Faircloth v. Herkel Investments Inc
ORDER denying 33 Motion for Discovery; granting 19 Motion for Summary Judgment. Ordered by Judge C. Ashley Royal on 6/11/12 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
No. 5:10‐CV‐352 (CAR)
HERKEL INVESTMENTS, INC. D/B/A :
AARON’S SALES & LEASE,
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
PLAINTIFF’S MOTION FOR LEAVE TO OBTAIN ADDITIONAL DISCOVERY
Before the Court are Defendant Herkel Investments, Inc.’s (“Herkel”) Motion
for Summary Judgment [Doc. 19], Plaintiff Tony Faircloth’s Motion for Leave to
Obtain Additional Discovery [Doc. 33], and Notices of Objection filed by both parties
[Docs. 28, 31]. In its Motion, Defendant requests summary judgment on Plaintiff’s
allegations of sexual harassment, sex discrimination, and retaliation, in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq (“Title
VII”). In his Motion for Leave to Obtain Additional Discovery, Plaintiff requests
additional time to subpoena and depose an individual about an alleged genuine issue
of material fact. After a thorough consideration of the facts and relevant law, the
Court concludes that that there is no genuine issue of material fact with regard to
Plaintiff’s claims. Accordingly, Plaintiff’s Motion for Leave to Obtain Additional
Discovery [Doc. 33] is DENIED, and Defendant’s Motion for Summary Judgment
[Doc. 19] is GRANTED.
Defendant Herkel is a franchisee for Aaron’s Rents (“Aaron’s”) and operates six
stores throughout Georgia, including stores in Macon (the “Macon Store”) and Warner
Robins (the “Warner Robins Store”). These stores sell and lease residential and office
furniture, consumer electronics, and home appliances. Plaintiff Faircloth was an
employee of Defendant from January 2002, until his termination in October 2008. The
relevant facts giving rise to the instant action occurred over the six‐year span of
Plaintiff’s employment. These facts viewed in the light most favorable to Plaintiff are
Plaintiff’s Employment with Defendant
In January 2002, Defendant hired Plaintiff as the Macon Store Customer
Account Manager. As Customer Account Manager, Plaintiff was responsible for
collecting the past‐due rent of customers and helping the General Manager (“GM”),
Sharon Thompson, operate the Macon Store. As GM, Thompson was Plaintiff’s
A year and a half later in the summer of 2003, Defendant promoted Plaintiff to
the position of GM for the Warner Robins Store where he was responsible for its
overall business operation. Later in February 2005, Plaintiff received another
promotion to part‐time District Manager (“DM”)1 and was responsible for supervising
five stores in Georgia. In addition, he continued to serve as GM of the Warner Robins
Store (“GM/DM”). The only store that Plaintiff did not supervise as DM was the
Macon Store, where Thompson remained GM. Most relevantly during that time
period, Chris LaPerchia was his immediate supervisor. Plaintiff, the only individual
to serve in this dual managerial position for Defendant, served as GM/DM until his
termination in October 2008.
Plaintiff’s First Relationship with Sharon Thompson: Summer 2002‐Summer 2003
Plaintiff and Thompson had worked together before Plaintiff started as
Customer Account Manager at the Macon Store. Indeed, in their prior job, Thompson
had also been Plaintiff’s immediate supervisor. Their professional and personal
At times, the parties use “District Manager” and “Regional Manager” interchangeably. To
avoid confusion, the Court will refer to this position as “District Manager” or “DM.”
relationship, during this previous job and for the first six months of Plaintiff’s
employment with Defendant, consisted of only flirtatious interactions. However,
beginning in the summer of 2002, Defendant and Thompson began a consensual
sexual relationship that lasted for approximately one year until the summer of 2003.
After this relationship ended, Plaintiff took the promotion as GM for the Warner
Robins Store partly to “get away” from Thompson. [Pl. Dep. 97:23‐24].
Plaintiff’s “On‐Again/Off‐Again” Relationship with Thompson: 2004‐2007
At some point in 2004 during a company managers’ meeting, Plaintiff and
Thompson entered back into a sexual relationship, beginning their “sporadic” “on‐
again/off‐again” relationship that lasted until approximately 2007. [Id. at 83:23].
Plaintiff, characterizing this sexual relationship as “friends with benefits,” enjoyed the
relationship so long as Thompson was not “clingy.” [Id. at 84:8, 92:25]. Plaintiff,
however, also testified that this second relationship was “nonconsensual.” [Id. at
94:10‐14]. Plaintiff explains that he was only sexually involved with Thompson “so
that she didn’t cause [him] as many problems at work.” [Id.]. Notably, Plaintiff’s
sexual harassment claim is not based on the sexual acts with Thompson or the sexual
relationship itself.2 Instead, Plaintiff solely asserts that the problems Thompson
caused at work constituted “sexual harassment.”
