟s

team—

insisting that none of the card vault employees were to blame
for the BOA Error and that the entire error was caused by Davis
and his employees.

Plaintiffs

contend that once the 45,630

cards were scanned out of the card vault, the matter was out of
their hands

and

that they

had no further obligation because

neither they nor their team members violated any TSYS standard
operating procedures.
As discussed above, Hooper and Marshall were responsible
for

managing

the

responsibilities.

card

vault,

in

addition

to

their

other

Part of Plaintiffs‟ card vault responsibility

was to create and implement procedures to ensure that the blank
credit cards in the card vault were properly accounted for and
pulled.

E.g., Kynard Aff. ¶ 13; St. John Aff. ¶ 12.

Plaintiffs

note that this specific task was not listed in their generic job
descriptions or their performance reviews.
acknowledges

that

card

vault

employees

Nonetheless, Hooper
were

responsible

for

“pulling, verifying, and balancing each card order,” Hooper Aff.
I ¶ 51, and Hooper admits that she and her team were responsible
for keeping their standard operating procedures updated, Pls.‟
SMF 26.

It is undisputed that Plaintiffs‟ employees put the

35

45,630

cards

undisputed
weeks.

in

that

the
the

main

cards

vault—Plaintiffs‟
sat

there

for

area.

It

approximately

is

three

And it is undisputed that after BOA called at least

three times to ask the status of the BOA Job, Hooper‟s team did
a physical inspection and found the cards in the card vault.
In a nutshell, the undisputed evidence establishes that it
was reasonable for St. John and Kynard to believe that the BOA
Error occurred because there was no process in place to handle
the

45,630

cards

once

production

placed

them

on

hold.

Production did not have a process for notifying the vault that
it was sending the cards back, and the vault did not have a
process for logging the cards back into the vault‟s inventory
when vault employees placed them back in the main vault.

As a

result, the 45,630 cards were not included in the card vault‟s
inventory even though they were physically in the main vault.
It

was

not

production

unreasonable
and

the

for

vault

St.
lacked

John

to

conclude

sufficient

that

both

processes

for

handling card holds and that the lack of such processes caused
the BOA Error.

Moreover, it was not unreasonable for St. John

to believe that Plaintiffs were at least partly to blame for the
process failure; although they seek to distance themselves from
the rest of production with regard to the BOA Error, Plaintiffs
assert that they “assisted in determining ways to correct and

36

prevent errors in the entire production process, not just the
vault.”

Hooper Aff. I ¶ 6.

Furthermore, it was reasonable for St. John to conclude
that the BOA Error occurred in part because Hooper and Marshall
did not regularly inspect the card vault.
John,

Hooper

inspecting

and

the

Marshall

card

were

vault.

St.

According to St.

responsible
John

Aff.

¶¶

for

regularly

12,

15.

In

response, Plaintiffs assert that (1) such inspections were not
in their job description, (2) no one ever told them to conduct
such

inspections,

and

(3)

such

inspections

were

impractical

given the size of the card vault and the other audit systems in
place.

Pls.‟ SMF 26; Hooper Aff. I ¶ 36.

It is undisputed that card vault inspections were not in
Plaintiffs‟ generic job descriptions.
that

TSYS

business

uses

the

units.

same

Walker

basic
Aff.

It is also undisputed

job
¶

descriptions

6.

Therefore,

across

its

it

not

is

probative that the inspection requirement was not included in
Plaintiffs‟ generic job descriptions.
There is a dispute as to whether St. John told Hooper to
inspect the vault.
the vault.

He asserts that he told Hooper to inspect

St. John Memo at TSYSMARSHALL000525.

never happened.

Hooper Aff. I ¶ 36.

She says it

Whether or not St. John

actually told Hooper to do the inspections, St. John believed
that it was an “inherent task for any leader” to walk around and

37

inspect

his

or

her

work

area.

St.

John

Memo

at

TSYSMARSHALL000525.
Plaintiffs cannot seriously dispute that St. John believed
they should inspect the card vault, but they do contend that
such

inspections

were

impractical

because

it

would

be

“impossible” to check the jobs by physically walking through the
vault.

Hooper Aff. I ¶ 11 (stating that the only way for Hooper

and her team to know that a job was not done was a computerized
tracking

system);

computerized

id.

tracking

¶

36

(noting

that

system

because

“it

TSYS
was

instituted
impossible

a
to

„check on jobs‟ by just physically walking through the vault”).
The evidence, however, shows that Hooper‟s team actually found
the 45,630 cards in the main vault by walking through the vault.
Hooper

Aff.

I

¶

13.

The

evidence

also

shows

that

the

computerized tracking system on which Plaintiffs relied was not
infallible, suggesting that a manual back-up process, such as a
physical inspection, should be established for both production
and the

card vault.

For all of these reasons, it was not

unreasonable for St. John to conclude that routine inspections
by Plaintiffs would have helped to prevent the BOA Error.
In

summary,

Plaintiffs

have

not

pointed

to

sufficient

evidence to create a genuine fact dispute that they were not
partly

to

suggests

blame

that

it

for

the

BOA

Error.

was

reasonable

38

for

Rather,
St.

John

the
and

evidence
Kynard

to

conclude that Hooper and Marshall were partly responsible for
the BOA Error and that the BOA Error was a significant error
that jeopardized an important client relationship.
d.

