JOLLEY v. TRIAD MECHANICAL CONTRACTORS et al

Filing 47

ORDER GRANTING in part and DENYING in part 32 Motion for Summary Judgment. The Defendants are entitled to summary judgment on all claims except the Plaintiff's Title VII hostile work environment claim ag ainst Defendant Triad and the Plaintiff's 42 U.S.C. § 1981 hostile work environment claim against Defendants Triad, Blewer, and Throne. Because Defendant Laquiere is entitled to summary judgment on all claims asserted against him, the Clerk is DIRECTED to terminate him as a Defendant in this action. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 3/23/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

ANTWAN D. JOLLEY,
Plaintiff,
v.
TRIAD MECHANICAL CONTRACTORS,
et al.,
Defendants.

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CIVIL ACTION NO. 5:13-CV-247 (MTT)

ORDER
Plaintiff Antwan Jolley, an African-American male, contends he was
discriminated against because of his race and was subjected to a racially hostile work
environment in violation of Title VII and 42 U.S.C. § 1981. He also asserts claims for
retaliation in violation of § 1981, intentional infliction of emotional distress, and a
violation of the Equal Pay Act. Before the Court is the Defendants’ motion for summary
judgment. (Doc. 32). For the following reasons, the motion is GRANTED in part and
DENIED in part.
I.

BACKGROUND1

Defendant Triad Mechanical Contractors, Inc. is a mechanical, plumbing, sheet
metal, HVAC, and equipment services contractor. (Doc. 37, ¶ 2). During 2011 and
2012, Triad was under subcontract to install HVAC ductwork, related components, and

1

The Plaintiff failed to respond to the Defendants’ statement of material facts not in dispute as required
by Local Rule 56. Thus, the facts are deemed admitted for purposes of the motion. M.D. Ga. L.R. 56;
Fed. R. Civ. P. 56(e)(2).

water and sewage piping in conjunction with the construction of the Advanced Metal
Finishing Facility at Robins Air Force Base in Warner Robins, Georgia. (Doc. 38, ¶¶ 2,
3). Defendant Jesse Blewer was the project manager and reported directly to
Defendant Del Laquiere, Triad’s president. (Docs. 38, ¶ 2; 37, ¶ 2). Defendant Jeff
Throne, Triad’s HVAC superintendent for the project, reported directly to Blewer. (Doc.
38, ¶ 4).
Plaintiff Antwan Jolley began working for Triad on January 16, 2012. (Doc. 36 at
96). Like all civilian employees, Jolley received an identification badge when he was
hired so he could gain access to the base. (Docs. 38, ¶ 5; 36 at 23:22-24:1).2 According
to Triad, Jolley was paid less per hour than any other Triad employee because he had
almost no HVAC experience. (Docs. 37, ¶ 7; 38, ¶ 9). He was hired to assist with
HVAC work but was then moved to Triad’s tool room. Triad asserts the transfer was
also due to Jolley’s inexperience. (Doc. 38, ¶ 10). Neither Jolley’s pay nor job
classification, which was “laborer,” changed when he was transferred to the tool room.
(Doc. 38, ¶ 10).
Triad set its employees’ hourly pay rates based on their experience at the time
they were hired, and it was not Triad’s practice to increase employees’ pay rates during
a project. (Doc. 37, ¶¶ 7-8). Both the highest paid Triad laborer and the highest paid
non-management Triad employee on the project were African-American. (Doc. 37, ¶ 7).
A. Security Badge Incident
Around April 2012, Jolley left his ID badge in his car, which his mother drove and
left at the Atlanta airport for a few days while she was on a trip. (Doc. 36 at 25:17-24,

2

The page numbers are based on the deposition pages numbers instead of the CM/ECF page numbers.