Problems at Work: 2003‐ 2008
It is undisputed that Plaintiff and Thompson did not have any issues or
problems with one another until August or September 2003, after they ended their first
relationship ended and after Plaintiff first promotion. It is entirely unclear exactly
when, during this five‐year span, Thompson allegedly caused Plaintiff problems. This
is, in large part, because Plaintiff only experienced problems when he and Thompson
were “off‐again.” Plaintiff, however, does not identify when their relationship was
“off‐again,” or more specifically, when, during the “off‐again” period, each alleged
Notwithstanding, Plaintiff identifies several instances of Thompson’s behavior,
general and specific, that form the basis of his sexual harassment claim: Thompson
“constantly … scrutinized” Plaintiff, [Id. at 95:7‐8]; Thompson called LaPerchia and
“instigated problems” by “complain[ing] about Plaintiff when they were not sexually
involved,” [Id. at 88:11]; Thompson called Plaintiff frequently, even when he was with
a customer; Thompson accused Plaintiff of sleeping with other employees; Thompson
Nor does Plaintiff allege a sexual harassment claim under a quid pro quo theory.
hired employees for her store that Plaintiff had previously fired from his store “to get
back at [him],” [Id. at 156: 8]; and Thompson told another store manager that Plaintiff
had cheated to win Store of the Month.3
Plaintiff’s sex discrimination claim also includes several instances when
Thompson was allegedly treated more favorably. Plaintiff claims: Thompson was
allowed to take merchandise from other stores; Thompson did not have to work the
same hours as Plaintiff and other managers; Thompson was given twice the amount of
money per month to spend on merchandise in her store as compared to the amount of
money given to other stores; Thompson could order merchandise, but Plaintiff could
not; when Plaintiff was GM/DM, Thompson did not have to report to Plaintiff;
Thompson did business with one of her employees in violation of company policy;
and LaPerchia paid Thompson’s store when her store won the corporate incentive
program, “Lucky 7,” was discontinued, [Doc. 24, p. 14].
Lastly, Plaintiff’s retaliation claim includes Plaintiff’s disputed opposition to
Thompson’s conduct: physical abuse of several employees, regardless of race or sex;
use of the “N word” while working, [Doc. 22, p. 15]; and not giving African‐American
The Court notes that Plaintiff alleged several facts in his Response that were not accurately
cited for support in the record. The Court will consider only those facts that are adequately supported
by the record. See Fed. R. Civ. P. 56(e).
employees the same number of days off as, presumably, non‐African‐American
Sexual Harassment Complaint: Early 2008
At the beginning of 2008,4 sometime after Plaintiff and Thompson’s second
sexual relationship ended, LaPerchia called Plaintiff to schedule a meeting to resolve
some of their work‐related issues. Fearing that Thompson had already told LaPerchia
biased details about their problems, Plaintiff immediately told LaPerchia over the
phone that he wanted to file a formal sexual harassment complaint against Thompson
so that he could give “[his] side.” [Pl. Dep. 143:21]. This was the first and only time
Plaintiff indicated that Thompson was sexually harassing him. A formal complaint,
other than this statement, was neither filed nor pursued by either LaPerchia or
Plaintiff. The meeting between LaPerchia, Thompson, and Plaintiff never occurred.
Reading the facts in the light most favorable to Plaintiff, Defendant Herkel’s
sexual harassment policies require Defendant’s employees to report the incident of
sexual harassment to LaPerchia or an owner. Thus, assuming that simply expressing
the desire to file a complaint is sufficient under Defendant’s policies, Plaintiff
The parties are unsure exactly when LaPerchia called Plaintiff—either at the end of 2007 or at
the beginning of 2008. This date is only relevant to Plaintiff’s retaliation claim, and thus, reading the
facts in the light most favorable to Plaintiff, the Court will presume that LaPerchia contacted Plaintiff at
the beginning of 2008.
sufficiently lodged a sexual harassment complaint against Thompson in the beginning
Plaintiff’s Termination: October 20, 2008
On October 20, 2008, Defendant terminated Plaintiff. LaPerchia informed
Plaintiff that his dual position of GM/DM was being eliminated and “may”5 have
informed him that his declining job performance had resulted in a $30,000 loss per
month for Defendant. Plaintiff immediately responded, “F**k you,” [LaPerchia Dep.
54:8], and admittedly cussed out LaPerchia for “a good hour.” [Pl. Dep. 115:12]. At
this point, LaPerchia’s decision to terminate Plaintiff was final; there was “no going
back.” [LaPerchia Dep. 54:9‐10]. At some point towards the end of this exchange,
Plaintiff asked LaPerchia if he could keep his position as GM for the Warner Robins
Store, but LaPerchia told him that this position was also being eliminated. Plaintiff
was the only GM/DM employee, and thus the only GM/DM employee whose position
was eliminated. However, Plaintiff was not the only GM employee, but was the only
employee whose GM position was eliminated.