Hooper’s Termination Claim Comparators

Hooper argues that even if she was partly responsible for
the BOA Error, she was disciplined more harshly than similarly
situated male employees.

In determining whether other employees

were

to

similarly

situated

Hooper,

the

Court

must

evaluate

whether the other employees were “involved in or accused of the
same or similar conduct” but “disciplined in different ways.”
McCann

v.

Tillman,

526

F.3d

1370,

(internal quotation marks omitted).

1373

(11th

Cir.

2008)

The “quantity and quality

of the comparator‟s misconduct [must] be nearly identical to
prevent

courts

from

second-guessing

employers‟

decisions and confusing apples with oranges.”

reasonable

Id. (alteration

in original) (internal quotation marks omitted).
Hooper
disciplined
Services.

contends

that

differently

she

than

was
all

similarly
male

situated

employees

in

to

but

Output

In her briefing and at the summary judgment hearing,

Hooper named the following male comparators who she contends
were similarly situated but were not terminated: Blake Barker,
Steve Davis, Glen Dean, Jonathon Fraley, Darrel Harris, Peter
Muroski, Simon Strothers, and Mike Whitaker.

39

TSYS argues that

none of these employees was similarly situated to Hooper.

The

Court analyzes each comparator in turn.
Blake

Barker.

Hooper

contends

that

TSYS

disciplined

“Barker at a low level of discipline for what normally demands
immediate termination.”

Pls.‟ Mem. of Law in Opp‟n to Def.‟s

Mot. for Summ. J. 17, ECF No. 68.
Barker

did

that

“normally

Hooper did not explain what

demands

immediate

Barker was not involved in the BOA Error.

termination.”

Hooper did not point

to any evidence that Barker was responsible for a significant
error

with

negative

relationship.

ramifications

to

an

important

client

Therefore, the Court cannot conclude that Barker

is a nearly identical comparator to Hooper for purposes of her
discriminatory discharge claim.
Steve

Davis.

Davis, a white male director, received a

final written warning as a result of the BOA Error.
found

that

Davis

failed

in

his

leadership

and

St. John

“fostered

an

environment within which the error could occur and that did not
enforce strict accountability of job completion at the end of
the production process.”
St.

John

found

that

St. John Memo at TSYSMARSHALL000526.

Davis,

like

Hooper,

“failed

in

[his]

responsibilities resulting in an error of such magnitude that it
could warrant termination under normal circumstances.”
TSYSMARSHALL000528.

St.

John

recommended

written

Id. at

counseling

instead of termination because Davis had a “spotless record” and

40

because

of

Davis‟s

sacrifice.”

“dedication,”

“hard

work,”

and

“personal

Id. at TSYSMARSHALL000529; accord St. John Dep.

141:1-25 (stating that lack of final written warning in Davis‟s
file

was

a

factor

in

St.

John‟s

decision

to

recommend

that

Hooper be terminated and Davis be retained).
Hooper asserts that Davis and his team were responsible for
the BOA Error and that if anyone should have been fired for the
BOA

Error,

it

should

have

been

Davis.

As

discussed

above,

however, it was reasonable for St. John and Kynard to believe
that Hooper shared responsibility for the BOA Error with Davis
and that both Davis and Hooper fostered an environment within
which the error could occur.

Therefore, the Court concludes

that Davis and Hooper engaged in nearly identical conduct.
The

next

question

Hooper

were

The Court finds that they were not.

similarly situated.

is

whether

Davis

and

The

difference: Davis did not have a final written warning in his
file, but Hooper did.

E.g., Jiles v. United Parcel Serv., Inc.,

360

(11th

F.

App‟x

61,

64

Cir.

2010)

(per

curiam)

(“[T]he

determination of whether employees are similarly situated may
involve consideration of the employees‟ records with respect to
their histories of problems with coworkers or supervisors, job
performance,

tardiness,

absenteeism,

performance evaluations.”).

41

and

responsiveness

to

Hooper argues that Davis really was similarly situated to
her because he should have had a final written warning in his
file prior to the BOA Error and that Davis committed serious
errors after the BOA Error but was not fired despite the final
written

warning.

Hooper

pointed

to

evidence

that

Davis‟s

superiors had some concerns about Davis‟s job performance after
the BOA Error, Pls.‟ Resp. Ex. 39, Memo from G. Dean to S.
Davis,

Nov.

26,

2007,

ECF

No.

64-7,

but

she

pointed

to

no

evidence that Davis committed errors that St. John or Kynard
considered

to

be

remotely

as

significant

either before or after the BOA Error.

as

the

BOA

Error,

For these reasons, Davis

is not a proper comparator for Hooper‟s discriminatory discharge
claim.
Glen Dean.

Hooper points to her boss, Glen Dean, as a

similarly situated individual who engaged in nearly identical
conduct but was not terminated.

It is undisputed that Dean, a

white male senior director who reported directly to St. John,
did not receive any formal discipline as a direct result of the
BOA Error, though he did not receive a bonus or a full stock
award because of the BOA Error.

Kynard Aff. ¶ 31.

