Isome et al v. Gold Car Lending Inc. et al
Filing
22
ORDER granting 15 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 11/17/2011. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
VICKI ISOME, RODERICK
WILLIAMS and ANNIE FRANKLIN,
*
*
Plaintiffs,
*
CASE NO. 4:10-CV-83 (CDL)
vs.
*
GOLD CAR LENDING INC. and
GIL’S AUTO SALES, INC.,
*
Defendants.
*
O R D E R
Plaintiffs
are
former
Sales, Inc. (“Gil’s”).
employees
of
Defendant
Gil’s
Auto
Plaintiffs claim that Gil’s terminated
them because of their race, in violation of 42 U.S.C. § 1981.
Gil’s
contends
performance.
that
Plaintiffs
were
terminated
for
poor
Presently pending before the Court is Defendants’
Motion for Summary Judgment (ECF No. 15).
For the reasons set
forth below, the motion is granted.1
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
1
It is not clear from the present record how Defendant Gold Car
Lending, Inc. is involved in this case.
Plaintiffs appear to allege
that Gold Car Lending, Inc. was their joint employer along with Gil’s
and that both companies had the same chief executive officer, who made
the employment decisions at issue in this case.
Plaintiffs’ claims
against Gold Car Lending, Inc. are based on the same set of facts as
their claims against Gil’s, so Gold Car Lending, Inc. is entitled to
summary judgment for the same reasons that Gil’s is entitled to
summary judgment.
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
Viewed
in
the
light
most
record establishes the following.
favorable
to
Plaintiffs,
the
Unless otherwise noted, the
facts are undisputed.
I.
Gil’s Auto Sales
Gil’s sells used cars through five dealerships in Georgia
and Alabama.
The two largest dealership locations are in Phenix
City, Alabama: one on Highway 80 (“Highway 80 Dealership”) and
the other on the Highway 280 Bypass (“280 Dealership”).
During
the relevant timeframe, Gil Dyer was chief executive officer of
Gil’s.
He made the hiring and firing decisions for Gil’s.
Gil’s finances most car purchases directly, so customers
who purchase a car from Gil’s typically make payments on the car
2
to the dealership itself.
If a customer cannot make timely
payments, Gil’s may have to repossess the car.
All three Plaintiffs, who are
Dealership.
Gil’s
worked at the 280
Gil’s hired Plaintiff Vicki Isome in February 2007.
hired
Plaintiff
Annie
Isome’s recommendation.
in
black,
January
2008.
The
Franklin
in
May
2007
based
on
Gil’s hired Plaintiff Roderick Williams
primary
job
function
for
all
three
Plaintiffs was collections—collecting money that customers owed
on their accounts.
Plaintiffs also repossessed and sold cars.
Other employees at the 280 Dealership included Sharon Dyer (Gil
Dyer’s wife), Harmon Parnell, and Ronnie Short.
Sharon Dyer,
who is white, supervised the employees at the 280 Dealership and
also did some collections work.
Parnell, a white male, was
primarily a car salesman, though he also did some collections
work.
Short, a black male, was a porter who detailed cars and
ran errands.
Plaintiffs were the only employees at the 280
Dealership whose primary job function was collections.
Gil’s
prepared
performance.2
daily
reports
to
measure
collections
Defs.’ Mot. for Summ. J. [hereinafter Defs.’ MSJ]
Attach. 3, Gil Dyer Decl. ¶ 23, ECF No. 15-3.
Gil Dyer reviewed
the collections figures for the Gil’s dealerships on a daily,
weekly and monthly basis.3
2
3
Id. ¶ 28.
Gil Dyer also regularly
Plaintiffs dispute this statement but offer no evidence to refute it.
Plaintiffs dispute this statement but offer no evidence to refute it.
3
reviewed listings of accounts that were delinquent and cars that
were repossessed.4
collections
Id. ¶¶ 22, 24.
reports,
calculation.
The
which
“loss
Gil’s also prepared monthly
included
percentage”
a
is
“loss
the
percentage”
total
amount
of
losses on vehicles divided by the amount collected in a given
month.
