ROBINSON v. ARMSTRONG WORLD INDUSTRIES INC
Filing
35
ORDER GRANTING in part and DENYING in part 24 Motion for Summary Judgment. Armstrong is not entitled to summary judgment on Robinson's race discrimination claims because there is a genuine issue of fact as to whether Armstrong's asserte d reasons for its action are a pretext for discrimination. Armstrong is entitled to summary judgment on Robinson's retaliation claims because she has failed to establish a prima facie case. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 7/10/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MELANIE ROBINSON,
Plaintiff,
v.
ARMSTRONG WORLD INDUSTRIES,
INC.,
Defendant.
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CIVIL ACTION NO. 5:12-CV-390 (MTT)
ORDER
Plaintiff Melanie Robinson, who is African American, is claiming race
discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981 based on her
termination from Defendant Armstrong World Industries’ plant in Macon, Georgia.1
Armstrong has moved for summary judgment on all of Robinson’s claims. (Doc. 24).
For the following reasons, the motion is GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND
A. Robinson’s Employment
On July 28, 2008, Robinson was hired as a salaried process engineer at
Armstrong’s Macon plant, which manufactures ceiling tiles. (Doc. 24-3, ¶¶ 6, 11). Prior
to her employment at Armstrong, Robinson obtained her undergraduate degree in
chemical engineering from Carnegie Mellon University and a masters in chemical
engineering from Louisiana State University. (Doc. 24-3, ¶ 12). Erica Kemp, the
process engineering and quality manager, was Robinson’s supervisor throughout her
1
Though Armstrong believed the complaint also alleged a claim for hostile work environment,
Robinson has clarified she is not pursuing a hostile work environment claim.
employment. (Doc. 24-3, ¶ 13). Kemp supervised a group of six to seven process
engineers and technicians. (Doc. 24-3, ¶ 4).2 Process engineers implement
improvements in the manufacturing processes for ceiling tiles and ensure the tiles are
produced in accordance with quality specifications. (Doc. 24-3, ¶ 4). They are often
assigned to a specific part of the manufacturing process and may be assigned specific
engineering projects that vary in time and duration. (Doc. 24-3, ¶ 5). In addition to
reporting to Kemp, process engineers have “dotted-line” reporting responsibility to the
manager for the area to which they are assigned. (Doc. 24-3, ¶¶ 8-9). They do not
typically manage or supervise other employees. (Doc. 24-3, ¶ 5).
Each morning, Armstrong’s managers and engineers for each manufacturing line
meet to review the plant’s operations for the past 24 hours and report any safety,
quality, delivery, or cost issues (“SQDC meetings”). (Docs. 24-3, ¶¶ 22-23; 22 at 25:1117). Process engineers are responsible for reporting quality issues at the SQDC
meetings.3 (Doc. 24-3, ¶ 24). Employees rely on Infinity, Armstrong’s computer
database, which contains the pertinent data for successful operation of the production
lines. (Doc. 24-4, ¶ 8). Infinity presents color-coded data so that problems can easily
be spotted. If data are green, product specifications have been met. If the data are red,
specifications have not been met. (Doc. 24-4, ¶ 9).
Kemp attended most SQDC meetings for each manufacturing line, and Robinson
attended the SQDC meetings for the manufacturing line to which she was assigned.
2
The only difference in the two positions is that process engineers have a four year
undergraduate engineering degree, whereas technicians have a two year technical degree
coupled with years of work experience. (Doc. 24-3, ¶ 5). For simplicity’s sake, the Court will
refer to the group of employees as “process engineers.”
3
As discussed in more detail below, Robinson contends she was only responsible for reporting
certain quality issues.
-2-
(Docs. 24-3, ¶ 23). In 2011, Robinson worked in the Fabrication department and
provided engineering support for certain manufacturing operations. (Docs. 24-3, ¶ 9;
24-4, ¶ 14). Charity Stevens became the manager of the area to which Robinson was
assigned in early September 2011, and Robinson had dotted-line reporting
responsibility to her. (Docs. 22 at 18:23-19:15, 40:25-41:2; 24-3, ¶ 9).
