Stinson v. Public Service Telephone Company et al

Filing 57

ORDER granting 21 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 12/29/2011 (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARY P. STINSON,

*

Plaintiff,

*

vs.

*
CASE NO. 4:10-CV-63 (CDL)

PUBLIC
SERVICE
TELEPHONE *
COMPANY, and JAMES L. BOND,
*
Defendants.
*
O R D E R
Plaintiff Mary Stinson (“Stinson”) claims that her former
employer, Defendant

Public Service Telephone Company (“Public

Service”), violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1981
(“§ 1981”), by terminating her employment because of her race,
subjecting

her

to

a

sexually

hostile

work

environment,

and

retaliating against her by filing a false report of criminal
activity.

Stinson also brings a claim for defamation under

Georgia law against her former supervisor, James Bond (“Bond”),
for making statements to various entities accusing Stinson of
criminal

activity.

Public

Service

and

Bond

(collectively

“Defendants”) filed a Motion for Summary Judgment (ECF No. 21),
which is presently pending before the Court.

For the following

reasons, the Court grants Defendants’ motion as to Stinson’s
Title VII and § 1981 claims.

The Court declines to exercise

supplemental jurisdiction over Stinson’s state law defamation
claim

against

prejudice.

Bond,

and

that

claim

is

dismissed

without

See 28 U.S.C. § 1367(c)(3).
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.

FACTUAL BACKGROUND
The facts, viewed in the light most favorable to Stinson,
are as follows.
I.

Stinson’s Employment with Public Service
Stinson, a black female, worked for Public Service as a

customer

service

representative

(“CSR”)

until her discharge on March 14, 2008.

from

October

1987

Public Service provides

cable, internet, and phone services to its customers.

2

5,

Stinson

received customer payments, both cash and check, and posted them
to customer accounts using the computer.
93:2, ECF No. 24.
93:11-12.

Stinson Dep. 92:9-

She also prepared bank deposits.

Id. at

In addition to the individual computers specifically

assigned to each CSR, Public Service had two computers at the
customer walk up window.

Stinson typically worked at one of the

computers at the window.
II.

Stinson’s Discriminatory Discharge Claims
A.

Public Service’s Initial Investigation of its Billing
Records

In January 2008, Public Service began an investigation of
its

customer

billing

records.

Ingram

Dep.

Ex.

2,

Memo

to

Records 1 (Feb. 29, 2008), ECF No. 48 [hereinafter Feb. Memo].
Public Service began the investigation because its Controller,
Vernon Ingram (“Ingram”), discovered a revenue account number
with a 74.7% decrease in revenue for the test year compared to
the

prior

year

during

his

preparation

Georgia Public Service Commission.

Id.

of

a

report

for

the

Upon examination of the

Other Charges and Credits (“OCC”) journals for the account in
Public Service’s computer billing program, which provided the
source information for the computer entries for the account,
Ingram found unexpected credit adjustments.

Id.

OCC credits

are given to customers for adjustments on their bills.
Dep. 7:24-8:4, ECF No. 42.

Brown

When Ingram discovered the decrease

3

in revenue he initially thought Darlene Brown (“Brown”), a white
CSR, processed the unexpected credits.
Ingram

expanded

his

Ingram Dep. 36:4-6.

investigation

to

determine

similar problems existed with other accounts.

whether

As part of the

investigation, Bond retrieved cancelled checks from the bank for
a large customer and traced the checks.
ECF No. 41.

J. Bond Dep. 14:15-18,

That trace revealed that smaller customers’ account

balances were credited using the check from the large customer,
and

then

an

OCC

credit

was

applied

to

account for the amount of its payment.

the

large

customer’s

Id. at 14:18-22; see

also Feb. Memo 2-3 (detailing the inconsistencies between the
check payment amounts, the deposit records from the bank, and
the

payment

receipt

billing program).
cover

the

records

from

Public

Service’s

According to Bond, applying the OCC credit to

payment

of

the

large

customer

took

money

Public Service Telephone’s pocket” and gave it to
customer.

computer

“out

of

the large

J. Bond Dep. 14:22-24.

Based on Ingram’s initial findings, he had “grave concerns
that [Stinson] through her batch and/or journal entries into our
customer billing software, has misstated the facts as to when
customers
accounts.”

paid

and

the

Feb. Memo 3.

Company

received

payment

on

their

Ingram concluded that “some customer

payments were never recorded in [Public Service’s] software as
collections on accounts, but were used to cover amounts posted

4

to other customer’s accounts.”
that

“OCC

credits

on

Id.

some

Ingram further determined
customer’s

accounts

were

inappropriately recorded by [Stinson] in our software and that
these

same

customers

actually

paid

to

the

amount as was credited off their accounts.”

Company

the

same

Id.