That next day, LaPerchia completed Plaintiff’s Separation Notice (“Notice of
Separation” or “Notice) for the Georgia Department of Labor. LaPerchia wrote:
Plaintiff “can’t recall” if LaPerchia informed him about the decrease in customers, but he “may
have.” [Pl. Dep. 132:16].
“[Plaintiff’s] position of general manager and district manager has been eliminated.
His duties will be split between myself and another GM, [Thompson]. The company
has been doing poorly, and we are forced to downsize. Simply put, an economic
layoff.” [Doc. 22‐7].
After Plaintiff’s Termination6
Later in October, Defendant hired Deago Smith to be GM of the Warner Robins
Store. Also that same month, Defendant tried to hire Kevin Walker as DM, but
presumably was unsuccessful. It is undisputed that some of Plaintiff’s duties as
GM/DM were given to Thompson.
Worker’s Compensation Agreement: November 10, 2010
On November 10, 2010, nearly two years after Plaintiff’s termination, Plaintiff
signed a “Voluntary Resignation” Agreement (the “Agreement”) with Defendant in
regards to a separate workers’ compensation claim. The Agreement provides as
It is the Employee/Claimant’s position that he continues to be disabled
and is unable to perform the essential functions of his former position
Because much of Defendant’s decisions following Plaintiff’s termination are disputed, the
Court will read the facts in the light most favorable to Plaintiff. Plaintiff’s Notice of Objection [Doc. 31]
to Defendant’s evidence that employee Deago Smith did not get paid the salary of a GM until the spring
of 2009 is therefore moot. Additionally, as explained in more detail below, the Court will accept Kevin
Walker’s affidavit as sufficient testimony.
with the Employer. In further consideration of the settlement amount
specified in the Stipulation and Settlement Agreement, the
Employee/Claimant agrees that he hereby resigns from said employment
with his Employer, effective immediately, and agrees to refrain from
reapplying for subsequent employment with said Employer at any time
in the future. The Employee/Claimant agrees that no reasonable
accommodations can be made to allow him to perform the essential
functions of his former position or any other position for which he is
[Doc. 22, p. 12]. This is the only document cited to in the record that relates to
Plaintiff’s “resignation,” and is relevant only because Defendant asserts that Plaintiff
On December 14, 2008, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging sexual harassment, age and
sex discrimination, and retaliation against Defendant. In his Charge, Plaintiff indicates
that the earliest and latest date of discrimination was the same date, October 20, 2008,
the date of Plaintiff’s termination. Plaintiff did not check the “continuing violation”
box. In response to Plaintiff’s Charge, Defendant stated that Plaintiff was terminated
because of performance issues and unprofessional conduct.
On July 1, 2010, the EEOC issued a Notice of Right to Sue letter. Plaintiff filed
the instant action against Defendant on September 29, 2010, asserting claims of hostile
work environment, sex discrimination, and retaliation in violation of Title VII.
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
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, 106 S. Ct. 2548, 2552 (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, 106 S. Ct. 2505, 2511 (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, 106 S. Ct. at 2511‐12. 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 Corp., 477
U.S. at 323, 106 S. Ct. at 2553 (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 specific evidence showing that there is a genuine issue of
material fact. See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26. This
evidence must consist of more than mere conclusory allegations or legal conclusions.
See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
I. Plaintiff’s Motion for Leave to Obtain Additional Discovery and
Defendant’s Notice of Objection
In his Response to Defendant’s Motion for Summary Judgment, Plaintiff relies
on Kevin Walker’s unsigned affidavit in which Walker states that soon after Plaintiff
was terminated, Defendant tried to hire him to replace Plaintiff. Plaintiff uses this
statement to support his contention that Defendant’s reason for terminating Plaintiff,
that Plaintiff’s positions was eliminated, is pretext. Defendant filed a Notice of
Objection to this unsigned affidavit [Doc. 28], and twenty days later, Plaintiff filed his
Motion for Leave to Obtain Additional Discovery [Doc. 33]. Therein, Plaintiff requests
additional time to obtain Walker’s testimony, and explains that Walker refused to
testify without a subpoena. In support, Plaintiff argues that Walker’s testimony is a
material issue. The Court disagrees.
Rule 56(d) of the Federal Rules of Civil Procedure allows a nonmovant to
request additional time to obtain an affidavit if the nonmovant “cannot present facts
essential to justify [his] opposition.” Fed. R. Civ. P. 56(d). Here,
accepting Walker’s deficient affidavit as part of the record for the purposes of this
Motion, the Court concludes, as explained below, that Plaintiff still cannot
demonstrate a genuine issue of material fact with respect to whether Defendant’s
legitimate, non‐discriminatory reason was pretext for discrimination. Because
Walker’s Testimony is not essential to Plaintiff’s case, his Motion for Leave to Obtain
Additional Discovery [Doc. 33] is DENIED.
