HUDSON v. MIDDLE FLINT BEHAVIORAL HEALTHCARE et al

Filing 19

ORDER GRANTING 13 Motion for Summary Judgment. Ordered by Judge Marc Thomas Treadwell on 1/23/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
NICOLA C. HUDSON,

)
)
Plaintiff,
)
)
v.
)
)
MIDDLE FLINT BEHAVIORAL
)
HEALTHCARE, TODD THOMPSON, and )
DIANNE THOMASON,
)
)
Defendants.
)
)

CIVIL ACTION NO. 5:12-CV-284 (MTT)

ORDER
Before the Court is Defendant Middle Flint Behavioral Healthcare’s Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56.1 For the reasons stated below, the
Motion is GRANTED.
I. BACKGROUND
This is an employment discrimination case. The Plaintiff, an African-American
female, filed this lawsuit July 18, 2012, pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., alleging wrongful termination, retaliation, and hostile
work environment claims based on her race. (Doc. 1). The allegations stem from her
employment at Middle Flint Behavioral Healthcare (Middle Flint), a community service
board providing low cost mental health and substance abuse treatment in and around
Americus.

1
Defendants Todd Thompson and Dianne Thomason were dismissed as Defendants in this
action on October 25, 2012. (Doc. 11).

Todd Thompson, Middle Flint’s Human Resources director, hired the Plaintiff
February 16, 2012, as a “Clerk I,” a potentially temporary front desk position within the
human resources department. (Thompson Aff., Doc. 13-1, ¶¶ 3-5; Doc. 13-1 at 9). In
accepting the position, the Plaintiff signed paperwork authorizing a background
investigation of her criminal, motor vehicle, and employment history, and acknowledged
that information learned from the investigation could be used to fire her. (Thompson
Aff., Doc. 13-1, ¶ 7; Doc. 13-1 at 11). The Plaintiff subsequently met with Dianne
Thomason, a “Clerk I” who also served as Training Coordinator and was charged with
orienting new hires and ensuring they had paperwork proving they met certain job
requirements. (Thomason Aff., Doc. 13-2, ¶¶ 2-4; Thompson Aff., Doc. 13-1, ¶ 6; Doc.
13-2 at 6). The exact dates of these meetings are not clear.
During this orientation, the Plaintiff presented a First Aid/CPR card indicating she
had completed First Aid and CPR training at Magnolia Manor Nursing Home.
(Thomason Aff., Doc. 13-2, ¶ 4; Doc. 13-2 at 8). She told Thomason she had previously
applied for a job as a nanny, and her prospective employer had arranged for her to
obtain CPR training at Magnolia Manor. (Thomason Aff., Doc. 13-2, ¶ 5). Thomason,
an Americus native whose relatives had resided at Magnolia Manor, did not believe the
nursing home offered CPR training to anyone other than its employees. (Thomason
Aff., Doc. 13-2, ¶ 5). Thomason contacted Magnolia Manor and discovered the Plaintiff
had actually been an employee there. (Thomason Aff., Doc. 13-2, ¶ 6). However, the
Plaintiff had not listed Magnolia Manor as a previous employer on her Middle Flint job
application. (Thomason Aff., Doc. 13-2, ¶ 6; Doc. 13-2 at 10-13).