B. The “Sticking” Problem
In the spring of 2011, Armstrong began receiving customer complaints that
ceiling tiles with product numbers 793/794 and 860/861 manufactured at its Macon plant
were sticking together. (Doc. 24-3, ¶ 17). The tiles are packaged with the painted sides
facing each other, and they would tear when customers attempted to separate them.
(Doc. 24-3, ¶ 17). Kemp assigned this project to Robinson, who was tasked with
identifying the cause of the sticking and resolving it. (Doc. 24-3, ¶ 18). Robinson
contends she did not have sole responsibility for solving the sticking problem and that
she relied on Kemp, as well as the team Robinson assembled, to aid her. (Doc. 22 at
64:8-24).4
On June 1, 2011, Robinson initiated a “Quick Kaizen,” a process where she
assembled a team of five hourly employees to work on the problem. (Docs. 24-3, ¶ 19;
22 at 65:17-66:2). As the leader of the team, Robinson developed a plan to cure the
sticking problem. (Doc. 24-3, ¶¶ 19-20, pp. 16-17). The Quick Kaizen sheet Robinson
prepared sets forth the problem, possible causes, action items, and system checks.
(Doc. 24-3 at 17). She determined that increasing the temperature of the ceiling tile
4
Robinson also maintains she relied on employee Glenda Davis to report on the maintenance
of the ovens and on employee Wayne Garrard to report on the paint formula being used for the
ceiling tiles. (Doc. 22 at 77:2-19, 95:25-96:5). As it turns out, Armstrong ultimately resolved the
sticking issue by changing the paint formula with Garrad’s assistance. (Doc. 29-2 at 4).
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boards would resolve the sticking problem and established a temperature specification
of 260 degrees Fahrenheit for the face of the boards. (Doc. 24-3, ¶ 20). To achieve
this board face temperature, Robinson had the oven temperatures increased from 600
to 650 degrees for products 860/861 and from 625 to 725 degrees for products 793/794.
(Docs. 24-3, ¶ 20; 22 at 86:24-89:23).
Believing that Robinson had resolved the sticking issues with products 793/794
and 860/861, Armstrong resumed production. (Doc. 24-3, ¶ 21). However, the ovens
were consistently unable to reach the temperature specifications in order for the board
face temperature to reach 260 degrees from mid-June 2011 to October 2011. (Docs.
24-3 at 24-26; 24-4, ¶ 17).
C. Robinson’s Suspension and Termination
On October 19, 2011, process technician Ronnie Johnson, who was filling in for
Robinson, reported that the board face temperature data in Infinity was red and thus not
meeting specifications. Armstrong contends this is the first time Robinson’s supervisors
learned about the out-of-compliance temperatures. (Docs. 24-3, ¶¶ 28-29; 24-4,
¶¶ 16-17; 22 at 46:5-21). According to Armstrong, Robinson was responsible for
reporting temperature issues at the SQDC meetings and she had failed to do so. By
this time, Armstrong had produced over 700,000 square feet of defective ceiling tiles.
(Doc. 24-3, ¶ 40). Robinson maintains she was only responsible for reporting issues
with “key quality variables” at the SQDC meetings and that face temperature was not a
key quality variable. (Doc. 22 at 52:5-11, 110:11-20, 113:1-18). She further contends
management was aware of the ongoing problem with ovens not being able to reach the
specified temperature prior to October 19. (Doc. 22 at 46:25-48:4, 105:14-20).
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However, it is undisputed Robinson did not report the “red checks” for temperature at
the SQDC meetings.
After the October 19 morning meeting, Stevens and Kemp convened a 3:00 p.m.
meeting with Robinson and Johnson to determine how the quality issue went unnoticed
for so long and how Robinson determined a higher temperature would solve the sticking
problem in the first place. (Docs. 24-3, ¶ 30; 24-4, ¶¶ 17-18). After this meeting,
Stevens and Kemp determined that Robinson’s failure to report the temperature checks
amounted to falsification of data and that the procedures she used to come to a solution
for the sticking project were inadequate.5 (Docs. 24-3, ¶¶ 32-33, 37; 24-4, ¶¶ 17-19).
The next day, Robinson was suspended. (Doc. 24-3, ¶ 41).