II. Defendant’s Motion for Summary Judgment
The Court now considers whether Defendant is entitled to summary judgment.
In its Motion, Defendant argues that a genuine issue of material fact does not exist
with respect to Plaintiff’s Title VII claims of (1) sexual harassment; (2) sex
discrimination; (3) retaliation; and (4) general discrimination and retaliation.7
A. Administrative Exhaustion
Before considering the merits of each claim, the Court will first address
Defendant’s argument that Plaintiff failed to exhaust his administrative remedies with
respect to his first three claims.
1. Sexual Harassment
First, Defendant argues that Plaintiff’s sexual harassment claim is time‐barred
by Title VII’s limitation period. It is well‐settled that before suing under Title VII a
plaintiff must first exhaust certain administrative procedures. Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (citation omitted). In Georgia, exhaustion
requires that a plaintiff file a charge of discrimination with the EEOC within 180 days
“after the alleged unlawful employment practice occurred.” 42 U.S.C.A. § 2000e‐
5(e)(1); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003). If a plaintiff
fails to file before this time elapses, his claim is untimely. Alexander v. Fulton Cnty.,
207 F.3d 1303, 1332 (11th Cir. 2000).
Plaintiff appears to assert the general discrimination and retaliation claims in his deposition
and refers to the facts alleged in Paragraph 18 of his Complaint.
A plaintiff may, however, avoid this stringent filing requirement if the plaintiff
proves that the continuing violation doctrine applies. Roberts v. Gadson Mem. Hosp.,
835 F.2d 793, 800 (11th Cir. 1988). The continuing violation doctrine allows a plaintiff
to “pursue a claim on an alleged act of discrimination that happened before the 180
day limitation when the act is part of a continuing violation of Title VII that continues
into the 180 day period of time. Harris v. Fulton‐Dekalb Hosp. Auth., 255 F. Supp. 2d
1347, 1366 (N.D. Ga. 2002).
Once the defendant raises the issue of timeliness, the plaintiff bears the burden
of proving that the conduct alleged in his EEOC Charge satisfies the 180‐day rule or
establishing that the untimeliness is excused by an equitable exception, such as the
continuing violation doctrine. Malone v. K‐Mart Corp., 51 F. Supp. 2d 1287, 1300
(M.D. Ala. 1999); see Roberts, 835 F.2d at 800 (noting Plaintiff has burden of proving
continuous violation doctrine).
Here, it is undisputed that Plaintiff’s Charge was filed on December 10, 2008.
Thus, unless the continuing violation doctrine applies, only the alleged acts of
discriminatory conduct that occurred on or after June 10, 2008, can be used as a basis
for Plaintiff’s sexual harassment claim.
Defendant argues that Plaintiff fails to offer any evidence that the alleged
harassment occurred on or after June 10, 2008. Indeed, a review of the record indicates
that Plaintiff does not identify any of the dates that the specific incidents of
harassment occurred on. More importantly, however, Plaintiff does not respond to
Defendant’s timeliness argument. This omission is unfortunate, especially considering
Plaintiff has the burden of either proving that the conduct alleged in his Charge
satisfied the 180‐day rule or establishing that the untimeliness is excused by an
equitable exception. Thus, because Plaintiff has failed to carry this burden, the Court
concludes Plaintiff has conceded any argument to the contrary and has consequently
failed to prove that his claim is not time barred or is entitled to an exception.
Accordingly, Defendant’s Motion with respect to Plaintiff’s sexual harassment claim is
2. Sex Discrimination
Defendant next contends that Plaintiff’s sex discrimination claim was not
asserted in his EEOC Charge. The scope of a plaintiff’s complaint is limited to those
claims included in the charge and those claims which can reasonably be expected to
“grow out of the charge of discrimination.” Armstrong v. Lockheed Martin Beryllium
Corp., 990 F. Supp. 1395, 1400 (M.D. Fla. 1997) (citing Turner v. Orr, 804 F.2d 1223
(11th Cir. 1986)). Here, Plaintiff’s Charge states, in part: “I believe I have been
discriminated against … because of my sex (male).” [Doc. 20‐12]. Accordingly, the
Court finds that Plaintiff sufficiently asserted a sex discrimination claim in his EEOC
Finally, Defendant argues for the first time in its Reply Brief that Plaintiff’s
retaliation claim is procedurally barred because 1) Plaintiff did not plead this basis in
his EEOC Charge; 2) Plaintiff has not offered evidence that he filed his EEOC charge
within 180 days of making such a complaint; and 3) Plaintiff has not alleged such a
claim in his Complaint. However, because Defendant raised these issues for the first
time in its Reply, the Court will not consider Defendant’s arguments. See, e.g.,
Herring v. Sec., Dept. of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005).
B. Merits of Plaintiff’s Sex Discrimination Claim
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 individualʹs … sex.” 42 U.S.C. § 2000e–2(a)(1).