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Thomason reported this discrepancy to Beth Ragan, Middle Flint’s CEO.
(Thomason Aff., Doc. 13-2, ¶ 7). Ragan then instructed Thompson to speak with the
Plaintiff about her employment history, which he did on March 22, 2012. (Thompson
Aff., Doc. 13-1, ¶ 8). The Plaintiff admitted to Thompson that she had worked at
Magnolia Manor, but said she did not list it on her Middle Flint job application because
Magnolia Manor had fired her and told her not to use the nursing home as a reference.
(Thompson Aff., Doc. 13-1, ¶ 8). After this discussion, Thompson reviewed Middle
Flint’s policy and determined that falsifying information on a job application subjects
employees to termination. Two other Middle Flint employees, including a white male,
had been fired for this reason during Thompson’s tenure. (Thompson Aff., Doc. 13-1, ¶
9). The next day, March 23, Thompson met with the Plaintiff and fired her. According
to Thompson, after he informed the Plaintiff she was terminated, the Plaintiff told him
Magnolia Manor had fired her for a “bad reason” and she had filed an EEOC complaint
against the nursing home. Thompson says he was unaware of the Magnolia Manor
EEOC investigation prior to firing the Plaintiff, and that it had no bearing on his decision.
(Thompson Aff., Doc. 13-1, ¶ 10). He further says that the Plaintiff’s race played no
factor in her termination. (Thompson Aff., Doc. 13-1, ¶ 12). After the Plaintiff was fired,
Thompson hired an African-American female to replace her. When that woman later
resigned, she too was replaced with an African-American female. (Thompson Aff., Doc.
13-1, ¶ 11).
The Plaintiff, who is proceeding pro se, has presented “evidence” in the form of
her own version of events as alleged in the Complaint (Doc. 1) and a one-page

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Response2 (Doc. 14) to Middle Flint’s Motion.3 In those filings, the Plaintiff states
Thomason “intimidated and belittled” her on a daily basis, attempted to sabotage her
work, and refused to relieve her to take needed bathroom breaks. (Doc. 1 at 4). She
says she reported Thomason’s behavior to Thompson on March 20, 2012, and was told
“to give him some time to work on [Thomason].” (Doc. 1 at 5). On March 23, the
Plaintiff says she again went to Thompson, this time to complain that Thomason had
stolen some of her work product. Thompson took no action, she says. She made this
complaint the day she was fired, but she does not discuss the firing itself. (Doc. 1 at 56). The Plaintiff simply states that she was “wrongfully terminated,” and based on the
fact that Thomason and Thompson are both white, and that she was the only AfricanAmerican clerk working at that time in the Human Resources department, she
concludes their behavior and her termination were racially motivated.
Thompson and Thomason reject the notion that the Plaintiff’s race played a
factor in any of their actions. (Thompson Aff., Doc. 13-1, ¶ 12; Thomason Aff., Doc. 132, ¶ 10). Thomason claims she never said or did anything to the Plaintiff that was race
related. (Thomason Aff., Doc. 13-2, ¶ 10). Similarly, Thompson asserts that the Plaintiff

2
The Court is aware that Fed. R. Civ. P. 56 requires parties to cite to materials in the record that
are of a more traditional evidentiary nature, such as depositions, affidavits, admissions, and the
like. However, given the Plaintiff’s pro se status, the Court will treat the substantive content of
the Plaintiff’s filings as if it were her personal testimony given by affidavit.
3

The Plaintiff also filed a two-page Sur-reply (Doc. 17) to Middle Flint’s Reply to her Response.
However, sur-reply briefs are not favored, and, moreover, the Plaintiff violated Local Rule 7.3.1.
That rule requires a party desiring to file a sur-reply brief to move in writing for permission from
the Court. The Plaintiff did not do this, and her pro se status gains her only so much leniency.
Therefore, because the Plaintiff filed her Sur-reply without leave of the Court, it will not be
considered. Notably, even had the Court accepted her Sur-reply, it would not have changed the
outcome of this Order.
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never complained to him that Thomason was behaving in a way that could be perceived
as racially motivated. (Thompson Aff., Doc. 13-1, ¶ 13). He also adds that in the two
years he has worked at Middle Flint, he has not received complaints from any other
African-American employees about Thomason, nor has he observed Thomason engage
in any racially insensitive behavior. (Thompson Aff., Doc. 13-1, ¶¶ 14-15).
As for the Plaintiff, the only factual evidence presented by Middle Flint that she
disputes is Thompson’s knowledge of the Magnolia Manor EEOC investigation. (Doc.
14). She claims she made Thompson aware of the Magnolia Manor EEOC
investigation prior to her termination, and that his knowledge of the investigation is the
reason he fired her. (Doc. 14).
II. DISCUSSION
A.

