Mercer v. Perdue Farms Inc
Filing
34
ORDER granting in part and denying in part 20 Motion for Summary Judgment. Ordered by Judge C. Ashley Royal on 1/9/2012 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GWENDOLYN MERCER
:
:
Plaintiff,
:
:
v.
:
:
No. 5:10‐cv‐324 (CAR)
PERDUE FARMS, INC.,
:
:
Defendant.
:
__________________________________ :
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Perdue Farms, Inc.’s, Motion for Summary
Judgment [Doc. 20]. Plaintiff Gwendolyn Mercer originally brought suit under the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., for alleged unpaid
wages/overtime, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et seq., for claims of race and gender discrimination, hostile work environment,
and retaliation. Plaintiff has abandoned her FLSA, hostile work environment, and
retaliation claims. Thus, Plaintiff’s race and gender discrimination claims are the only
two at issue. After fully considering the matter, Defendant’s Motion for Summary
Judgment [doc. 20] is GRANTED in part and DENIED in part. Specifically, the Court
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finds that a triable issue of fact exists as to whether Defendant intentionally
discriminated against Plaintiff’s race when it terminated her; thus, Defendant’s Motion
for Summary Judgment is DENIED as to that claim. Regarding the remaining claims
against Defendant—unpaid wages/overtime, hostile work environment, retaliation,
and race discrimination with regard to her termination, and race and/or gender
discrimination with regard to her suspension—Defendant’s Motion for Summary
Judgment is GRANTED.
BACKGROUND
The relevant facts in the light most favorable to Plaintiff are as follows1:
Plaintiff, an African‐American female, was hired as a maintenance mechanic in
January 2007 at Perdue Farms, Inc., in Georgia. Plaintiff worked with a team of other
mechanics; she was the only African‐American female on her team.
Michael Reed was Lead Mechanic, or Line Lead, for Plaintiff’s team. Although
he was “not a supervisor,” he did manage the mechanics “on [his] end of the plant,”
verifying that their work assignments were complete and correct. Reed Dep. 7:23‐8:1.
In addition to Reed, Plaintiff appears to have two other relevant superiors: Richard
Although Defendant is correct in noting that Plaintiff’s statement of material facts does not
comply with Local Rule 56, the Court nevertheless accepts Plaintiff’s filing for the purposes of this
Motion and will treat the Plaintiff’s deficient Response as proper.
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Griffin and Sam Calloway. In July 2008, Richard Griffin, as Maintenance Supervisor,
was Plaintiff’s immediate supervisor. Sam Calloway was the Maintenance Planner
and was in charge of planning and scheduling the work orders eventually completed
by Plaintiff and other maintenance mechanics. Although the Court is unclear of the
exact hierarchy of superiors, the Court is able to deduce from the record that Griffin
and Calloway were Reed’s superiors, and that Reed, although not a supervisor or in a
managerial position, managed Plaintiff’s work. The exact hierarchy beyond this initial
deduction is irrelevant for the purposes of this Motion.
Work Environment
Maintenance mechanics perform preventative maintenance work orders, or
regular maintenance, on the machines in Line One to keep them in working order.
The mechanics receive the work orders from the maintenance planners and their Line
Lead. Being a mechanic is an around‐the‐clock job; the mechanics are assigned to
either work days or nights.
Relevant to the work environment of Defendant’s plant is Don Brown’s
testimony. Don Brown, an African‐American, was an employee of Defendant who
received two promotions after entering as a Maintenance Mechanic in June 2006: Line
Lead in early 2007 and Maintenance Supervisor in 2008. In September 2008, Brown
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was demoted from Supervisor to Line Lead, a position he held until he left in February
2010. When asked why he was demoted, he responded as follows:
As a supervisor, … I told [Ferrell about] a time when I sent him an email
and HR an email about Clint Brantley and Eric Buttrom [both Caucasian
males] missing excessive days and nothing being done to them, where
other [African‐American] individuals were missing days and they were
being written up and punished for it. … His response was that doesn’t
concern you. You’re management. You’re management now. That’s the
only concern. That doesn’t concern you. And I told him, well, what do I
have to do to become lead again. And he said, well, I’ll check into it.