Plaintiffs

deny this assertion but point to no evidence to rebut it.
Hooper appears to argue that if she could be terminated for
the BOA Error, then Dean should have been similarly disciplined.
But,

even

if

Hooper

had

pointed

42

to

evidence

that

Dean

had

similar culpability for the BOA Error—which she did not—there is
no evidence that Dean had a final written warning in his file.
Hooper points out that St. John removed Dean from his leadership
role in Card Services because of his failure to improve.

Pls.‟

Resp. Ex. 49, Memo from R. St. John to G. Dean, Jan. 10, 2008,
ECF

No.

65-4.

performance

There

issues

is

were

no

evidence,

similar

to

however,

Hooper‟s,

that
and

Dean‟s

Dean

is

therefore not an appropriate comparator.
Jonathon Fraley.

Hooper contends that she was similarly

situated to Jonathon Fraley, an employee who worked in Statement
Services

during

Hooper‟s

tenure

involved in the BOA Error.

at

TSYS.

Fraley

was

not

Hooper takes issue with the fact

that Fraley received a promotion despite a final written warning
in his file.
final

written

suggest

that

Hooper likewise received a promotion despite a
warning
Fraley

in

her

file.

committed

Hooper

significant

also
errors

appears

to

after

he

received his final written warning, though Hooper did not point
the Court to evidence that Fraley committed any errors that were
as significant as the BOA Error.

Therefore, Fraley is not an

appropriate comparator.
Darrel

Harris.

Hooper

asserts

that

she

was

similarly

situated to Darrel Harris, an associate director who reported to
Steve Davis in card production.
BOA Error.

Harris was not involved in the

Hooper contends that Harris was responsible for

43

numerous client errors but was not terminated.

Hooper, however,

did not point the Court to evidence that Harris committed any
errors that were as significant as the BOA Error.

Therefore,

Harris is not an appropriate comparator.
Peter

Muroski.

situated

to

involved

in

her

Hooper

successor,

the

BOA

argues
Peter

Error.

that

she

Muroski.

He

was

was

similarly

Muroski

involved

was

in

not

another

significant error, and he received a first written warning as a
result

of

it.

Plaintiffs

contend

that

Muroski‟s

nearly identical to Hooper‟s conduct with
Error.

regard

error
to

the

was
BOA

Even if that is the case, Hooper and Muroski were not

similarly situated.

Muroski received a first written warning

instead of harsher punishment because he had no disciplinary
record

prior

to

his

relatively short.

error

and

his

tenure

at

TSYS

had

Barker Dep. 31:23-32:2, ECF No. 96.

been
In

contrast, Hooper had the final written warning for inappropriate
behavior as a TSYS representative at a charity event.

For these

reasons, Muroski is not an appropriate comparator.
Simon Strothers.
situated

to

production.
Hooper

Simon

Hooper also argues that she was similarly

Strothers,

Strothers

contends

that

was

a

not

Strothers

production
involved
was

client errors but was not terminated.

in

manager
the

responsible

in

BOA

for

card
Error.

numerous

Hooper, however, did not

point the Court to evidence that Strothers committed any errors

44

that were as significant as the BOA Error.

For these reasons,

Strothers is not an appropriate comparator.
Mike

Whitaker.

Finally,

Hooper

argues

that

she

was

similarly situated to, but disciplined more harshly than, Mike
Whitaker, a senior service level analyst in the production area
who reported up to Steve Davis.
Plaintiffs suggest that Whitaker should have been punished
for the BOA Error but was not.

According to Hooper, Whitaker

was responsible for running the daily reports regarding what
jobs

still

needed

to

be

completed.

Hooper

Aff.

I

¶

11.

Whitaker reported on March 23, 2007 that the 45,630 cards still
needed

to

be

processed.

Davis

Dep.

Ex.

9,

Email

from

M.

Whitaker to J. Hubbard, et al., Mar. 23, 2007, ECF No. 117-9.
After LeArtis Allen entered the BOA Job as mailed in the TSYS
tracking system, Whitaker could not tell that the BOA Job had
not, in fact, been mailed, and “there were no other indicators”
in Whitaker‟s area of responsibility to suggest that the BOA Job
had not been mailed.

Kynard Aff. ¶ 33.

Therefore, Whitaker

concluded that the BOA Job had been completed, and his daily
reports no longer reflected that it was pending.
Plaintiffs

contend

that

it

was

unfair

for

TSYS

to

discipline them and not Whitaker because Whitaker had the “exact
same indicator” Plaintiffs had for determining that the BOA Job
was

complete:

the

TSYS

tracking

45

system.

Pls.‟

SMF

61.

Whitaker, however, was not a card vault manager, and the blue
cage with the 45,630 cards was not in his work area.

For these

reasons, the Court concludes that Whitaker did not engage in
similar misconduct; therefore, Whitaker is not an appropriate
comparator.
e.

Summary: Hooper’s Proffered Comparators

As discussed above, Hooper has not pointed the Court to any
similarly

situated

male

harshly than she was.
there

is

a

genuine

employees

who

were

disciplined

less

Therefore, the Court cannot find that
fact

dispute

regarding

whether

TSYS‟s

proffered reason for Hooper‟s termination is pretext, and TSYS
is

entitled

to

summary

judgment

on

Hooper‟s

discriminatory

discharge claim.
E.

