Joseph v. Columbus Bank and Trust Company

Filing 33

ORDER granting 25 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 4/1/2011. (jbo)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION DYNESHIA D. JOSEPH, Plaintiff, vs. COLUMBUS BANK AND TRUST COMPANY, Defendant. * O R D E R Plaintiff, Defendant, Dyneshia D. Joseph and ("Joseph"), Trust alleges that * * * CASE NO. 4:09­CV-157 (CDL) * *

Columbus

Bank

Company

("CB&T"),

discriminated against her because of her race in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq. ("Title VII").1 did not discriminate against Joseph in

CB&T responds that it any way and that it

terminated Josephs employment because she failed to adequately perform her job. CB&T seeks summary judgment as to Josephs

1

Josephs Complaint also alleged that CB&T discriminated against her based on her gender in violation of Title VII, Compl. ¶¶ 14-21, ECF No. 1, and that CB&T breached Josephs employment contract, id. ¶¶ 2224. Joseph failed to address either claim in response to CB&Ts motion for summary judgment. See generally, Pl.s Resp. to Def.s Mot. for Summ. J. Attach. 1, Pl.s Mem. of Law in Oppn to Def.s Mot. for Summ. J., ECF No. 30-1. Therefore, the Court deems Josephs gender discrimination and breach of contract claims abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.").

1

claim.

For the following reasons, CB&Ts Motion for Summary

Judgment (ECF No. 25) is granted. 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 partys favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc.,

A fact is material if it is relevant Id. at 248. A factual

or necessary to the outcome of the suit.

dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. FACTUAL BACKGROUND The evidence, viewed in the light most favorable to Joseph, reveals the following. CB&T is a state-chartered commercial bank with its main office Georgia. as a and eighteen branch banking locations in Columbus, Id.

CB&T hired Joseph, a black female, in September 2000 Throughout was the as time a period teller relevant at CB&Ts to this

teller. Joseph

action,

employed

Wynnton

2

Branch.

The Wynnton Branch is one of CB&Ts smaller branches,

typically housing nine to ten employees at any one time. I. Joseph's Job Responsibilities at CB&T Josephs title throughout her six-year tenure with CB&T was Teller I. Teller I is an entry-level position that involves

providing face-to-face banking services to customers in both the bank lobby and drive-through banking stations. Joseph First, was required was to perform two categories As a Teller I, of functions. efficiently

Joseph

responsible

for

accurately

and

conducting routine transactions such as receiving and paying out money, cashing checks, accepting deposits and withdrawals,

accepting various other payments, and issuing money orders and travelers checks. Pl.s Resp. to Mot. for Summ. J.

[hereinafter Pl.s Resp.] Attach. 2, Joseph Decl. [hereinafter Joseph Decl.] Ex. 3, Teller I Job Summary/Core Responsibilities, ECF No. 30-2. referral working Second, Joseph was responsible for various sales such of as: bank needs (1) "[d]emonstrat[ing] and a solid (2) or

functions knowledge

products and

services;" services

"[a]ssess[ing]

customer

deliver[ing]

refer[ring] [customers] to other team members in accordance with bank sales strategy;" (3) "[a]ctively promot[ing] [CB&Ts]

services and products, answer[ing]

questions, and direct[ing]

customers to appropriate departments for specialized services with each bank transaction;" (4) "[r]efer[ring] customers to

3

other

bank

staff

for

product

sales

and

advanced

problem

resolution;" and (5) "[m]eet[ing] customer referral goals as set by the Branch Manager." II. Id.

Joseph's Early Tenure with CB&T CB&T contends that Joseph was never an easy employee to

manage.

Josephs supervisors throughout her tenure with CB&T

uniformly reported that Joseph was a complainer, who was subject to constant mood swings. Def.s Br. in Supp. of Mot. for Summ.

J. [hereinafter Def.s Br.] Ex. 2, Takemoto Aff. ¶¶ 7-8, ECF No. 25-5 [hereinafter Takemoto Aff.]; Def.s Br. Ex. 3, Moore Aff. ¶¶ 8-11, 16, ECF No. 27-3 [hereinafter Moore Aff.]; Def.s Br. Ex. 4, Newby Aff. ¶ 6, ECF No. 25-7 [hereinafter Newby Aff.]. CB&T also contends that Joseph was excessively absent from work. Aff. ¶¶ 7-8. tardy to and

Takemoto Aff. ¶ 8; Moore Aff. ¶¶ 13-14; Newby For example, was between for January work 1, 2006 and

April 25, 2007,

Joseph

late

sixty-four

times.

