SPENCER v. HUTCHESON ENTERPRISES INC
Filing
43
ORDER granting 31 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE HUGH LAWSON on 3/30/2016. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
ERIC SPENCER,
Plaintiff,
v.
Civil Action No. 7:14-CV-32 (HL)
EZ TITLE PAWN, INC.,
Defendant.
ORDER
Plaintiff Eric Spencer, an African-American man, brings this action under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”)
and under 42 U.S.C. § 1981, alleging that his former employer, Defendant EZ
Title Pawn, Inc., discriminated against him based on his race and his sex. Now
before the Court is Defendant’s Motion for Summary Judgment. (Doc. 31). After
reviewing the pleadings, briefs, depositions, and other evidentiary materials
presented, and determining that there is no genuine dispute of the material facts,
the Court finds that Defendant is entitled to judgment as a matter of law and
grants Defendant’s motion.
I.
EVIDENTIARY ISSUES
In the course of briefing this motion for summary judgment, both parties
have raised questions relating to the propriety of the evidence submitted to the
Court.1 Neither party has filed any formal motions to strike any of the evidence.
However, because determination of the admissibility of the evidence will impact
what portions of the record the Court may consider in deciding Defendant’s
pending motion for summary judgment, the Court finds it prudent first to address
these preliminary issues.
A.
“Rule of Completeness”
In response to Defendant’s Statement of Material Facts Paragraphs 2-3,
24-25, 42, 52, 61, 65, 67-69, 74, 79-80, Plaintiff raises what he terms his “Rule of
Completeness” objection. Plaintiff argues that when citing to a deposition in
support of a particular statement of fact, Defendant is obliged to cite to every
single section of the deposition pertinent to the factual assertion in question.
Plaintiff misapprehends the substantive purpose of the rule.
Federal Rule of Civil Procedure 32(a)(6) and Federal Rule of Evidence 106
together codify the “rule of completeness.” Rule 32(a)(6) provides, “If a party
offers in evidence only part of a deposition, an adverse party may require the
offeror to introduce other parts that in fairness should be considered with the part
introduced, and any party may itself introduce other parts.” Fed.R.Civ.P. 32(a)(6).
1
The Court observes that the majority of these issues have emerged as a result
of the parties’ rather unorthodox way of approaching the recitation of the material
facts relevant to this case. In the future, the Court urges counsel to consult Local
Rule 56 more carefully and to take heed of the requirement to provide a concise
statement of material facts with appropriate citations for each assertion of fact.
M.D.Ga. L.R. 56.
2
Rule 106 similarly permits an adverse party to require the production of any other
part of a writing “that in fairness ought to be considered at the same time.”
Fed.R.Evid. 601. Thus, the essential purpose of the rule of completeness is to
ensure that where fairness so requires, the entire transcript, or at the very least
all relevant portions of a transcript, is made available.
Here, Defendant filed the full deposition transcript in question, and there is
no rule of completeness violation. See S.E.C. v. Lauer, 478 Fed. App’x 550, 555
(11th Cir. 2012). Defendant properly cited to those portions of the deposition
transcript Defendant believed supported its assertions of fact. M.D.Ga. L.R. 56.
The burden then shifted to Plaintiff to cite to any additional material in the record
Plaintiff believes refutes Defendant’s position. Id.; see also Fed.R.Civ.P. 56(c).
Plaintiff’s objection, accordingly, lacks merit and is overruled.
B.
Plaintiff’s Objections to Defendant’s Affidavits
Plaintiff next raises two objections to Defendant’s submission of the
affidavit of Catherine J. Hart (Doc. 31-3). First, Plaintiff purports to impeach
Hart’s deposition by tendering the affidavits of two individuals who contradict
select portions of Hart’s affidavit and deposition testimony, citing to Eleventh
Circuit Pattern Jury Instruction § 1.1. Section 1.1 sets forth the standard
preliminary instructions a court provides to an empaneled jury. Plaintiff does not
reference any particular portion of this instruction, which spans a number of
3
pages. The Court can only assume that Plaintiff intends to cite to that portion of
the instruction that explains how the jury may evaluate the credibility of a witness.
Credibility determinations fall under the exclusive purview of a jury, and it is
improper for a court ruling on a motion for summary judgment to draw any
conclusions as to the veracity of a particular witness. See Strickland v. Norfolk S.
Ry. Co., 692 F.3d 1151, 1155 (11th Cir. 2012). Plaintiff’s impeachment objection
is misplaced at this stage of the proceedings and is overruled.2
Next, Plaintiff objects to the Court’s consideration of Hart’s deposition and
supporting exhibits to the extent those materials contain hearsay. Under Federal
Rule of Civil Procedure 56(c)(2), “[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible
in evidence.” As explained in the advisory committee’s notes, the objection
functions much like an objection raised at trial, and the “burden is on the
proponent to show that the material is admissible as presented or to explain the
admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2) advisory committee’s
note to 2010 amendment. Accordingly, “a district court may consider a hearsay
statement in passing on a motion for summary judgment if the statement could
be reduced to admissible evidence at trial or reduced to admissible form.” Jones
2
The affidavits Plaintiff contends impeach Hart’s testimony may, however, be
construed to raise a question of fact, weak though it may be. The Court has
taken the testimony of the affiants into consideration in that regard.
4
v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (internal
quotation marks and citation omitted).
Upon review of the exhibits and testimony questioned by Plaintiff, the
Court overrules Plaintiff’s hearsay objection. The evidence produced by
Defendant is not hearsay; however, to the extent that any portion of the evidence
may possibly be construed to contain an element of hearsay, the Court is
satisfied that Defendant will be able to reduce that evidence to an admissible
form at trial.
C.
“After-acquired” evidence
Plaintiff’s next objection, which he asserts in response to Defendant’s
Statement of Material Facts Paragraphs 54 and 61, is that Defendant relied upon
information acquired after Plaintiff’s termination to support the decision to end
Plaintiff’s employment. Plaintiff argues that the evidence gathered by Catherine
Hart, Plaintiff’s immediate supervisor, in support of her recommendation to
terminate Plaintiff was not relayed in its entirety to upper level management.
Therefore, knowledge of this information cannot be attributed to Roy Hutcheson,
Sr., the President of Defendant’s corporation, who made the ultimate decision to
terminate Plaintiff. Plaintiff advocates that the Court should not consider any
evidence unknown to Hutcheson at the time of Plaintiff’s termination based on
5
the argument that Hutcheson’s decision to fire Plaintiff could not be founded on
facts about which he had no direct knowledge.