The
monthly
collections
reports
also
included
the
“collections percentage” (also called the “bonus percentage”),
which is the amount of money actually collected divided by the
amount
forecasted
collections
by
Gil’s.
performance
Isome
prepared
reports—which
included
the
monthly
the
loss
percentage and the collections percentage—for the 280 Dealership
and
faxed
manager
them
for
to
Whitney
Gil’s.5
Woodall,
Pls.’
Br.
who
in
was
Resp.
the
collections
to
Defs.’
MSJ
[hereinafter Pls.’ Resp.] Attach. 6, Isome Aff. ¶¶ 62-66, ECF
No. 19-6.
4
Plaintiffs dispute this statement but offer no evidence to refute it.
Plaintiffs contend that Woodall “artificially” and “subjectively”
changed the total amounts in the collections reports for the 280
Dealership by deducting losses due to repossession, thus resulting in
lower collections numbers.
Plaintiffs assert that Woodall’s “usual
practice” at the Highway 80 Dealership was to “wait several months
before pulling out the repossessions.”
E.g., Isome Aff. ¶ 45.
Plaintiffs did not point to any evidence that they were involved in
the collections performance calculations for the other dealerships or
that they had personal knowledge of Woodall’s process.
5
Plaintiffs also assert that Sharon Dyer hindered their ability to
perform their collection duties because she instructed them not to
collect on an account if she knew the customer.
Plaintiffs did not
point to any evidence of how much this instruction impacted their
collections efforts.
4
When he reviewed the collections performance for the 280
Dealership during the summer of 2008 and compared it to the
collections performance for the Highway 80 Dealership, Gil Dyer
became concerned that the 280 Dealership was not performing up
to standards.
Gil Dyer Decl. ¶¶ 37-41 (discussing summer 2008
collections numbers).
Between March 2008 and July 2008, the
loss percentage at the Highway 80 Dealership was better than the
loss percentage at the 280 Dealership.6
It is undisputed that in
July 2008, the loss percentage at the 280 Dealership was 16.11%;
during the same month, the loss percentage at the Highway 80
Dealership was 8.82%.7
It is undisputed that the collections
percentage for the 280 Dealership was 79% in July 2008, which
was significantly worse than the loss percentage for the Highway
80 Dealership, which was 97%.
It is also undisputed that the
280 Dealership had twenty repossessions during July 2008, which
was higher than usual.
Id. ¶ 42.
6
In addition, Gil Dyer found
Plaintiffs admit that the loss percentage for the Highway 80
Dealership was 5.01% in March, 7.92% in April, 11.43% in May, 8.03% in
June, and 8.82% in July.
Pls.’ Resp. to Defs.’ Statement of
Undisputed Material Facts ¶ 38, ECF No. 18-1.
Plaintiffs also admit
that the loss percentage for the 280 Dealership was 10.37% in March,
11.69% in April, 10.75% in May, 8.71% in June, and 16.11% in July.
Id.; accord Defs.’ MSJ Attach. 4, Woodall Decl. Attachs. 1-2, ECF No.
15-4.
7
Plaintiffs assert that someone at the Highway 80 Dealership added
some repossessions to their July numbers, which increased their loss
percentage.
The July 2008 collections report for the 280 Dealership
reflects a “repo loss” of $50,816.29.
Defs.’ MSJ Attach. 4, Woodall
Decl. Attachs. 1, ECF No. 15-4 at 17. Plaintiffs did not point to any
evidence of what the correct repossession amount was or how it was
changed.
Moreover, Plaintiffs admit that the 280 Dealership had
twenty repossessions in July 2008, which is the number reflected on
the July 2008 collections report for the 280 Dealership. Id.
5
based on his review that the number of delinquent accounts for
the 280 Dealership was growing and that the average duration of
the delinquencies was getting longer.
Id. ¶ 39.
Based on all
of this, Gil Dyer concluded that there was a “serious crisis” at
the 280 Dealership and that the 280 Dealership was in “serious
trouble.”
Id. ¶ 45.
In August 2008, Isome and Williams attended a collections
meeting at the Highway 80 Dealership.