Then after several times of me and him having talks and him saying he’ll
check into it, he finally came back and told me that management decided
they would rather me go back to being lead rather than lose me
altogether.
Brown Dep. 9; 10. Brown testified that he eventually quit his job because he did not
agree with the “favoritism” towards Caucasian employees that was as “plain as day.”
Id. at 10‐11. This was, he testified, “the reason why everybody was surprised that I
got the supervisor position.” Id. at 10:24‐25.
With regard to whether Brown had seen Griffin discriminate against African‐
Americans, Brown testified that he had observed this with certain individuals
although could not remember if he had ever seen Griffin discriminate against Plaintiff
specifically. Brown did, however, testify that he had observed an argument between
Plaintiff and Ferrell where Ferrell had “just went crazy,” “cursing and fussing” at
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Plaintiff because “something wasn’t right on the line.” Id. at 12:14‐20. Plaintiff
responded angrily at the accusation, and later was called into Ferrell’s office where he
told her he had been wrong; it turned out that Plaintiff was not at fault for the
mechanical problem. Aside from offering this testimony immediately following his
response to whether he had seen Griffin discriminate Plaintiff because of her race,
Brown does not otherwise connect this incident to Plaintiff’s race or gender.
August 2008 Suspension
In August 2008, Plaintiff was suspended for “poor job performance.” The
Disciplinary Record of the Suspension (DRS) was signed by Plaintiff, Griffin, and
Kathy Denney, a Human Resources Representative for Defendant. The DRS states that
Plaintiff “failed to follow instructions [requiring] someone else had to do [Plaintiff’s]
work,” and that Plaintiff made her own emergency work orders without permission or
instruction of her supervisors. 2 Doc. 28, Ex. 1.
November 2008 Termination
Defendant maintains that Plaintiff was suspended for failing to do the “preventative
maintenance assigned, misrepresented that it had been done by the night shift, and instead documented
unauthorized training that she had attended instead of work assigned to her.” Doc. 32, p.12. Reading
the facts in the light most favorable to Plaintiff, for the purpose of her prima facie case, the Court will
accept the reasons listed in the DRS as the reasons for her suspension.
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On November 2, 2008, Reed saw Plaintiff slumped over with her hand on her
chin, appearing to be asleep on the job. Sleeping on the job is a terminable offense at
Defendant’s plant. Reed immediately notified Maintenance Planner, Sam Calloway,
who then also witnessed Plaintiff’s misconduct. Calloway, being the only salaried
maintenance supervisor on the premises at that time, entered the room and asked
Plaintiff if she had completed her assigned work orders. Plaintiff lifted her head and
responded that she had. When Plaintiff’s immediate supervisor, Griffin, arrived later
that day, Calloway informed him that he had witnessed Plaintiff asleep on the job and
advised Griffin to report her.
At some point during that day, Calloway informed Engineering Maintenance
Manager Richard Ferrell of Plaintiff’s conduct: Ferrell instructed Calloway to notify
Denney, Human Resources Representative for Defendant. After Calloway reported
Plaintiff to Denney, Denney notified Complex Human Resources Manager Maria
Rivera of the incident. It is unclear why Calloway ended up reporting Plaintiff,
especially in light of the fact that he advised Griffin to report her. But, for the
purposes of this motion, such a discrepancy appears minute.
Defendant’s discipline policy mandates that the employee’s immediate
supervisor make the initial recommendation regarding termination following an
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incident of a terminable offense. Once a recommendation is made, Human Resources
investigates the incident and either approves or denies the supervisor’s
recommendation. In Plaintiff’s case, Griffin went on vacation immediately following
the incident and did not recommend Plaintiff for termination until he returned two
weeks later on the 16th. Upon receiving Griffin’s recommendation, Human Resources
informed Plaintiff that she was suspended for three days pending an investigation for
sleeping on the job. Plaintiff’s Disciplinary Record for Termination (DRT) supports
this reason for her second suspension. The next day, Defendant obtained written
statements from Calloway and Reed regarding the incident.