Title VII Retaliatory Termination

To establish a prima facie case of retaliation under Title
VII,

“the

statutorily

plaintiff

must

show

protected

expression;

(1)

that

she

engaged

in

(2)

that

she

suffered

an

adverse employment action; and (3) that there is some causal
relation between the two events.”

Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
Viewing the evidence in the light most favorable to Hooper,
Hooper did make several complaints that were arguably protected
activity.

First, in September 2006, Hooper complained that a

co-worker

named

George

Wolbert

46

was

making

her

feel

uncomfortable.

Hooper Aff. I ¶ 39.

Second, sometime prior to

October 2006, Hooper complained to St. John that Marshall, who
was

a

manager

director.

at

the

Id. ¶ 50.

time,

should

be

promoted

to

associate

Third, in November 2006, Hooper complained

to a human resources representative that co-worker Blake Barker
had called her a “skank” and that she was not treated as well as
the male employees.
However,

Williams Dep. 58:16-59:22.

Hooper

has

not

pointed

to

any

evidence

to

establish a causal connection between these complaints and her
termination, which occurred in late April of 2007.

Causation

can be established “by showing close temporal proximity between
the statutorily protected activity and the adverse employment
action.”

Thomas,

506

F.3d

at

1364.

“But

mere

temporal

proximity, without more, must be „very close.‟” Id. (quoting
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
“[I]n the absence of other evidence tending to show causation,
if there is a substantial delay between the protected expression
and the adverse action, the complaint of retaliation fails as a
matter of law.”

Id.

“A three to four month disparity between

the statutorily protected expression and the adverse employment
action is not enough.”

Id.

Here, there was a disparity of at

least five months between the 2006 complaints and the adverse
employment action.

Accordingly, Hooper has not made out a prima

facie case of retaliation with regard to her 2006 complaints.

47

Hooper also claims that she engaged in protected activity
in February of 2007, shortly before she was fired, when she
complained to Glen Dean regarding Steve Davis‟s alleged work
violations.
protected
claim,

For Hooper‟s complaint about Steve Davis to be

activity

Hooper

reasonable

for

must

belief

purposes

establish

that

the

employment practices.”

of

a

that

Title

she

employer

was

“had

VII
a

engaged

retaliation
good
in

faith,
unlawful

Dixon v. The Hallmark Cos., 627 F.3d

849, 857 (11th Cir. 2010).

Hooper pointed to no evidence that

her complaint to Dean was about any alleged unlawful employment
practice.

Rather,

Hooper‟s

complaint

regarding

Davis

was

a

whistleblower complaint rather than a complaint regarding race
or sex discrimination.
a

prima

facie

complaint.

case

For this reason, Hooper has not made out
of

retaliation

with

regard

to

her

2007

Given that Hooper failed to establish a prima facie

case of retaliation, TSYS is entitled to summary judgment on her
retaliation claim.
F.

Intentional Infliction of Emotional Distress

“The
infliction

elements
of

of

a

emotional

cause

of

distress

action

are:

(1)

for

intentional

intentional

or

reckless conduct; (2) that is extreme and outrageous; (3) a
causal connection between the wrongful conduct and the emotional
distress;

and

(4)

severe

emotional

distress.”

Ferrell

Mikula, 295 Ga. App. 326, 333, 672 S.E.2d 7, 13 (2008).

48

v.

Even if

Hooper

had

established

all

of

the

other

elements

of

an

intentional infliction of emotional distress claim, she has not
established
Emotional

that

she

distress

reactions

such

embarrassment,
nausea.”

as

suffered

“includes
fright,

anger,

severe

all

horror,

chagrin,

emotional

highly

distress.

unpleasant

grief,

shame,

mental

humiliation,

disappointment,

worry,

and

Abdul-Malik v. AirTran Airways, Inc., 297 Ga. App.

852, 858, 678 S.E.2d 555, 560 (2009) (internal quotation marks
omitted).

The emotional distress must be “so severe that no

reasonable

[person]

(alteration
Though

in

Hooper

could

original)
summarily

be

expected

(internal
“denies

to

endure

quotation

that

she

it.”

Id.

marks

did

omitted).

not

experience

severe emotional distress,” she points to no evidence that she
actually experienced severe emotional distress.
Accordingly,

TSYS

is

entitled

to

summary

Pls.‟ SMF 66.

judgment

intentional infliction of emotional distress claim.

on

her

Cf. Abdul-

Malik, 297 Ga. App. at 858, 678 S.E.2d at 560 (finding no severe
distress

where

professional

plaintiff

help

and

did

not

suffered

take

only

medication

some

or

sleeplessness

seek
and

gradual weight gain).
III. Larry Marshall’s Claims
A.

Background and Overview of Claims

Larry Marshall is a black male.
as a supply clerk in 1987.

He began working for TSYS

During his tenure at TSYS, Marshall

49

held

various

“Manager,

positions,

Production”

and,
Card

in

in

February

Services.

2001,

In

he

became

September

2005,

Marshall assumed responsibilities for the card vault and express
mail.

On October 1, 2006, Marshall was promoted to “Associate

Director, Production” in Card Services.

Walker Aff. ¶¶ 16, 38.

When he was associate director, Marshall reported to Hooper, who
reported to Dean, who reported to St. John.
It

is

undisputed

that

after

the

BOA

Id. ¶¶ 15, 37, 38.