On October 27, 2011, Robinson was interviewed by the human resources
manager, Tim Colwell. (Docs. 24-1, ¶ 11; 22 at 210:11-21). According to Colwell,
Robinson acknowledged in this interview that she had not monitored the board face
temperature because she had not been specifically told to, that she “lost track of the
face temperature,” and that she reported there were no issues with Infinity at the
morning meetings. (Doc. 24-1, ¶ 14). She also insisted to Colwell that she never
falsified data and complained Kemp and Stevens were assaulting her character. (Doc.
24-1, ¶ 15). Robinson maintains her actions in not following up with the face
temperatures were the result of Kemp telling her the sticking project was no longer a
priority. (Doc. 22 at 115:4-22).
5
As discussed below, Robinson disputes any data was falsified because she was not required
to report on temperature daily and disputes that her engineering work was inadequate because
it was approved by Kemp.
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Armstrong claims that by October 27, all managers at the Macon plant that
needed to have input had reviewed and approved Robinson’s termination and that the
only remaining step was to review the decision with Armstrong’s corporate office. (Doc.
24-1, ¶¶ 3, 16-18). Members of the management team, including Stevens, Kemp,
Colwell, and plant manager Mike Winters, recommended and participated in the
termination decision. (Docs. 24-1, ¶¶ 16-17; 24-3, ¶ 41; 24-4, ¶ 21). However,
according to Armstrong, the termination process was put on hold because Robinson
filed an ethics complaint the day after she met with Colwell.6
D. Ethics Complaint
On October 28, 2011, Robinson called Armstrong’s toll free hotline and filed an
ethics complaint. (Doc. 24-2, ¶ 4, pp. 7-8). According to the report generated as a
result of her call, Robinson alleged racial discrimination had been ongoing at the Macon
plant for two or three years. Robinson reported she felt she did not get the same
support as Caucasian employees. She made a specific allegation of racial
discrimination involving African American process engineer Darius Holt, contending that
in September 2011 he was reprimanded by either Kemp or Stevens (both of whom are
Caucasian) for not performing a certain check. However, Robinson said the check had
not been performed since before Holt began working and that Caucasian process
engineer Ronnie Johnson, who was in charge of the particular line before Holt, was not
reprimanded for failing to perform the check. (Doc. 24-2 at 7). Robinson also
complained about Kemp and Stevens accusing her of falsifying data, stating Stevens
told her that she and supervisor Glenda Davis were equally responsible for failing to
6
Colwell states he cannot remember whether he first contacted the corporate office prior to or
after October 27, and though he says he received approval to terminate Robinson after her
interview, he does not specify when. (Doc. 24-1, ¶ 18).
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report the temperature red checks. She also stated she did not have any support when
she was working on the sticking project but that Johnson, who was now assigned the
sticking project, was receiving support from Stevens. (Doc. 24-2 at 7).
Compliance specialist Jana Keck investigated Robinson’s complaints. According
to Keck, Robinson admitted during a phone conversation on November 1, 2011 that:
she never followed up after recommending a temperature increase to confirm if the
equipment was capable, she did not run additional tests to see if the temperature
specification was being met or if the boards were sticking together, and she did not
report the temperature checks at the daily meetings because she was busy with higher
priority items. (Doc. 24-2, ¶¶ 6-7). Robinson does not dispute the substance of this
conversation, but she claims Kemp did not tell her to do a “capability run” to see if the
ovens were capable of meeting the temperature specifications and that Kemp told her
she wanted the sticking issue solved quickly. (Doc. 22 at 105:8-106:14). After her
investigation, Keck informed Robinson she did not find any violation. (Doc. 24-2, ¶ 10).
On November 9, 2011, Armstrong terminated Robinson’s employment. (Docs. 24-1,
¶ 23; 24-3, ¶ 42).
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.
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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).
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, 477 U.S. at 249-50).
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 non-movant is to be believed, and all
justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.