During her investigation, Rivera reviewed all the relevant documentation,
including the DRT, Calloway and Reed’s witness statements, disciplinary and
termination logs, and, to ensure discipline continuity, personnel files of other
individuals who had been reported for the same offense. Plaintiff was terminated
effective November 24, 2008, for sleeping on the job.3
After her termination, Plaintiff requested that Director of Operations Tom Lee
review her termination by way of Defendant’s peer review process. An employee has
Defendant maintains that Plaintiff was terminated because she slept on the job and because
she was suspended twice within six months, both of which are terminable offenses by themselves.
Viewing the facts in the light most favorable to Plaintiff, for the purpose of her prima facie case, the
Court will accept the reasons listed in the DRT as the reasons for her termination.
3
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the option of filing for peer review when a personnel decision is made. This
management review process affords the employee the opportunity to appeal a
disciplinary action. Per Plaintiff’s request, Lee reviewed all of the information leading
up to Plaintiff’s termination and upheld Human Resource’s decision to terminate
Plaintiff.
PROCEDURAL HISTORY
After receiving a Notice of Right to Sue by the Equal Employment Opportunity
Commission (EEOC) on July 1, 2010, Plaintiff filed suit against Defendant on
September 2, 2010, alleging claims of unpaid wages/overtime pursuant to FLSA, 29
U.S.C. § 201, et seq., race and gender discrimination, hostile work environment, and
retaliation under Title VII, 42 U.S.C. § 2000e, et seq.
On July 12, 2011, Defendant filed this instant motion for summary judgment. In
Plaintiff’s response, she abandons her FLSA, retaliation, and hostile work environment
claims. Plaintiff proceeds solely on the basis that Defendant unlawfully terminated
her on the basis of her race and gender in violation of Title VII.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment
must be granted “if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of
material fact only exists when “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). Thus, summary judgment must be granted if there is
insufficient evidence for a reasonable jury to return a verdict for the nonmoving party
or, in other words, if reasonable minds could not differ as to the verdict. See id. at 249‐
52. When ruling on a motion for summary judgment, the court must view the facts in
the light most favorable to the party opposing the motion. Welch v. Celotex Corp., 951
F.2d 1235, 1237 (11th Cir. 1992).
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact” and that entitle it to a judgment as a matter of law. Celotex, 477 U.S.
at 323 (internal quotation marks omitted). If the moving party discharges this burden,
the burden then shifts to the nonmoving party to go beyond the pleadings and present
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specific evidence showing that there is a genuine issue of material fact. See Fed. R.
Civ. P. 56(e); see also Celotex, 477 U.S. at 324‐26.
DISCUSSION
The relevant portion of Title VII provides that an employer may not “discharge
any individual … with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, [or] sex.” 42 U.S.C. § 2000e‐
2(a)(1).
Claims of race and gender discrimination based on circumstantial evidence, as
is the case here, are evaluated under the burden shifting framework developed in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). First, a plaintiff must establish a
prima facie case, or “facts adequate to permit an inference of discrimination.”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The elements of a plaintiff’s
prima facie case depend on the type of discrimination alleged. Id. If the plaintiff
establishes a prima facie case, the burden of production shifts to the employer to
articulate some legitimate, nondiscriminatory reason for its action. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The burden then shifts back to the
plaintiff who must show that the employer’s proffered reasons for its actions were not
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the real reasons that motivated its conduct, but that the employer’s proffered reasons
were merely pretext for discrimination. Id. at 253.
Here, Plaintiff alleges that Defendant wrongfully discharged and disciplined
her by discriminating based on her race and/or gender. Although, chronologically,
Plaintiff’s termination followed Plaintiff’s suspension, both parties discuss her
termination claim first, reserving a large portion of their memorandum to analyze this
claim. Therefore, the Court will also begin with Plaintiff’s termination claim.
1. Plaintiff’s November 2008 Termination
A. Prima Facie Case
First, Plaintiff asserts that she was discharged due to her race and/or gender.