-2 

63:16-18). The first day Jolley was without his badge, his cousin, a sergeant in the
military, escorted him onto the base. (Doc. 36 at 28:13-24, 29:18-25). Jolley called
Throne from the base’s security gate and told him he needed a temporary replacement
badge until his mother returned with his car, but Throne did not provide Jolley with
another badge and instead told him he could return to work after he retrieved his badge.
(Docs. 36 at 25:17-24; 39, ¶ 6).3 Jolley contends that “Steven,” a Caucasian employee,
lost his badge about a month later and Triad replaced it. (Doc. 36 at 31:25-32:11).
Unlike Jolley, Steven was requesting a replacement badge and not a temporary one.
(Doc. 36 at 32:2-4).
B. Jolley’s Termination
On June 18, 2012,4 Triad employees Robert Gill (African-American) and Terry
Carson (Caucasian) got into a fight in a parking lot off the base after their shift ended.
According to Jolley, he stopped his car in an effort to break up the fight and saw Carson
hitting Gill with a bat. After Jolley tried to intervene, Gill hit Carson in the face with a
stick. Carson fell, hit his head on the concrete, and became unconscious. (Docs. 36 at
40:23-44:2; 22-1 at 1). He was hospitalized and died from his injuries several days
later. (Doc. 38, ¶ 20). Blewer and Throne went to the hospital after the fight and spoke
to the Triad employees who were there. (Doc. 38, ¶ 16). Besides Carson and Gill, the
Triad employees present at the fight were Jolley, Robert Grant (African-American),
Carlos Simmons (African-American), and Rick White (Caucasian). (Docs. 36 at 46:23                                        

3

Jolley testifies Throne told him he would get him a badge but then later told Jolley he was fired instead.
(Doc. 36 at 25:24-26:11). Throne then allegedly told the unemployment office Jolley was not fired and
told Jolley to come back to work. (Doc. 36 at 26:11-23). Jolley has not pointed to this testimony in
opposition to the Defendants’ statement of facts or otherwise contested the above facts.

4
Jolley testifies the fight took place on June 17. (Doc. 36 at 44:1-2). The Warner Robins Police
Department incident report attached to the amended complaint lists the date as June 18. (Doc. 22-1 at
1). However, the precise date does not affect the resolution of the motion.

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47:2, 47:14-21, 48:7-10; 38, ¶ 16). Carson’s son Chris Copeland (Caucasian) was also
present at the fight. (Doc. 36 at 47:5-9, 48:5-6, 50:3-6). Copeland was not employed
by Triad but had been working on the same project at the base. (Doc. 38, ¶ 17).5
After speaking with the employees present at the hospital, Blewer called
Laquiere to brief him on what happened. (Doc. 38, ¶ 18). Laquiere decided to
terminate all employees present at the fight because he was concerned about work
disruption and hindrance of the project’s completion. (Doc. 37, ¶ 10). Grant, Simmons,
White, Gill, and Jolley were fired the next day. (Docs. 36 at 74:7-13; 38, ¶¶ 16, 19). In
his deposition, Jolley contends White was not fired. (Doc. 36 at 49:17-23). Laquiere
was not aware of any complaints Jolley had about his job when he made the decision to
terminate the employees. (Doc. 37, ¶ 11).
Jolley contends the Defendants have “black balled” him from other potential
employment, which is evidenced by his inability to get a job in Macon despite his
previous work on the base and his “hell of a resume.” (Doc. 36 at 86:5-87:25). Since
his termination, Jolley has not applied for employment with any of the other contractors
working on the base project. (Doc. 36 at 86:5-7).
C. Harassment Allegations
Jolley’s complaint also alleges he was subjected to a racially hostile work
environment. During a confrontation on the job, Triad employee James Hudson
(Caucasian) called Gill a “coon,” and Jolley witnessed the incident. (Docs. 36 at 32:1933:11, 35:4-16; 39, ¶ 7). Gill reported the incident to Throne, and Throne allowed Gill to

5

Jolley appears to contend that Copeland worked for one of Triad’s subcontractors and that Triad had
control over his employment. (Doc. 36 at 84:16-85:24). However, according to Laquiere, “Triad did not
have any parent, subsidiary, or affiliated companies working on the Robins Air Force Base project, nor did
it hire or retain any other company to perform work for which Triad was responsible.” (Doc. 46, ¶ 11).