B. Armstrong’s Objections to the Hillman Declaration
In response to Armstrong’s motion for summary judgment, Robinson relies in part
on the declaration of Armstrong employee Jonathan Jay Hillman. Armstrong objects to
the declaration in its entirety, contending Robinson failed to identify Hillman as a
witness pursuant to Fed. R. Civ. P. 26(a); Hillman’s declaration does not comply with
Fed. R. Civ. P. 56(c) because it is speculative, conclusory, and not based on personal
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knowledge; and Hillman’s affidavit contradicts Robinson’s previous admissions against
interest.
Rule 26 requires parties to make certain initial disclosures without awaiting a
discovery request, including “the name and, if known, the address and telephone
number of each individual likely to have discoverable information … that the disclosing
party may use to support its claims or defenses, unless the use would be solely for
impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Further, the rule requires a party to
supplement or correct her disclosures “in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
According to Armstrong, Robinson first identified Hillman when responding to its motion
for summary judgment.
Robinson does not contest that she did not supplement her disclosures to identify
Hillman, but she argues it was unnecessary because Hillman’s identity was made
known to Armstrong during the discovery process. Specifically, Robinson provided a
memorandum she prepared at the time of her suspension and termination to Armstrong
in response to its request for production of documents.7 Hillman is listed as a “witness”
that Robinson told Keck to interview during her ethics violation investigation. (Doc. 22-1
at 14). Robinson also identified Hillman during her September 17, 2013 deposition as a
relief supervisor for the product line on which she was working. (Doc. 22 at 61:5-16).
7
Armstrong introduced this memorandum as Defendant’s Exhibit 7 during Robinson’s
deposition. (Doc. 22-1 at 8-14).
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Further, she testified about staying in contact with him after she was fired and stated he
knew about the ultimate cause of the sticking problem. (Doc. 22 at 78:1-79:9).
Pursuant to Fed. R. Civ. P. 37(c)(1), “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” The Court finds Robinson should
have disclosed Hillman’s identity pursuant to Rule 26, especially in light of the fact she
believed he had relevant information before she filed this lawsuit. However, Armstrong
cannot claim it was prejudiced by this failure to disclose or that Hillman’s identity did not
become known to it during the discovery process. Robinson certainly has an obligation
to disclose witnesses she might use to support her claim, but Armstrong knew Hillman’s
identity months before filing its motion for summary judgment. Thus, the Court
concludes the failure is harmless and will not decline to consider Hillman’s declaration
on this ground.
Armstrong’s other objections—that the declaration fails to comply with Rule 56(c)
and that the declaration contradicts Robinson’s previous admissions—are directed to
specific paragraphs. The Court will address the individual objections as they arise.
C. Robinson’s Claims
1. 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.
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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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 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 sufficient to raise a genuine issue of fact as to whether it discriminated against
the plaintiff. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)
(emphasis added) (internal quotation marks and citation omitted).
A plaintiff then has the opportunity to show that the employer’s stated reason is in
fact pretext for discrimination. “The plaintiff can show pretext ‘either directly by
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.’” Id. (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, nondiscriminatory reasons.’” Freeman v. Perdue Farms Inc., 496 F. App’x 920, 925 (11th
Cir. 2012) (quoting Evans v. McClain of Ga., Inc., 131 F.3d 957, 965 (11th Cir.1997)).
“If the employer proffers more than one legitimate, nondiscriminatory reason, the
plaintiff must rebut each of the reasons to survive a motion for summary judgment.”
Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (citation
omitted).
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2. Race Discrimination
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual's race.” 42 U.S.C. § 2000e-2(a)(1). The same analytical framework and proof
requirements apply to Robinson’s claim of race discrimination under 42 U.S.C. § 1981.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Thus, the
Court’s analysis of Robinson’s Title VII race discrimination claim also applies to her
§ 1981 claim. To establish a prima facie case for race discrimination, Robinson must
show that: (1) she is a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) she was replaced by a
person outside her protected class or was treated less favorably than a similarlysituated individual outside her protected class. Maynard v. Bd. of Regents of the Div. of
Univs. of the Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003).
It is not contested that Robinson was a member of a protected class, suffered an
adverse employment action, and was replaced by someone outside her protected
class.8 Instead, Armstrong contends Robinson cannot meet the second element of the
prima facie case because she was not meeting her supervisors’ legitimate job
expectations. The conduct Armstrong relies on to assert Robinson was not qualified for
her position is the same conduct it relies on to assert it had a legitimate
nondiscriminatory reason for terminating her—that she was not monitoring and reporting
8
Robinson has also presented evidence of comparators, but because she was replaced by
someone outside her protected class, the Court need not consider her comparator evidence at
this point.