Plaintiff’s objection evolves out of Defendant’s interrogatory responses as
well as the affidavits of Joseph DeMarco, Defendant’s Vice President of
Operations, and Roy Hutcheson, Sr., Defendant’s President. In his first
interrogatories to Defendant, Plaintiff posed the following question: “Please
explain in specific detail all the factual reasons why Eric Spencer was fired from
your company.” (Doc. 34-68). In response, Defendant stated, “Plaintiff was
terminated from EZ Title Pawn, Inc. due to Plaintiff’s failure to effectively manage
the employees of the title pawn branches under his supervision.” (Id.). Defendant
then provided a number of examples how Plaintiff failed as a manager and
referenced various different documents, namely e-mails, Defendant believed
illustrated the point. (Id.). When asked during his deposition whether he ever
personally viewed any of these records, DeMarco testified that he either did not
recollect or had not reviewed many of the documents referenced in Defendant’s
response to Plaintiff’s interrogatories. (DeMarco Dep., p. 26-36, 38-40, 44-48, 50;
DeMarco Aff., p. 4). Hutcheson similarly attested that while he had a general
understanding of all the reasons why Plaintiff’s termination was being
recommended, he had no reason to review every minute detail underlying the
recommendation. (Hutcheson Aff., p. 3).
6
The after-acquired evidence rule essentially provides that while an
employer may discover evidence after terminating an employee that potentially
justifies an adverse employment decision, the employer cannot claim have been
motivated to terminate an employee based on information the employer did not
possess during the decision making process. McKennon v. Nashville Banner
Publ’g Co., 513 U.S. 352, 359-60 (1995). That simply is not the case here. Even
though upper level management may not have reviewed the entire paper trail
produced as evidence supporting the conclusion that Plaintiff was not effectively
performing as a manager, primarily because DeMarco and Hutcheson relied
upon the oral summary provided by Hart, it is clear that all of these records were
maintained in the regular course of Defendant’s business and were otherwise
available for DeMarco and Hutcheson’s inspection had they needed to consult
the records when discussing the prospect of Plaintiff’s termination. Plaintiff’s
objection is, therefore, overruled.
D.
Defendant’s Objection to Plaintiff’s Voluminous Exhibits
Defendant objects to Plaintiff’s inclusion of voluminous deposition exhibits
and advocates that the Court should disregard any exhibits Plaintiff does not
specifically cite to in his responsive documents. In responding to Defendant’s
motion for summary judgment, Plaintiff filed 61 deposition exhibits, totaling just
7
shy of 1000 pages,3 many of which Defendant contends were never mentioned
or tendered in the course of any deposition. Of those 61 exhibits, the Court notes
that Plaintiff references portions of only 14 exhibits.
Rule 56(c)(1)(B)(3) instructs, “The court need consider only the cited
materials, but it may consider other materials in the record.” Fed.R.Civ.P.
56(c)(1)(B)(3). However, the court is not “required to ferret out delectable facts
buried in a massive record.” Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057,
1061 (11th Cir. 2011) (citing Johnson v. City of Fort Lauderdale, 126 F.3d 1372,
1373 (11th Cir. 1997) (“[W]e are not obligated to cull the record ourselves in
search of facts not included in the statements of fact.”); United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (judges “are not like pigs, hunting for truffles
buried in briefs.”)). Based on this logic, the Court is not inclined to sift through
documents Plaintiff did not otherwise find important enough to cite in support of
his position. Defendant’s objection is sustained.
II.
FACTUAL BACKGROUND
The undisputed material facts are these:
Plaintiff Eric Spencer, an African-American man, began working as a
Branch Manager in one of Defendant EZ Title Pawn, Inc.’s Valdosta branches in
3
Based on the Court’s calculation, the deposition exhibits cover 999 pages, to be
exact. That is in addition to Plaintiff’s 119 page Response to Defendant’s
Statement of Material Facts and another 415 pages in deposition transcripts,
affidavits, and other discovery materials, to which Plaintiff cites very little.
8
December 2009. (Pl. Dep., p. 55-56). Several years into his employment, a
number of changes occurred within Defendant’s management that directly
impacted Plaintiff. First, Plaintiff’s Area Supervisor, Rhonda Krizan, a Caucasian
female, was terminated by Defendant in February 2012. (Pl. Dep., p. 58-59;
DeMarco Aff., p. 4-5). Then, in February or March of 2012, Defendant terminated
Kim Deubel, a Caucasian female, who was the Regional Manager assigned to
the particular district where Plaintiff worked. (DeMarco Dep., p. 13; DeMarco Aff.,
p. 5; Hart Aff., p. 1). Defendant terminated both of these women for failing to
satisfactorily manage Defendant’s business in the region, which resulted in
significant revenue losses. (DeMarco Dep., p. 14; DeMarcro Aff., p. 5).
In the wake of this turmoil, Defendant restructured the region and hired a
new Regional Manager. (DeMarco Dep., p. 13). Catherine Hart, a Caucasian
female hired by Defendant in 2011 to serve as a Regional Manager in Alabama,
was asked to assume the Regional Manger position for a newly created territory
covering parts of Alabama and Georgia, including the area where Defendant
worked. (DeMarco Dep., p. 12-13; DeMarco Aff., p. 1; Hart Dep., p. 11; Hart Aff.,
p. 1; Hutchison Aff., p. 2). As the new Regional Manager, one of Hart’s
immediate assignments was to hire a replacement Area Supervisor for the
Valdosta area. (Hart Aff., p. 2). Given the history of the territory and her lack of
9
familiarity with the area, Hart found it prudent to spend some time acquainting
herself with the employees before making any new hires. (Hart Aff., p. 3).
Plaintiff expressed interest in the Area Supervisor position and was
instructed to submit a resume, which he did. (Pl. Dep., p. 59; Pl. Aff., ¶ 2; Hart
Aff., p. 3). Hart interviewed seven or eight applicants for the Area Supervisor
position, including Plaintiff. (Hart Aff., p. 3). Ultimately, based on Plaintiff’s
performance as a Branch Manager, Hart concluded that Plaintiff was qualified for
the job and recommended to Joseph DeMarco, Defendant’s Vice President of
Operations, and Roy A. Hutcheson, Sr., Defendant’s President, that Plaintiff be
promoted. (DeMarco Dep., p. 21; DeMarco Aff., p. 2; Hart Aff., p. 3). Hart
endorsed Plaintiff’s advancement in spite of some complaints she received
regarding Plaintiff’s interpersonal skills. (Hart. Dep., p. 18-19, 237, 252).4
DeMarco and Hutcheson approved Hart’s recommendation and promoted
Plaintiff to Area Supervisor in April 2012. (Pl. Dep., p. 58; DeMarco Dep., p. 21;
4
In March 2012, prior to Plaintiff’s promotion, Shannon Guy, who worked as a
manager in Defendant’s Valdosta 2 branch, lodged a complaint with Hart about
Plaintiff. (Pl. Dep., p. 144; Hart Dep., p. 17-19). Hart discussed the complaint with
Plaintiff and resolved the issue. (Pl. Aff., ¶ 9; Hart Dep., p. 19-20). Hart testified
that Guy cried the day Plaintiff was promoted and said that she could not work for
Plaintiff. (Id. at p. 252). Plaintiff denies that he did anything to instigate Guy’s
complaint, but he acknowledges the complaint and Guy’s general attitude toward
him. (Pl. Dep., p. 144-45). Plaintiff testified that Guy “was a manager who just
didn’t like me for whatever reason.” (Id. at p. 144). According to Plaintiff, Guy
“thought I was cocky and I guess she mistaked [sic] my confidence of being, you
know, a good supervisor and an employee as cockiness.” (Id. at p. 145).