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go home for the rest of the day because he was upset. (Doc. 39, ¶ 7). After the
incident, Throne and Blewer had a meeting with the HVAC employees. (Docs. 38, ¶ 13;
39, ¶ 8). During the meeting, Throne told the employees that Triad would not tolerate
racial slurs on the job. (Docs. 38, ¶ 13; 39, ¶ 8). Gill, Hudson, and Jolley were also
placed on separate work crews. (Doc. 39, ¶ 9). According to Throne and Blewer, they
never received another complaint of racial harassment or discrimination on the project,
and they did not hear other Triad employees use racially derogatory language. (Docs.
38, ¶ 14; 39, ¶ 10).
Jolley cannot recall a specific instance where he heard Throne or Blewer use the
terms “coon” or “nigger” other than at the meeting when they told the HVAC employees
that racial slurs were prohibited. (Doc. 36 at 21:5-10, 34:16-23, 36:10-17, 38:5-39:13).
Jolley does say that Throne and Blewer referred to him as “boy” and that Throne would
say, “Boy, go to your cell.”6 (Doc. 36 at 24:14-22, 38:16-25). However, Jolley never
contacted Laquiere to complain about discriminatory conduct, and Laquiere never
received complaints from other employees on the project. (Docs. 36 at 68:25-69:11; 37,
¶ 12).
While these facts are admitted by Jolley, his deposition testimony further
provides that he and other African-American employees were called “coon, nigger, [and]
boy” from the time he started working for Triad. (Doc. 36 at 21:6-10). He also testifies
that Hudson and Gill got into a fight on the job because Hudson called Gill a “coon” and
references other fights on the job, though he does not provide more detail about these
other fights. (Doc. 36 at 32:21-33:8, 34:17-23).

6

Throne referred to the tool room where Jolley worked as his cell. (Doc. 36 at 24:18-22).

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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 may
support its assertion that a fact is undisputed by “citing 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 its 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,

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not those of a judge. … The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
B. Title VII and § 1981 Claims7
1. McDonnell Douglas Framework
A Title VII plaintiff may prove his 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. 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

7

It appears from the amended complaint that the Plaintiff is asserting claims of wrongful termination and
hostile work environment under both Title VII and § 1981 but is asserting a claim for retaliation only under
§ 1981.

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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).
2. Wrongful Termination
Title VII makes it unlawful for an employer to “discharge any individual …
because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). The same analytical
framework and proof requirements apply to claims 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 Jolley’s Title VII claims also applies to his § 1981 claims.
To establish a prima facie case, Jolley must show that: “(1) he is a member of a
protected class; (2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) he was replaced by a person outside his protected class or
was treated less favorably than a similarly-situated individual outside his 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).
The Defendants argue Jolley has failed to meet his prima facie case that he was
wrongfully terminated because of his race. Because Triad terminated all of its

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employees who were present at the fight between Gill and Carson (including the only
Caucasian employee present besides Carson), the Defendants contend Jolley cannot
show he was treated less favorably than a similarly-situated individual outside his
protected class. Additionally, the Defendants contend Jolley cannot show their asserted
reason for firing him—that he was present at the fight—was a pretext for discrimination.
Jolley points to his deposition testimony that Triad did not fire White or Copeland,
the only other Caucasian individuals present at the fight besides Carson. (Doc. 36 at
84:16-85:4). The Defendants argue Jolley’s testimony is insufficient to create a genuine
issue of material fact because Jolley does not have personal knowledge of who Triad
employed or who it terminated. As a non-management employee, the Court agrees
Jolley would not have personal knowledge of Triad’s employment decisions. His
subjective belief that Triad—and not the main contractor or another subcontractor
working on the same project—employed Copeland is insufficient to create a genuine
issue of material fact given that Triad has presented the declaration of Jesse Blewer,
Triad’s project manager, who stated Copeland was not employed or controlled by Triad.
(Doc. 38, ¶ 17).
It is not disputed that White was employed by Triad. Initially, the Defendants
simply asserted White was fired. While Jolley admitted this fact by failing to respond to
the Defendants’ statement of facts, in his deposition he maintained White was not fired
because he saw White “go right back to the base to the same job I was going to go.”
(Doc. 36 at 84:21-23).8 Clearly, White’s employment status after the fight should not be

8

This testimony is a little confusing because Jolley apparently believes that neither Copeland nor White
worked directly for Triad, but he believes “Triad was paying their company, so it was still like they were
working for Triad.” (Doc. 36 at 84:24-25). As discussed above, Laquiere stated Triad had no