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the temperature readings for the 793/794 and 860/861 products and that the process
she used to establish the temperature standard was inadequate.
To determine whether a plaintiff is qualified for a particular position in the Title VII
context, courts focus on the plaintiff’s skills and background. Clark v. Coats & Clark,
Inc., 990 F.2d 1217, 1227 (11th Cir. 1993). Generally it is not appropriate to rely on the
same allegation of poor performance asserted as a legitimate nondiscriminatory reason
for termination to show a plaintiff was not qualified for the position. In Damon v.
Fleming Supermarkets of Florida, Inc., the Eleventh Circuit explained:
In finding the Appellants unqualified, the district court incorrectly
considered Fleming's allegations of Appellants' poor performance. Our
caselaw quite clearly instructs that plaintiffs, who have been discharged
from a previously held position, do not need to satisfy the McDonnell
Douglas prong “ ‘requiring proof of qualification.’ ” Young v. General
Foods Corp., 840 F.2d 825, 830 n. 3 (11th Cir.1988) (quoting Rosenfield
v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n. 2 (11th
Cir.1987)). We have explained that the “ ‘reason for this modification [of
McDonnell Douglas ] is that in cases where a plaintiff has held a position
for a significant period of time, qualification for that position sufficient to
satisfy the test of a prima facie case can be inferred.’ ” Young, 840 F.2d at
830 n. 3 (quoting Rosenfield, 827 F.2d at 1495 n. 2). We also have
unambiguously held that allegations of poor performance against plaintiffs
discharged from long-held positions may be properly considered, only
after a prima facie case has been established, when a court evaluates the
pretextual nature of an employer's proffered nondiscriminatory reasons for
termination. See Clark, 990 F.2d at 1227 (holding that evidence of
employee's performance reprimands does not establish that employee
was unqualified, but may indicate company was legitimately concerned
about employee's performance); Young, 840 F.2d at 830 n. 3 (same). The
district court therefore erred in concluding that Appellants were not
“qualified” based on Fleming's allegations of poor performance.
196 F.3d 1354, 1360 (11th Cir. 1999). As the Sixth Circuit has observed, “forcing
plaintiffs to make such a proof at the prima facie stage defies the very purpose of the
production stage and the overall sequence of McDonnell Douglas.” Cline v. Catholic
Diocese of Toledo, 206 F.3d 651, 665 (6th Cir. 2000).
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Armstrong cites Baker v. Sears, Roebuck & Co., 903 F.2d 1515 (11th Cir. 1990)
where the Eleventh Circuit held an ADEA plaintiff failed to meet her prima facie case to
show she was qualified for the position in question. In that case, the court explained
that ADEA plaintiffs are entitled to an inference of qualification if they have held the
position for a number of years without complaint. Id. at 1520. However, for seven of
the years the plaintiff worked in the defendant’s appliance department, she received
poor reports for her sales of maintenance agreements. The record showed the
defendant required its employees to maintain a sales quota for maintenance
agreements. Additionally, the plaintiff was warned about the possibility of being
transferred in the months preceding the transfer that prompted her lawsuit. Id.
But even assuming Baker stands for the proposition that an employer’s assertion
of poor job performance can properly be considered at the prima facie stage of the
analysis to determine whether an employee is “qualified,” the Court finds Robinson has
met her burden. Unlike Baker, there is not clear record evidence of repeated failures to
meet specified job criteria.9 Robinson has two engineering degrees, her performance
was rated “fully effective” by her supervisor in March 2011, and her 2011 Promise
Update Report contained positive comments from her supervisor. (Doc. 22-1 at 23, 34).
Thus, the fact-finder could reasonably conclude Robinson was qualified for the position.
See Burdine, 450 U.S. at 253 (“The burden of establishing a prima facie case of
disparate treatment is not onerous.”).