Error,

Peter

Muroski

replaced Hooper as the director responsible for the card vault
and

as

Marshall‟s

supervisor.

Later

in

2007,

Blake

Barker

replaced Glen Dean as senior director of Card Services.
Marshall

alleges

that

he

was

paid

less

than

similarly

situated white employees, was denied promotional opportunities
because of his race, and was terminated due to his race and in
retaliation
Marshall

for

also

complaining

asserts

a

about

unlawful

for

intentional

infliction

Marshall

identified

no

claim

discrimination.
of

emotional distress.
TSYS

responds

that

similarly

situated comparators to support his discriminatory pay claim.
TSYS also contends that Marshall did not apply for a promotion
and that even if he did, the person TSYS selected was better
qualified

for

the

job

than

Marshall.

TSYS

maintains

that

Marshall was terminated because he was responsible for a serious
error when TSYS sent 200,000 of the wrong client‟s blank credit

50

cards to TSYS‟s competitor (“Metabank Error”).

Finally, TSYS

denies that it intentionally inflicted emotional distress upon
Marshall.
B.

Title VII and 42 U.S.C. § 1981 Wage Discrimination

Marshall

claims

that

he

was

paid

less

than

similarly

situated white employees, in violation of Title VII and § 1981.9
To establish a prima facie case of wage discrimination,
Marshall must prove that: “(1) he belongs to a racial minority;
(2)

received

low

wages;

(3)

similarly

situated

comparators

outside the protected class received higher compensation; and
(4) he was qualified to receive the higher wage.”

Lee, 285 F.

App‟x at 606.
Marshall contends that he was paid less than the following
white

employees:

Will

Allred,

Jody

Andrews,

David

Clepper,

Jonathon Fraley, Darrel Harris, Jim Reid, Pat Riccinto, and Will

9

TSYS contends that Marshall‟s Title VII wage discrimination claim is
barred because he did not raise it in his charge to the Equal
Employment Opportunity Commission.
Marshall‟s parallel § 1981 claim
is not subject to the administrative exhaustion requirement, so the
Court still must analyze the merits of the wage claim.
The Court
concludes that Marshall‟s wage claims fail on the merits, so the Court
need not consider whether the Title VII wage claim is barred for
failure to exhaust administrative remedies.
TSYS also argues that Marshall did not raise a wage claim in his
Complaint, but he did allege in his initial Complaint that TSYS denied
him pay increases and bonuses “that were provided to similarly
situated white males.” Compl. ¶ 8, ECF No. 1-4. That allegation was
incorporated into Marshall‟s First Amended Complaint, in which
Marshall added allegations under Title VII and § 1981, asserting that
TSYS‟s actions against him were “discriminatory based on his race.”
1st Am. Compl. ¶¶ 51, 56, ECF No. 1-6. All of Marshall‟s allegations
were incorporated into Marshall‟s Second Amended Complaint.
2d Am.
Compl. 1, ECF No. 9. The Court is satisfied that Marshall adequately
alleged § 1981 wage discrimination.

51

Smith.

Marshall was never paid less than Fraley.

See Walker

Aff. Ex. 13, Job and Annual Rate of Pay Report, ECF No. 54-19 at
26-31 of 31.
Fraley

were

Marshall takes issue with the fact that he and
paid

the

same

bonus

in

2007,

but

there

evidence that Fraley received higher compensation.

is

no

Therefore,

Marshall cannot make out a wage discrimination claim based on
Fraley‟s pay.
There is evidence that Marshall was, for at least one year,
paid

a

lower

salary

Riccinto, and Smith.10
was

similarly

than

Allred,

Andrews,

Clepper,

Harris,

The Court must determine whether Marshall

situated

to

these

employees.

Again,

an

appropriate comparator is a person “who ha[s] very similar jobrelated characteristics and who [is] in a similar situation.”
Lee, 285 F. App‟x at 606 (internal quotation marks omitted).
“The plaintiff must show that he shared the same type of tasks
as

the

comparators.

situated

to

the

A

comparator

plaintiff

in

all

is

an

employee

relevant

similarly

respects.”

Id.

(citation omitted) (internal quotation marks omitted).
When

he

was

an

associate

director,

employees reported up to Marshall.

approximately

Walker Aff. ¶ 39.

forty

Marshall

was responsible for overseeing the main and working card vaults,

10

Andrews was paid less than Marshall in 2004, 2005, and 2006. Walker
Aff. Ex. 13, Job and Annual Rate of Pay Report, ECF No. 54-19 at 27-30
of 31.
In 2007, Andrews‟s salary was $376 higher than Marshall‟s
salary. Id. at 31 of 31. Smith was paid less than Marshall in 2004,
2005, and 2006. Id. at 27-30 of 31. In 2007, Smith‟s salary was $9
higher than Marshall‟s salary. Id. at 31 of 31.

52

and making sure that blank plastics were accounted for and sent
to

production

for

personalization.

Marshall

was

responsible for express mail and quality assurance.

also

Marshall

did not point to evidence of what specific tasks he had with
regard to these responsibilities or how much effort and skill
these responsibilities required.
Marshall asserts that his job was substantially similar to
the jobs of the proffered white employees.
the

comparators

situated

because

required

proffered

by

they

different

more

responsibility

had

specialized
for

more

Marshall

TSYS contends that
were

job

duties,

experience,

employees

and

not

larger

and

similarly
their

jobs

they

had

budgets.