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a matter of disputed fact. Therefore, the Court allowed the Defendants to submit
employment records and gave Jolley an opportunity to respond. Triad submitted the
“Employee Setup Records” for both Jolley and White, which show both individuals’
employment ended on June 18, 2012. (Doc. 46 at 5, 7). Jolley did not challenge these
records. Thus, there is no genuine dispute about whether White was terminated after
the fight. Because Jolley has not presented evidence of a similarly-situated individual
outside his protected class who was treated more favorably than he was, he has failed
to meet his prima facie case. For the same reason, he has failed to show the
Defendants’ asserted reason for firing him was a pretext for discrimination.
The only other evidence of pretext Jolley points to is Throne’s and Blewer’s
derogatory comments toward him. However, this evidence is also insufficient to create
a genuine issue of fact that the Defendants’ asserted reason for terminating him was
pretextual.9 The Defendants have presented evidence that all employees present were
terminated following the fight and that neither Throne nor Blewer made the termination
decision. For the foregoing reasons, the Defendants are entitled to judgment as a
matter of law on this claim.

subcontractors on the project. See supra note 5. Additionally, Jolley claims to have seen White on the
base after he was terminated but also testified he never went back to the base. (Doc. 36 at 93:1-14).
9

The Court recognizes that 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.”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation marks and
citation omitted). However, Jolley has not presented enough circumstantial evidence for a jury to infer
intentional discrimination.

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3. Other Disparate Treatment Claims
Jolley also appears to claim he was discriminated against by being paid less than
any other Triad employee, by Throne’s refusal to get him a temporary ID badge when
his was unavailable, and by being “black balled” from other potential employment.10
Title VII also prohibits discrimination against an 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).
Even assuming Jolley can establish a prima facie case with respect to his
discriminatory pay allegation, he has not proffered any evidence to rebut the
Defendants’ asserted reason that he was paid less than other Triad employees because
he had less HVAC experience. Nor has he submitted any other evidence to create a
genuine issue of fact that the Defendants’ proffered reason is a pretext for
discrimination. The Defendants have submitted evidence that both the highest paid
laborer and the highest paid non-management employee were African-American and
that Triad set its employees’ pay based on skill level. (Doc. 37, ¶ 7).
Jolley has also failed to establish a prima facie case that he was discriminated
against when he was denied a temporary ID badge. By his own testimony, the
Caucasian employee who was allegedly treated more favorably needed a permanent
replacement ID badge, as opposed to a temporary one. (Doc. 36 at 32:2-4). Thus, the
two are not similarly situated. Even if Jolley could establish a prima facie case, the
Defendants have presented Blewer’s and Throne’s declarations in which they state they
were unaware of a procedure for obtaining a temporary ID badge. (Docs. 38, ¶ 8; 39, ¶

10

Jolley’s attorney made no argument on these claims in his response brief and instead only included
allegations relating to these claims in the background portion of his brief.

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5). Throne also stated he wished to avoid the cost of replacing Jolley’s badge because
it was only temporarily unavailable. (Doc. 39, ¶ 6). Jolley has wholly failed to respond
to the Defendants’ asserted reason and thus has not created a genuine issue of fact
that it is a pretext for discrimination.
As to the claim he has been “black balled,” Jolley has provided no evidence the
Defendants did anything to hamper his future employment. Indeed, Jolley admits he did
not apply for other jobs on the base. All he has presented is speculative testimony that
because he has not had a job in three years, Triad must have had something to do with
it.11 (Doc. 36 at 86:9-87:25). Thus, Jolley has not even created a genuine issue of fact
that the Defendants engaged in any behavior to “black ball” him.12
4. Hostile Work Environment13
To establish a prima facie case for a hostile work environment claim, Jolley must
show: (1) he is a member of a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment complained of was based on his membership in the
protected class; (4) the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a hostile or abusive working
environment; and (5) the employer is responsible for that environment under either

11

Jolley seems to think that his employment difficulty might be a consequence of media reports about
Carson’s death. That could be, but he provides no evidence that the Defendants are responsible for
these reports.