Because Robinson has met her burden at the first stage of the analysis, the
Court considers whether Armstrong has met its burden to articulate a legitimate
9
In her affidavit, Kemp states Robinson’s job performance was less than satisfactory when she
first started working at Armstrong but that she was transferred to a different area of the plant
and her performance improved. (Doc. 24-3, ¶ 14).
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nondiscriminatory reason for firing her. Armstrong asserts Robinson was fired because
her job performance in conjunction with the sticking project was unacceptable and
caused it to produce over 700,000 feet of ceiling tile that had to be destroyed, which
amounted to a loss of more than $150,000. Based on Armstrong’s statement of
material facts and employee affidavits submitted with its motion, it is apparent
Armstrong is asserting two reasons for firing Robinson related to her performance on
the sticking project: (1) Robinson’s poor engineering work to implement a solution to the
sticking problem; and (2) her failure to monitor and report that the temperature
specifications she implemented were not being met. By producing affidavits of
Robinson’s two supervisors and the human resources manager at Armstrong’s Macon
plant, each of whom assert these are the reasons Robinson was terminated, Armstrong
has met its burden of production. Thus, Robinson must rebut each proffered reason.
The Court finds Robinson has created a genuine issue of fact on whether
Armstrong’s first reason is a pretext for discrimination. At their 3:00 p.m. October 19
meeting, Kemp and Stevens reviewed the data Robinson used to implement a solution
to the sticking problem. Armstrong contends they then decided her engineering work
was incompetent based on her use of inadequate test data to establish a board face
temperature standard, her failure to conduct a capability run after setting the
temperature specifications, and her implementation of a temperature standard the
ovens could not achieve. (Docs. 24-3, ¶¶ 31-33; 24-4, ¶¶ 17-18). However, Robinson
has created a genuine issue of fact as to whether this was Armstrong’s real reason for
terminating her. According to Robinson, Kemp not only approved her Process Change
Review to increase the temperature specifications, but she was also involved in the
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process. Robinson contends Kemp is the one who suggested making sure the board
face temperature was higher than the 212-degree boiling point of water. (Doc. 22 at
90:18-91:11). Additionally, Robinson asserts she informed Kemp and Stevens’
predecessor, David White, that the ovens had problems maintaining temperatures,
which Armstrong does not dispute. (Docs. 22 at 47:16-48:4, 91:12-15; 32 at 10).
Because Robinson has presented evidence that Kemp, Robinson’s main supervisor and
one of the managers involved in the decision to terminate her, previously participated in
and approved of the same engineering work, a reasonable fact-finder could determine
Armstrong’s first asserted reason is not the real reason for her termination. Cf. Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“The question is
not whether it really was [the plaintiff’s] fault. …The question is whether her employers
were dissatisfied with her for these or other non-discriminatory reasons, even if
mistakenly or unfairly so, or instead merely used those complaints about [her] as cover
for discriminating against her … .”).
Robinson has also created a genuine issue of fact on the truth of Armstrong’s
second proffered reason by presenting evidence she was not responsible for the
temperature checks in question. In her deposition, Robinson states that as a process
engineer she was only responsible for daily checking and reporting on “key quality
variables,” which included color, warp, gloss, size, and squareness. (Doc. 22 at 33:1724, 36:1-9).10 Hillman also states in his declaration that Robinson’s responsibility at
daily SQDC meetings was to report on the variables listed above. (Doc. 27-2, ¶ 4).
10
Robinson apparently relied on a document entitled “Line Support Data Review Expectations”
to determine what her reporting responsibilities were, but this document was not submitted in
conjunction with the summary judgment motion or the response. She states that Kemp emailed
her this document at some point, but she cannot remember the date. (Doc. 22 at 33:25-34:18).
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According to Hillman, board face and oven temperature were the responsibility of line
operators or supervisors to monitor and report on at meetings. (Doc. 27-2, ¶ 4).
Armstrong objects to Robinson’s deposition testimony under the
“sham affidavit doctrine” as contradicting previous admissions against interest. In this
circuit, “‘[w]hen a party has given clear answers to unambiguous questions which
negate the existence of any genuine issue of material fact, that party cannot thereafter
create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.’” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d
1306, 1316 (11th Cir. 2007) (quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc.,
736 F.2d 656, 657 (11th Cir. 1984)). However, the Court must be careful not to get into
the credibility of the evidence, which is the province of the fact-finder. Thus, the Court
must “find some inherent inconsistency between an affidavit and a deposition before
disregarding the affidavit.” Id. (internal quotation marks and citation omitted).