Def.s Br. Ex. 5, Wyatt Aff. ¶ 15, ECF No. 25-8. same period, Joseph took over 156 hours Id. that she was of paid

During that time off,

exclusive of vacation and holidays. Joseph, employee. history of unsurprisingly, denies

a

difficult

Joseph Decl. ¶¶ 3-4. tardiness and

Joseph also denies having a Id. ¶¶ 37-38. She

absenteeism.

explains that the Wynnton Branch was "really relaxed" and that "many of the employees might log in late from time to time."

4

Id. ¶ 38.

Joseph also contends that her absences were not a

problem since "[a]ny time [she] was off work, [she] was either taking [her] earned leave or was excused by a doctor." ¶ 52; see also id. ¶ 37 (stating Joseph had "sick Id. time"

remaining when she left CB&T). III. CB&T's Emphasis on Customer Referrals By 2006, CB&T had begun to put greater emphasis on customer referrals by its employees. ECF No. 27-2 [hereinafter Def.s Br. Ex. 1, Cardin Aff. ¶ 8, Cardin Aff.]; Takemoto Aff. ¶ 9.

Tellers like Joseph were a particular focus of this emphasis since they have daily, face-to-face contact with numerous

customers. expected to

Cardin Aff. ¶ 8; Moore Aff. ¶ 12. engage each customer personally,

Tellers were learn that

customers needs, and refer them to an appropriate person to meet those needs. As part an of Moore Aff. ¶ 12; Cardin Aff. ¶ 8. its emphasis plan on customer referrals, CB&T in

implemented August 2006.

incentive

("Teller

Incentive

Plan")

Joseph Decl. Ex. 2, 2006 Teller Incentive Plan 1, Under the Teller Incentive Plan, tellers like

ECF No. 30-2.

Joseph were expected to make sufficient referrals to result in at least four closed transactions per month. Id. Tellers who

exceeded that minimum threshold were entitled to an additional monthly bonus. Id. at 1-2.

5

In

late

January

2007,

Colby

Cardin

succeeded

Austin

Tofinski as Manager of the Wynnton Branch. transition, Cardin, Tofinski, and Assistant

As part of the Branch Manager

Josefina Takemoto met with each branch employee to allow Cardin to get to know them, and to discuss how Cardin intended to manage the branch. On January 30, 2007, Cardin, Tofinski, and During that meeting, Cardin told

Takemoto met with Joseph.

Joseph that CB&T had three primary expectations of her as a teller. Cardin Aff. ¶ 15. First, that that she she handle cash

transactions knowledge services; of and

flawlessly; repeat third,

second,

have extra

personal customer needs and

customers that she

and look

provide for

customer

demonstrate that CB&T offered numerous financial products which could help them be financially successful. Id.

During that same meeting Joseph told Cardin that she had been a Teller I for over six years, that during that time she had taken on extra responsibilities, and that she wanted to be promoted to Teller II. Joseph Decl. Ex. 5, Joseph Right Steps The

Individual Performance & Development Plan 6, ECF No. 30-2.

job description for a Teller I and Teller II are very similar; a Teller II, however, "is required to refer and sell more than a Teller I." required to Joseph Decl. ¶ 9. have "advanced" Specifically, a Teller II is of bank services, as

knowledge

opposed to the "solid" knowledge a Teller I requires.

Compare

6

Joseph Decl. Ex. 3, Teller I Job Summary/Core Responsibilities with Joseph Decl. Ex. 4, Teller II Job Summary/Core

Responsibilities, ECF No. 30-2.