10
DeMarco Aff., p. 2; Hutcheson Aff., p. 2). Hart admittedly told Plaintiff at some
point following his promotion that “we can call corporate about anything, anytime
we want to.” (Hart Dep., p. 243). Plaintiff’s recollection is that Hart stated, “We
don’t have to have a reason to get rid of you.” (Pl. Dep., p. 59).
As a new Area Supervisor, Plaintiff received a copy of the Supervisor
Handbook. (Pl. Dep., p. 65; Doc. 31-2). Plaintiff reviewed the handbook “for the
most part” and had no questions concerning its contents. (Pl. Dep., p. 66). The
Supervisor Handbook outlines eight primary but non-exclusive,5 responsibilities
of the Area Supervisor:
1)
See that branch managers complete their duties as outlined
on the Branch Manager’s Responsibility sheet.
2)
Approve investments that exceed employee’s guidelines. . . .
3)
Control repo and write-off by:
a.
Direct sale and loss on units through repo condition
report.
b.
Review all write offs.
c.
Weekly review of collection activity.
4)
See that branches are properly staffed with trained and
competent employees.
5)
Direct lending activities to see that growth objectives are met.
6)
Complete periodic inspections to ensure integrity of funds and
to insure that operation guidelines are being followed.
5
The handbook contains the following caveat: “No manual or handbook can
possibly cover all the duties of an Area Supervisor. Use this handbook as a
reference and as a place to start.” (Doc. 31-2, p. 51).
11
7)
Dispute Resolution
8)
Loss Prevention
(Doc. 31-2, p. 51).
A number of tools were available to Plaintiff to assist him in carrying out his
supervisory responsibilities. Plaintiff received a variety of weekly reports for each
of the seven branches under the umbrella of his supervision, including the
Monday Report, the Wednesday Report, and the check-listing report. (Pl. Dep.,
p. 31-33, 36, 64, 138; Hart Aff., p. 3). Plaintiff also received an end of the month
report. (Pl. Dep., p. 31, 38-39). Careful and regular review of these reports could
alert a supervisor to various issues, such as positive or negative growth trends
for a branch and discrepancies between the weekly deposit slips and the actual
bank deposits. (Pl. Dep., p. 32; Doc. 31-2, p. 69; Hart Aff., p. 6). A supervisor
may also discern from the reports any unusual transactions, for example,
reversals, voids, balancing entries, or aborts. (Hart Aff., p. 7). Plaintiff understood
that it was his responsibility to review the reports, to investigate the source of any
unusual transactions, and to report any issues to Hart. (Pl. Dep., p. 31-33, 36-37,
39-40, 67, 138).6
6
Plaintiff states that he spoke with Hart two or three times a week, or at least
attempted to contact her. (Pl. Dep., p. 38; Pl. Aff., ¶ 8). In contrast, Hart claims
that she and Plaintiff talked two to three times each day. (Hart Dep., p. 47-48).
12
Plaintiff’s next line of defense for managing his employees and ensuring
profitability and mitigation of loss was regular inspections and general presence
in the branch offices. It was Plaintiff’s responsibility “to be in the branches to
know what was going on in the branch and to report anything that he thought
would be of concern.” (Hart Dep., p. 63; Hart Aff., p. 5). Even though there was
no set requirement for the number of branches Plaintiff was to visit each week,
Hart explained that she expected Plaintiff to be physically present in at least
three of the seven branches over the course of the week. (Id.; Hart Aff., p. 5).
Plaintiff testified that he visited stores based on the needs of a particular store.
(Pl. Dep., p. 67-68).
Defendant did mandate that Plaintiff conduct a minimum of two complete
office audits each month. (Pl. Dep., p. 68; DeMarco Dep., p 17; Hart Dep., p. 62;
Hart Aff., p. 4). Defendant provided an inspection form that set forth how to
conduct the inspection. (Pl. Dep., p. 76; Doc. 31-2, p. 63-68). A thorough
inspection included reviewing of the branch’s procedure for handling cash,
inspecting all checks and deposits, ensuring the proper maintenance of account
cards, checking files for titles, keys, and pictures, examining contracts and writeoffs, and generally observing the day to day operation of the business. (Doc. 312, p. 63-65). Most importantly, as a part of the inspection process, Plaintiff was
required to audit customer files. (Pl. Dep., p. 79; Hart Dep., p. 100). Plaintiff was
13
to review, at a minimum, 15 current contracts and 15 paid or renewed contracts.
(Doc. 31-2, p. 63; Hart Dep., p. 100).
According to Plaintiff, each time he conducted an audit, he would review all
new files created since his last inspection. (Pl. Dep., p. 79). However, Plaintiff
admits that he was not conducting inspections as frequently as Defendant
mandated. (Id. at p. 68). Plaintiff explained that his other duties made twice
monthly inspections impossible. (Id.). He indicated that he had other
responsibilities, including interviewing prospective employees and locating new
real estate for one of the branches, so he “was stretched pretty thin doing all
those things and – you know, in conjunction with what I had to do, or as far as
trying to get those audits done.” (Id. at p. 69).
In addition to the full audits, Defendant also expected Plaintiff to perform
random spot audits of each branch’s cash drawer. (Pl. Aff., ¶ 12; Hart Aff., p, 5).
The purpose of the spot audit is to verify that the cash drawer matches the
deposit summary. (Hart Dep., p. 70). Several of the Branch Managers reported to
Hart that Plaintiff never conducted spot audits of the cash drawers. (Hart Dep., p.
70, 72, 130).7
7
Plaintiff submitted affidavits from two of the Branch Managers who deny ever
telling Hart that Plaintiff was not conducting audits. (Williams Aff.; Smith Aff.).
However, Plaintiff has not attempted to refute Hart’s statement regarding what
the other five Branch Managers reported to her.