Summary Judgment Standard

A court must grant summary judgment “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). A factual dispute is not genuine unless, based on
the evidence presented, “a reasonable jury could return a verdict for the nonmoving
party.” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must
cite “to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A).

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The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing…relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The non-moving party
does not satisfy her burden “if the rebuttal evidence is merely colorable, or is not
significantly probative of a disputed fact.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)). Further, where a party fails to address another party’s
assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may consider the fact
undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, “credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge. … The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.”
Anderson, 477 U.S. at 255.
B.

McDonnell Douglas Framework

A Title VII plaintiff may prove her case directly or circumstantially. Here, there is
no direct evidence of discrimination, so the Plaintiff must rely on circumstantial
evidence. The framework for analyzing circumstantial evidence to establish a prima
facie case of discrimination is provided in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Pursuant to McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination, the test for which differs slightly for each claim. If a plaintiff
establishes a prima facie case of discrimination, the burden of production, but not the
burden of persuasion, shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the employment action. Texas Dept. of Community Affairs v. Burdine, 450
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U.S. 248, 254-55 (1981). This burden of production means the employer “need not
persuade the court that it was actually motivated by the proffered reasons,” but must
produce evidence to raise a genuine issue of fact as to whether it discriminated against
the plaintiff. Kragor v. Takeda Pharmaceuticals America, Inc., ___ F.3d ___, 2012 WL
6618360 at *2 (11th Cir.) (emphasis added).
A plaintiff then has the opportunity to show that the employer’s stated reason is in
fact pretext for discrimination.4 “The plaintiff can show pretext ‘either directly by

4
The sometimes conflicting views regarding pretext may be due to the general confusion that
has existed regarding the plaintiff’s burden when faced with a summary judgment motion. Citing
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), some courts suggest that a plaintiff
responding to an employer’s motion for summary judgment must prove that the employer’s
legitimate, nondiscriminatory reason is false and that discrimination was the real reason for the
employer’s action. See Upshaw v. Ford Motor Co., 576 F.3d 576, 587 (6th Cir. 2009); Maxfield
v. Cintas Corp. No. 2, 427 F.3d 544, 550-51 (8th Cir. 2005); Brooks v. Cnty. Comm’n of
Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006). However, the Supreme Court in St.
Mary’s did not address a plaintiff’s burden at the summary judgment stage. Rather, the Court
addressed whether an employee is entitled to judgment as a matter of law when the factfinder
has concluded that the employer’s nondiscriminatory reason is false, but nevertheless found
that the employer did not intentionally discriminate against the plaintiff. Moreover, as noted by
Judge Wilson in his concurring opinion in Convoy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d
1228, 1236 (11th Cir. 2004), the Supreme Court in St. Mary’s “flatly rejected the so-called
‘pretext-plus’ approach to discrimination analysis, which had required the plaintiff not only to
demonstrate that the employer’s asserted reasons were pretextual, but also to introduce
additional evidence of discrimination.” In Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000), the Supreme Court disposed of any lingering viability of pretext-plus analysis.
While it is true the plaintiff must ultimately prove intentional discrimination, “it is permissible for
the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s
explanation.” Id. at 147 (emphasis in original). In a concurring opinion, Justice Ginsburg, in a
summary of the majority’s holding, wrote that a plaintiff “may survive judgment as a matter of
law by submitting two categories of evidence: first, evidence establishing a ‘prima facie case,’
…; and second, evidence from which a rational factfinder could conclude that the employer’s
proffered explanation for its actions was false.” Id. at 154 (emphasis in original); see also Dulin
v. Bd. of Com’rs of Greenwood Leflore Hosp., 657 F.3d 251 (5th Cir. 2011). Clearly, at the
summary judgment stage, the plaintiff, in rebutting the employer’s proffered legitimate,
nondiscriminatory reason, does not shoulder the burden of producing evidence both of falsity
and that the real reason was discrimination. Indeed, the McDonnell Douglas test is all about
proving intentional discrimination by circumstantial evidence; if the employee had direct
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persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.’” Kragor, 2012 WL 6618360 at *2 (quoting Burdine, 450 U.S. at 256). Put
another way, “[a] plaintiff may … survive summary judgment by ‘presenting evidence
sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the
employer's legitimate, non-discriminatory reasons.’” Freeman v. Perdue Farms Inc.,
2012 WL 5458189 at *4 (11th Cir.) (quoting Evans v. McClain of Georgia, Inc., 131 F.3d
957, 965 (11th Cir.1997)).
C.