To establish a prima facie case of Title VII race and gender discrimination, a plaintiff
must show that (1) she is a member of a protected class; (2) she was qualified for her
position; (3) she was subjected to an adverse employment action; and (4) her employer
treated similarly situated employees outside of her protected class more favorably
than she was treated, or she was replaced by an individual outside of her protected
class. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ., 342 F.3d 1281,
1289 (11th Cir. 2003) (citation omitted).
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Here, Defendant concedes the first three elements of Plaintiff’s prima facie case.
Defendant does argue, however, that Plaintiff is unable to produce any evidence of the
fourth element—that similarly situated employees outside of Plaintiff’s protected class
were treated more favorably, or that she was replaced by an individual outside of her
protected class. Therefore, the fourth element of Plaintiff’s prima facie case is of issue.
Plaintiff argues that there is an additional alternative to the fourth element and
spends much of her Response arguing that she was not sleeping on the job. Relying
on Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989), Plaintiff contends that rather than
identifying a comparator or a male non‐minority replacement, she may instead prove
that she did not sleep on the job and therefore did not violate Defendant’s work rule.
See 874 F.2d at 1540. However, in Jones v. Bessemer Carroway Medical Center, 137
F.3d 1306 (11th Cir. 1998), the Eleventh Circuit disregarded its “dicta” in Gerwens that
Plaintiff now relies, and noted:
[N]o plaintiff can make out a prima facie case by showing just that she
belongs to a protected class and that she did not violate her employer’s
work rules. The Plaintiff must also point to someone similarly situated
(but outside of her protected class) who disputed a violation of the rule
and who was, in fact, treated better.
137 F.3d 1306 at 1311 (citation omitted) (superseded in part by 151 F.3d 1321 (11th Cir.
1998)). Thus, “regardless of whether [plaintiff] committed the alleged rule violations,
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she is still required to show that a similarly situated male who committed the same
rule violations received more favorable treatment than her.” Miller‐Goodwin v. City
of Panama City Beach, Fla., 385 F. App’x 966, 971 n.2 (11th Cir. 2010). Accordingly,
the fourth element as announced in Maynard will guide this Court’s determination of
Plaintiff’s prima facie case. 342 F.3d at 1289 (explaining that plaintiff must identify a
valid comparator or show she was replaced by someone outside of plaintiff’s
protected class to establish the fourth element of her prima facie case).
1. Plaintiff’s Proffered Comparators
Plaintiff offers two Caucasian male employees as comparators, Joe Paulsen and
Lamar Dennis. Joe Paulsen is a maintenance technician for Defendant and was part of
Plaintiff’s maintenance team. Plaintiff claims that Paulsen slept on the job but was not
terminated.
As an initial matter, there is some dispute between the parties as to whether
Plaintiff’s testimony that she saw Paulsen asleep was contradicted in a later
deposition. However, for the purposes of this Motion, this point is irrelevant.
“Disparate discipline cannot be shown without first showing that the employer was
aware of the comparator’s misconduct.” Vickers v. Fed. Express Corp., 132 F. Supp.
2d 1371, 1380 (S.D. Fla. 2000); Amos v. Tyson Foods, Inc., 153 F. App’x. 637, 647 (11th
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Cir. 2005) (holding management must be aware of comparator’s misconduct); Knight
v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1317 n.5 (11th Cir. 2003) (applying the
same to a supervisor). Thus, the relevant inquiry is not whether Plaintiff witnessed
Paulsen sleeping, but whether Paulsen was reported for sleeping on the job.
Here, Plaintiff contends that she reported Paulsen’s behavior to Line Lead Reed.
See Pl’s. Dep. 470:24‐25; Pl’s. Aff. 17. Defendant asserts, however, that Paulsen’s
conduct was never reported to Human Resources. However, Defendant fails to
establish any basis for this Court to conclude that Reed was not a sufficient supervisor
for the purpose of establishing Defendant’s awareness of Paulsen’s misconduct.
Indeed, Defendant does not assert anything more than its factual recitation that
Human Resources was unaware of Paulsen’s conduct. Without more, the Court
cannot conclude that Plaintiff’s report to Reed was insufficient. Accordingly, the
Court finds that there is a genuine issue of material fact as to whether Reed qualifies as
management or a supervisor for the purpose of establishing Defendant’s awareness of
Paulsen’s misconduct. Therefore, whether Paulsen is a proper comparator is an issue
that should be resolved at trial.