Like

Hooper, Marshall argues that the Court should simply focus on
the generic job title and job description, which was the same
for all managers and associate directors in Output Services.

As

discussed above, however, the Court must focus on the actual job
duties of the employees.
Marshall did not point the Court to any evidence of the
actual job duties of any of the proffered comparators.

Rather,

he relies mainly on job titles and asserts that he should have
been paid the same as other managers while he was a manager and
the same as other associate directors while he was an associate
director.

Marshall

did

not

point

to

any

evidence

of

the

proffered comparators‟ job functions, and he did not point to

53

evidence

that

his

job

required

the

same

responsibility as the comparators‟ jobs.

skill,

effort,

and

For example, although

there is evidence of Marshall‟s general areas of responsibility,
there is nothing in the record that establishes how Marshall‟s
actual

job

included

duties

“project

compared
management

to

Allred‟s

and

risk

and

job

duties,

compliance

which
working

with VISA, Mastercard and American Express through audits and
site

inspections.”

Walker

Aff.

¶

45.

Likewise,

Marshall

pointed to no evidence of how his job duties compared to the
duties of Andrews, Reid,

Riccinto,

and Smith, who were each

responsible for fifty employees and for all production lines in
Statement Services during one shift.
54.

Walker Aff. ¶¶ 47, 49, 53,

There is also no evidence of how Marshall‟s job duties

compared to the duties of David Clepper, who was a manager,
relationship
relationship
Services.

management,
management

then
in

Walker Aff. ¶ 48.

Harris

had

because

he

significantly
supervised

a

an

associate

department

director,

outside

of

Card

Finally, the record suggests that

more

responsibility

approximately

100

than

employees

Marshall
and

was

responsible for accounting and finance, budgeting, purchasing,
and vendor management.
In

summary,

Walker Aff. ¶ 51.

Marshall

has

not

pointed

the

Court

to

any

similarly situated white employees who were paid more than he
was.

Marshall simply pointed the Court to individuals who had

54

the

same

generic

job

title

as

him

who

were

paid

more.

Marshall‟s burden is higher than that; he must point to some
evidence

that

he

shared

“very

similar

job-related

characteristics” and the “same type of tasks.”
App‟x at 606.

Lee, 285 F.

Therefore, the Court cannot find that Marshall

has established a prima facie case of wage discrimination, and
TSYS

is

entitled

to

summary

judgment

on

Marshall‟s

wage

discrimination claims.
C.

Section 1981 Discriminatory Discipline

Marshall received a final written warning for his role in
the BOA Error, which is discussed above.
§ 1981

discriminatory

discipline

claim

Marshall asserts a

against

TSYS

based

on

that final written warning.

Standing on its own, the final

written

actionable

warning

action.”

is

an

“adverse

employment

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241

(11th Cir. 2001).
warning

not

in

TSYS did, however, rely on the final written

terminating

Marshall‟s

employment,

so

the

Court

considers the final written warning below in deciding Marshall‟s
discriminatory discharge claim. Cf. id. at 1240 (suggesting that
negative employment evaluation is actionable if employee suffers
“tangible consequence” from it, such as “further discipline”);
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir.
2001) (stating that negative employment evaluation that did not
result

in

any

effect

on

employment

55

was

not

actionable

but

suggesting that adverse employment action may exist if employer
relies on evaluation to make employment decisions).
D.

Title VII and § 1981 Failure to Promote

Marshall
opportunities.

alleges
In

the

that

TSYS

denied

failure-to-promote

him
context,

promotional
the

prima

facie case consists of showing the following elements: (1) that
the plaintiff belongs to a protected class; (2) that he applied
for and was qualified for a promotion; (3) that he was rejected
despite his qualifications; and (4) that other equally or lessqualified employees outside his protected class were promoted.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir.
2004).
Marshall did not point to any evidence that he applied for
and was denied a promotion during or after 2004.

Plaintiffs

suggest that Marshall should have been considered for Hooper‟s
director position after Hooper was terminated, but they offer no
evidence that Marshall posted for the position.
Marshall argues that it would have been futile for him to
post for the director position because of the final written
warning in his file, so the Court should ignore that element of
the prima facie case.

Even if there is a genuine fact dispute

on this issue, Marshall has not pointed to evidence that he was
qualified for the director job.
assumes that Marshall has

Moreover, even if the Court

established a prima facie case of

56

discriminatory
Muroski,

who

failure
was

to

hired

to

qualified than Marshall.
whether

this

proffered

promote,
fill

TSYS

the

asserts

director

that

job,

was

Peter
more

To create a genuine fact dispute on
reason

is

pretext

for

discrimination,

Marshall “must show that the disparities between the successful
applicant‟s and [his] own qualifications were of such weight and
significance
impartial

that

no

judgment,

over” him.

reasonable

could

have

person,
chosen

discussed

the

the

exercise

candidate

of

selected

Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446

F.3d 1160, 1163 (11th Cir. 2006).
evidence

in

of

such

above,

disparities
Muroski

had

Marshall has pointed to no

between
more

him

than

and

Muroski.

seventeen

As

years

of

experience in card production, and he had previously built and
managed his own credit card production company.
significant management experience.