Ingram, Bond, and Kelly Bond held a meeting with Stinson to
discuss the inconsistencies between her computer billing records
and her bank deposit records.

Stinson Dep. 82:2-5.

Ingram told

Stinson “they had [done] an investigation and he didn’t like
what he had seen.”

Id. at 82:18-19.

explain how she processed payments.

Ingram asked Stinson to
Id. at 82:21.

Stinson

understood that Ingram “seemed to think that [she] had taken
somebody

else’s

deserve it.”

check

and

give[n]

Id. at 82:15-17.

it

to

people

that

didn’t

Bond explained to Stinson that

Public Service had the bank make copies of her deposit slips,
and he did not understand why she recorded small amounts of the
checks when she filled out the deposit slips.

Id. at 83:3-7.

Bond told Stinson that he was going to investigate further, but
if he did not like what he saw, he was going to have to let her
go.

Id.

at

82:25-83:2.

Stinson

accused her of stealing money.

understood

Id. at 85:11-18.

Public

Service

Bond, however,

told Stinson that “[he] never said [she] stole anything.”
at 85:6-16.

5

Id.

B.

Stinson’s Termination

Continuing the investigation, Ingram reviewed the deposit
records

from

January.

the

local

bank

for

Ingram Dep. 14:15-15:8.

each

CSR

for

the

month

of

Ingram then compared the bank

deposit records with Public Service’s payment receipt records.
When

comparing

the

deposit

records

with

the

payment

receipt

records, thirty-four of Stinson’s payment receipt records did
not match the deposits made to the bank.

Ingram Dep. Ex. 1,

Memo to Records, Mar. 14, 2008, ECF No. 48 [hereinafter Mar.
Memo].

Stinson was the only CSR with non-matching records for

the month.

Id.; see also Ingram Dep. 15:9-13.

Two of the CSRs

who were investigated were white and two were black.

See Mar.

Memo (listing Aretha Williams, Stacia Ennis, Mary Stinson, and
Janice Joiner as the CSRs investigated); Stinson Dep. 109:5-18
(noting the races of the other CSRs).

Ingram concluded that

Stinson held customers’ checks and used other customers’ money
to cover the payments in the computer system.
other

times,

customers’

according

to

Ingram’s

bill stubs and us[ed]

Mar. Memo.

analysis,

their

Stinson

At

“[held]

money to cover other

customers’ payments in the computer system.” Id.
Relying
Stinson’s
records,

on

Ingram’s

employment.
meaning

“she

Bond

investigation,
claimed

applied

that

credits

to

Bond

terminated

Stinson

falsified

other

customers’

accounts without using the customers’ money to actually pay the

6

bill.”

J. Bond Dep. 15:3-8.

Bond terminated Stinson because

“the records had been falsified as to where the money was coming
from.”

Id. at 15:9-14.

Bond concluded Stinson was responsible

for the falsified records because she “filled out every one of
the deposit slips that . . . went into the bank and . . . the
OCC credits were done from [Stinson’s] computer.”
19.

Prior to terminating Stinson, Bond had Ingram thoroughly

explain his investigation and analysis.
based

Id. at 15:15-

his

decision

on

the

month

Id. at 15:20-23.

review

and

“made

the

Bond
best

decision [he] could make with the information that [he] had.”
Id. at 24:7-15.
After

Stinson’s

termination,

Ingram

continued

to

investigate the extent to which Public Service’s records had
been falsified.
supervised

Ingram

compared

the

and

several other

information

from

billing program to the bank deposit records.
17.

employees
Public

that he
Service’s

Ingram Dep. 11:6-

Ingram compiled spreadsheets extending back to 2006 and

analyzed any bank deposit record that Public Service received.
Ingram looked at records from other CSRs

when they appeared

problematic.

found

Id.

at

16:11-25.

Ingram

thousands

of

records altered by Stinson where she “[a]ccept[ed] a customer’s
payment, sen[t] their check to the bank and [did] not credit[]
their account at the same time.”
Ingram Dep. Ex. 4,

Id. at 37:13-19; see also

CB & T Altered R., ECF No. 49

7

(showing

examples of payment records altered by Stinson); Ingram Dep. Ex.
4, Public Service R. Ex. 22, ECF No. 49 (showing records Stinson
entered into Public Service’s billing software as pending tollcredits,

and

Public Service linked

92%

of the pending toll-

credits to deposits Stinson made, but none of the entries could
be identified by Public Service as actual pending toll-credits
due to any customer on any disputed toll bill); Ingram Dep. Ex.
4, Public Service R. Ex. 23, ECF No. 49 (showing records Stinson
entered into Public Service’s billing software as pending tollcredits,

and

Public Service linked

99% of the pending toll-

credits to deposits Stinson made, but none of the entries could
be identified by Public Service as actual pending toll-credits
due to any customer on any disputed toll bill).