According to Armstrong, Robinson’s deposition testimony that she was not
responsible for the temperature checks directly contradicts her previous unsworn
statements to her supervisors and sworn statement to the EEOC that she failed to
monitor the temperature specifications because they “fell off her radar.” (Doc. 22-1 at
16-17). The Court need not decide whether the sham affidavit doctrine is even
applicable in this context because the previous statements are not inherently
inconsistent with Robinson’s deposition testimony.11 Robinson does not claim she
actually monitored the temperature readings; instead, she states to do so was not her
11
Armstrong also fails to mention that in the same EEOC statement Robinson also states, “I did
not bring this fact up at the morning meeting because this wasn't one of the checks that I was
required to, or normally reported out on at the morning meeting, thus I spoke honestly on all
finish quality measures that I audited in the morning.” (Doc. 22-1 at 17).
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responsibility. Whether this testimony is credible in light of her statement that the
temperature fell off her radar is a question for the fact-finder.
Armstrong also argues the paragraph of Hillman’s declaration stating Robinson
was not responsible for the temperature checks is not based on personal knowledge
and contradicts Robinson’s previous admissions against interest. The Court concludes
Hillman’s personal knowledge can be inferred based on his position at Armstrong and
his attendance at these meetings. See Doc. 27-2, ¶ 4 (stating he was a relief
supervisor and attended the morning SQDC meetings). Additionally, Armstrong’s
“sham affidavit” objection suffers from the same infirmity as its identical objection to
Robinson’s deposition testimony: the two statements are not inherently inconsistent.
The Court finds Robinson’s evidence that she was not responsible for the
temperature checks calls into doubt the truthfulness of Armstrong’s second proffered
reason for her termination. The question is not whether Robinson actually monitored
the temperature (she has admitted her failure to do so) but whether Armstrong actually
terminated her for this reason.12
12
Robinson also submits the following to show pretext: (1) Armstrong’s reasons for terminating
her changed; (2) comparators outside her protected class were treated more favorably for
similar conduct; (3) Stevens, who was involved in the decision to terminate her, made
discriminatory statements and treated other African American process engineers unfavorably;
(4) Armstrong failed to properly investigate her ethics line complaint; and (5) Armstrong has a
record of underrepresentation of African Americans as process engineers or in other salaried
positions. For various reasons that do not warrant a lengthy discussion, these categories are
either not based on admissible evidence or are not probative of pretext. Because the Court
finds Robinson has created a genuine issue of fact on whether Armstrong’s proffered reasons
for terminating her are a pretext for discrimination, it is also unnecessary to address Robinson’s
argument that she may survive summary judgment under the alternative Lockheed-Martin
analysis. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)
(recognizing the McDonnell Douglas framework is not the “sine qua non” for a plaintiff to survive
a summary judgment motion in an employment discrimination case and that “[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” (internal quotation marks and citation omitted)).
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Though the evidence Robinson has produced to rebut Armstrong’s proffered
legitimate nondiscriminatory reasons only goes to their truthfulness and does not
directly address whether discrimination was the real reason for her termination,
summary judgment is still not appropriate. 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);
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006);
Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550-51 (8th Cir. 2005). 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 fact-finder 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
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trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s
explanation.” Id. at 147. 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. See also Dulin v.
Bd. of Comm’rs of Greenwood Leflore Hosp., 657 F.3d 251, 251-52 (5th Cir. 2011).
Of course, the Supreme Court in Reeves also noted that “there will be instances
where, although the plaintiff has established a prima facie case and set forth sufficient
evidence to reject the defendant's explanation, no rational factfinder could conclude that
the action was discriminatory.” Reeves, 530 U.S. at 148. The Court gave as examples
“if the record conclusively revealed some other, nondiscriminatory reason for the
employer's decision, or if the plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” Id. However, this is not such a case.