That meeting was also
attended by Gil Dyer, Sharon Dyer, Whitney Woodall and Jamie
Dyer.
It is undisputed that Woodall asked Isome and Williams to
provide information regarding delinquent accounts.
Williams,
he
and
Isome
were
given
a
list
of
According to
“about
seven
accounts to go and see if [they] could try to locate them.”
Defs.’ MSJ Attach. 12, Williams Dep. 43:11-20, ECF No. 15-12
[hereinafter Williams FLSA Dep.].8
Isome and Williams went to
try to find the accounts but were unable to find all of them.
Id. at 44:1-24.
8
In his affidavit, Williams stated that he and Isome were asked about
“one specific account, not seven.”
Pls.’ Resp. Attach. 3, Williams
Aff. ¶ 47, ECF No. 19-3.
This statement directly contradicts
Williams’s previous deposition testimony, and Williams offered no
explanation for the discrepancy, so the Court may disregard the
affidavit statement. Del. Valley Floral Grp., Inc. v. Shaw Rose Nets,
LLC, 597 F.3d 1374, 1382 (11th Cir. 2010) (stating that a court “may
disregard an affidavit submitted solely for the purpose of opposing a
motion for summary judgment when that affidavit is directly
contradicted by deposition testimony” (internal quotation marks
omitted)).
6
The
collectors
instructed
to
customers
when
payments.
at
record
they
Gil’s,
details
including
of
contacted
customers
were
conversations
their
Plaintiffs,
with
to
try
to
collect
Plaintiffs were aware of this job requirement.
At
the August 2008 meeting, Woodall confronted Isome and Williams
about failing to keep adequate records in the customer files.
Defs.’
MSJ
Attach.
9,
Isome
Dep.
113:11-26,
ECF
No.
15-9.
Although the management at Gil’s determined that the collectors
at
the
280
regarding
Dealership
their
were
customers,
not
e.g.,
keeping
Gil
Dyer
adequate
Dep.
records
¶¶
44-45,
Plaintiffs assert that they did keep adequate records regarding
their customers, e.g., Isome Aff. ¶ 37.
After
the
meeting
with
Williams
and
Isome,
Gil
Dyer
continued to review the customer records for the 280 Dealership
and concluded that they were “in very bad shape.”
¶ 46.
Gil Dyer Aff.
Gil Dyer and Woodall discussed suspending new sales at
the 280 Dealership until they “could get a handle on the status
of the delinquent accounts.”9
Gil Dyer Aff. ¶ 47.
After the
August 2008 meeting, Gil Dyer decided to terminate all three
collectors at the 280 Dealership because it was “clear to [him]
that they were not satisfactorily performing their jobs.”
48.
Id. ¶
After he made the decision to terminate Plaintiffs, Gil
Dyer informed Jamie Dyer and Woodall of his decision and told
9
Plaintiffs dispute this statement but offer no evidence to refute it.
7
them to terminate Plaintiffs.
August 2008.
Plaintiffs were terminated in
According to Plaintiffs, Jamie Dyer told each of
them that Gil’s just “wanted to go in a different direction and
get a new crew.”
E.g., Isome Aff. ¶ 76.
It undisputed that
after Plaintiffs were terminated, the collectors Gil’s hired to
replace Plaintiffs at the 280 Dealership were white.
DISCUSSION
Plaintiffs assert that Gil’s terminated them in violation
of 42 U.S.C. § 1981 (“§ 1981”).
discrimination
in
the
42 U.S.C. § 1981.
making
Section 1981 prohibits race
and
enforcement
of
contracts.
Therefore, to establish a § 1981 claim, a
plaintiff must prove that his employer discriminated against him
because
of
his
race.
evidence
of
shifting
framework
Where,
discrimination,
as
the
established
in
here,
courts
there
is
employ
McDonnell
no
the
Douglas
direct
burden-
Corp.
v.
Green, 411 U.S. 792 (1973) and Texas Department of Community
Affairs
v.
Burdine,
450
U.S.
248
(1981).
E.g.,
Sledge
v.
Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1015 n.1
(11th
Cir.
plaintiff
2001)
must
discrimination.