12
The Defendants also reference Jolley’s claims based on their failure to provide him with insurance
papers and 401(k) papers. However, Jolley’s amended complaint does not contain any allegations
regarding insurance papers or 401(k) papers, and he has not moved to amend his complaint to include
these allegations. The Defendants appear to rely on Jolley’s statement in his deposition that he did not
receive these papers. (Docs. 34, ¶ 32; 36 at 25:6-14). However, Jolley does not even point to this
testimony in response to the Defendants’ motion. Thus, the Court concludes he is not asserting a
discrimination claim based on these alleged actions.
13

Jolley’s attorney also made no argument on this claim in his response brief and instead only included
allegations relating to this claim in the background portion of his brief.

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vicarious or direct liability. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th
Cir. 2012). The plaintiff must meet both a subjective and objective test to show the
harassing conduct was severe or pervasive. Thus, “[t]he burden is on the plaintiff to
demonstrate that he perceived, and that a reasonable person would perceive, the
working environment to be hostile or abusive.” Id. at 1299 (citation omitted). When
evaluating whether the harassment is objectively severe or pervasive, the Court
considers: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether
the conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job performance.”
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002). The relevant
inquiry is “whether, under the totality of the circumstances, a reasonable person would
find the harassing conduct severe or pervasive [enough] to alter the terms or conditions
of the plaintiff’s employment.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1251
(11th Cir. 2014).
The Defendants argue they are entitled to summary judgment because Jolley
has failed to meet the fourth element of his prima facie case: that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of his employment.
The Defendants do not contest that Jolley subjectively perceived his working
environment was hostile. Rather, they contend that based on the evidence of
harassment he has presented a reasonable person would not find his working
environment hostile and abusive. The Court disagrees.
The specific incidents of harassment that Jolley testifies about, and that the
Defendants reference in their statement of facts, are: (1) Hudson’s calling Gill a “coon”

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in Jolley’s presence and (2) Throne and Blewer’s referring to Jolley as “boy” and
Throne’s telling him to “go to [his] cell.” By virtue of failing to respond to the Defendants’
statement of facts, Jolley has admitted for purposes of the motion that he cannot recall
a specific time he heard Throne or Blewer use the words “nigger” or “coon” other than
during a meeting in which they told employees racial slurs were forbidden in the
workplace. (Doc. 34, ¶ 55). However, Jolley also testifies more generally that “[f]rom
the time I started working … we got called all the names, coon, nigger, boy, and
sometimes it used to be in front of … [Blewer] or [Throne].” (Doc. 36 at 21:6-10).
Though Jolley complained to his supervisors and they held a meeting advising
employees not to use those terms, he says the use of racial slurs continued without
anyone getting fired. (Doc. 36 at 33:25-35:3).14
Jolley also fleshes out in more detail the incident where Hudson called Gill a
“coon,” saying the two got into a fight on the job. (Doc. 36 at 32:21-33:8). He further
testifies that both the fight between Hudson and Gill and the fight between Carson and
Gill (after which Carson died and Jolley was fired) stemmed from the use of racial slurs
on the jobsite. (Doc. 36 at 32:21-33:8, 45:4-46:15). Jolley also references other fights
on the job but does not provide more detail. (Doc. 36 at 34:17-23).
The Eleventh Circuit’s recent decision in Adams is instructive about what
evidence is sufficient to create a genuine dispute of material fact on whether harassing
conduct created an objectively hostile work environment. 754 F.3d 1240 (11th Cir.
2014). The district court granted summary judgment to the defendant on the hostile
work environment claims of 13 plaintiffs. The Eleventh Circuit reversed summary

14

For purposes of the motion, Jolley has admitted Blewer and Throne received no more complaints from
employees and heard no more racial slurs being used after the Hudson incident. (Doc. 34, ¶ 54).
However, this does not necessarily mean the use of racial slurs stopped.