Plaintiff’s second comparator is Lamar Dennis, a janitor for Defendant that was
caught sleeping on the job and was only suspended for three days. Defendant first
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argues that Dennis and Plaintiff do not have the same job title and therefore are not
sufficiently similar. However, as Plaintiff notes, “the relevant inquiry is not whether
the plaintiff and would‐be comparator have the same job title, but whether they are
both subject to the same employment policies.” Robertson v. Jefferson Cnty. Rehab. &
Health Ctr., 201 F. Supp. 2d 1172, 1178 (N.D. Ala. 2002) (citation omitted). Here,
Raymond Henson, a Human Resources Associate Relations Representative, testified
that Defendant’s discipline rules apply equally to all employees. Henson Dep. 24:12‐
14. Defendant does not offer any evidence to contradict this fact. Accordingly, the
difference in job title will not preclude Dennis from being considered a proper
comparator.
Defendant next argues that Dennis was not terminated because, unlike Plaintiff,
he had a valid medical excuse for sleeping. However, the relevant inquiry at the
prima facie stage of the analysis is whether “the two employees are involved in or
accused of the same offense and are disciplined in different ways.” Pearson v. Macon‐
Bibb Cnty. Hosp. Auth., 952 F.2d 1274, 1280 (11th Cir. 1992) (quotation omitted).
Distinctions between the defendant’s disciplinary action “may bear on the defendant’s
legitimate reasons for its actions and the difference in the treatment of the two
employees, but it should not defeat a prima facie case.” Yates v. Hall, 508 F. Supp. 2d
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1088, 1099 (N.D. Fla. 2007). Here, Dennis was caught sleeping on the job and was not
terminated. Any justification that Defendant has to offer for not terminating Dennis
will be assessed at the pretext stage of the analysis. Accordingly, for the purposes of
her prima facie case, Dennis is a proper comparator.
2. Replacement of Individual Outside of Protected Class
Even if Plaintiff was unable to identify a proper comparator, she nevertheless
establishes her prima facie case by showing that there is a genuine issue of material
fact as to who replaced Plaintiff. As an initial matter, Defendant argues that under
Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2011), Plaintiff must offer a proper
comparator and that she was replaced by a member outside of her protected class. See
247 F.3d at 1183. While Defendant correctly identifies this requirement for a failure to
promote claim, as was the case in Denney, Defendant wrongly applies this
requirement to a wrongful termination claim. The Eleventh Circuit has made clear
that a plaintiff alleging discriminatory discharge may satisfy the fourth element of the
prima facie test by demonstrating that she was “replaced by a person outside of his
protected class or was treated less favorably than a similarly‐situated individual
outside his protected class.” Maynard, 342 F.3d at 1289 (emphasis added); Pate v. W.
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Publ’g Corp., 416 F. Supp. 2d 1275, 1282 (M.D. Ala. 2006) (applying Maynard to a Title
VII sex discrimination case).
Here, Plaintiff argues that she was replaced by Eddie Bramlett—a Caucasian
male. Sam Calloway, the maintenance planner who reported Plaintiff for sleeping on
the job, testified, “I don’t remember [who replaced Plaintiff]. We hired a man named
Eddie Bramlett who helped maintain line one,” Plaintiff’s line. Calloway Dep. 17: 24‐
25. Defendant concedes that Plaintiff was replaced by a male, but vehemently argues
that Antwan Thomas, an African‐American male, replaced Plaintiff, citing Antwan
Thomas and Human Resources Manager Maria Rivera’s testimony in support.
Without addressing why the Court should disregard Calloway’s testimony, Defendant
appears to imply that Calloway’s testimony does not equal the value of Rivera and
Thomas’ testimony. However, without a legal and factual basis, the Court refrains
from drawing such a conclusion.