14
During Plaintiff’s tenure as Area Supervisor, a number of issues arose in
the territory under his supervision that ultimately led to his termination. From
Defendant’s perspective, Plaintiff struggled to maintain employee morale. (Hart
Dep., p. 65). Right after Plaintiff’s promotion, morale increased, but then the work
environment began to deteriorate again, and Hart “was told by different
employees in different branches different stories about [Plaintiff].” (Id.). Hart
received numerous complaints from both employees and customers about
Plaintiff’s demeanor. (Hart Dep., p. 54-61, 84, 247-48; Hart Aff., p. 13-16). One
complaint Hart received was that Plaintiff shouted profanity at an employee in the
Moultrie branch. (Hart Dep., p. 56-57; Hart Aff., p. 13-14). The employee called
Plaintiff, who at the time was at another branch, for assistance dealing with an
unusual transaction. (Hart Dep., p. 56). The customer overheard Plaintiff yelling
at the employee. (Id.). Both the employee and the customer called Hart to report
the incident. (Id. at 57). Hart discussed the issue with Spencer, who denied any
impropriety. (Id. at 59; Pl. Dep., p. 150-52; Doc. 31-2, p. 122). However, Hart
gave credence to the employee’s description of events, first because Hart
perceived that the employee had nothing to gain by lying about the accusations,
and secondly because the customer corroborated what the employee said, telling
Hart that “he was embarrassed for [the employee]. That her supervisor would talk
to her using those words.” (Id. at 58-59). Plaintiff had an ongoing conflict with the
15
employee who was the subject of this complaint. (See Hart Aff., Ex. 2). At one
point, Plaintiff went so far as to communicate with this employee only through a
third party. (Hart Aff., p. 16-17; Ex. 4). In Plaintiff’s opinion, the employee “had a
problem with wanting to work” and was a liar. (Pl. Dep., p. 142, 153-54; Doc. 312, p. 123).
On another occasion, Plaintiff allegedly engaged in a shouting match with
a customer in the Douglas branch. (Hart Dep., p. 54, 231-32; Hart Aff., p. 54).
The disagreement arose when Plaintiff realized the customer’s vehicle had been
over-pawned and explained to the customer that he could receive no more
money for that car. (Pl. Dep., p. 148-49; Doc. 31-2, p. 123). Hart was not present
for the incident. (Hart Dep., p. 55). However, other employees relayed to her that
“it was just a big deal and our employees were alarmed at the way – they – it just
turned into – instead of trying to calm the situation, diffuse the situation, it just got
completely out of hand.” (Id. at p. 54). The customer called Hart “and said
[Plaintiff] was using profanity and he was screaming.” (Id.). Based on past
complaints, Hart believed the customer’s accusations. (Id. at 55-56).
After a third negative encounter with a customer,8 Hart issued Plaintiff an
Employee Counseling Statement on October 31, 2012. (Hart Aff., Ex. 3). In the
8
During her deposition, Hart could not recollect the specifics of this particular
episode. (Hart Dep., p. 60). Plaintiff, however, testified that the incident involved
a belligerent customer who was arguing with the Branch Manager. (Pl. Dep., p.
16
report, Hart commends Plaintiff for progress made in the area but notes recent
complaints from customers and employees:
He inherited an Area that was plagued with problems from the
previous Supervisor. [Plaintiff] has done a phenomenal job turning
the Area around and getting the stores and their employees headed
back in the right direction. Recently, [Plaintiff] has had complaints
from customers and employees. Upon investigating these
complaints it has been determined that the problem lies with
[Plaintiff’s] people skills.
(Id.). Plaintiff denied the complaints made against him, explaining that it was all a
“huge misunderstanding.” (Id.; Pl. Dep., 146-47; Hart Dep., p. 230).
Plaintiff also demonstrated an overall lack of attention to detail and failure
to follow up on what should have been obvious red flags of fraud and deception
occurring in his branches. It was standard practice for Defendant’s Loss
Prevention office to contact an Area Supervisor about any accounting
discrepancies,
including
overages
or
shortages
in
cash
or
deposit
inconsistencies, no matter the amount. (Hart Aff., p. 10). Plaintiff received
numerous e-mails from Loss Prevention notifying him about balancing and
deposit issues. (See Doc. 31-2, p. 126-28, 140, 143-44, 147). Hart frequently
was copied on these e-mails, which prompted her to follow up with Plaintiff. (Hart
Aff., p. 10). Hart discussed these issues with Plaintiff as they arose. (Id. at p. 10,
53). According to Hart, “When [Plaintiff] had suspicions of something that was
125; Doc. 31-2, p. 120). Plaintiff stated that he was able to diffuse the situation.
(Id.).
17
going on, he was reassuring me that everything was fine. But he was not going
into those branches and actually verifying that everything was in place.” (Hart
Dep., p. 106). Although Plaintiff may have called the branch to ask the branch
manager for an explanation for a discrepancy or sent a general e-mail to the
branch employees reminding them of their obligation to properly document and
enter account information, it soon became apparent to Hart that Plaintiff “did
nothing to try to find out what was going on except take the employee’s word for
it.” (Id. at p. 125; Doc. 31-2, p. 136, 138, 143). Plaintiff admits that he did not
always investigate thoroughly: “I tried to get over there, if I could. If I didn’t have
anything else going on, I definitely tried to get over there, but then I would have
things faxed to me and I would ask questions myself.” (Pl. Dep., p. 177).
In November 2012, Defendant discovered large scale fraud in the Albany
branch. (Hart Aff., p. 18). A few months prior, in September 2012, Plaintiff
recommended that Defendant hire Shannon Swanigan as the Branch Manager in
Defendant’s Albany branch. (Pl. Dep., p. 98; Hart Aff. 19). Shortly after
Swanigan’s hire, the Albany branch began experiencing rapid growth. (Pl. Dep.,
p. 100; Hart Aff., p. 19). The sudden growth in this branch raised a red flag for
Hart. (Hart Dep., p. 83). “Anytime that [Defendant] see[s] a high volume of
growth, it is the supervisor’s duty to go into the branch to assure that it is good
growth; and that all the files are in order; that we have all the collateral for the
18
growth; that the applications are completed correctly; that the keys are there.
Everything is in place.” (Id. at p. 50). Concerned, Hart contacted Plaintiff to
ensure that all was well. (Id. at p. 83). Plaintiff reassured Hart that the growth was
good and the result of Swanigan bringing business over from a competing
company where she previously worked. (Id.). At the time, Hart “believed that
[Plaintiff] knew what he was doing. He had convinced me he had experience and
that he knew our manager in that area – in that branch. He knew her from
interviewing her and he also knew of her from a previous employer. . . . And I
really had no reason to doubt it.” (Id. at p. 51).
On October 18, 2012, Plaintiff conducted an office inspection of the Albany
branch. (Doc. 31-2, p. 97-99). Plaintiff observed after reviewing 45 files that
numerous documents were missing from the files, including proof of residence,
proof of income, keys, pictures, signatures for redemptions, and loss payees. (Id.
at p. 99). Otherwise, Plaintiff noted nothing remarkable or of concern and stated
that the manager would make the necessary corrections. (Id.).
Plaintiff returned to Albany on November 20, 2012 to conduct another
inspection.9 It was at that time that Plaintiff first became suspicious of a problem.
(Pl. Dep., p. 104). Plaintiff discovered titles missing from several different files.