One of Ingram’s

spreadsheets shows that white CSRs accepted cash that was not
deposited with the bank.

See Pl.’s Br. in Opp’n to Defs.’ Mot.

for Summ. J. [hereinafter Pl.’s Resp.] Ex. 22, Payment Rs., ECF
Nos.

32-35

(showing

white

deposited to the bank).

CSRs

accepted

cash

that

was

not

One of Ingram’s documents had Stacia

Ennis’s (“Ennis”) name on it, but Stinson filled out the deposit
slip that went to the bank.

J. Bond. Dep. 45:17-21.

Ingram discovered that the test version of Public Service’s
billing

software

allowed

someone

to

process

credits

on

a

customer’s account as if the customer had made a regular payment
by

using

a

memo

entry.

Ingram

8

Dep.

8:1-21.

According

to

Stinson,

she

does

not

know

what

knowingly used this feature.

a

memo

entry

is

and

never

Pl.’s Resp. Attach. 1, Stinson

Aff. ¶ 10, ECF No. 28-1.
C.

Stinson’s Explanations for the Inconsistencies in the
Computer Records

Plaintiff
Service,

falsified

“kiting.”
support

denies

that

customer

Id. ¶ 14.

of

her

she

ever

payment

stole

money

records,

from

or

Public

engaged

in

She points to the following facts in

contention

that

any

inconsistencies

did

not

justify her termination.
Public Service’s accountant, Amy Lloyd (“Lloyd”), never saw
Stinson steal anything from Public Service.
ECF No. 47.

Lloyd’s responsibilities included comparing the

deposit slips to the journal entries.
discovered

Lloyd Dep. 5:20-22,

anything

indicating

from Public Service.

that

Id. at 7:9-17.
someone

Id. at 7:18-21.

was

She never

taking

money

Lloyd double checked

balances comparing the amount of a customer’s payment and the
deposit made to the bank.
Dep. 23:14-24:1.

Lloyd Dep. 8:17-9:7; see also J. Bond

Lloyd did not know of any audit finding that

Stinson did anything improper.

Lloyd Dep. 8:2-4.

No customer

ever complained about not receiving credit for paying a bill.
J. Bond. Dep. 14:6-10.
Stinson also points out that before Public Service switched
to a new billing program, it had a separate billing system for

9

its cable service and its telephone service.
9.

Ingram Dep. 22:7-

Sometimes customers paid for both services with one check,

and the CSR “split” the check to pay both bills.
14.

Id. at 22:9-

Splitting checks required the CSR to post the payment to

either the cable or telephone account, make it look like the
customer was due change on that account, and then use the change
to make the payment to the other account.
53:4, ECF No. 43.

Warner Dep. 52:22-

CSRs also split checks if a customer paid

with one check for several different businesses, and the CSR
would cash the check and put the right amount in the receipts
for the individual businesses.
Ingram

knew

happened.

check

splitting

Ennis Dep. 9:7-10, ECF No. 38.
occurred

Ingram Dep. 21:25-22:4.

engaged in check splitting.

and

understood

why

it

Both white and black CSRs

Id. at 23:12-22.

The computer

records from the other CSRs, who were both white and black, did
not match the deposit slips submitted to the bank on an almost
daily basis

because the CSRs

multiple services.

processed

Stinson Dep.

checks

that paid

for

108:13-110:22.

Stinson also maintains that if she left the computer at the
walk up window and a customer came to Public Service to make a
payment, another CSR

used

her

computer to take the payment.

Ennis Dep. 9:20-24.

The CSR taking the payment did not enter

her own password into the computer because Stinson often left
the computer open with her password already entered.

10

Id. at

10:2-12.

Every day the other CSRs used the front computer to

enter payments while it was logged on with Stinson’s password.
Brown

Dep.

29:17-30:14.

On

one

occasion,

Public

Service’s

records reflected transactions made by Stinson on a day she was
on vacation.

Thompson Dep. 29:6-30:1, ECF No. 54.

Bond did not

“know that any other CSR’s had access to her computer,” but he
did know that CSRs left the computers at the walk up window open
and other CSRs then used them to take payments from customers.
J. Bond Dep. 9:3-10.

Bond considered the access by the other

CSRs to the front computer to make payments to be a different
process than what concerned him during the investigation.
at 15:15-16:8.
keyed

in

Id.

According to Ingram, the fact that other CSRs

payments

using

Stinson’s

password

had

“very

little

effect” on his analysis of the various accounts if the CSR did
not also make up the deposit slip to the bank.

Ingram Dep.

37:5-12.
Stinson points to a statement by Ingram as evidence of his
racial animus.

According to Stinson, in 2007 when discussing a

customer’s account,

Ingram told her

that he “caught a black

stealing” when he worked at another company, and then he said
“[as] a matter of fact, it was two.”
66:9-10.