Plaintiff, as a non‐moving party, has the burden on summary judgment to
“designate specific facts showing that there is a genuine issue for trial.” Celotex, 477
U.S. at 324‐25. Here, this is exactly what Plaintiff has done. Plaintiff has pointed to
testimonial evidence that she was replaced by a Caucasian male. While Defendant
quotes Calloway’s testimony, presumably to indicate the uncertainty in his answer,
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Defendant does nothing more. Defendant fails to explain why this discrepancy is not
a genuine issue of material fact, or for what reason, if any, the Court should consider
Rivera and Thomas’ testimony in lieu of Calloway’s. Instead, Defendant states that
Rivera is the “custodian of the employee’s personnel files,” leaving the Court to infer
that Calloway is without personal knowledge to testify about this issue. Doc. 32, p. 2.
Such an inference appears unwarranted not only because Calloway was the individual
with enough authority to report Plaintiff for sleeping on the job, but also because
Calloway was a salaried supervisor responsible for planning and scheduling the work
orders completed by the mechanics. It is therefore reasonable to conclude that
Calloway was aware of who replaced Plaintiff. Drawing this reasonable inference in
favor of Plaintiff, the Court finds that there is a genuine issue of material fact as to
whether Plaintiff was replaced by a Caucasian or African‐American male.
Accordingly, Plaintiff has established her prima facie case of race and gender
discrimination under Title VII.
B. Defendant’s Legitimate Nondiscriminatory Reason
Because Plaintiff has made out a prima facie case of race and gender
discrimination, the burden now shifts to Defendant to articulate a nondiscriminatory
reason for its employment action. Here, Defendant proffers two legitimate,
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nondiscriminatory reasons why Plaintiff was terminated, both of which are, by
themselves, terminable offenses: Plaintiff was caught sleeping on the job, and Plaintiff
was suspended twice in six months.
The Court finds that Defendant’s reasons are adequate to satisfy the employer’s
burden of production. See Vessels v. Atlanta Ind. School Syst., 408 F.3d 763, 769‐770
(11th Cir. 2005) (employer’s burden is exceedingly light and is satisfied as long as the
employer articulates a clear and reasonable non‐discriminatory basis for its actions).
Thus, because Defendant has met its burden of providing a legitimate,
nondiscriminatory reason for its actions, Plaintiff must now show that Defendant’s
reasons are merely pretext and the real reason for its decision was race and/or gender
discrimination.
C. Pretext
Plaintiff offers several arguments as to why Defendant’s reasons are merely
pretext for discrimination: inconsistent reasons for termination; inconsistent
application of workplace policy; fabrication of evidence; and a racial discriminatory
animus. While none of this alone is sufficient evidence to establish pretext, the Court
finds some of Plaintiff’s evidence offered on pretext, combined with Plaintiff’s prima
facie case, give rise to circumstantial evidence sufficient to demonstrate pretext.
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First, Plaintiff argues that Defendant did not terminate Paulsen for sleeping on
the job, an adverse decision to Defendant’s policy.4 Inconsistent application of
workplace policy may constitute circumstantial evidence of discrimination and, in the
appropriate case, give rise to a triable issue of fact. Ash v. Tyson Foods, Inc., 129 F.
App’x 529, 533 (11th Cir. 2005). However, demonstrating deviation from company
policy alone is not sufficient; “a plaintiffʹs showing that an employerʹs reason for not
following a company policy was pretextual does not establish intentional
discrimination without a finding that the employer acted because of [race or gender].”
Id. (citation omitted). Here, Defendant’s Memorandum and Reply are bereft of any
explanation for its inconsistent disciplinary decision, other than its factual summation
that Plaintiff did not report Paulsen’s conduct to Human Resources. Nevertheless, by
itself, evidence of an inconsistent practice does not establish that the employer acted
because of Plaintiff’s race or gender.
Also at the pretext stage, Plaintiff offers Don Brown’s testimony of the
“favoritism” of Caucasian employees over African‐American employees to prove
Plaintiff also argues that Defendant inconsistently applied its policy by not terminating
Plaintiff’s second comparator, Dennis. However, the Court accepts that Defendant made its decision to
not terminate Dennis based on Dennis’ medical excuse, specifically that his chemotherapy medication
caused him to be drowsy and fatigued. Plaintiff’s argument on this point is solely that Defendant was
unaware of Dennis’ medical excuse when it made its decision. The Court finds that the evidence in
which Plaintiff relies is read out of context. See Dennis Dep. 22:22‐23.