9
It is unclear from the record why Plaintiff returned to the Albany branch to
conduct an inspection so soon after the previous audit. According to Hart, she
instructed Plaintiff to perform the second inspection. (Hart Aff., p. 20).
19
(Id.). Plaintiff alerted Hart to the title issue, telling her that there appeared to be
loans she approved without a title. (Id. at 107-08). Hart informed Plaintiff that she
would be coming to the Albany branch. (Id. at 108). In the meantime, Plaintiff
asked Swanigan, the Branch Manager, about the missing titles. Swanigan told
Plaintiff that the titles had been sent to the tag office and apologized for not
having copies in the file. (Doc. 31-2, p. 105; Hart Dep., p. 109).
Kenneth Christopher, Branch Manager of the Moultrie branch contacted
Hart on November 27, 2012 to let her know that in the course of buying out a
pawn from a competitor in Albany, he learned about a theft ring involving multiple
title pawn businesses. (Hart Dep., p. 109, 111; Hart Aff., p. 20). Hart immediately
called Plaintiff. (Hart Dep., p. 109). Between November 20th and November 27th
when Hart called him, Plaintiff did not return to the Albany store. (Id. at 110).
Hart arrived in Albany on November 28, 2012. (Hart Dep., p. 111).
Together, Hart and Plaintiff spoke with competitors, learning more about the theft
ring that involved Swanigan. (Id.). Apparently, Swanigan was altering titles and
then faxing the forged versions to Hart for loan approvals. (Id. at 102-03; Hart
Aff., p. 21).10 Hart could not discern the alterations from the faxed copies. (Hart
10
Because Hart manages a large territory, she rarely is in an actual branch when
an employee asks her to approve a loan. (Hart Dep., p. 102-03). The employees,
therefore, generally fax her a copy of the title along with the requested loan. (Id.;
Hart Aff., p. 21). Hart relies on the Area Supervisor to monitor the files regularly
and to verify that the files contain original, valid titles. (Hart Dep., 103-04).
20
Dep., 103; Hart Aff., p. 21-22). Hart and Plaintiff reported their discoveries to
DeMarco and Hutcheson. (Id. at p. 105-06; Doc. 32-1, p. 105-06). As a result of
the Albany fraud, Defendant sustained a loss in excess of $70,000. (Hart Aff., p.
18-19). Defendant terminated Swanigan. (Hart Aff., p. 22).
On the heels of the Albany episode, Defendant incurred additional loss at
the Douglas branch. Sometime in the middle of December 2012, Plaintiff became
suspicious that Ashton Solomon in the Douglas branch was misappropriating
funds. (Pl. Dep., p. 82). An inconsistency in the deposits appeared on one of
Plaintiff’s Monday reports. (Id.). Plaintiff asked Solomon to provide the deposit
ticket. (Id. at p. 82-83). The ticket itself was not one Plaintiff “was used to looking
at.” (Id. at p. 83). Plaintiff did not investigate the matter further: “I had other things
that I was working on, but I kept that in my note log to check for whenever I went
over to do an audit.” (Id.).
Then, on Friday, December 28, 2012 around 8:00 p.m., Plaintiff received a
call from Tammy Hersey, a customer service representative in Douglas. (Pl.
Dep., p. 181-82; Hart Dep., p. 108). Hersey reported to Plaintiff “that she saw
money bags that was ripped and she said that she heard that Ashton had
planned to stage a robbery.” (Pl. Dep., p. 181). Plaintiff notified Hart of his
conversation with Hersey the next day. (Id.). Hersey also contacted Hart on
December 29th. (Hart Aff., p. 22). Hart called Plaintiff and instructed him to
21
conduct an inspection of the Douglas branch immediately. (Id.). However,
Plaintiff did not go to the Douglas store to investigate until January 2, 2013. (Pl.
Aff., ¶ 80; Hart Dep., p. 108; Hart Aff., p. 22). When an audit finally was
conducted, numerous balancing entries and missing deposits were discovered
spanning a period of several weeks. (Pl. Dep., p. 83, 164; Hart Aff., p. 22-23).
Defendant eventually determined that Solomon had stolen more than $6,000.
(Hart Dep., p. 121Hart Aff., p. 24).
Prior to the discovery of the loss, the Loss Prevention office alerted Plaintiff
to questionable transactions and balancing difficulties in the Douglas branch.
(Hart Dep., p. 121; Doc. 31-2, p. 126-28, 134, 140). In Hart’s opinion, had Plaintiff
been more diligent in reviewing his reports and investigating questionable
transactions, much of the loss could have been prevented. (Hart Dep., p. 121;
Hart Aff., p. 24). Plaintiff admits that if he had followed up on his original
suspicions earlier in December, he likely would have discovered the source of
the problem. (Pl. Dep., p. 86).
Shortly thereafter, Hart concluded that Plaintiff was failing to effectively
manage his branches. (Hart Aff., p. 25). Hart contacted DeMarco, her immediate
supervisor, to discuss the ongoing issues with Plaintiff. (Hart Dep., p. 22; Hart
Aff., p. 25). Based on the complaints received from both employees and
customers, the recurring issue with theft, and Plaintiff’s lack of responsiveness in
22
addressing suspicious activities, Hart recommended Plaintiff’s termination. (Hart
Aff., p. 25; DeMarco Aff., p. 3-4). DeMarco, who had been apprised generally of
the issues with Plaintiff’s management as they occurred, reached a similar
conclusion that Plaintiff was not effectively supervising his territory. (DeMarco
Dep., p. 37; DeMarco Aff.,p. 4). In coming to this decision, DeMarco relied upon
his conversation with Hart, who as Regional Manager possessed knowledge of
the more minute details leading up to the recommendation. (DeMarco Aff., p. 4).
DeMarco relayed the same information to Hutcheson, the President of the
company, who made the ultimate decision to terminate Plaintiff. (DeMarco Dep.,
p. 15; DeMarco Aff., p. 4; Hutcheson Aff., p. 3). Defendant terminated Plaintiff on
January 7, 2013, “for failure to effectively manage the employees of the title
pawn branches under his supervision.” (Doc. 31-2, p. 157). Plaintiff was replaced
by Michael Howell, a Caucasian man. (Hart Dep., p. 258; Hart Aff., p. 27;
DeMarco Aff., p. 5; Hutcheson Aff., p. 3).
On June 7, 2013, Plaintiff submitted an Intake Questionnaire to the Equal
Employment Opportunity Commission (“EEOC”), indicating that he believed he
was the victim of employment discrimination and that he wished to file a charge
of discrimination. (Doc. 31-2, p. 5-8). Plaintiff filed his formal Charge of
Discrimination on August 6, 2013, alleging that his former employer discriminated
against him based on his race, African-American, and sex, male. (Doc. 31-2, p.
23
3). The EEOC issued Plaintiff a Notice of Suit Rights on December 10, 2013.
(Doc. 1-1). This lawsuit followed.