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judgment as to 7 of the 13 plaintiffs, finding they presented enough evidence to create a
genuine dispute of material fact that their work environments were objectively hostile.
The Court concludes the evidence Jolley has presented in this case is similar in
degree and severity to the evidence of the plaintiffs the Eleventh Circuit allowed to
proceed in Adams. Two of the Adams plaintiffs in particular presented evidence
comparable to Jolley’s. One plaintiff frequently saw racist graffiti in the men’s room,
saw white coworkers wear Confederate flag15 apparel “numerous times,” heard his
supervisor call someone a racial slur twice, and was asked about the racial slur by his
supervisor the second time. Id. at 1253. Another plaintiff saw an employee wear a
Confederate flag shirt once, saw racist graffiti in the men’s restroom regularly, and his
supervisor humiliated him with a racial slur. Id. at 1253-54. In comparison, from the
time Jolley started working for Triad, he and other African-American employees were
allegedly called racially derogatory names, he saw racial tension in the workplace lead
to at least two fights, and his supervisors called him “boy” and told him to “go to [his]
cell.” Considering the totality of the circumstances, the Court cannot say that a
reasonable jury could not find Jolley’s work environment was objectively hostile.
The Defendants do not challenge other elements of the prima facie case.
Rather, they argue Defendants Blewer, Throne, and Laquiere are not individually liable
for any of Jolley’s claims based on Title VII or § 1981, including his hostile work
environment claims. As to the Title VII hostile work environment claim, the Defendants
are correct. Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.
2000). As to the § 1981 hostile work environment claim, the Court agrees Laquiere is

15

The court did not elaborate on the significance of the presence of the Confederate flag in the
workplace.

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not individually liable. However, Jolley has “made an affirmative showing linking
[Blewer and Throne] with the discriminatory action,” which for this claim is the creation
of a racially hostile work environment. Barnes v. O’Neil Transp. Servs. of Ga., Inc.,
2014 WL 1813715, at *2 (M.D. Ga.) (internal quotation marks and citation omitted).
Specifically, there is evidence that some of the racially derogatory comments
contributing to the hostile work environment were made by Blewer and Throne. Thus,
the Court cannot agree Blewer and Throne are entitled to summary judgment on
Jolley’s § 1981 hostile work environment claim.
5. Retaliation under § 198116

16

The Defendants argue Jolley has abandoned his remaining claims by failing to address them in his
response to their motion for summary judgment. The Eleventh Circuit has held in several unpublished
cases that a plaintiff may abandon claims on summary judgment by failing to address them in his
response brief. See Gailes v. Margeno Cnty. Sheriff’s Dep’t, 916 F. Supp. 2d 1238, 1241-42, 1241 n.6
(S.D. Ala. 2013) (collecting cases). However, the court has not gone so far in a published decision. See
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 n.36 (11th Cir. 2008) (alternatively holding in
a footnote that plaintiff abandoned a discrimination claim on summary judgment and that there was an
undisputed nondiscriminatory reason for supervisor’s decision); Rd. Sprinkler Fitters Local Union No. 669
v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (holding district court properly treated as
abandoned an alternative theory for why the defendant should be compelled to arbitrate, even though
court framed the issue as an abandoned claim). Additionally, the Eleventh Circuit has held in a published
decision that a district court cannot simply grant an unopposed motion for summary judgment and must
consider the merits of the motion. United States v. One Piece of Real Prop., 363 F.3d 1099, 1101-02
(11th Cir. 2004). The rationale of the court’s decision was based on former Fed. R. Civ. P. 56(c)’s
language that summary judgment is appropriate if “‘there is no genuine issue as to any material fact and
… the moving party is entitled to judgment as a matter of law.’” Id. at 1101 (emphasis added by Eleventh
Circuit). Current Rule 56(a) similarly provides that “[t]he court shall 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.” Two district courts in this circuit have resolved the apparent conflict in
Eleventh Circuit precedent in the following manner:
Where a party wholly fails to respond to a summary judgment motion, the district court
must make sure that it nonetheless is appropriate to enter summary judgment against the
party that did not respond; in contrast, where the non-moving party fails to address a
particular claim asserted in the summary judgment motion but has responded to other
claims made by the movant, the district court may properly consider the non-movant’s
default as intentional and therefore consider the claim abandoned.
Rossi v. Fulton Cnty., Ga., 2013 WL 1213243, at *13 n.8 (N.D. Ga.) report and recommendation adopted
sub nom. Rossi v. Fulton Cnty. Bd. of Assessors/Fulton Cnty. Tax Assessors Office, 2013 WL 1213139
(N.D. Ga.); see also Powell v. Am. Remediation & Envtl., Inc., ___ F. Supp. 3d ___, 2014 WL 6609388, at
*6 n.9 (S.D. Ala.) (citing Rossi). Because the Eleventh Circuit has not directly spoken to the issue in a
published decision, and because the Court is not sure the approach taken by the other district courts is