Likewise, a Teller II must meet

"stretch" (i.e. higher) customer referral goals rather than the normal Teller I customer referral goals. Id. After reviewing

the Teller II competencies, Cardin, Tofinski, and Takemoto told Joseph that the most pressing area where she needed improvement to increase her chances efforts. for promotion Joseph was increasing Steps her

customer

referral

Right

Individual They noted

Performance & Development Plan 6; Joseph Decl. ¶ 18.

that Joseph had only closed seven referrals over the past three years and that, therefore, her sales were too low to promote her to Teller II. Cardin Aff. ¶ 14; Joseph Right Steps Individual Joseph explained that because

Performance & Development Plan 6.

she frequently ran the drive through station alone and was also handling other duties, she did not have the opportunity to make customer referrals. IV. Joseph Decl. ¶¶ 16-17.

Joseph's Career Development Plan As a result of Josephs desire for promotion, Cardin,

Takemoto, and Joseph met again on February 9, 2007 to prepare an action plan for Josephs development using CB&Ts Right Steps Evaluation System (the "Development Plan"). 22. Joseph Decl. ¶¶ 20,

The Development Plan was divided into six action items.

Joseph Right Steps Individual Performance & Development Plan 6.

7

Step one was designed to increase Josephs product knowledge, which would help her increase her referrals. Id. Joseph

committed to learn about one specific financial product per week and then report on that product to Takemoto or Cardin, thereby making an effort to learn the details of each financial service CB&T offered. Id. Cardin and Takemoto committed to allow

Joseph to rotate more frequently from the drive through teller station into the lobby and give her time off from her teller station to observe personal bankers so that she could decide whether that was a career direction she wished to pursue. Id.

Joseph was asked to register and attend training classes offered by CB&T, and Cardin personally committed to sit with her at her teller improve station her and to make suggestions on Id. his about how she of urged might her to

referrals with

based

observation was also

interaction

customers.

Joseph

develop a more positive attitude and to become more involved in group activities with other Team Members. Id.

At the conclusion of the February 9 meeting, Joseph stated that she did not like having to make product referrals and that she wanted to find another job within CB&T for which she was better suited. Joseph Dep. 92:14-20, 94:21-24, ECF No. 23;

Cardin Aff. Ex. B, Cardin February Sales Activity Report at 1, Feb. 9, 2007 entry, ECF No. 27-2 [hereinafter Cardin February Sales Activity Report]. Therefore, Joseph asked Cardin and

8

Takemoto to delay the implementation of the Development Plan for about a month, stating that if she was unable to locate another job within that time, they could revisit at 1, the plan. Cardin entry.

February

Sales

Activity

Report

Feb. 9, 2007

Cardin, however, denied Josephs request.2 Cardin contends in Id. that the he denied I the request

Cardin Aff. ¶ 20. because Josephs immediate

performance improvement. that she

Teller

position

required

Likewise, Joseph testified at her deposition started work on her Development Plan

immediately

because she "knew that [she] had to keep [her] job." Dep. 86:7-12.

Joseph

Now, however, Joseph contends that she "was never

told that [she] needed to immediately improve [her] sales to keep [her] Teller I job." Joseph Decl. ¶ 15. Joseph further

contends that "[a]ll discussion/plans regarding increasing [her] referrals and sales were an effort to consider [her] for

promotion, not to consider whether [she] should be terminated." Id.; see also id. ¶ 22 ("I was told that in order to be promoted to Teller II my sales referrals would have to improve. However,

this was not a condition for continued employment as a Teller 1."); Joseph Right Steps Individual Performance & Development

2

Joseph now contends Cardin agreed to delay the implementation of the Development Plan for thirty days, Pl.s Resp. to Def.s Statement of Material Facts ¶ 34, ECF No. 30-3, but she has produced no evidence to support that assertion. Further, during her deposition Joseph clarified that Cardin and Takemoto did not agree to delay implementation of her Development Plan. Joseph Dep. 92:22-95:2-11.

9

Plan 6 (stating Joseph should "[e]ffectively meet her threshold of 4 referrals per month and more in order to be considered or recommended for future promotions"). V. The Follow-Up Four weeks later, on March 7, Cardin again met with Joseph as she had suggested. action items noted During that meeting, Cardin reviewed the in Josephs Development Plan with

disappointing results.

Cardin Aff. ¶ 24.

Over the past four weeks CB&T had offered Joseph multiple opportunities Stephanie for improvement. had instituted Wynnton a Branch to Head give Teller Joseph

Barber

rotation

greater access to lobby customers. Aff. ¶ 24.