Plaintiff’s Title VII Claims
1.

Wrongful Termination

An employer may not “discharge any individual … because of such individual’s
race.” 42 U.S.C. § 2000e-2(a)(1). To prove she was discharged because of her race,
the Plaintiff must show that (1) she is a member of a protected class; (2) she is qualified
for her position; (3) she was terminated; and (4) she was replaced by a person outside
of her protected class. Freeman, 2012 WL 5458189 at *4. See also Walker v.
NationsBank of Fla., N.A., 53 F.3d 1548, 1556 (11th Cir. 1995).
For the sake of argument, the Court accepts that the first three elements are
satisfied. As an African-American woman, the Plaintiff is a member of a protected
class. She was qualified for her position, as evidenced by her hiring, and she was
terminated, as evidenced by her firing. But the Plaintiff cannot meet the fourth
requirement because she has not shown, nor even alleged, that she was replaced by a

evidence that the real reason for the adverse employment action was discrimination, the
employee would have no need to resort to the McDonnell Douglas test.
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person outside of her protected class. Moreover, Middle Flint has through Thompson’s
affidavit produced evidence that it replaced the Plaintiff with another member of her
protected class: “After terminating Ms. Hudson, I filled her position with another AfricanAmerican female. She later resigned the position and I subsequently replaced her with
another African-American female.” (Thompson Aff., Doc. 13-1, ¶ 11). Thus, there is no
genuine dispute as to whether the Plaintiff was replaced by a person outside of her
protected class. She was not. Therefore, the Plaintiff has no prima facie case of
wrongful termination.
Accordingly, summary judgment for Middle Flint as to the Plaintiff’s wrongful
termination claim is GRANTED.
2.

Retaliation

An employer may not retaliate against an employee because the employee “has
opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
To establish a prima face case of retaliation, a plaintiff must show that (1) she
engaged in statutorily protected expression; (2) she suffered an adverse employment
action; and (3) the adverse action was causally related to the protected expression.
Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006).
As previously observed, the Plaintiff’s court filings are sparse, so the factual basis and
parameters of her retaliation claim are vague. Construed generously, it appears she
intends to assert two distinct retaliation claims: one based on the EEOC complaint she

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filed against Magnolia Manor and a second based on informal grievances she made to
Thompson about Thomason’s conduct.

a)