Claims of sex 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, 93 S. Ct. 1817 (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 plaintiffʹs
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. Depʹt of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089 (1981). The burden then
shifts back to the plaintiff who must show that the employerʹs proffered reasons for its
actions were not the real reasons that motivated its conduct, but that the employerʹs
proffered reasons were merely pretext for discrimination. Id. at 253.
1. Prima Facie Case
Here, Plaintiff alleges that Defendant wrongfully terminated him because of his
sex. Both parties agree that Plaintiff must show the following in order to establish his
prima facie case under Title VII: (1) he is a member of a protected class; (2) he was
qualified for his position; (3) he was subjected to an adverse employment action; and
(4) his employer treated similarly situated employees outside of his protected class
more favorably than he was treated, or he was replaced by an individual outside of his
protected class. Maynard v. Bd. of Regents of Div. of Univs. of the Fla. Dep’t of Educ.,
342 F.3d 1281, 1289 (11th Cir. 2003) (citation omitted). In its Motion, Defendant
appears to concede the first two elements of Plaintiff’s prima facie case, but contests
the third and fourth elements. Specifically, Defendant argues that Plaintiff has waived
his right to assert that he was terminated and that Plaintiff cannot produce any
evidence that a similarly situated female GM/DM was treated more favorably.
a) Whether Plaintiff Suffered an Adverse Employment Action
Defendant asserts that Plaintiff is prohibited from arguing that he was
subjected to an adverse employment action because he voluntarily resigned pursuant
to the Agreement he signed in 2010, two years after his termination. In addition to
noting the temporal disconnect between Plaintiff’s resignation and his termination,
Plaintiff responds that he “specifically reserved his EEOC claim” in his Agreement.
[Doc. 22, p. 12]. Both parties appear to be misguided.
To begin, Plaintiff’s argument that the Agreement specifically reserves his
EEOC claim is utterly baseless. The Agreement for voluntary resignation references
no such reservation, either expressly or implicitly. Plaintiff’s conclusory allegation in
his affidavit to support this contention is insufficient. See Bennett v. Parker, 893 F.2d
1530, 1533‐24 (11th Cir. 1990) (A “conclusory allegation” cannot defeat a motion for
summary judgment.”). Also, contrary to Defendant’s argument, the Agreement also
does not state that Plaintiff waived his right to sue for discrimination. Additionally,
Defendant does not offer any legal or factual authority to support its position that
Plaintiff’s termination was not an adverse employment action. Thus, the Court finds
that Plaintiff’s termination qualifies as an adverse employment action for purposes of
his sex discrimination claim.
b) Plaintiff’s Proffered Comparator
Thus, because Plaintiff has established the first three elements of his prima facie
case, the Court must consider the final element, whether Plaintiff can identify a proper
comparator. Plaintiff argues that Sharon Thompson, GM of the Macon Store, is a
proper comparator. Defendant, however, argues that a proper comparator is an
individual who, like Plaintiff, held a dual managerial position. In doing so, however,
Defendant concedes that Plaintiff was the only employee who held the position of
In order to offer a valid comparator, the comparator’s misconduct must be
“nearly identical to the plaintiffʹs in order to prevent courts from second guessing
employersʹ 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 comparatorʹs conduct to be of the same or
similar “quantity and quality” to the plaintiffʹs conduct. Id. In instances where “an
employer reduces its workforce for economic reasons, an inference of [sex]
discrimination requires the plaintiff and comparator to have held similar positions
because only then can the court infer an improper motive for choosing to eliminate
plaintiff’s position.” Rudolph v. Bd. of Trs. of the Univ. of Ala., No. 2:11‐cv‐27‐AKK,
2012 WL 1340077, at *7 (N.D. Ala. Apr. 16, 2011).
Here, the Court cannot reasonably assume that Thompson’s position as GM
was similar to Plaintiff’s position as GM/DM because the jobs were undoubtedly
different. Although, the Court acknowledges that Plaintiff was the only employee
who held the position of GM/DM and thus would be unable to offer any individual
with the same job duties.
These issues aside however, the Court is satisfied that Thompson is a proper
comparator. The record indicates that Defendant also eliminated Plaintiff’s GM
position. Certainly, Defendant’s decision to eliminate Plaintiff’s position as GM and
not Thompson’s position as GM indicates that Thompson was treated more favorably.
Accordingly, the Court concludes that Plaintiff has identified Thompson as a proper
comparator, and thus Plaintiff has established his prima facie case for sex
2. Legitimate Non‐Discriminatory Reason
Because Plaintiff has made out a prima facie case of sex discrimination, the
burden now shifts to Defendant to articulate a nondiscriminatory reason for its
employment action. Here, Defendant’s legitimate, nondiscriminatory reason offered
on summary judgment is that Plaintiff’s positions as GM/DM and GM for the Warner
Robins Store were eliminated due to economic reasons.