4
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discriminatory animus. See Brown Dep. 9‐11. However, similar to Plaintiff’s
evidence of an inconsistent application of policy, the Court finds that Brown’s
testimony, by itself, is insufficient to establish pretext. See Moore v. Ala. State Univ.,
980 F. Supp. 426, 437 (M.D. Ala. 1997) (holding at the pretext stage, plaintiff must
show that defendant’s decision was motivated by a discriminatory animus).
However, Brown’s testimony, when combined with Plaintiff’s prima facie case and
evidence of Defendant’s inconsistent application of policy, is sufficient circumstantial
evidence of racial discrimination from which a reasonable jury could infer Defendant’s
decision was made with a racially discriminatory intent.
The Eleventh Circuit recently explained that “the plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.” Smith v. Lockheed‐Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011) (holding plaintiff survived summary judgment
without identifying a comparator because of circumstantial evidence) (citation
omitted). Stated another way, “[a] triable issue of fact exists if the record, viewed in a
light most favorable to the plaintiff, presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” Id. (quotation omitted). Evidence establishing pretext may include
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the same evidence initially offered to establish the prima facie case of discrimination.
Wilson v. B.E. Aerospace, 376 F.3d 1079, 1088 (11th Cir. 2004).
Here, Plaintiff has presented a “convincing mosaic” of circumstantial evidence.
Plaintiff presents several pieces of record evidence that lead to an inference of
intentional discrimination: her comparator, Paulsen, was not disciplined for sleeping
on the job; Defendant’s inability to explain why Paulsen was not disciplined or why
Plaintiff’s report to Reed was insufficient; testimonial evidence that a Caucasian male
replaced Plaintiff; and testimonial evidence of management’s inconsistent treatment of
Caucasian and African‐American employees. Accordingly, from the culmination of
this evidence, the Court concludes that a reasonable juror could infer that Defendant
intentionally discriminated against Plaintiff because of her race, and therefore that
Defendant’s reasons are pretext for discrimination.
However, the Court does not come to the same conclusion in regards to
Plaintiff’s gender discrimination claim. Without more, Plaintiff’s prima facie case and
evidence of Defendant’s inconsistent application of policy is insufficient to establish
circumstantial evidence of intentional gender discrimination.
Therefore, Defendant’s Motion for Summary Judgment over Plaintiff’s Title VII
race and gender discrimination claims is GRANTED in part and DENIED in part.
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Defendant’s Motion for Summary Judgment as to Plaintiff’s race discrimination claim
is GRANTED. Defendant’s Motion for Summary Judgment as to Plaintiff’s gender
discrimination claim is DENIED.
2. Plaintiff’s August 2008 Suspension
A. Prima Facie Case
Plaintiff’s second race and gender Title VII claim is based on her August 2008
suspension. To establish a prima facie case in a discipline discrimination claim,
Plaintiff must show that (1) she is a member of a protected class; (2) she was qualified
for her position; (3) she was subjected to an adverse employment action; and (4) her
employer treated similarly situated employees outside of her protected class more
favorably than she was treated. Burke‐Fowler v. Orange Cnty. Fla., 447 F.3d 1319,
1323 (11th Cir. 2006). As was the case for Plaintiff’s termination claim, none of the first
three elements of Plaintiff’s prima facie case are at issue here. However, Defendant
does argue that Plaintiff cannot prove the fourth element of her prima facie case.
Thus, at issue is whether Plaintiff can identify a similarly situated employee who
engaged in the same or similar misconduct as Plaintiff but who was not suspended.
1. Plaintiff’s Proffered Comparators
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According to her DRS, Plaintiff was suspended for two reasons: failing to finish
work assignments and filling out emergency work orders without the permission or
instruction of her supervisors. Plaintiff identifies several non‐minority males
engaging in identical conduct as potential comparators.