The Magnolia Manor EEOC Complaint 

The Plaintiff contends that at some point during her employment, Middle Flint
discovered she filed an EEOC complaint against her former employer, Magnolia Manor,
and for that reason fired her. For the sake of argument, the Court accepts the filing of
the Magnolia Manor EEOC complaint as statutorily protected expression and the
Plaintiff’s termination as an adverse employment action. Causation, however, is less
clear. To establish a causal connection, “a plaintiff need only show that the protected
activity and the adverse action were not wholly unrelated.” Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000). Generally, this
demonstration can be made by circumstantial evidence, such as close temporal
proximity between the Magnolia Manor EEOC filing and the Plaintiff’s firing. Id. But at
the very least, the Plaintiff must show the decision maker – Thompson – was aware of
her protected conduct – the Magnolia Manor EEOC filing – when he fired her. Id.
When there is unrebutted evidence that the decision maker did not know about the
employee’s protected conduct, temporal proximity is not enough. Id.
Here, Thompson has provided sworn testimony that the Plaintiff did not tell him
about the Magnolia Manor EEOC filing until after he met with and fired her March 23.
(Thompson Aff., Doc. 13-1, ¶ 10). The Plaintiff responds that “Mr. Thompson was well
aware of the ongoing investigation involving Magnolia Manor and the EEOC, which was
active before and during my employ at Middle Flint Behavioral Healthcare. I made Mr.
Thompson aware of that issue prior to him terminating me.” (Doc. 14). This broad
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allegation, contained within her responsive motion and without the support of or citation
to any evidence, is the Plaintiff’s only answer to Thompson’s testimony. It is devoid of
specifics, and does not state how, when, or where she made him aware of this fact.
Nevertheless, the Plaintiff’s statement may serve as evidence that creates a genuine
dispute as to whether Thompson knew about her prior EEOC complaint against
Magnolia Manor. That Thompson had this knowledge would allow a reasonable jury to
find a causal relationship between the Plaintiff’s filing of the Magnolia Manor EEOC
complaint and her firing from Middle Flint. Therefore, a reasonable jury may find the
Plaintiff able to prove a prima facie retaliation claim against Middle Flint based on her
Magnolia Manor EEOC complaint.
However, Middle Flint has offered a legitimate, nondiscriminatory reason for firing
the Plaintiff, and there is no evidence to suggest this reason is pretext for discrimination.
Specifically, it is Middle Flint’s policy to fire employees who falsify information on their
job application. States Thompson: “To my knowledge, not disclosing a prior job has
resulted in termination every time it was discovered. During my time at Middle Flint, two
other individuals were terminated for dishonesty regarding prior employment. One such
individual is a white male.” (Thompson Aff., Doc. 13-1, ¶ 9). This is an entirely credible
reason for terminating the Plaintiff. See, e.g., Jarvis v. Siemens Medical Solutions USA,
Inc., 460 Fed. Appx. 851, 856 (11th Cir. 2012) (falsification of timecard was legitimate,
nondiscriminatory reason for firing plaintiff); Masso v. Miami-Dade Cnty., 247 Fed.
Appx. 190, 192 (11th Cir. 2007) (falsification of employment application was legitimate,
nondiscriminatory reason for not hiring plaintiff).

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According to Thompson, when he confronted the Plaintiff on March 22, she
admitted to him she had worked at Magnolia Manor but omitted it from her job
application because she had been fired and told not to list the nursing home as a
reference. (Thompson Aff., Doc. 13-1, ¶ 8). The Plaintiff does not dispute that she
worked there, does not dispute that she omitted Magnolia Manor from her job
application, and does not dispute Thompson’s account of this portion of their March 22
conversation. Nor does she dispute that it is Middle Flint’s policy to fire employees who
falsify their job application or that Middle Flint has fired employees in the past for this
reason. In short, the Plaintiff has made the conclusory allegation that Thompson “is
guilty” of firing her because he knew about her Magnolia Manor EEOC complaint, but
she has produced no evidence to contradict Middle Flint’s stated reason for firing her.
Thus, she has not produced evidence to suggest that reason is pretextual.
Accordingly, summary judgment for Middle Flint as to the Plaintiff’s Magnolia
Manor EEOC complaint retaliation claim is GRANTED.

b)