Joseph Dep. 74:2-5; Cardin

Joseph was also given an opportunity to observe a

personal banker to determine whether she wanted to pursue that career. Joseph Dep. 74:7-10; Cardin Aff. ¶ 24. Finally, Cardin

had observed Joseph in the teller line, but they had not met for a coaching session. Joseph Dep. 75:21-77:4 (acknowledging

Cardin observed her at the drive through window but denying they met for coaching session); but see Cardin Aff. ¶ 24 (contending coaching session occurred). Over that same period, however, Joseph made only minimal effort. Joseph had not made any weekly reports about new CB&T

financial products she had learned about and had not asked for help on product knowledge from either Cardin or Takemoto.

10

Joseph Dep. 69:6-71:25. work, Joseph reported

After observing personal bankers at that she was not interested in that

position. any

Id. at 74:12-21. classes

Joseph had also failed to complete by CB&T. Id. at 77:13-78:1.

training

offered

Cardin was concerned that Josephs attitude had not improved, and he knew that she had been absent multiple days in the few weeks since their last meeting. Josephs referrals had not Cardin Aff. ¶ 24. as of the date Finally, of this

improved

meeting, and Cardin believed that she was not making any serious effort to improve. Cardin Aff. ¶ 24.

During the meeting Joseph informed Cardin that "sales were not for her." Cardin Aff. ¶ 23. When he asked her why, she

responded that she had a hard time asking people to consider products and services that she did not herself have or believe in, such as credit cards. Id. Joseph also told Cardin that she Id.

did not like to sell because she did not like to hear "no." After the March 7 meeting, Josephs customer

referral

efforts briefly improved.

Joseph closed one referral that very The Wynnton Branch management

day and two more on March 9.

believed that this result showed what Joseph was capable of if she made the effort and, consequently, recognized her for her improvement. Cardin Aff. ¶ 26.

11

VI.

Joseph Throws In the Towel About two weeks later, on March 19, Takemoto and Head

Teller Barber met with Joseph to give her an update on her "Over and Short (cash accounting)" report. Takemoto Aff. ¶ 23.

During this conference, Takemoto told Joseph that she needed to be more consistent in her sales efforts. Id. Joseph responded

by saying that she had been doing this for years, that sales were not for her, and that she was going to come to work, wait on her customers, and go home. 107:2-108:6. Takemoto Aff. ¶ 24; Joseph Dep.

Joseph also told Takemoto that "I am throwing in

the towel," Takemoto Aff. ¶ 24; Joseph Dep. 108:8-12, and that "I am just waiting to move on to other opportunities," Takemoto Aff. ¶ 25; Joseph Dep. 114:10-12. Takemoto made sure she

understood Joseph by asking: be trained for anything?" not."

(1) "This means you do not want to To which Joseph responded: "I do (2) "You do To

Takemoto Aff. ¶ 25; Joseph Dep. 113:9-19.

not want to be considered for any upcoming opportunities?" which Joseph responded: "I do not." 114:1-4. "Yes."
3

Takemoto ¶ 25; Joseph Dep. To which Joseph responded

(3) "This isnt for you?"

Takemoto Aff. ¶ 25; Joseph Dep. 114:6-8.3

Josephs deposition and Takemotos affidavit differ slightly on the exact words used during the Takemoto-Joseph exchange. Compare Takemoto Aff. ¶ 25 (",,This is it for you? Ms. Joseph responded ,,Yes.") with Joseph Dep. 114:6-8 ("Q. . . . she asked, This isn't for you, and you said, Yes? A. Yes, because I was trying to post out."). The Court construes this immaterial difference in the light most favorable to Joseph.

12

VII. Joseph's Final Warning When Takemoto reported to Cardin what Joseph said during the March 19 counseling, he became very concerned and called his supervisor, Community/Regional Executive II Cissy Giglio.

Cardin Aff. ¶ 30.

On March 22, Giglio, Takemoto, and Cardin met During that meeting, they

with Joseph for a coaching session.

reviewed Josephs referral activities and noted that although Josephs closed referrals briefly rose after the March 7

meeting, since then, her referrals had stopped.4 30.