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A plaintiff establishes a prima facie case for race-based retaliation under 42
U.S.C. § 1981 by showing: “(1) he engaged in a statutorily protected activity; (2) he
suffered an adverse employment action; and (3) he established a causal link between
the protected activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307-08
(11th Cir. 2009). Jolley has failed to show a causal connection between his protected
activity (complaining about racial slurs in the workplace) and the adverse action
(termination). The Defendants presented evidence that Laquiere made the decision to
terminate Jolley and other Triad employees following the fight between Gill and Carson
and that Laquiere was unaware of any complaints Jolley made. Jolley has not
submitted evidence to the contrary, nor has he pointed to any other evidence to show a
causal connection. Thus, the Defendants are entitled to judgment as a matter of law.
C. Other Claims
1. Intentional Infliction of Emotional Distress
Jolley has brought an intentional infliction of emotional distress claim against
Defendants Triad, Blewer, and Throne. To prevail on a claim for intentional infliction of
emotional distress, the Plaintiff must demonstrate that:
(1) the conduct giving rise to the claim was intentional or reckless; (2) the
conduct was extreme and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe. The defendant's
conduct must be so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Whether a claim rises to the requisite
level of outrageousness and egregiousness to sustain a claim for
intentional infliction of emotional distress is a question of law.

consistent with Rule 56, the Court declines to treat any of the Plaintiff’s claims as abandoned and instead
considers the merits of the Defendants’ motion on these claims.

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Steed v. Fed. Nat’l Mortg. Corp., 301 Ga. App. 801, 810, 689 S.E.2d 843, 851-52 (2009)
(internal quotation marks and citation omitted). “The rule of thumb in determining
whether the conduct complained of was sufficiently extreme and outrageous is whether
the recitation of the facts to an average member of the community would arouse her
resentment against the defendant so that she would exclaim[,] ‘Outrageous!’” Wilcher v.
Confederate Packaging, Inc., 287 Ga. App. 451, 453, 651 S.E.2d 790, 792 (2007)
(internal quotation marks and citation omitted). Factors to consider include “the
existence of a relationship in which one person has control over another, the actor’s
awareness of the victim’s particular susceptibility, and the severity of the resultant
harm.” Trimble v. Circuit City Stores, Inc., 220 Ga. App. 498, 499-500, 469 S.E.2d 776,
778 (1996) (citations omitted).
Jolley has failed to meet the second element of an intentional infliction of
emotional distress claim under Georgia law. As a matter of law, the use of racial slurs
by coworkers and supervisors in the workplace is not extreme and outrageous conduct.
See Ghodrati v. Stearnes, 314 Ga. App. 321, 323-24, 723 S.E.2d 721, 723 (2012)
(coworkers’ repeatedly calling plaintiff racist and derogatory names and posting
inappropriate signs about him was not sufficiently extreme and outrageous); Lockhart v.
Marine Mfg. Corp., 281 Ga. App. 145, 147-48, 635 S.E.2d 405, 407-08 (2006) (four
incidents of racist comments by coworkers and supervisors not sufficiently extreme and
outrageous).
2. Equal Pay Act
An employee demonstrates a prima facie case of an Equal Pay Act violation by
showing that the employer “pays different wages to employees of opposite sexes for

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equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions.” Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1018 (11th Cir. 1994) (emphasis added) (internal
quotation marks and citation omitted). Because Jolley has only alleged he was paid
lower wages than other male employees, his Equal Pay Act claim fails as a matter of
law, and the Defendants are entitled to summary judgment.
III.

CONCLUSION

For the foregoing reasons, the Defendants’ motion for summary judgment (Doc.
32) is GRANTED in part and DENIED in part. The Defendants are entitled to
summary judgment on all claims except the Plaintiff’s Title VII hostile work environment
claim against Defendant Triad and the Plaintiff’s 42 U.S.C. § 1981 hostile work
environment claim against Defendants Triad, Blewer, and Throne. Because Defendant
Laquiere is entitled to summary judgment on all claims asserted against him, the Clerk
is DIRECTED to terminate him as a Defendant in this action.

SO ORDERED, this 23rd day of March, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

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