Complaints About Thomason’s Behavior 

The Plaintiff alleges in her Complaint that she was wrongfully terminated “after I
made complaints to my supervisor, [Thompson], about being subjected to a very hostile
work environment in which I was intimidated and belittled by my co-worker, [Thomason],
on a daily basis.” (Doc. 1 at 4). Her court filings do not make clear the number, timing,
or form of these complaints. Only two are described with any particularity: On March
20, after Thomason allegedly refused to relieve the Plaintiff for a break, the Plaintiff
states she “basically begged and pleaded with [Thompson] to do something about
[Thomason] because I needed my job and she mistreats me and makes me feel
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uncomfortable.” (Doc.1 at 5). On March 23, the day she was fired, the Plaintiff
complained to Thompson that Thomason had taken data entry work from her desk.
Title VII protects an employee’s ability to oppose “an unlawful employment
practice,” such as racially motivated harassment. See 42 U.S.C. § 2000e-3(a). But
“unfair treatment, absent discrimination based on race … is not an unlawful employment
practice under Title VII.” Coutu v. Martin Cnty. Bd. of Comm’rs, 47 F.3d 1068, 1074
(11th Cir. 1995). Therefore, to show her informal grievances were statutorily protected
expression, the employee “‘must not only show that [s]he subjectively (that is, in good
faith) believed that [her] employer was engaged in unlawful employment practices, but
also that [her] belief was objectively reasonable in light of the facts and record
presented.’” Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 857 (11th Cir. 2010)
(quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.
1997)). Here, for the sake of argument, the Court accepts the Plaintiff subjectively felt
Thomason treated her unfairly because of her race. But, in light of the facts and record,
this belief is not objectively reasonable.
First, Thomason’s alleged behavior has no visible racial component. Moreover,
the Plaintiff never states that Thomason’s behavior was discriminatory or racially
motivated, or that she reported it as such. At best, she vaguely suggests this
implication through two statements she appears to apply to her action generally:
“[Thompson and Thomason] are both white and I am black.” (Doc. 1 at 4); “Of all the
African-American females whom [Thompson] has claimed to have hired, I was the only
African-American clerk in the Human Resources Department.” (Doc. 14). Thus,
although Thomason’s alleged actions may have been mean spirited, there are no facts

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tying them to racially discriminatory conduct. See, e.g., Turner v. Ga. Sec’y of State,
848 F. Supp. 2d 1361, 1381 (M.D. Ga. 2012) (conduct was disrespectful, unprofessional
and harassing, but there were no allegations or evidence that it was based on the
plaintiff’s race).
Second, that the Plaintiff is black and her colleague and supervisor white is not in
itself evidence of racial discrimination. The alleged harassment here could just as
easily have been prompted by a personality conflict between the Plaintiff and
Thomason. And, importantly, “‘[p]ersonal animosity is not the equivalent’ of the type of
harassment prohibited by Title VII, and the plaintiff cannot turn a ‘personal feud’ into
such a Title VII claim.” Alhallaq v. Radha Soami Trading, LLC, 484 Fed. Appx. 293, 296
(11th Cir. 2012) (quoting McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986)).
Finally, Thomason specifically testifies, without contradiction by the Plaintiff, that
she did not act in a racially-motivated manner toward the Plaintiff:
I never in any way said or did anything in regards to Ms. Hudson that was
in any way related to her race. I never uttered any racially offensive words
or phrases. No one has ever complained that any of my conduct or
utterances have been racially offensive or complained that any of my
actions have been racially motivated.
(Thomason Aff., Doc. 13-2, ¶ 10). Similarly, Thompson, also without contradiction by
the Plaintiff, states that the Plaintiff never reported conduct that was racially
discriminatory:
At no time did Ms. Hudson complain to me that Dianne Thomason had
uttered any racially offensive words or phrases. At no time did Ms.
Hudson complain that Dianne Thomason or anyone else had made any
racially suggestive, charged or offensive statements. At no time, did Ms.
Hudson complain to me of any behavior by Dianne Thomason or anyone
else that could in any way be perceived or interpreted as racially
motivated.
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(Thompson Aff., Doc. 13-1, ¶ 13). Given the absence of any evidence that Thomason’s
behavior was racially motivated, no reasonable jury could find that the Plaintiff’s
complaints about Thomason’s behavior were statutorily protected expression.
Moreover, even if the Plaintiff had engaged in protected expression, she did not tell
Thompson, or any other Middle Flint decision maker, that Thomason’s behavior was
racially motivated. If Thompson did not know that the conduct about which the Plaintiff
complained was discriminatory, the Plaintiff cannot demonstrate a causal connection
between her discharge and her protected expression. Therefore, she cannot make out
a prima facie case for retaliation.
Of course, even if she could make out a prima facie case, it is clear the Plaintiff
has not provided sufficient evidence to raise a material dispute that Middle Flint’s
legitimate, nondiscriminatory reason for firing her is pretextual.5
Accordingly, summary judgment for Middle Flint as to the Plaintiff’s retaliation
claim based on her complaints about Thomason is GRANTED.
3.