The Court finds that Defendantʹs reasons are adequate to satisfy the employerʹs
burden of production. See Vessels v. Atlanta Ind. School Syst., 408 F.3d 763, 769–70
(11th Cir. 2005) (employerʹs 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 Defendantʹs
reasons are merely pretext, and the real reason for Defendant’s decision to terminate
Plaintiff was sex discrimination.
A plaintiff establishes that an employer’s articulated reason is “pretext for
discrimination only when it is shown that the reason was false and that discrimination
was the real reason.” Dawson v. Henry Cnty. Police Dept., 238 F. App’x 545, 549 (11th
Cir. 2007) (emphasis in original) (citing Brooks v. Cnty. Com’n of Jefferson Cnty., Ala.,
446 F.3d 1160, 1163 (11th Cir. 2006)). “It is not enough, in other words, to dis believe
the employer; the fact finder must believe the plaintiffʹs explanation of intentional
discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519, 113 S. Ct. 2742, 2745
(1993) (emphasis in original). Here, Plaintiff offers several arguments at the pretext
stage. However, at best, Plaintiff establishes only that Defendant’s proffered reason is
false. Plaintiff fails to show, and nothing in the record indicates, that there is any
genuine issue of material fact that Defendant’s articulated reason was pretext for
Plaintiff’s most convincing argument—although ultimately unsuccessful—is
that Defendant did not actually eliminate his position. Specifically, Plaintiff argues
that Defendant attempted to fill Plaintiff’s GM position with Kevin Walker and replace
Plaintiff’s position as DM with Deago Smith. This evidence certainly creates a genuine
issue of material fact as to whether Defendant’s articulated reason that Plaintiff’s
positions were eliminated is false.
The Court notes that in several instances Plaintiff appears to disregard the difference between
GM/DM and DM, and instead blurs these positions together as one. Nevertheless, where necessary, the
Court will use Plaintiff’s understanding of his positions to analyze the merits of his claim.
Most importantly, however, nothing in the record reveals any indication that
Defendant was motivated by a discriminatory animus against males. A “‘rejection of
the defendantʹs proffered reason[ ] will permit the trier of fact to infer the ultimate fact
of intentional discrimination,’ but does not compel judgment for the plaintiff, because
the plaintiff still bears the ‘ultimate burden of persuasion.’” Lawson v. KFH Inds., 767
F. Supp. 2d 1233, 1243 (M.D. Ala. 2011) (quoting St. Mary’s Honor, 509 U.S. at 511, 113
S. Ct. 2742, 2745). Here, Plaintiff fails to carry his ultimate burden of proving that
Defendant acted with the intent to discriminate against him. Indeed, two arguments
offered in his Response Brief actually serve to undermine his position rather than
First, Plaintiff’s argument that he was replaced by two males weakens his claim
that he was discriminated against because of his sex. A subsequent hiring of an
individual within a plaintiff’s protected group can be used to prove pretext when the
record indicates that this hiring was a “pretextual device specifically designed by [an
employer] to disguise its acts of discrimination.” Nix v. WLCY Radio/Rahall Comms.,
738 F.2d 1181, 1185 n.1 (11th Cir. 1984). However, when the record is devoid of any
evidence that the subsequent hiring was a discriminatory “disguise,” as is the case
here, the subsequent hiring supports the conclusion that Defendant’s reason was not
pretext for discrimination. Id. Here, Plaintiff points to no evidence that would
suggest Defendant’s subsequent communications with Kevin Walker and latter hiring
of Deago Smith was done with the intent to disguise an act of earlier discrimination
against Plaintiff. Thus, despite Plaintiff’s attempt to prove pretext with this argument,
the Court finds that Defendant’s latter conduct supports the conclusion that it did not
intentionally discriminate against Plaintiff.
Similarly, Plaintiff’s argument that Thompson took some of his duties as
GM/DM after he was terminated buttresses Defendant’s articulated reason that his
position was eliminated, not that Defendant intentionally discriminated against
Plaintiff. The fact that a Plaintiff’s “duties were assumed” by an individual outside of
his protected class is “insufficient … to raise an issue of pretext” without any
additional evidence. Toth v. McDonnell Douglas Aerospace Servs. Co., 31 F. Supp. 2d
1347, 1354, n.15 (M.D. Fla. 1998) (quotation omitted). Accordingly, that Thompson, a
female employee, assumed duties that Plaintiff performed prior to his termination
does not give rise, by itself, to any inference of intentional discrimination.