Cardin Aff. ¶

They talked about the importance of consistency, stating

that the minimum was just a goal, and that she should always be pursuing Activity referrals. Report at Cardin 1, Mar. Aff. 23, Ex. 2007 C, Cardin March No. Sales 27-2

entry,

ECF

[hereinafter Cardin March Sales Activity Report]; Cardin Aff. ¶ 30. They emphasized that CB&T wanted to address every

customers needs, and was not just asking its tellers to talk to a few people as needed to meet a quota. Cardin Aff. ¶ 30.

Joseph stated that she understood, and would endeavor to be more consistent. Cardin March Sales Activity Report at 1,

Mar. 23, 2007 entry; Cardin Aff. ¶ 30.

4

After the March 7 meeting, Joseph closed one referral that very day and two more on March 9, ultimately closing five referrals by March 22. Cardin Aff. Ex. C, Cardin March Sales Activity Report at 1, Mar. 23, 2007 entry, ECF No. 27-2.

13

On the day after the March 22 meeting, Joseph had five closed referrals. Cardin Aff. ¶ 31. Subsequently, however,

Joseph had no other referrals until April 19, when she had one closed referral. Id. Joseph Further, missed during the month days, after the

March 22 meeting,

nine

working

including

four days of vacation time and five days at home with sick children. placed a Cardin Aff. ¶ 32; Joseph Decl. ¶ 53. hardship on the small team at the Those absences Wynnton Branch,

including its management. VIII.

Cardin Aff. ¶ 32; Takemoto Aff. ¶ 28.

Joseph's Termination As a result of her absenteeism and continuing failure to

consistently perform the customer referral aspect of her job, the Wynnton Branch leadership removed Joseph as an active teller and placed her on administrative leave with pay from

April 26, 2007 through May 30, 2007.

Joseph was encouraged to Cardin Aff.

seek other employment with CB&T during that period.

¶ 32; Cardin Aff. Ex. D, Note to Supervisor File from C. Cardin 1, Apr. 25, 2007, ECF No. 25-4 [hereinafter Termination Notice]. When Joseph had not located another position with CB&T by

May 30, 2007, she was terminated.

Cardin Aff. ¶ 33.

Joseph was

told in writing three reasons for her termination: (1) lack of consistency in sales performance; (2) poor attendance; and (3) lack of teamwork. Termination Notice 1; Cardin Aff. ¶ 34.

14

IX.

Joseph's Replacement At approximately the same time Joseph was discharged, a

second Takemoto

teller Aff.

position ¶ 31.

came

open

at

the

Wynnton were

Branch. initially

Thirty-three

candidates

identified for the two positions and eleven were interviewed by a panel of hiring Felicia managers, Jackson, including a black she Takemoto. female, it was down Takemoto initially to take

Aff. ¶ 33. offered

Josephs

position, Id.

but

turned

another job at CB&T.

Ultimately, Phillip Rodgers, a white

male, and Lacey McDonald, a white female, were selected by the panel to fill Id. DISCUSSION Joseph contends that she was discriminated against based on her race in violation of Title VII. Title VII makes it unlawful the two open teller positions at the Wynnton

Branch.

for an employer to "discharge any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individuals race." Where, as here, a plaintiff the 42 U.S.C. § 2000e-2(a)(1). no may direct proceed evidence under of the

presents

discriminatory

intent,

plaintiff

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). E.g., Crawford v. Carroll, 529 Under this framework, the

F.3d 961, 975-76 (11th Cir. 2008).

15

plaintiff

must

first

establish

a

prima

facie

case

of

discrimination.

Alvarez v. Royal Atlantic Developers, Inc., 610 "Once the plaintiff has made

F.3d 1253, 1264 (11th Cir. 2010).

a prima facie case, a rebuttable presumption arises that the employer has acted illegally." Id. "The employer can rebut

that presumption by articulating one or more legitimate nondiscriminatory reasons for its action." Id. "If it does so,

the burden shifts back to the plaintiff to produce evidence that the employers proffered Id. reasons are a pretext for

discrimination."

"Despite these shifts in the burden of

production, the ultimate burden of persuasion remains on the plaintiff to show that the defendant intentionally discriminated against her." X. Id.

Joseph's Prima Facie Case "Presenting a prima facie case is not onerous as it

requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir. 2008).