III.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact arises only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must evaluate all of
the evidence, together with any logical inferences, in the light most favorable to
the nonmoving party. Id. at 254-55. The court may not, however, make credibility
determinations or weigh the evidence. Id. at 255; see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The
party
seeking
summary
judgment
“always
bears
the
initial
responsibility of informing the district court of the basis for its motion, and
identifying
those
portions
of
the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
24
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary
judgment must be entered “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
VI.
DISCUSSION
Plaintiff asserts claims for race and sex discrimination against his former
employer Defendant EZ Title Pawn, Inc. Plaintiff premises his discrimination
claims on two factors. First, Plaintiff alleges that Defendant impermissibly
terminated him on the basis of his race as evidenced by the fact that Defendant
replaced him with a Caucasian male. Second, Plaintiff contends that Defendant
discriminated against him based on his sex by treating him less favorably than a
similarly situated Caucasian female.
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 his compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin.” 42
25
U.S.C. § 2000e-2(a)(1). A plaintiff may establish a prima facie case of
discrimination through either direct or circumstantial evidence. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Claims of discrimination
premised on circumstantial evidence, as is the present case, are evaluated under
the burden-shifting framework developed in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this framework, the plaintiff first must set forth “facts
adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997). If the plaintiff is able to do so, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “If the employer
satisfies its burden of articulating one or more reasons, then the presumption of
discrimination is rebutted, and the burden of production shifts to the plaintiff to
offer evidence that the alleged reason of the employer is a pretext for illegal
discrimination.” Wilson, 376 F.3d at 1087.
To establish a prima face case of discriminatory discharge, Plaintiff
generally 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 treated less favorably than a similarly situated individual outside his
protected class or was replaced by a person outside of his protected class.”
Thompson v. Tyson Foods, Inc., 939 F. Supp. 2d 1356, 1364 (M.D. Ga. 2013)
26
(citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)). “If the
plaintiff can make this showing – which is ‘not onerous’ – the establishment of a
prima facie case creates a presumption that the employer discriminated against
the plaintiff on the basis of race.” Flowers v. Troup Cty. Sch. Dist., 803 F.3d
1327, 1336 (11th Cir. 2015) (quoting Burdine, 450 U.S. at 253-54).
A.
Race Discrimination
Plaintiff has presented sufficient evidence to establish a prima face case of
race discrimination. It is undisputed that Plaintiff, who is African-American, was
terminated from a position for which he was otherwise qualified11 and was
replaced by a Caucasian individual. Because Plaintiff has met this threshold
requirement, the burden now shifts to Defendant to articulate a legitimate, nondiscriminatory reason for terminating Plaintiff.
The employer has the burden of production, not persuasion to articulate a
nondiscriminatory reason for termination, a burden that has been described as
“exceedingly light.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th
Cir. 2005). To satisfy the burden of production, the defendant “need not persuade
the court that is was actually motivated by the proffered reasons. It is sufficient if
the defendant’s evidence raises genuine issues of fact as to whether it
11
Defendant explains that it ultimately terminated Plaintiff for his incompetence as
a manager. However, Defendant does not substantively dispute that Plaintiff was
qualified to serve in the role of Area Supervisor at the time of his promotion.
27
discriminated against the plaintiff.” Burdine, 450 U.S. at 254-55. “[T]he employer
need only produce admissible evidence which would allow the trier of fact
rationally to conclude that the employment decision had not been motivated by
discriminatory animus.” Id. at 257.
Defendant states that it terminated Plaintiff’s employment for failure to
manage the stores under his supervision effectively. In support of this position,
Defendant describes a number of issues that arose between Plaintiff’s promotion
from Branch Manager to Area Supervisor in April 2012 and his termination in
January 2013. First, Defendant points out that during the short time Plaintiff
served as Area Supervisor, Defendant received numerous complaints from both
employees and customers about Plaintiff’s flawed management and dispute
resolution techniques. Next, Defendant contends that Plaintiff neglected to
investigate accounting issues brought to Plaintiff’s attention by the Loss
Prevention office and generally failed to thoroughly inspect and maintain the
business affairs of the various branch locations under his care. Finally, even
though Defendant emphasizes that it did not terminate Plaintiff for the eventual
and significant loss Defendant sustained as the result of fraud perpetrated in two
of Plaintiff’s seven branches, Defendant argues that had Plaintiff been performing
his job duties as anticipated by Defendant, the loss could have been detected
earlier. The Court is satisfied that Defendant has produced evidence sufficient to
28
convince a reasonable jury that its decision to terminate Plaintiff was not
motivated by race-based discriminatory intent. The burden now shifts back to
Plaintiff to produce “significantly probative” evidence showing that these reasons
are pretext for discrimination. Young v. Gen. Foods. Corp., 840 F.2d 825, 829
(11th Cir. 1998) (internal quotation omitted).
To establish that the employer’s proffered reason is nothing more than a
pretext for discrimination, a plaintiff “must demonstrate that the proffered reason
was not the true reason for the employment decision. The plaintiff may succeed
in this 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.” Jackson v. Ala. State Tenure
Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotations and
punctuation omitted); see also Cooper v. Southern Co., 390 F.3d 695, 725 (11th
Cir. 2004) (explaining that the evidence must reveal “such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence”). However, a plaintiff may not simply recharacterize
the employer’s proffered nondiscriminatory reasons. Chapman v. AI Transport,
229 F.3d 1012, 1030 (11th Cir. 2000). “Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that reason
29
head on and rebut it, and the employee cannot succeed by simply quarreling with
the wisdom of that reason.” Id.
In his attempt to establish pretext, Plaintiff focuses heavily on the veracity
of Hart’s belief that Plaintiff was not performing as an effective manager and
argues that her decision to recommend Plaintiff’s termination was influenced by
some intrinsic bias. Plaintiff further argues that neither DeMarco nor Hutcheson12
had any independent recollection of Hart’s factual basis for recommending
Plaintiff’s termination; thus, according to Plaintiff, Defendant cannot meet its
burden of producing a legitimate, non-discriminatory justification for firing Plaintiff.
At the heart of these arguments, however, is Plaintiff’s contention that he
adequately performed his duties and that upper level management took no steps
to otherwise verify the information provided by Hart regarding Plaintiff’s failure to
perform adequately. But neither Plaintiff conclusory allegations of discrimination
nor his assertion that he did not engage in misconduct is enough to raise an
inference of pretext or discrimination. See Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1471 (11th Cir. 1991) (quoting Carter v. City of Miami, 870 F.2d 578.
585, (11th Cir. 1989) (“Conclusory allegations of discrimination, without more, are
not sufficient to raise an inference of pretext or intentional discrimination where
12
Plaintiff also argues that Defendant failed to disclose Hutcheson as an
individual with knowledge of the underlying facts. (Doc. 34-1, p. 24). The Court
finds this argument unsupported by the record. (See Doc. 34-72).