Looking lastly to Plaintiff’s two remaining arguments, Plaintiff first contends
that Defendant’s reasons for his termination are inconsistent because of Defendant’s
EEOC response in which it stated that it terminated Plaintiff because of performance
issues and unprofessional conduct, not because of an economic layoff. A plaintiff may
establish pretext by demonstrating that the employer has offered inconsistent reasons
for the challenged employment action. Tidwell v. Carter Prods., 135 F.3d 1422, 1428
(11th Cir. 1998). However, the existence of an additional, nondiscriminatory reason is
not automatically “inconsistent” and does not always prove pretext. Id. “[A]n
employer is permitted to elaborate on its reasons for making an employment
decision.” Hayes v. City of Newnan, Ga., No. 3:05‐CV‐102‐JOF, 2007 WL 2765555, at
*30 (N.D. Ga. Sept. 20, 2007) (holding that employer’s subsequent litigation reason that
plaintiff engaged in misconduct was merely an elaboration of, and thus consistent
with, employer’s earlier reason that “change was needed” in plaintiff’s position).
Here, in Defendant’s Notice of Separation and now on summary judgment,
Defendant asserts that Plaintiff’s GM/DM and GM positions were eliminated for
economic reasons. This reason is certainly different that the reason in Defendant’s
EEOC response that Plaintiff acted unprofessionally and had performance issues.
However, Defendant’s reasons are nevertheless consistent because Defendant’s EEOC
reason is a reasonable elaboration of the insight behind its decision to eliminate
Plaintiff’s position. Thus, Plaintiff’s argument that Defendant’s reasons are
inconsistent fails to establish pretext.
Lastly, Plaintiff cryptically argues that he never engaged in any misconduct.
Although the purpose of this argument is unclear, the Court will first assume that
Plaintiff is challenging the veracity of Defendant’s reason asserted in its EEOC
response that Plaintiff was unprofessional and had performance issues. This
argument, however, is irrelevant. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991). The pretext inquiry is limited to whether an employer believed
that an employee engaged in the misconduct, not whether the employee actually did.
Id. Here, Plaintiff offers no evidence to suggest that Defendant did not believe there
were issues with Plaintiff’s performance or that Plaintiff was unprofessional.
Accordingly, Plaintiff’s attempt to challenge Defendant’s earlier proffered reason is
To the extent that Plaintiff attempts to generally argue that he was a good
employee and did not deserve to be fired, Plaintiff cannot establish pretext “by
quarreling with the wisdom of [the proffered] reason.” Chapman v. AI Transport, 229
F.3d 1012, 1030 (11th Cir. 2000). Thus, “[s]imply claiming that [he] did nothing wrong
and was, in fact, a good employee is insufficient.” Summers v. City of Dothan, Ala.,
757 F. Supp. 2d 1184, 1210 (M.D. Ala. 2010). Accordingly, Plaintiff’s argument on this
basis fails as well.
Based on the foregoing, Plaintiff has failed to show that Defendant’s legitimate,
nondiscriminatory reason was pretext for discrimination. Thus, Defendant’s Motion
for Summary Judgment [Doc. 19] with respect to Plaintiff’s sex discrimination claim is
C. Merits of Plaintiff’s Retaliation Claim
Plaintiff next alleges that he was terminated in retaliation for 1) filing a
complaint with the EEOC, and 2) objecting to Thompson’s alleged inappropriate
behavior toward her employees.9 The Court will consider each allegation in turn.
1. EEOC Complaint
Plaintiff asserts that Defendant retaliated against him after he “complained to
the EEOC about the discriminatory treatment he received as a result of the actions of
Defendant.” [Doc. 22, p. 17]. In support, Plaintiff cites his EEOC Charge filed on
December 4, 2008. Defendant counters that his Charge is not causally connected to
Notably, Plaintiff does not argue that he was retaliated against for complaining about
Thompson’s sexual harassment, despite the fact that he styled point heading “C.” in such a manner.
[Doc. 22, p. 16]. Accordingly, this argument is waived. Notwithstanding, the Court notes that any
attempt to argue this point would likely fail due to the lack of temporal proximity between Plaintiff’s
informal complaint of sexual harassment at the beginning of 2008, and his termination in October
2008—almost nine months later. See Higdon v. Jackson, 393 F.3d 1211, 1220‐21 (11th Cir. 2004)
(explaining that a three‐month interval between protected activity and adverse action, standing alone, is
too long to establish an inference of retaliation).
Plaintiff’s termination because Plaintiff filed his EEOC Charge after he was
terminated. The Court agrees.
To establish a prima facie case of retaliation under Title VII, a plaintiff must
show that he “engaged in statutorily protected activity, he suffered a materially
adverse action, and there was some causal relation between the two events.”
Goldman v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). The causal
connection prong is satisfied by evidence that the protected action and the adverse
employment action are not totally unrelated. Id.
Here, Plaintiff was terminated on October 20, 2008. Nearly two months later,
Plaintiff filed his first and only complaint with the EEOC. Accordingly, based on the
timing of the aforementioned events, the Court concludes that Defendant could not
have retaliated against Plaintiff based on his EEOC complaint. Thus, Plaintiff’s
retaliation claim on this basis fails as matter of law.