He also had

In summary, Marshall has not

shown that a fact dispute exists on whether TSYS‟s proffered
reason for selecting Muroski was unworthy of credence or that
discrimination was the real reason for TSYS‟s decision to select
Muroski.

Accordingly, TSYS is entitled to summary judgment on

Marshall‟s failure to promote claim.
E.

Title VII and § 1981 Discriminatory Termination
1.

The
genuine

next
fact

Marshall’s Prima Facie Case
question
dispute

is

whether

regarding

57

his

Marshall
Title

demonstrated

VII

and

§

a

1981

termination claims.

Marshall may establish a prima facie case

of discriminatory discharge by showing that he “(1) was a member
of

a

protected

class,

(2)

was

qualified

for

the

job,

(3)

suffered an adverse employment action, and (4) was replaced by
someone outside the protected class.”

Cuddeback, 381 F.3d at

1235.
TSYS does not dispute that Marshall established a prima
facie case of discriminatory discharge—he was a black male who
was qualified for the job, and he was terminated.
replaced by Jonathon Fraley, a white male.
2.

Marshall was

Walker Aff. ¶ 55.

TSYS’s Proffered Nondiscriminatory Reasons

TSYS contends that Marshall was terminated because he was
responsible for the Metabank Error, a serious error when TSYS
sent 200,000 of the wrong client‟s blank credit cards to TSYS‟s
competitor, and because he had a final written warning in his
file.

Marshall

argues

that

these

reasons

are

pretext

for

discrimination because, among other things, TSYS discriminated
against Marshall when it gave him the final written warning for
the BOA Error.

The evidence suggests that if Marshall had not

had the BOA Error final written warning in his file, he would
not have been terminated for the Metabank Error.
evidence

that

Marshall

would

have

been

There is no

terminated

for

the

Metabank Error had he received a first written warning instead
of a final written warning for the BOA Error.

58

The Court must

therefore determine whether there is a genuine fact dispute as
to whether the BOA Error final written warning—which was the
deciding factor in Marshall‟s termination—was discriminatory.
It is undisputed that St. John recommended that Marshall be
given a final written warning as a result of the BOA Error.

St.

John found that Marshall, like Hooper, failed to inspect the
vault periodically, even though such inspection “is an inherent
task for any leader.”

St. John Memo at TSYSMARSHALL000525.

St.

John also found that Marshall failed to notice the blue cage
with the 45,630 cards even though he visited the main vault more
than thirty times in March 2007.

Id.

Marshall, like Hooper,

also received the written warning because there was no written
policy in place and no training to ensure that all cards were
accounted for and prevent this sort of error from happening.
Kynard Aff. ¶ 27; id. Ex. 7, TSYS Employee Counseling Record for
L. Marshall, ECF No. 54-10, at TSYSHOOPER001704.

As discussed

above, it was reasonable for St. John and Kynard to conclude
that Marshall was partly responsible for the BOA Error and that
the

BOA

Error

was

a

significant

error

that

jeopardized

an

important client relationship.
Marshall argues that even if he was partly responsible for
the

BOA

Error,

similarly

situated

disciplined less harshly than he was.

white

employees

were

In determining whether

Marshall‟s final written warning for the BOA Error amounted to

59

discriminatory

discipline,

the

Court

must

evaluate

whether

another employee was “involved in or accused of the same or
similar conduct” but “disciplined in different ways.”
526

F.3d

at

1373

(internal

quotation

marks

McCann,

omitted);

accord

Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1276 (11th Cir.
2008).

The “quantity and quality of the comparator‟s misconduct

[must]

be

nearly

identical

to

prevent

courts

from

second-

guessing employers‟ reasonable decisions and confusing apples
with

oranges.”

McCann,

526

F.3d

at

1373

(alteration

in

original) (internal quotation marks omitted).
Marshall contends that he was similarly situated to but
disciplined
Services,

differently

including

than

Woodrow

all

white

Winters,

a

director who reported to Steve Davis.

employees
white

male

in

Output

associate

It is undisputed that

Winters was involved in the BOA Error and that he received a
first written warning.

St. John found that production middle

management, including Winters, had a pattern of “circumventing
proper procedures” or condoning such actions to meet deadlines.
St. John Memo at TSYSMARSHALL000526.

St. John also found that

card production managers regularly told their employees to enter
jobs

as

mailed

when

the

jobs

had

not

been

completed.

Id.

Winters also received the warning because he did not develop and
adhere to processes for timely and accurate delivery of card
production jobs.

Kynard Aff. ¶ 29; id. Ex. 9, TSYS Employee

60

Counseling Record for W. Winters at TSYSHOOPER001708, ECF NO.
54-10.
Based on this evidence, Marshall and Winters engaged in
similar misconduct.

They had similar jobs.

Both failed to

perform important functions of their jobs—Marshall by failing to
inspect

the

vault

and

Winters

circumvent proper procedures.

by

permitting

his

team

to

And both failed to develop and

implement processes that would have prevented the BOA Error.
TSYS offers no explanation why Winters received a first written
warning

while

Moreover,

Marshall

TSYS

offers

received
no

a

final

explanation

why

written
it

warning.

treated

the

associate director in the card vault (Marshall) differently than
the associate director in card production (Winters) when TSYS
found that the director in the card vault (Hooper) deserved the
same level of

discipline as the director in card production

(Davis).11
In

summary,

the

present

record

does

not

reveal

any

nondiscriminatory reason for disciplining Marshall and Winters
differently for the BOA Error.