11

Stinson Dep. 65:16-19,

III. Stinson’s Retaliation Claims
Stinson’s retaliation claims arise from Defendants alleged
reporting that she engaged in criminal activity to the sheriff
and

the

Georgia

Bureau

of

Investigation

(“GBI”).

After

reviewing Public Service’s records for approximately six months,
Bond contacted the local sheriff, who referred the case to the
GBI on October 20, 2008.

J. Bond Dep. 17:4-14; Pl.’s Resp. Ex.

6, GBI Face Sheet, ECF No. 31-2 at 2 of 7 [hereinafter GBI Face
Sheet].
money”

Bond told the GBI that Public Service was “missing
and

that

Public

“mishandling the funds.”

Service

J. Bond Dep. 18:6-10.

the GBI that Stinson stole money.
interviewed

Stinson

dismissed

during

its

Stinson

for

Bond never told

Id. at 18:3-5.

investigation.

The GBI

Stinson

Dep.

24:7-10.
Public Service also submitted a proof of loss form with its
insurance carrier for $165,943.03 on November 12, 2008.
Dep. Ex. 1, Proof of Loss 1-2, ECF No. 41.

J. Bond

Bond attested in the

proof of loss form that Stinson “kited customer payments and
resorted to reversing certain customer billing on the company’s
books, writing off accounts she collected and stole, and issuing
memo

collections

company receipts.”

journals
Id.

to

help

cover

up

her

stealing

of

Bond filed the insurance claim based on

Ingram’s findings and an extensive review by outside auditors

12

that confirmed money was missing.

J. Bond Dep. 22:1-8.

insurance company paid Public Service’s claim.
IV.

The

Id. at 21:8-9.

Stinson’s Hostile Work Environment Claims Based on Sex
In

addition

to

her

discriminatory

termination

and

retaliation claims, Stinson claims Public Service subjected her
to a hostile work environment based on sex.
based

on

the

supervisor
offensive

conduct

in 2006.
conduct

of

Bond,

who

Stinson Dep.

included

the

Her allegations are

became

her

97:22-25.

following.

immediate

Bond’s alleged
Stinson

saw

Bond

behind a shed at work talking with Christie Windham (“Windham”),
and

Bond

said

he

had

to

appear

in

court

husband suspected they were seeing each other.
22:8-13.

Stinson saw

because

Windham’s

Id. at 21:15-20,

Brown and Bond massaging each other’s

shoulders in the conference room ten to twenty times during the
middle and end of her employment.
Dep. 51:9-14.

Id. at 35:9-23; see also Bond

On one occasion, Stinson witnessed Bond and Brown

kissing in the break room with the lights off.
36:4-12.

Stinson Dep.

Brown stayed in Bond’s office for thirty minutes at a

time on some days and on other days stayed for longer than an
hour and a half.
work

late,

permission.

talk

Id. at 19:5-10.
on

the

Bond allowed Brown to come to

cellphone,

and

leave

work

without

Id. at 14:21-17:2.

During the middle of Stinson’s employment, Bond commented
that a woman he was dating “gave him sex,” and “just about every

13

week he had something to say about sex.”

Id. at 42:1-21.

Bond

also said that he was letting his beard grow out because his
wife refused him sex, and he was not going to shave his beard
until she gave him sex.

Id. at 39:21-40:3.

Bond told the women

in the office he had a “tattoo on [his] behind.”

Bond Dep.

51:21-25.
About five to ten times during Stinson’s employment, Bond
came up behind her and touched her shoulders and his hand stayed
on her shoulders.

Stinson Dep. 43:4-19.

“go on” and he would laugh.

Stinson told him to

Id. at 43:20-23.

Bond “loved

rubber bands and would shoot them all the time,” and he shot
Stinson from time to time.

Id. at 45:19-46:5.

On one occasion,

Bond shot Stinson with a rubber band and it hit her on her
breast.

Id. at 46:14-19.

Bond sprayed Stinson’s hair with WD-

40, and Stinson took off her shoe and threw it at him.

Id. at

47:12-19.
Stinson filed a charge of discrimination with the

Equal

Employment Opportunity Commission (“EEOC”) on April 23, 2008.
Stinson

Dep.

Ex.

6,

Charge

[hereinafter EEOC Charge].

of

Discrimination,

ECF

No.

24

The EEOC issued Stinson a right-to-

sue letter on March 16, 2010.

Compl. Attach. 1, Dismissal and

Notice of Rights, ECF No. 1-1.

14

DISCUSSION
Stinson alleges that Public Service discriminated against
her by terminating her employment based on her race, retaliating
against her for filing a charge of discrimination with the EEOC,
and subjecting her to a hostile work environment based on sex.
The Court finds that any other federal law claims asserted by
Stinson have either been withdrawn, abandoned, or raised for the
first time in her summary judgment briefing.