Under the

McDonnell Douglas framework, a plaintiff may establish a prima facie case by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside of her protected class or was treated less

favorably than a similarly-situated individual outside of her

16

protected class.

Maynard v. Bd. of Regents of Div. of Univs. of It

Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).

is undisputed that Joseph, a black female, is a member of a protected class and that she suffered an adverse employment

action when CB&T terminated her employment.

The Court also

finds that Joseph was qualified for her Teller I job at CB&T, as evidenced by her employment in that position for six and a half years.5 (11th See Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 Cir. 2001) ("[I]n cases where a plaintiff has held a

position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima facie case can be inferred." (alteration in original) (internal

quotation marks omitted)).

The question, therefore, is whether

Josephs evidence shows that she was replaced by someone outside of her protected class or was treated differently than

similarly-situated employees. Joseph has failed to demonstrate outside of that CB&T treated

similarly-situated individuals more favorably.
5

her protected class

In support of her prima facie case, Joseph

"Of course, the fact that [Joseph] was qualified to perform her job competently does not mean that she actually did so, an issue that is sharply contested by the parties." Alvarez, 610 F.3d at 1265. "The qualifications and experience that get a candidate hired for a job and the performance that is satisfactory enough for her to keep it are two different things." Id. Because Josephs job performance is bound up in the inquiry into whether CB&Ts proffered reason for firing her was a pretext for discrimination, the Court will consider it at the pretext stage of the analysis. Id.

17

contends outside

that of

Peggy

Kennon

was

a

similarly-situated like Joseph,

employee to

her

protected

class

who,

failed

consistently perform the customer referral aspect of her job, but was not terminated. Kennon was a white female who, like Therefore, to

Joseph, was a teller at CB&Ts Wynnton Branch.6

the extent that she is outside Josephs protected class and has similar job responsibilities, Kennon is a proper comparator to Joseph. Joseph must also show, however, that Kennon and Joseph

were "involved in or accused of the same or similar conduct and [were] disciplined in different ways." 1289 (internal quotation marks omitted). Maynard, 342 F.3d at Under this standard,

the Court finds that Kennon is not a valid comparator. First, Kennon is not a valid comparator because she and Joseph were not "involved in or accused of the same or similar conduct." contends Id. that (internal it quotation Joseph marks omitted). (1) she CB&T was

terminated

because:

unwilling to consistently perform the sales aspect of her teller job; and (2) she had poor attendance. Termination Notice 1; Cardin Aff. ¶ 34.
6

Def.s Br. 13; accord Like Joseph, Kennon

Kennon was a Teller II while Joseph was a Teller I. The job descriptions for a Teller I and Teller II, however, are "virtually identical." Joseph Decl. ¶ 9; see also supra pages 6-7 (describing slight differences between Teller I and Teller II). Therefore, the Court assumes that Joseph and Kennon are proper comparators based on their job responsibilies. See Rioux, 520 F.3d at 1281 ("[D]ifferences in job ranks between a plaintiff and another employee are not, in and of themselves, dispositive as to whether the two individuals may be compared for purposes of evaluating a discrimination claim.").

18

also

failed to

consistently perform the sales aspect of her Cardin February Sales Activity Report at 1,

teller position.

Feb. 9, 2007 entry (noting that Kennons sales "slowed to a virtual halt"). Joseph, however, has pointed to no evidence

that Kennon exhibited the poor attendance that CB&T contends plagued Josephs tenure. Therefore, the Court finds that Joseph

and Kennon were not "involved in or accused of the same or similar conduct," Maynard, 342 F.3d at 1289 (internal quotation marks omitted), and consequently are not proper comparators, see Rioux, 520 F.3d at 1280 ("The quantity and quality of the

comparators misconduct [must] be nearly identical to prevent courts from second-guessing employers reasonable decisions and confusing omitted)). Kennon is also not a valid comparator because she and apples with oranges." (internal quotation marks

Joseph were not treated differently. Joseph and Kennon CB&T were not

After recognizing that their the to sales same

fulfilling both the

responsibilities, opportunity to

offered including

employees opportunity

improve,

explore

transitioning to a personal banker position. CB&Ts offer and banker position. banker

Kennon accepted personal in a

made a successful transition to a Joseph, position, however, Joseph was not

interested and

personal

Dep.