Therefore, the Court finds that

there is a genuine fact dispute as to whether Marshall‟s race
was a motivating factor in TSYS‟s decision to issue Marshall the
final written warning.

Because the undisputed evidence suggests

11

As discussed above, for Hooper, the BOA Error final written warning
resulted in termination because Hooper already had a final written
warning in her file.

61

that TSYS relied on the BOA Error final written warning as the
determining factor in Marshall‟s termination for the Metabank
Error, the Court concludes that TSYS is not entitled to summary
judgment

on

Marshall‟s

discharge claims.

Title

VII

and

§

1981

discriminatory

C.f., Lucas, 257 F.3d at 1261 (suggesting

that adverse employment action may exist if employer relies on
negative evaluation to make employment decisions); Davis, 245
F.3d at 1240 (suggesting that negative employment evaluation is
actionable if employee suffers “tangible consequence” from it,
such as “further discipline”).
F.

Title VII and § 1981 Retaliatory Termination

The Court now turns to Marshall‟s retaliatory termination
claims.

To

establish

a

prima

facie

case

of

retaliation,

Marshall must show that (1) he engaged in statutorily protected
expression; (2) that he suffered an adverse employment action;
and

(3)

events.

that

there

is

some

causal

relation

between

the

two

Thomas, 506 F.3d at 1363.

Marshall contends that he engaged in statutorily protected
behavior

when

(1)

he

complained

about

the

BOA

Error

final

written warning in April 2007, (2) he complained in the summer
of 2007 regarding his temporary supervisor‟s management style,
(3) he complained in the summer or fall of 2007 about being
pressured to lie about the reasons for Hooper‟s termination, and
(4)

he

complained

during

his

62

discharge

meeting

on

February 21, 2008

that

he

was

being

treated

unfairly

because

white employees were permitted to transfer to other jobs within
TSYS while he was not.
Even

assuming

that

each

of

these

complaints

constitutes

protected activity, Marshall has not pointed to any evidence to
establish a causal connection between these complaints and his
termination, which occurred on February 21, 2008.

Causation can

be established “by showing close temporal proximity between the
statutorily
action.”

protected
Thomas,

506

activity
F.3d

and

at

the

1364.

adverse
“But

employment

mere

temporal

proximity, without more, must be „very close.‟” Id. (quoting
Breeden, 532 U.S. at 273).
tending

to

show

causation,

“[I]n the absence of other evidence
if

there

is

a

substantial

delay

between the protected expression and the adverse action, the
complaint of retaliation fails as a matter of law.”

Id.

“A

three to four month disparity between the statutorily protected
expression and the adverse employment action is not enough.”
Id.
Here,

with

regard

to

Marshall‟s

first

three

proffered

instances of protected activity, there was a disparity of at
least

three

adverse

months

employment

between
action,

tending to show causation.
instance

of

protected

the
and

protected
there

is

activity
no

other

and

the

evidence

With regard to the fourth proffered

activity,

63

Marshall

did

not

make

the

complaint until after TSYS made the decision to fire him, so
that complaint did not cause TSYS to fire Marshall.

For these

reasons, the Court cannot find that Marshall has made out a
prima facie case of retaliation, and TSYS is therefore entitled
to summary judgment on Marshall‟s retaliatory discharge claims.
G.

Intentional Infliction of Emotional Distress

“The

elements

infliction

of

of

emotional

a

cause
distress

of

action

are:

(1)

for

intentional

intentional

or

reckless conduct; (2) that is extreme and outrageous; (3) a
causal connection between the wrongful conduct and the emotional
distress; and (4) severe emotional distress.”
App. at 333, 672 S.E.2d at 13.

Ferrell, 295 Ga.

“Extreme and outrageous conduct

is that which is so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.”
559.

Abdul-Malik, 297 Ga. App. at 856, 678 S.E.2d at

Here,

the

outrageous conduct.

evidence

does

not

establish

extreme

and

See Clark v. Coats & Clark, Inc., 990 F.2d

1217, 1229 (11th Cir. 1993) (applying Georgia law) (finding that
although

a

reasonable

factfinder

could

conclude

that

the

plaintiff was terminated because of his age, in violation of
federal law, the termination—standing alone—could not support a
claim

of

intentional

infliction

64

of

emotional

distress).

Therefore, TSYS is entitled to summary judgment on Marshall‟s
intentional infliction of emotional distress claim.
CONCLUSION
For the reasons explained in this order, TSYS‟s Motion to
Strike (ECF No. 88) is granted and TSYS‟s Motion for Summary
Judgment (ECF No. 54) is granted in part and denied in part.
Specifically, the Court denies summary judgment as to Hooper‟s
Equal

Pay

Act

and

Title

VII

wage

discrimination

claims

but

grants summary judgment as to all of Hooper‟s other claims.

The

Court denies summary judgment as to Marshall‟s discriminatory
discharge

claim

but

grants

summary

judgment

as

to

all

of

Marshall‟s other claims.

IT IS SO ORDERED, this 30th day of June, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

65