Accordingly, those

claims may not be considered by the Court.

See Gilmour v.

Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004)
(per curiam) (“A plaintiff may not amend her complaint through
argument in a brief opposing summary judgment.”).
I.

Stinson’s Discriminatory Discharge Claims
“The

crux

of

Plaintiff’s

discriminatorily discharged.”

claim

is

Pl.’s Resp. 4.

that

she

was

Because Stinson

lacks direct evidence to support her discriminatory discharge
claims,

the

Court

evaluates

her

claims

under

Title

VII

and

§ 1981 using the framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
E.g., Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1264 (11th Cir. 2010); see also McCray v. Wal-Mart Stores, Inc.,
377 F. App’x 921, 923 (11th Cir. 2010) (per curiam) (noting that
discrimination claims under

§

1981 are governed by the same

15

standards of proof and the same analytical framework as Title
VII claims).

To establish a prima facie case of discrimination,

Stinson must show that: “(1) [s]he is a member of a protected
class;

(2)

[s]he

was

subjected

to

[an]

adverse

employment

action; (3) [her] employer treated similarly situated employees
outside of [her protected] class more favorably; and (4) [s]he
was qualified to do the job.”
F.

App’x

924,

929-30

Floyd v. Fed. Express Corp., 423

(11th

Cir.

2011)

(per

curiam).

“To

determine whether employees are similarly situated in a case
involving

discriminatory

discipline,

we

evaluate

whether

the

employees were accused of the same or similar misconduct and
were disciplined differently.”
quality

of

the

comparator’s

identical

to

(internal

quotation

establishes

a

Id. at 930.

the

prima

misconduct

[must]

employee’s

misconduct.

disciplined
marks
facie

“[T]he quantity and

omitted).
case,

the

Once

the

employer

can

be

nearly
Id.

plaintiff
rebut

the

presumption of discrimination by articulating a legitimate nondiscriminatory reason for its action.
1264.

Alvarez, 610 F.3d at

If the employer offers a legitimate non-discriminatory

reason, the burden then shifts back to the plaintiff to produce
evidence that the employer’s proffered reason is pretext
discrimination.

Id.

16

for

A.

Stinson’s Prima Facie Case

Public Service argues that Stinson cannot establish a prima
facie case because no CSR outside of her protected class engaged
in

misconduct

establish

comparable

that

Public

to

Stinson,

Service

and

treated

thus

she

similarly

cannot
situated

individuals outside of Stinson’s protected class more favorably.
Stinson

claims

that

Public

Service’s

continued

investigation

into its billing records revealed that white CSRs engaged in the
same conduct as Stinson.

Stinson claims that six white CSRs

accepted cash that was not deposited to the bank, but Public
Service did not terminate them.

See Pl.’s Resp. Ex. 22, Payment

Records, ECF Nos. 32-35 (showing white CSRs accepted cash that
was not deposited to the bank).

Although Stinson’s evidence

shows that white CSRs accepted cash payments from customers that
were not deposited to the bank, Defendants maintain that the
evidence does not demonstrate that the CSR accepting the cash
did not put it in the drawer to be deposited.
26:5-9.
meaning

J. Bond Dep.

Public Service accused Stinson of falsifying records,
“she

applied

credits

to

other

customers’

accounts

without using the customers’ money to actually pay the bill,”
and she falsified her records as to where the money was coming
from.

Id. at 15:3-14.

Bond concluded that Stinson falsified

records because she “filled out every one of the deposit slips
that . . . went into the bank and . . . the OCC credits were

17

done from [Stinson’s] computer.”

Id. at 15:15-19.

Stinson’s

evidence does not show whether the computer records of the white
CSRs failed to match the bank deposit records they submitted,
and thus Stinson’s evidence fails to demonstrate that white CSRs
engaged

in

comparable

misconduct

but

were

not

terminated

white

CSRs

engaged

by

Public Service.
Stinson

also

claims

that

splitting but Public Service did not fire them.

in

check

CSRs split a

customer’s check to pay for both cable and phone services or
split

a

customer’s

check

to

pay

businesses owned by that customer.

the

bills

for

multiple

Public Service, however, did

not accuse Stinson of check splitting and instead accused her of
falsifying records.

Therefore, evidence that white CSRs engaged

in the practice of check splitting does not establish that white
CSRs engaged in misconduct comparable to Stinson.
Finally, Stinson stated in her deposition that the computer
records of white CSRs did not match the deposit slips submitted
to the bank on an almost daily basis, Stinson Dep. 108:14-111:1,
and everyone else followed the same procedure she did when they
processed

payments,

id.

at

111:13-16.

Stinson’s

testimony,

however, indicates the records did not match because the white
CSRs

engaged

occasionally

in
did

check
not

splitting,

sign

in

the

at

110:9-17,

or

computer

correctly,

resulting in inaccurate records, id. at 109:19-25.