First, Plaintiff identifies two co‐workers, Donald Buttrom and Lawrence Faulks,
each of whom testified that they were not suspended for failing complete work orders
on time. Plaintiff also identifies a third co‐worker Giles Denstley, who testified that he
had filled out an emergency work order without the permission or instruction of his
supervisor and was not suspended.
“In order to satisfy the similar offenses prong, the comparators’ misconduct
must be nearly identical to the plaintiff’s in order to prevent courts from second‐
guessing employers’ reasonable decisions and confusing apples with oranges.”
Silverea v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (quotation
omitted). This nearly identical standard requires the comparator’s conduct to be of the
same or similar “quantity and quality” to the plaintiff’s conduct. Here, Buttrom,
Faulks, and Dentsley only admitted to committing one of the two offenses that
Plaintiff was suspended for, not both. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir. 1999) (finding that female plaintiff was not similarly situated to male comparators
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where each male comparator was involved in a “single incident of misconduct,” and
plaintiff committed at least four policy violations); Bessemer, 137 F.3d at 1313 (noting
that Plaintiff’s multiple instances of misconduct on the same day may simply have
been the straw that broke the camel’s back) (quotation omitted). Accordingly, none of
these individuals meets the nearly identical standard.
Plaintiff also points to the testimony of two other individuals, Clint Brantley
and Don Brown, who testified that other employees who failed to finish assignments
and who filled out emergency work orders without permission were never suspended.
However, Brantley and Brown’s testimony did not identify any employee who had
committed these acts. Such vague and speculative testimony is insufficient to
establish a comparator. See Williams v. Alabama Department of Transportation, 509
F. Supp. 2d 1046 (M.D. Ala. 2007) (finding that plaintiff’s testimony naming several
employees who had committed the same infractions was “too vague and speculative
to permit an informed decision” as to whether the comparator’s conduct was nearly
identical). Furthermore, neither Brantley nor Brown testified that they themselves had
committed both offenses, and therefore, they also are improper comparators. Thus,
Plaintiff fails to identify a similarly situated individual.
2. Other Evidence of Discrimination
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Plaintiff argues that if her comparators are insufficient, then she can
nevertheless produce other evidence of discrimination sufficient to establish her prima
facie case of discrimination. See Wilson, 376 F.3d at 1092 (“summary judgment is
appropriate [only] where no other evidence of discrimination is present”).
Presumably offered to prove this assertion, Plaintiff attempts to discredit Defendant’s
reasons for suspending her. First, Plaintiff asserts that maintenance employees were
“regularly unable to complete work orders and these work orders were turned over to
the next shift” without punishment. Doc. 30, p. 14. Second, Plaintiff argues that it was
an “accepted practice for the maintenance employees to use emergency work orders to
make note of things they encountered during the work day.” Id.
The Court does not find that this evidence is other evidence of discrimination.
“[U]nder Title VII, an employer lawfully may take action for any non‐discriminatory
reason, good or bad, fair or unfair, or for no reason at all.” Pollocks v. Sunland
Training Ctr, 85 F. Supp. 2d 1236, 1245 (N.D. Fla. 2000). Here, at best, Plaintiff offers
evidence that Defendant disciplined her but did not discipline others. However,
Plaintiff fails to connect this evidence with any discriminatory practice. Discipline
without discrimination does not violate Title VII. Thus, because Plaintiff has failed to
produce other evidence of discrimination or a proper comparator, Defendant’s Motion
26
for Summary Judgment on Plaintiff’s Title VII race and/or gender discipline claim is
GRANTED.
CONCLUSION
As set forth above, Defendant’s Motion for Summary Judgment [Doc. 20] is
GRANTED in part and DENIED in part. Defendant’s Motion for Summary
Judgment as to Plaintiffs’ Title VII discriminatory termination claim based on her
gender and Plaintiff’s discriminatory discipline claim based on her race and gender is
GRANTED. Defendant’s Motion for Summary Judgment as to Plaintiff’s abandoned
FLSA, hostile work environment, and retaliation claims is GRANTED. Defendant’s
Motion for Summary Judgment as to Plaintiff’s Title VII discriminatory termination
claim based on her race is DENIED.
SO ORDERED, this 9th day of January, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH/aes/ssh/jlr
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