74:12-21,

instead

pursued a promotion to Teller II, a position that required even

19

more

customer efforts

referrals. to help

Joseph her

also

failed

to

respond

to

CB&Ts

improve

her

customer

referrals,

eventually telling her managers that "sales were not for her," Cardin Aff. ¶ 23, that she was "throwing in the towel," and that she was "just Aff. waiting ¶¶ to move Joseph on to Dep. other opportunities," 114:10-12.

Takemoto

24-25;

108:8-12,

Because both Kennon and Joseph were given the same opportunity to improve, which Kennon accepted but Joseph rejected, the Court finds that they were not treated differently by CB&T and thus, are not proper comparators. See Holifield v. Reno, 115 F.3d

1555, 1562-63 (11th Cir. 1997) (per curiam) (finding comparator not treated more favorably when transferred because employer

attempted to transfer the plaintiff but no transfer opportunity was available). For the foregoing reasons, the Court finds that Joseph has failed to demonstrate outside still, of that her CB&T treated class a prima similarly-situated more favorably. case of

individuals Joseph may

protected establish

however,

facie

discrimination by demonstrating that CB&T replaced her with a person outside of her protected class. 1289. black Maynard, 342 F.3d at

Although CB&T initially offered Josephs position to a female, thereby casting doubt upon any inference of

discrimination, it is undisputed that CB&T eventually replaced Joseph with a white male. Takemoto Aff. ¶ 33. Therefore, for

20

purposes of Josephs prima facie case, where her burden is "not onerous," Rioux, 520 F.3d at 1275, the Court will assume that Josephs eventual replacement by a white male is sufficient to establish a prima facie case of discrimination. the burden shifts to CB&T to articulate a Accordingly, non-

legitimate,

discriminatory reason for Josephs termination. XI. CB&T's Legitimate, Non-Discriminatory Reason An employers by its burden presenting employment to rebut an inference of

discrimination reasons for

legitimate, action is

non-discriminatory light."

"exceedingly

Holifield, 115 F.3d at 1564 (internal quotation marks omitted). The employer "need not persuade the court that it was actually motivated evidence by the a proffered genuine the reason, issue of but fact need as only to present it at

raising

whether 610 F.3d

discriminated 1265.

against

plaintiff."

Alvarez,

CB&T has consistently asserted that it terminated Joseph

because: (1) she was unwilling to consistently perform the sales aspect of her teller job; and (2) she had poor attendance.

Def.s Br. 13; accord Termination Notice 1; Cardin Aff. ¶ 34. These reasons are not discriminatory and thus, satisfy CB&Ts burden. The burden, therefore, shifts back to Joseph to present

evidence that CB&Ts reasons are pretext for discrimination.

21

XII. Pretext Joseph may satisfy her burden of showing pretext "either by offering evidence that [CB&T] more likely than not acted with a discriminatory motive, or by showing that its proffered reasons are not credible." Joseph "must Alvarez, 610 F.3d at 1265. such weaknesses, or To show pretext, implausibilities, in the

demonstrate

inconsistencies,

incoherencies,

contradictions

employers proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence."

Id. (internal quotation marks omitted).

Joseph, however, "is

not allowed to recast an employers proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer." that the Id. (internal quotation marks omitted). proffered reason is one that might "Provided motivate a

reasonable employer, an employee must meet that reason head on and rebut it, and [she] cannot succeed by simply quarreling with the wisdom of that reason." marks omitted). Id. at 1265-66 (internal quotation

A reason is not pretext for discrimination

"unless it is shown both that the reason was false, and that discrimination was the real reason." Brooks v. Cnty. Comm'n of

Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006). Here, Joseph contends that CB&Ts proffered reasons for her termination are inconsistent and therefore unworthy of credence. Pl.s Resp. Attach. 1, Pl.s Mem. of Law in Oppn to Def.s Mot.

22

for Summ. J. 14-15, ECF No. 30-1 [hereinafter Pl.s Mem.]. present record refutes Josephs argument.