(per
first
curiam).
Under
establish
a
that
prima
framework,
facie
case
the
of
Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1264 (11th Cir. 2010).
“To establish a prima facie
case of discriminatory discharge, the plaintiff must show that
she (1) was a member of a protected class, (2) was qualified for
8
the job, (3) suffered an adverse employment action, and (4) was
replaced by someone outside the protected class.” Cuddeback v.
Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004).
plaintiff
establishes
a
prima
facie
case
of
Once a
discriminatory
discharge, the burden shifts to the employer to articulate a
legitimate
nondiscriminatory
employment action.
Id. at 1235.
legitimate
nondiscriminatory
establish
that
discrimination.
reason
the
the
challenged
If the employer proffers a
reason,
proffered
for
then
the
plaintiff
must
reason
is
pretext
for
Id.
Here, Gil’s concedes for purposes of summary judgment that
Plaintiffs have established a prima facie case of discriminatory
discharge.
Gil’s has articulated a legitimate nondiscriminatory
reason
its
for
according
to
decision
Gil’s,
to
terminate
Plaintiffs
Plaintiffs’
were
employment:
terminated
for
poor
performance after Gil Dyer discovered that the 280 Dealership
was
in
serious
collections
trouble
team.
discriminatory
due
In
reason
to
addition
for
its
poor
to
action,
performance
articulating
a
Gil’s
to
following evidence in support of its decision.
percentage
for
the
280
Dealership
was
by
worse
points
the
nonthe
First, the loss
than
the
loss
percentage for the Highway 80 Dealership for several months, and
it was far worse in July 2008.
Second, the 280 Dealership had a
higher than normal number of repossessions during July 2008.
9
Third, the number of delinquent accounts for the 280 Dealership
was growing, and the average duration of the delinquencies was
increasing.
Fourth, Isome and Williams were unable to locate
several delinquent accounts, which led Gil Dyer to conclude that
the collectors at the 280 Dealership were not keeping adequate
records regarding their customers as they were required to do.
Given
that
Gil’s
has
articulated
a
legitimate
nondiscriminatory reason for terminating Plaintiffs, the burden
shifts to Plaintiffs to establish that the proffered reason—poor
performance—is
pretext
for
discrimination.
To
show
pretext,
Plaintiffs “must demonstrate such weaknesses, implausibilities,
inconsistencies,
incoherencies,
or
contradictions
in
the
employer's proffered legitimate reasons for its action that a
reasonable
factfinder
could
find
them
unworthy
of
credence.”
Alvarez, 610 F.3d at 1265 (internal quotation marks omitted).
Plaintiffs’
reasons
for
burden is to show not just that Gil’s proffered
firing
them
“were
ill-founded
discrimination was the true reason.”
but
that
Id. at 1267.
unlawful
Plaintiffs
may not “recast” Gil’s “proffered nondiscriminatory reasons or
substitute [their] business judgment for” Gil’s.
(internal quotation marks omitted).
Id. at 1265
If the reason “is one that
might motivate a reasonable employer, an employee must meet that
reason head on and rebut it, and [Plaintiffs] cannot succeed by
simply quarreling with the wisdom of that reason.” Id. at 1266
10
(internal quotation marks omitted).
centers on the employer's beliefs.
question
here
is
whether
Gil
The inquiry into pretext
Id. at 1266.
Dyer
believed
The relevant
that
Plaintiffs’
performance was poor, or instead merely used complaints about
their
performance
“as
cover
for
discriminating
against”
them
because of their race.
Id.
The Court does not “sit as a super-
personnel
and
it
department,”
second-guess
the
wisdom
is
of
not
the
an
Court’s
“role
employer's
to
business
decisions . . . as long as those decisions were not made with a
discriminatory motive.”
Id.
Plaintiffs attempt to establish pretext in several ways.
First,
Plaintiffs
assert
that
Jamie
Dyer
told
each
of
them
during their termination meetings that Gil’s just wanted a “new
crew.”
that
Isome Aff. ¶ 76.
Gil’s
Dealership.
wanted
Id.