Hostile Work Environment

An employer may not “discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race.” 42 U.S.C. § 2000e-2(a)(1). To demonstrate a hostile work
environment, a plaintiff must prove “‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’”

5
See section II.c.ii.1, supra.
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Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (2002) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993)). This means the Plaintiff must show:
(1) that [s]he belongs to a protected group; (2) that [s]he has been subject
to unwelcome harassment; (3) that the harassment must have been based
on a protected characteristic of the employee …; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment;
and (5) that the employer is responsible for such environment under either
a theory of vicarious or of direct liability.
Id. But the only element the Plaintiff has clearly established is the first – as an AfricanAmerican woman, she belongs to a protected group. Beyond that, her hostile work
environment claim struggles. The Plaintiff alleges she was subject to unwelcome
harassment, stating in her Complaint that Thomason “intimidated and belittled” her on a
daily basis, attempted to sabotage her work, and refused to relieve her to take needed
bathroom breaks. (Doc. 1 at 4). Middle Flint, other than a general denial in its Answer
to the Plaintiff’s allegations, does not specifically address whether Thomason engaged
in such behavior.
But even if the harassment took place, the Plaintiff has offered no evidence the
harassment was based on her race.6 She has also failed to produce sufficient evidence
the alleged harassment was “severe or pervasive.” This requirement has subjective
and objective components, requiring the work environment to be one a reasonable
person would find hostile and abusive, as well as one the plaintiff subjectively perceives
to be abusive. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).
Courts considering the objective element look at “(1) the frequency of the conduct; (2)
the severity of the conduct; (3) whether the conduct is physically threatening or

6
See section II.c.ii.2, supra.
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humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably
interferes with the employee's job performance.” Id. Here, the Plaintiff states that she
felt intimidated and belittled by Thomason. This may indicate a subjective perception of
a hostile and abusive environment, but it does not establish one that is objectively so.
For that, she must rely on her allegation that “on numerous occasions” Thomason
refused to relieve her for breaks, and on her allegation that Thomason once tampered
with her work by taking data entry documents from her desk.
However, even if the Court accepts that these events occurred, they do not
create objective hostility and abuse. Title VII is not a general civility code for the
workplace, and its protections “do not extend to everything that makes an employee
unhappy.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir. 2001)
(internal quotation marks and citation omitted). The accusation that Thomason did not
relieve the Plaintiff for breaks on “numerous occasions” is non-specific as to the
frequency of the conduct. Without other evidence, the Court cannot say this happened
merely more than once, or whether it occurred weekly, daily, or multiple times per day.
Moreover, on its face, this conduct is childish and petty but not particularly severe.
There were no physical threats or humiliations involved. Further, the Plaintiff does not
allege that Thomason, also a “Clerk I,” was anything other than a peer. Nothing
suggests the Plaintiff’s job performance suffered from this treatment, or that her
employment would have been adversely affected had she simply ignored Thomason’s
behavior and taken the breaks she was entitled to.
Similarly, the fact that Thomason once took documents from the Plaintiff’s desk is
insufficient to create a hostile work environment. The Plaintiff says this incident took

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place March 23, 2012, which, notably, is the day she was fired. So aside from the fact
this occurred only once and was not physically threatening or humiliating, any
interference with the Plaintiff’s work performance this alleged pilfering might have
caused was negated by her firing shortly thereafter.
Consequently, the Plaintiff has not produced any evidence from which a
reasonable jury could conclude that she was exposed to racially based harassment that
permeated the work place, or that the harassment was so pervasive and severe as to
alter the terms and conditions of her employment. Accordingly, summary judgment for
Middle Flint as to the Plaintiff’s hostile work environment claim is GRANTED.
III. CONCLUSION
For the foregoing reasons, Middle Flint’s Motion for Summary Judgment is
GRANTED.
SO ORDERED, this 23rd day of January, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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