The

CB&Ts reasons for

Josephs termination have been consistent and are certainly nondiscriminatory. Moreover, Joseph has produced no evidence which

casts any doubt upon them. Joseph first contends that her sporadic bursts of customer referral effort demonstrate that her termination based on her sales record performance reveals was pretextual. Joseph See Pl.s the Mem. 15 ("The for

that

Ms.

doubled

sales

quota

March[] 2007, but was fired anyway.").

Josephs evidence of

brief and temporary improvement, however, does nothing to rebut CB&Ts unwavering contention that she was terminated because of her inconsistent sales performance. see also Cardin Aff. ¶ 34 See Termination Notice 1; CB&T terminated Joseph

(stating

because of her lack of consistency in sales performance); Def.s Br. 13 (stating CB&T discharged Joseph because of her failure to consistently perform the sales aspect of the teller job).

Further, Josephs evidence that she met her customer referral quota during fact one as month to the does true not raise a genuine was issue of

material

reason

she

fired.

CB&T

contends that it terminated Joseph because she was unwilling to consistently perform the sales aspect of her teller job. Br. 13. CB&T contends that it believed Joseph Def.s not

would

consistently perform the sales aspect of her teller job for two

23

reasons: (1) she expressly told them so on multiple occasions; and (2) her inconsistent sales performance demonstrated that

although she was capable of meeting her sales goal, she was not interested in doing so. Def.s Reply Br. 7, ECF No. 32.

Therefore, Josephs evidence that she met her customer referral quota during one month is not inconsistent with CB&Ts belief, based on Josephs own statements and other performance, that she was unwilling to consistently perform the sales aspect of her teller job. See Alvarez, 610 F.3d at 1266 ("The inquiry into

pretext centers on the employers beliefs, not the employees beliefs and, to be blunt about it, not on reality as it exists outside of the decision makers head."). Joseph also contends that CB&Ts complaints regarding her attendance are contrived. According to Joseph, "there is no

evidence of negative information or counseling for tardiness or absenteeism noted in all of [her] personnel file." 16. Again, the record refutes Josephs argument. Pl.s Mem. As early as

December 2003, Josephs supervisor at CB&Ts St. Marys Branch verbally counseled her regarding her tardiness and absenteeism. See Newby Aff. Ex. A, Employee Counseling Record 1,

Dec. 22, 2003, ECF No. 25-7; see also Newby Aff. ¶ 7 ("Joseph was not dependable and was often late."). Josephs subsequent

supervisors throughout her tenure at CB&T consistently echoed the same concerns. Moore Aff. ¶ 13 (stating that there was a

24

"continuing

problem

with

Ms.

Josephs

attendance");

Takemoto

Aff. ¶¶ 8, 23, 28 (stating she initially noticed that Joseph "miss[ed] a good bit of work," that "her progress was being threatened by a somewhat alarming rate of absenteeism," and that she was terminated 27, 32 that because of her absenteeism); had was Cardin days by Aff. of a

¶¶ 24,

(stating "her rate of

Joseph

"multiple

absenteeism," somewhat terminated

progress of

being

threatened that light she of

alarming because

absenteeism," absenteeism).

and In

was this

her

evidence, Josephs own opinion that her attendance was "not a problem" is not sufficient to raise a genuine issue of material fact as to the true reason she was fired. See Holifield, 115

F.3d at 1565 ("[W]here the employer produces performance reviews and other documentary evidence of misconduct and insubordination that demonstrate poor performance, an employees assertions of his own good performance are insufficient to defeat summary

judgment, in the absence of other evidence."). Joseph evidence finally CB&T contends treated that her As she less can show pretext than with other

that

favorably

similarly-situated Joseph has failed

employees. to

explained that CB&T

above, treated

however, her any

demonstrate

differently than a similarly-situated employee outside of her protected class such that a reasonable factfinder could conclude that CB&T terminated Joseph because of her race.

25

In

summary,

the

Court

finds

that

Joseph

has

failed

to

produce any evidence from which a reasonable factfinder could conclude that CB&Ts articulated legitimate, non-discriminatory reasons were pretext for discrimination. entitled to summary judgment as to Accordingly, CB&T is Josephs Title VII

discrimination claims. CONCLUSION For the foregoing reasons, CB&Ts Motion for Summary

Judgment (ECF No. 25) is granted. IT IS SO ORDERED, this 1st day of April, 2011. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE

26