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
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