The Court

18

to

id.

finds that this testimony does not establish that white CSRs
falsified records.

Instead, the record establishes that they

engaged in check splitting or occasionally made mistakes during
the

log-in

process.

The

Court

concludes

that

Stinson

has

failed to show that Public Service treated similarly situated
individuals outside of her protected class more favorably, and
therefore

she

has

not

established

a

prima

facie

case

of

discrimination.1
B.

Public Service’s Legitimate Non-Discriminatory Reason
and Pretext

Even

if

Stinson

discrimination,

Public

established
Service

a

prima

articulated

a

facie

case

legitimate

of
non-

discriminatory reason for Stinson’s termination, and Stinson has
failed to produce evidence that the reason was a pretext for
discrimination.

Public Service has consistently maintained that

its investigation of Stinson’s computer billing records compared
to her deposit slips demonstrated that she falsified customer
account

records.

Stinson

responds

exists

regarding

whether

Bond’s

termination

is

false

falsified records.

because

she

that

a

stated
maintains

Stinson Aff. ¶¶ 2, 14.

question
reason
that

of

fact

for

her

she

never

The question for the

Court, however, is whether Stinson’s evidence creates a question
of fact regarding whether Bond believed Stinson to be guilty of
1

Stinson does not argue Public Service replaced her with an individual
outside of her protected class.

19

falsifying records, and whether this belief was the reason for
her discharge.

Elrod v. Sears, Roebuck and Co., 939 F.2d 1466,

1470 (11th Cir. 1991).

Stinson’s assertions of innocence alone

fail to create a question of fact that Bond’s reason is unworthy
of credence.

See Holifield v. Reno, 115 F.3d 1555, 1565 (11th

Cir. 1997) (per curiam) (“[W]here the employer produces . . .
documentary evidence of misconduct . . . that demonstrate[s]
poor

performance,

performance

are

an

employee’s

insufficient

assertions

to

defeat

of

his

summary

own

good

judgment”).

Stinson also attempts to create a fact dispute regarding pretext
by offering evidence that another Public Service employee could
have made the inaccurate computer entries using her password.
The inquiry into pretext, however, “centers on the employer’s
beliefs, not the employee’s beliefs and, to be blunt about it,
not on reality as it exists outside of the decision maker’s
head.”

Alvarez, 610 F.3d at 1266.

“The question is whether her

employer[] [was] dissatisfied with her for [this] or other nondiscriminatory reasons, even if mistakenly or unfairly so, or
instead merely used those complaints about [Stinson] as cover
for discriminating against her because of her [race].”

Id.

Stinson’s

the

evidence

inconsistent
question

of

that

records
fact

as

other

into
to

the

pretext

CSRs

could

computer
where

have

does

the

entered

not

evidence

create
fails

a
to

demonstrate that Bond did not believe Stinson made the entries

20

where her name appeared in Public Service’s billing program.
Further, Bond relied on the comparison between Stinson’s deposit
slips

and

her

computer

billing

records

when

deciding

to

terminate her, J. Bond Dep. 15:15-19, and Bond did not base his
decision on computer entries alone, id.
concludes the

evidence

Accordingly, the Court

relied on by Stinson to show pretext

fails to create a fact dispute on this issue.
The Court rejects Stinson’s argument that the conduct of
other CSRs, who were white, supports a finding of pretext.
previously

explained,

Stinson’s

evidence

of

the

white

As

CSRs’

conduct fails to demonstrate that they engaged in misconduct
comparable to Stinson.

Therefore, that evidence does not create

a question of fact as to pretext.

Further, even if the Court

concluded that Public Service treated similarly situated CSRs
who

had

inconsistent

payment

records

differently,

Stinson

acknowledged that both black and white CSRs entered inconsistent
records and that Public Service did not terminate them. Stinson
Dep. 108:13-111:1.
Service

treated

Therefore, no evidence exists that Public

other

employees

differently

because

of

their

race.
Stinson further asserts that she did not steal any money
from Public Service.

Stinson argues Bond’s statement that he

“never said [Stinson] stole any money” creates a question of
fact

that

his

reason

for

her

21

termination

was

pretext

for

discrimination.

J. Bond. Dep. 16:18-20.

Stinson also offers

evidence that she was not the only one to blame for any missing
funds.

See Pl.’s Resp. Attach. 3, Thompson Aff. ¶¶ 3, 5-6, ECF

No. 28-3.
whether

This evidence does not create a factual dispute as to
Bond’s

pretextual.

articulated

reason

for

the

termination

was

Bond stated he terminated Stinson for falsifying

records, not for stealing money.