¶
Plaintiffs took this statement to mean
white
77.
collections
Nothing
workers
in
Jamie
at
Dyer’s
the
280
statement
reflects a discriminatory animus, however, and the Court cannot
conclude that his statements support a finding of pretext.
Second, Plaintiffs contend that Gil’s retained white car
salesman Harmon Parnell even though he did not perform all of
the
collections
action
is
work
“assertedly
he
was
assigned.
prompted
by
a
Where
work
rule
an
employer’s
violation,
a
plaintiff may demonstrate pretext by showing . . . that . . .
other employees not within the protected class who engaged in
11
similar conduct were not similarly treated.”
Ekokotu v. Fed.
Express
Cir.
Corp.,
408
F.
App’x
331,
338
(11th
2011)
(per
curiam).
A proper “comparator must be similarly situated in all
relevant
respects.”
Id.
(internal
quotation
marks
omitted).
“The most important points of comparison in identifying a proper
comparator in the disciplinary context are the nature of the
offenses committed and the nature of the punishments imposed.”
Id. (internal quotation marks omitted).
Parnell
is
not
an
appropriate
In this case, Harmon
comparator
for
Plaintiffs.
Plaintiffs do not dispute that their primary role at Gil’s was
collections, while Parnell’s primary role was sales.
even
if
poorly,
Parnell
he
was
performed
not
his
similarly
secondary
situated
primary responsibility was collections.
role
to
of
Therefore,
collections
Plaintiffs,
whose
Accordingly, Plaintiffs
cannot establish pretext based on Parnell.
Third, Plaintiffs assert that white office workers “had not
met their quotas for collections during more than one month” but
were not fired.
Isome Aff. ¶¶ 59-60.
Plaintiffs also state, in
conclusory fashion, that no “similarly situated” white workers
were terminated.
pretext.
of
These assertions are not enough to establish
Plaintiffs must “present concrete evidence in the form
specific
allegations
facts”
and
to
show
assertions
pretext,
[will]
not
and
suffice.”
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
12
“[m]ere
conclusory
Bryant
v.
Plaintiffs pointed
to no specific evidence that there were similarly situated white
individuals
were.
who
were
treated
more
favorably
than
Plaintiffs
Even though Plaintiffs assert that some white employees
did not make their collections quotas for more than one month,
there is no evidence of where these employees worked, whether
their
primary
performed.
role
was
collections,
or
how
poorly
they
The only concrete evidence in the record is that the
Highway 80 Dealership’s collections numbers were significantly
better than those for the 280 Dealership.
Finally, Plaintiffs argue that their performance was not as
bad as Gil’s represents.
280
Dealership’s
They contend that Woodall modified the
collections
numbers
to
record
repossessions
differently than they were recorded at the other dealerships.
Plaintiffs pointed to no evidence to support this assertion.
There
is
no
evidence
that
Plaintiffs
were
involved
in
the
collections performance calculations for the other dealerships
or
that
Moreover,
they
even
had
if
personal
knowledge
they
pointed
had
of
to
Woodall’s
such
process.
evidence,
they
pointed to no evidence that Gil Dyer knew or should have known
that the reports for the 280 Dealership might not be correct
based
on
Woodall’s
alleged
manipulations.
Plaintiffs
also
contend that Isome and Williams only had trouble locating one
account when asked to provide information during the August 2008
meeting.
However, Williams represented in his deposition that
13
he and Isome were asked to locate “about seven accounts” and
that they could not find all of them.
20, 44:1-24.
Williams FLSA Dep. 43:11-
For all of these reasons, the Court finds that
Plaintiffs cannot establish pretext based on their conclusory
assertions that they satisfactorily performed their jobs.
As
have
discussed
failed
reasonable
to
above,
produce
factfinder
the
Court
concludes
sufficient
could
evidence
conclude
that
that
Plaintiffs
from
Gil’s
which
a
articulated
reasons for terminating Plaintiffs’ employment were a pretext
for racial discrimination.
Accordingly, Defendants are entitled
to summary judgment.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for
Summary Judgment (ECF No. 15) is granted.
IT IS SO ORDERED, this 17th day of November, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
14
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