30
[an employer] has offered . . . extensive evidence of legitimate, nondiscriminatory reasons for its action.”)).
First, Plaintiff argues that Defendant’s proffered motive for his termination
is pretext because Hart, who recommended Plaintiff’s termination, did not have a
good faith belief that Plaintiff was not performing his duties. Whether or not
Defendant ultimately was mistaken in the quality of the work performed by
Plaintiff, however, is irrelevant. The “inquiry into pretext centers on the
employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on
reality as it exists outside the decision maker’s head.” Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010); see also Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (the inquiry is limited to the
employer’s belief that the employee is guilty of the misconduct; that the employee
did not actually engage in the misconduct is irrelevant). “[F]ederal courts do not
sit as a super-personnel department that reexamines an entity’s business
decisions.” Elrod, 939 F.2d at 1470. The Eleventh Circuit has repeatedly held
that an employer may terminate an employee for a good or bad reason without
violating federal law. See id.; see also Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in the business of
adjudging whether employment decisions are prudent or fair.”); Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (“The employer
31
may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason all, as long as its action is not for a
discriminatory reason.”).
Based on the information available to her, Hart believed that Plaintiff failed
as a manager, and she relayed that belief DeMarco and Hutcheson. Both
DeMarco, who communicated with Hart on a regular basis, and Hutcheson relied
upon Hart’s experience and her daily interactions with Plaintiff in making the final
decision to terminate Plaintiff. Whether or not Hart accurately assessed Plaintiff’s
management skills and ability to evaluate and remedy what Hart thought were
obvious issues occurring under Plaintiff’s supervision, and whether or not Hart
was mistaken in certain information passed along to her by other employees who
worked under Plaintiff, does not undermine Defendant’s proffered reason that it
terminated Plaintiff for ineffectively managing the stores under his care. And
Plaintiff has offered no evidence to otherwise call this justification into question.
See Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1223 n. 4 (11th Cir. 1982)
(“for an employer to prevail the jury need not determine that the employer was
correct in its assessment of the employee’s performance; it need only determine
that the defendant in good faith believed plaintiff’s performance to be
unsatisfactory”) (emphasis in original).
32
Second, Plaintiff claims that Hutcheson, who made the final decision to
terminate him, was unduly influenced by the bias of Hart. Plaintiff asserts this
claim under the “cat’s paw” theory.13 Under this theory, “causation may be
established if the plaintiff shows that the decision maker followed the biased
recommendation [of the employee] without independently investigating the
complaint against the employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328,
1332 (11th Cir. 1999). “In such a case, the recommender is using the decision
maker as a mere conduit, or ‘cat’s paw’ to give effect to the recommender’s
discriminatory animus.” Id. In order to succeed under this theory, a plaintiff must
“prove that the discriminatory animus behind the recommendation, and not the
underlying employee misconduct identified in the recommendation, was an actual
cause of the other party’s decision to terminate the employee.” Id. at 1331.
Defendant does not dispute that neither DeMarco, to whom Hart first
addressed issues with Plaintiff’s various management failures, nor Hutcheson,
13
“The term ‘cat's paw’ derives from a fable conceived by Aesop, put into verse
by La Fontaine in 1679, and injected into United States employment
discrimination law by Posner in 1990. In the fable, a monkey induces a cat by
flattery to extract roasting chestnuts from the fire. After the cat has done so,
burning its paws in the process, the monkey makes off with the chestnuts and
leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all,
to employment law) observes that the cat is similar to princes who, flattered by
the king, perform services on the king's behalf and receive no award.” Foster v.
Thomas Cty., Ga., 927 F. Supp.2d 1350, 1361 n. 5 (quoting Staub v. Proctor
Hosp., __ U.S. __ , 131 S.Ct. 1186, 1190 n. 1 (2011) (internal citations omitted).
33
who made the final decision to terminate Plaintiff, conducted any independent
investigation to determine whether Defendant should end Plaintiff’s employment.
(DeMarco Aff., p. 4; Hutcheson Aff., p. 2-3). Rather, both DeMarco and
Hutcheson relied on the information provided by Hart as the Regional Manager in
charge of supervising Area Supervisors like Plaintiff. (DeMarco Aff., p. 3-4;
Hutcheson Aff., p. 2). Nevertheless, Plaintiff argument that Hutcheson served as
Hart’s “cat’s paw” fails because Plaintiff has presented no evidence of bias on the
part of Hart. Plaintiff merely points out the obvious dichotomy in his race and
Hart’s, he being African-American and she Caucasian. Plaintiff also asserts his
generalized impression that Hart did not like him, claiming that Hart “was not
welcoming to me” and that “she didn’t really want to be in my presence” is not
sufficient evidence of discriminatory animus. (Pl. Dep., p. 62). Plaintiff also was
under the impression that Hart did not want to promote him. (Pl. Aff., ¶ 4). Yet
she did. In the absence of evidence that Hart was motivated by some
discriminatory animus to recommend Plaintiff’s termination, the Court cannot find
Defendant liable under the cat’s paw theory.
Plaintiff next attempts to establish pretext based a prior discrimination
claim filed against Defendant. On August 5, 2011, a gentleman by the name of
Kenneth Bernard Walker, Sr. filed a lawsuit against Defendant alleging that
Defendant discriminated against him on the basis of his race. Compl., Kenneth
34
Bernard Walker, Sr. v. EZ Title Pawn, Inc., No. 7:11-CV-101-HL (M.D.Ga. 2011),
Doc. 1. Under Federal Rule of Evidence 404(b), evidence of other acts of
discrimination by a decision-maker against other employees in the plaintiff’s
same protected class may be probative of the decision-maker’s discriminatory
intent. Smith v. Lockhead-Martin Corp., 644 F.3d 1321, 1341 (11th Cir. 2011)
(finding that a jury could reasonably conclude that the employer, who fired
employees of plaintiff’s same protected class around the same time as the
plaintiff’s discharge, also discriminated against the plaintiff); see also Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)). However, Plaintiff
here can draw no connection between his own allegations of discrimination and
those of Walker, who was terminated by Defendant in August 2007, two years
before Plaintiff began working for Defendant, and four years before Defendant
even hired Hart. Under the circumstances, Plaintiff’s “me too” evidence is not
relevant to the issue of pretext. See Davis v. Int’l Paper Co., 997 F. Supp.2d
1225, 1243 (M.D. Ala. Feb. 14, 2014).
In his final attempt to prove pretext, Plaintiff asserts that evidence of
Defendant’s discriminatory intent lies in the favorable treatment afforded Hart,
who Plaintiff contends was similarly situated to him. According to Plaintiff, Hart
shared accountability in reviewing reports and detecting fraud. Plaintiff further
points out that Hart was responsible for signing off on many of the fraudulent
35
loans issued in the Albany branch. And yet, Plaintiff, who is African-American,
was terminated as a result of fraud he did not commit, and Hart, who is
Caucasian, was not.