Whether he never said she

stole

else

money

or

whether

someone

may

have

also

been

responsible for missing funds is not probative of whether Bond’s
reason for terminating her employment, falsifying records, was a
pretext for racial discrimination.2
Finally, the Court concludes that Ingram’s statement that
he

“caught

create

a

a

black

question

stealing,”
of

fact

Stinson

regarding

Dep.

whether

65:18,
he

does

not

conducted

a

biased investigation of Stinson resulting in her termination.
Ingram

investigated

all

CSRs

for

one

month,

both

black

and

white, and Stinson was the only CSR with non-matching records.
Mar. Memo.

Bond relied on the results of the one month review,

including the review of another black CSR, to make his decision

2

The Court notes that Bond did attest in Public Service’s proof of
loss with its insurance company that Stinson did steal money.
Proof
of Loss 1.
Bond submitted this document, however, after outside
auditors investigated and reviewed Public Service’s records and
confirmed that money was missing. J. Bond Dep. 22:1-8. Thus, Bond’s
later statement that she did steal money does not create a question of
fact regarding whether his reason for her termination that she
falsified records was pretext for discrimination.

22

to terminate Stinson.

Stinson offers no evidence indicating

that Ingram altered these findings in any way, and her evidence
demonstrates nothing beyond the mere possibility for Ingram to
alter the records.

See Thompson Aff. ¶ 9.

The Court cannot

conclude based on Ingram’s statement that a question of fact
exists regarding whether he conducted a biased investigation of
Stinson because of her race where the evidence reveals Ingram
investigated black and white CSRs and Stinson alone had nonmatching records.

Moreover, Stinson’s allegations of insurance

fraud by Bond and Ingram are not supported by any evidence in
the record beyond mere speculation.

In sum, the Court finds

that Stinson’s evidence does not create a genuine dispute as to
whether Public Service’s reason for her termination was pretext
for discrimination.3
For all of the reasons explained above, the Court grants
summary

judgment

to

Public

Service

on

Stinson’s

disparate

treatment claims under Title VII and § 1981.
II.

Stinson’s Retaliation Claims
Stinson contends that Public Service retaliated against her

for filing a charge of discrimination with the EEOC when it

3

Stinson submitted evidence regarding alleged discrimination by Public
Service in granting leave for her to attend school.
Stinson argues
this evidence shows the type of discrimination that led to her
discharge. After reviewing this evidence, the Court concludes that it
fails to create a question of fact regarding whether Public Service
terminated her employment because of her race.

23

filed

an alleged

false report of criminal activity with the

sheriff’s department and the GBI.

To establish a prima facie

case of retaliation, a plaintiff must show that: (1) she engaged
in a protected activity; (2) she suffered an adverse employment
action; and (3) a causal connection exists between the protected
activity and the adverse employment action.

Freeman v. City of

Riverdale, 330 F. App’x 863, 867 (11th Cir. 2009) (per curiam).
Public Service argues that Stinson cannot establish a prima
facie case of retaliation because no causal connection exists
between her EEOC charge and any adverse employment action by
Public Service.
on

temporal

Stinson argues a causal connection exists based

proximity

between

her

EEOC

charge

and

Public

Service’s report of criminal activity to the sheriff’s office
and the GBI.

“Mere temporal proximity . . . between knowledge

of protected activity and an adverse . . . action . . . must be
very close.”
2004)

Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

(internal

original).

quotation

“If

marks

there

a

is

omitted)

substantial

(alterations

delay

in

between

the

protected expression and the adverse action in the absence of
other

evidence

tending

to

show

causation,

retaliation fails as a matter of law.”

the

Id.

complaint

of

Stinson makes the

conclusory allegation that Public Service filed the report of
criminal

activity

“[w]ithin

days”

after

she

filed

her

EEOC

charge, Pl.’s Resp. 17, but she offers no evidence of the amount

24

of time that actually transpired between the dates of the charge
and the report.

The evidence in the record establishes that

Stinson filed her EEOC charge on April 23, 2008.

EEOC Charge.

The record also reveals that Bond called the sheriff and the
sheriff referred him to the GBI.

Bond Dep. 17:4-14.

The GBI

received the request to investigate from the sheriff on October
20, 2008, GBI Face Sheet, approximately six months after Stinson
filed her EEOC charge.

Temporal proximity of six months between

Stinson’s EEOC charge and the report is not sufficiently close
to support an inference that the two are causally connected.
See Higdon, 393 F.3d at 1221 (finding that a three month period
between

the

protected

expression

and

the

adverse

action

insufficient to establish a causal connection between the two
events).
against
company

Any claim by Stinson that Public Service retaliated
her

by

fails

demonstrates

filing
for

the

Public

November 12, 2008.

the

proof
same

Service

of

loss

reason

submitted

Proof of Loss 2.

with

its

because
the

proof

insurance

the
of

record
loss

on

Stinson has not presented

any other evidence of causation, and thus she has failed to
establish a prima facie case of retaliation under Title VII or §
1981.