Unlike other cases where the Eleventh Circuit has found merely discrediting the
employer’s reason at the summary judgment stage is not enough, there is no clear
record evidence of another non-proffered reason for the employer’s actions. See
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (employer
entitled to summary judgment on race discrimination claim because pretext evidence
supported inference of pregnancy discrimination); Alvarez, 610 F.3d at 1267 (employer
entitled to summary judgment on national origin discrimination claim because record
established beyond genuine dispute that employee was fired for failing to satisfy her
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persnickety supervisor). Robinson’s prima facie case, plus her evidence that
Armstrong’s proffered explanations of its actions are false, is enough for her to survive
summary judgment on her discrimination claim. Cf. Kragor, 702 F.3d at 1311 (holding
that decisionmaker’s post-termination statement that employee should not have been
fired and did everything right combined with prima facie case was enough to create jury
question on the ultimate issue of discrimination).
3. Retaliation
Under Title VII, 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 [s]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). The Court’s analysis of Robinson’s Title VII retaliation claim also
applies to her § 1981 retaliation claim. See Goldsmith v. Bagby Elevator Co., 513 F.3d
1261, 1277 (11th Cir. 2008). To establish a prima face case of retaliation, a plaintiff
must show that “(1) she engaged in statutorily protected activity; (2) she suffered a
materially adverse action; and (3) there was a causal connection between the protected
activity and the adverse action.” Gate Gourmet, 683 F.3d at 1258 (internal quotation
marks and citation omitted). For the causal element of the prima facie case, “a plaintiff
merely has to prove that the protected activity and the negative employment action are
not completely unrelated.” Id. at 1260 (internal quotation marks and citations omitted).13
13
The Court need not decide whether the Supreme Court’s decision in University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), where the Court held the
plaintiff must prove retaliation for protected conduct was the but-for cause of the adverse action,
affects the causation requirement for the prima facie case. Robinson has failed to meet the preNassar causation requirement.
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“[C]lose temporal proximity may be sufficient to show that the protected activity and the
adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376
(11th Cir. 2008) (internal quotation marks and citation omitted). If a plaintiff makes out a
prima facie case of retaliation, the burden shifts to the employer to articulate legitimate
reasons for the challenged action, and, if the employer does so, a plaintiff has the
ultimate burden of showing by a preponderance of the evidence that the employer’s
reasons were pretextual. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001).
Armstrong does not challenge the first two elements of the prima facie case.
Instead, it contends Robinson has not established the requisite causal connection
between her protected conduct and the adverse action. According to Armstrong, the
decision to terminate Robinson was already made on October 27, 2011, the day before
she filed her ethics complaint, and the only remaining step was for the decision to be
reviewed by Armstrong’s corporate office. Robinson disputes that the decision was
already made. She argues a jury could reasonably find that she was suspended
pending an investigation and that the suspension would have ended but for the filing of
her ethics complaint.
Regardless of when the decision was finalized, it is clear that Armstrong was
considering terminating Robinson before she filed her ethics complaint on October 28.
In Drago v. Jenne, the Eleventh Circuit held that “in a retaliation case, when an
employer contemplates an adverse employment action before an employee engages in
protected activity, temporal proximity between the protected activity and the subsequent
adverse employment action does not suffice to show causation.” 453 F.3d 1301, 1308
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(11th Cir 2006). In that case, the plaintiff’s employer had considered demoting him for
performance-related reasons prior to the plaintiff engaging in protected activity. Id.
Because Robinson has pointed to no evidence of causation other than temporal
proximity, the Court concludes she has failed to meet her prima facie case for
retaliation. See also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(“Employers … proceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of causality.”). Thus, Armstrong is
entitled to summary judgment on Robinson’s retaliation claims.
III. CONCLUSION
Armstrong is not entitled to summary judgment on Robinson’s race discrimination
claims because there is a genuine issue of fact as to whether Armstrong’s asserted
reasons for its action are a pretext for discrimination. Armstrong is entitled to summary
judgment on Robinson’s retaliation claims because she has failed to establish a prima
facie case. Therefore, Armstrong’s motion for summary judgment (Doc. 24) is
GRANTED in part and DENIED in part.
SO ORDERED, this 10th day of July, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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