Pretext may be established through comparator evidence. Silvera v.
Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). To draw a valid
comparison, the plaintiff must demonstrate that he and the comparators “are
similarly situated in all relevant aspects.” Holifield, 115 F.3d at 1562. In the
context of disciplinary action, “the quantity and quality of the comparator’s
misconduct [must] be nearly identical to prevent courts from second-guessing
employers’ reasonable decisions and confusing apples with oranges.” Maniccia
v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). “[I]t is necessary to consider
whether the employees are involved in or accused of the same or similar conduct
and are disciplined in different ways.” Holified, 115 F.3d at 1562; see also Rioux
v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008) (“The most
important factors in a comparator analysis in the disciplinary context are the
nature of the offenses committed and the nature of the punishment imposed.”).
Summary judgment is appropriate where the plaintiff fails to demonstrate the
existence of a similarly situated employee and where there is no other evidence
of discrimination. Holifield, 115 F.3d at 1562.
36
The Court concludes that Hart, Plaintiff’s immediate supervisor, is not a
proper comparator. Initially, the Court notes that Plaintiff and Hart held two
different job titles and were responsible for different job responsibilities. Plaintiff,
an Area Supervisor, was accountable for the day to day operations of seven of
Defendant’s branch locations. As the Area Supervisor, Defendant charged
Plaintiff with maintaining competent staff and generally supervising and auditing
contents of the office files and accounting records for each branch. He was
responsible for being physically present in the branch office, monitoring account
activity through regular review of daily, weekly, and monthly generated reports,
and remaining aware of pertinent issues in the community. In contrast, Hart as
the Regional Manager is responsible for more general functions of Defendant’s
business, including managing personnel decisions, monitoring payroll, preparing
performance reviews, and verifying proper training. (Hart Dep., p. 11-14). Hart
also oversees the Area Supervisors, ensuring that the Area Supervisors are
properly managing their staff and keeping apprised of any unusual activity. (Id. at
p. 12-13). Hart manages that expenses of the individual branches and approves
employees for both hire and termination. (Id. at p. 14).
In addition to the obvious differences in their job descriptions, there also is
no evidence that Plaintiff and Hart have been accused of the same or similar
misconduct. Plaintiff claims that he was fired for fraud he did not commit. (Doc.
37
34-1). He further alleges that a good portion of that fraud resulted from Hart
approving loan applications without a valid title. Plaintiff’s argument is misplaced.
It is true that the loss Defendant sustained as a result of fraud in the Albany and
Douglas branches played a role in the final decision to terminate Plaintiff.
However, Defendant never accused Plaintiff of committing the fraud. Rather,
Defendant terminated Plaintiff for failing to effectively manage the branches.
Defendant accused Plaintiff of falling short in maintaining moral among his
employees, properly handling customer disputes, neglecting to thoroughly review
account files, and overlooking obvious red flags of account abuses caused by
employees under his supervision. There is no evidence that Hart was ever the
target of any similar accusations. Accordingly, Hart is not a valid comparator.
Despite Plaintiff’s efforts, he has failed to present evidence of pretext via
any of the numerous methods employed. Therefore, Defendant is entitled to
summary judgment as to Plaintiff’s race discrimination claim.
B.
Sex Discrimination
For the same reasons Plaintiff’s race discrimination claim fails, Plaintiff’s
allegation that Defendant discriminated against him on the basis of his race must
also fail. Plaintiff’s sex discrimination claim turns on whether or not he is able to
produce evidence that Defendant treated him less favorably than a similarly
situated individual outside of his protected class. The only comparator offered by
38
Plaintiff in support of his case is his immediate supervisor, Catherine Hart. As
already discussed, Hart is not a proper comparator. Even if Hart was a proper
comparator for the purpose of establishing Plaintiff’s prima facie case of sex
discrimination, as thoroughly analyzed above, Plaintiff has failed to confront
Defendant’s proffered non-discriminatory reason for terminating Plaintiff head on
and to present evidence that Defendant’s reasons are either unworthy of
credence or that Defendant more likely than not truly was motivated to terminate
Plaintiff based on some discriminatory intent. Summary judgment on Plaintiff’s
sex discrimination case is, therefore, appropriate.
C.
Mixed-Motive
Plaintiff argues in the alternative that he has established a triable issue of
mixed-motive discrimination. A plaintiff “can succeed on a mixed-motive claim by
showing that illegal bias, such as bias based on sex or gender, ‘was a motivating
factor for’ an adverse employment action, ‘even though other factors also
motivated’ the action.” Quigg v. Thomas Cty. Sch. Dist., __ F.3d __, 2016 WL
692177, at *3 (11th Cir. Feb. 22, 2016). In Quigg, the Eleventh Circuit for the first
time announced that the McDonnell Douglas framework is not appropriate for
evaluating mixed-motive claims premised on circumstantial evidence at summary
judgment. Id. at *7. Instead, the Court adopted the approach set forth by the
Sixth Circuit in White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008).
39
Id. “That framework requires a court to ask only whether a plaintiff has offered
evidence sufficient to convince a jury that: (1) the defendant took an adverse
employment action against the plaintiff; and (2) [a protected characteristic] was a
motivating factor for the defendant’s adverse employment action.” Id. (emphasis
in original).
There is no question in this case that Defendant took an adverse
employment action against Plaintiff by terminating him. However, Plaintiff has
presented absolutely no evidence that either his race or his sex played any role
in Defendant’s decision making process. Plaintiff’s claim relies solely on the fact
that he is an African-American man, and Hart, his supervisor, is a Caucasian
woman. Plaintiff also had the generalized feeling that “EZ Title didn’t have no
respect for me as a man and they didn’t have any respect for me as a man of
color.” (Pl. Dep., p. 184). Plaintiff’s conclusory allegations that Defendant
discriminated against him based on his race and his sex are not sufficient to
permit a reasonable jury to find that an illegal bias played a role in Defendant’s
decision to terminate him.
D.
§ 1981 Claims
Defendant is entitled to summary judgment on Plaintiff’s claims raised
under 42 U.S.C. § 1981. Section 1981 is a post-Civil War statute that was
enacted for the exclusive purpose of protecting citizens from racial discrimination.
40
42 U.S.C. § 1981(a). The statute does not provide a remedy for discrimination
claims based on sex. Runyon v. McCrary, 427 U.S. 167 (1976). Accordingly, to
the extent that Plaintiff relies on § 1981 as a basis for pursing his sex
discrimination claim, his reliance is misplaced. Additionally, Title VII and § 1981
“have the same requirements of proof and use the same analytical framework.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). It then
follows that Plaintiff’s race based claims raised under § 1981 must fail for the
same reasons addressed in relation to Plaintiff’s race discrimination claims
brought under the auspices of Title VII.
III.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment
(Doc. 31) is granted, and this case is dismissed with prejudice.
SO ORDERED, this the 30th day of March, 2016.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks
41
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