Accordingly,

Public

Service

is

judgment on Stinson’s retaliation claims.

25

entitled

to

summary

III. Stinson’s Hostile Work Environment Claim Based on Sex
Stinson claims Public Service subjected her to a hostile
work environment based on sex.

To establish a hostile work

environment claim based on sex, Stinson must demonstrate that:
(1) she belongs to a protected group; (2) she was subject to
unwelcome harassment; (3) the harassment was based on her sex;
(4) the harassment was sufficiently severe or pervasive to alter
the

terms

and

conditions

of

employment

and

create

a

discriminatorily abusive working environment; and (5) a basis
for holding the employer liable.

Mendoza v. Borden, Inc., 195

F.3d 1238, 1245 (11th Cir. 1999) (en banc).

When determining

whether the harassment was sufficiently severe or pervasive to
alter

the

terms

and

conditions

of

employment,

the

Court

considers: (1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct is physically threatening
or humiliating, or a mere offensive utterance; and (4) whether
the

conduct

performance.

unreasonably

interferes

with

the

employee’s

job

Id. at 1246.

Stinson offers the following evidence in support of her
hostile

work

environment

claim:

(1)

Bond’s

preferential

treatment of Brown; (2) one instance where Stinson saw Brown and
Bond kissing;

(3)

other’s shoulders

Stinson saw

Brown and Bond massaging

ten to twenty times;

(4) Bond shot

each

rubber

bands at Stinson multiple times, and once a rubber band hit her

26

on the breast; (5) Bond sprayed Stinson’s hair with WD-40; (6)
Bond touched Stinson on the shoulder five to ten times; (7)
Bond’s statement that Windham’s husband thought Windham and Bond
were seeing each other; (8) Bond’s statement that a woman he was
dating gave him sex; (9) Bond’s statement that his wife would
not give him sex, and he was growing out his beard until she
did; and (10) Bond’s statement that he had a tattoo on his
behind.
First,
Bond

gave

the

Court

Brown

concludes

preferential

that

Stinson’s

treatment

Stinson’s hostile work environment claims.

does

evidence
not

that

support

In order for Stinson

to meet her prima facie case of hostile work environment, she
must demonstrate that the unwelcome harassment was based on her
sex.

An

paramour

isolated
because

incident
of

a

of

preferential

consensual

constitute harassment based on sex.

treatment

relationship

does

of

a

not

See Womack v. Runyon, 147

F.3d 1298, 1299-1301 (11th Cir. 1998) (per curiam) (“An isolated
instance of favoritism toward a ‘paramour’ . . . may be unfair,
but it does not discriminate against women or men in violation
of Title VII, since both are disadvantaged for reasons other
than their genders.”) (quoting EEOC Policy Guideline on Employer

27

Liability Under Title VII for Sexual Favoritism, EEOC Notice No.
915-048 (Jan. 12, 1990)).4
The

Court

concludes

that

Stinson’s

remaining

evidence,

occurring over a period of several years, is not sufficiently
severe or pervasive to alter the terms and conditions of her
employment.

The

incidents

where

Bond

shot

rubber

bands

at

Stinson and sprayed her hair with WD-40 involved horseplay, and
the five to ten times Bond touched her shoulders involved fairly
innocuous physical contact.

See Mitchell v. Pope, 189 F. App’x

911, 913 (11th Cir. 2006) (per curiam) (finding conduct that
involved

horseplay

or

was

not

sex-based

insufficient

establish a prima facie case of sexual harassment).

to

Although

Stinson claims Bond commented about sex “just about every week,”
Stinson Dep. 42:18-21, she only identified a handful of specific
comments

by

Bond

relating

offensive utterances.
saw

Bond

and

Brown

to

sex,

and

they

constitute

mere

Finally, Stinson’s evidence that she once
kissing

in

the

break

room

and

saw

them

massaging each other’s shoulders ten to twenty times, although
inappropriate
severe

or

employment.

office

frequent

conduct,
to

are

alter

Accordingly,

the

4

the

not

instances

conditions

Court

concludes

sufficiently
of

Stinson’s

that

Public

Although Stinson claims that widespread favoritism can create a
hostile work environment based on sex, Stinson’s evidence only
demonstrates favoritism towards Brown, which the Court concludes
constitutes an isolated incident of favoritism towards a paramour.

28

Service is entitled to summary judgment on Stinson’s hostile
work environment claim.
CONCLUSION
For the reasons explained above, the Court grants Public
Service’s

Motion

for

Summary

Judgment

(ECF

No.

21)

as

to

Stinson’s Title VII and § 1981 disparate treatment, retaliation,
and hostile work environment claims.
exercise

supplemental

jurisdiction

The Court declines to

over

Stinson’s

state

law

defamation claim, and that claim is dismissed without prejudice.
IT IS SO ORDERED, this 29th day of December, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

29