2. Thompson’s Behavior
Plaintiff also asserts that he was retaliated against for objecting to Thompson’s
behavior, specifically her: 1) use of the “N word” when referring to African‐American
employees; 2) physical abuse of employees; and 3) discrimination against African‐
American employees by not giving them the same number of days off. [Doc. 22, p. 18].
This basis, however, also fails as a matter of law.
First, Plaintiff contends that he “objected” to Thompson’s use of the “N word.”
[Doc. 22, p. 18]. To establish the causation element of a retaliation claim, Plaintiff must
prove that “the employer was actually aware of the protected expression at the time it
took adverse employment action.” Brown v. Sybase, Inc., 287 F. Supp. 2d 1330, 1347
(S.D. Fla. 2003). A court will not presume that a decisionmaker was motivated to
retaliate because of something unknown to him or her. Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). A retaliation claim fails as a
matter of law if there is a substantial delay between the protected expression and the
adverse action, without other evidence tending to show causation. Higdon, 393 F.3d
Here, Plaintiff testified that he is “almost positive” he discussed Thompson’s
use of the “N word” with LaPerchia but that he “can’t recall a hundred percent.” [Pl.
Dep. 238:4‐6]. Assuming that Plaintiff did raise this objection with LaPerchia, Plaintiff
nevertheless cannot identify when he told LaPerchia. Additionally, Plaintiff did not
identify any evidence that indicates a causal relationship between his objection and his
termination. Thus, the Court cannot infer retaliation based on his termination and his
assumed report to LaPerchia. Accordingly, Plaintiff’s retaliation claim on this basis
Next, Plaintiff asserts that he objected to Thompson’s behavior of pushing
employees. Defendant argues that Plaintiff’s claim on this basis is improper because
Plaintiff testified that Thompson pushed both African‐American and Caucasian
employees. A Title VII retaliation claim necessarily requires that the plaintiff’s
opposition be taken to “oppose[ ] any practice made an unlawful employment practice
by [Title VII].” 42 U.S.C. § 2000e‐3(a); see Dubose v. SYSCO Corp., No. 1:10‐cv‐02952‐
WSD, 2011 WL 1004675, at *3 (N.D. Ga. Mar. 18, 2011) (holding that facts indicating
general unfair treatment of employees were insufficient to establish retaliation under
ADEA because the practices were not discriminatory).
Here, Plaintiff testified that Thompson did “not just [hit] blacks” but “black[s]
and white[s]” as well as males and females. [Pl. Dep. 182:6]. Although Thompson’s
behavior was abusive and inappropriate workplace conduct, it was not
discriminatory. Accordingly, Plaintiff simply opposed employee abuse, not employee
discrimination. Such opposition is insufficient to establish opposition of an unlawful
employment practice under Title VII. Accordingly, Plaintiff’s retaliation claim on this
basis also fails as a matter of law.
Finally, Plaintiff argues that he objected to Thompson’s discrimination against
African‐American employees “in such matters as the days off they were given.” [Doc.
22, p. 18]. In support of this argument (and his two previous arguments), Plaintiff
evasively cites to a five‐page span in his deposition. After reading the cited pages, the
Court can identify only one area that could, albeit remotely, support Plaintiff’s
assertion: when asked about Thompson’s acts of discrimination in the workplace,
Plaintiff responded, “Then another African‐American was let go for not coming to
work quick enough after a sickness.” [Pl. Dep. 180:4‐5]. Assuming that this testimony
directly supports Plaintiff’s argument, Plaintiff does not indicate that he informed
Defendant of Thompson’s behavior. Thus, Plaintiff’s retaliation claim on this basis
fails because Plaintiff cannot establish that Defendant knew of Thompson’s
discriminatory behavior. See Brown, 287 F. Supp. 2d at 1347 (Plaintiff must prove that
the “employer was actually aware of the protected expression at the time it took
adverse employment action.”).
Accordingly, Plaintiff has failed to establish a prima facie case of retaliation
under Title VII. Thus, Defendant’s Motion for Summary Judgment [Doc. 19] with
respect to Plaintiff’s retaliation claim is GRANTED.
D. Merits of Plaintiff’s General Equal Opportunity Claim
Finally, Defendant argues that Plaintiff’s fourth claim asserted in Paragraph 18
of his Complaint was treated as a separate claim in Plaintiff’s deposition and should
be dismissed because it is not a separate and distinct claim in his Complaint. In his
Response, Plaintiff concedes that this claim should be dismissed. Accordingly, to the
extent that paragraph 18 of Plaintiff’s Complaint could be construed as a separate
claim, Defendant’s Motion for Summary Judgment as to this claim [Doc. 19] is
Based on the aforementioned, Defendant’s Motion for Summary Judgment
[Doc. 19] is GRANTED in its entirety. Plaintiff’s Motion for Leave to Obtain
Additional Discovery [Doc. 33] is DENIED.
SO ORDERED, this 11th day of June, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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