Chavez v. Credit Nation Auto Sales, LLC
OPINION AND ORDER that Magistrate Judge J. Clay Fuller's Final Report and Recommendation 76 is ADOPTED, and the Plaintiff's Objections 78 are OVERRULED. IT IS FURTHER ORDERED that the Defendant's Motion for Summary Judgment 48 is GRANTED. Signed by Judge William S. Duffey, Jr on 9/12/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CREDIT NATION AUTO SALES,
OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation (“R&R”)  on Defendant Credit Nation Auto
Sales’s Motion for Summary Judgment .
Plaintiff Jennifer Chavez (“Plaintiff”) was formerly employed as an
automobile technician at Credit Nation Auto Sales (“Defendant” or “Credit
Nation”). Credit Nation sells and repairs automobiles in Austell, Georgia. In June,
2008, Plaintiff started working at Credit Nation. At that time, Plaintiff was known
The facts are taken from the R&R and the record. The Court finds no plain error
in the facts. To the extent that the parties have not objected to any specific facts
determined in the R&R, the Court adopts them. See Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993).
as Louie Chavez and presented as a male. In the summer of 2009, Plaintiff decided
to go through a gender transition because Plaintiff “could no longer run from [her]
condition, and Plaintiff “did not want to die having lived a lie.” Chavez Dep. at
37. Plaintiff sought help from a mental health expert, attended meetings at a
transsexual support group, and decided to inform Defendant of the intention to
transition from a male to a female.
On October 28, 2009, Plaintiff met with Phil Weston, Plaintiff’s immediate
supervisor, and Cindy Weston, the Vice President of Credit Nation. Plaintiff
informed them of the intention to transition from a male to a female. According to
Plaintiff, Mr. and Mrs. Weston were both “extraordinarily kind” regarding the
decision to transition. Jim Torcia, the owner of Credit Nation, testified that
Plaintiff’s decision to transition “did not move the needle for [him].” Torcia Dep.
After meeting with Mr. and Mrs. Weston, Plaintiff informed Credit Nation’s
service facility employees regarding Plaintiff’s decision to transition from a male
to a female. According to Plaintiff, the service facility employees were supportive
of the decision, and “they all said they had no issue” with the transition. Chavez
Dep. at 44-45. A week after Plaintiff announced the decision to transition, Plaintiff
emailed a reporter from the Atlanta Journal-Constitution describing the
circumstances of the decision to inform Plaintiff’s employer about Plaintiff’s
condition and intent to transition. The reporter previously wrote an article about a
transsexual woman, who had prevailed in a sex discrimination lawsuit against the
transsexual woman’s former employer. Plaintiff stated the following in the email
to the reporter:
I asked for a meeting with my supervisor and the vice-president of the
company, after very nervously telling my story, I was surprised to find
that they both were extraordinarily understanding, kind and
compassionate to hear what I was facing. Not only did they assure me
I had nothing to worry about in losing my job, but they made sure that
I understood that I had their support and offered any help that they
could in completing my transition. The vp went back to her office and
called the owner [Jim Torcia] to inform him and see if he agreed with
their summation. He too was very supportive and was only concerned
that I would be able to continue doing my job, and if that was not a
concern then I had nothing to worry about as well. He made sure that
all employees understood the no harassment policy and that anyone
who committed an infraction would be terminated. All managers and
employees were informed, and to my surprise and delight, I was met
with nothing but kindness from all employees, even the crotchety old
southern guys who I thought were set in their ways.
[49-6 at 1-2].
Plaintiff asserts that the supportive environment at Credit Nation ended two
weeks after Plaintiff announced the intended transition. On November 12, 2009,
Mrs. Weston told Plaintiff to “tone things down” because Plaintiff “visit[ed] the
other technicians’ stalls,” and “talk[ed] about surgeries,” including “breast
augmentation.” Weston Dep. at 34. Mrs. Weston stated that these conversations
made the other technicians feel uncomfortable. Plaintiff initially testified at a
deposition that Mrs. Weston did not “specify” whether Plaintiff was told to “tone
things down,” at Mr. Torcia’s direction, but Plaintiff assumed that the message
came from Mr. Torcia. Chavez Dep. at 47. At a later point in the deposition,
Plaintiff claimed that Mrs. Weston “told [Plaintiff] to tone it down because Mr.
Torcia didn’t like” Plaintiff discussing the intricacies of the transition with the
other technicians. Chavez Dep. at 131.
On November 17, 2009, Plaintiff accused Richard Randall (“Randall”), an
automobile technician at Credit Nation, of being dishonest about a car repair.
According to a Credit Nation disciplinary report, Plaintiff received a verbal
warning from Mrs. Weston because Plaintiff made “derogatory comments” about
Randall during an argument Plaintiff had with Randall.
On November 24, 2009, Mr. Torcia met with Plaintiff at the service facility.
Plaintiff alleges that, at this meeting, Mr. Torcia told “[Plaintiff] his concerns,
worries, and apprehensions” regarding the gender transition. Chavez Dep. at 81.
According to Plaintiff, Mr. Torcia stated that he was “nervous about [the
transition]” and afraid that the transition may “impact his business” because “an
applicant for a tech position declined his offer of employment [due to Plaintiff’s]
transition.” Id. at 82. Plaintiff alleges that Mr. Torcia complained that her “attire
was upsetting other personnel,” and advised Plaintiff not to “wear too feminine
attire . . . coming to work or leaving work.” Id. at 84-85. Mr. Torcia also
expressed his discomfort with Plaintiff wearing dresses, skirts and heels in the
service department work area because Plaintiff’s attire violated Credit Nation’s
workplace rules. Technicians at Credit Nation are required to wear work pants, a
uniform shirt, and rubber soled shoes that allow technicians to walk on greasy and
slippery surfaces. See Weston Dep. at 37-38.
In December 2009, Credit Nation approved two weeks of paid leave for
Plaintiff, even though Plaintiff had accrued only a week of vacation time at that
point. The extended period was allowed “to accommodate” Plaintiff’s sex
reassignment surgery. Chavez Dep. at 64-65; Torcia Dep. at 59.
On December 15, 2009, Plaintiff had another argument with Randall.
According to Plaintiff, Randall was dissatisfied that “[Plaintiff] was getting special
treatment from [Mrs. Weston],” because Plaintiff was “allowed to go to the
doctor’s appointment, do electrolysis almost every morning, and take excessive
unpaid time to attend these doctor and therapist appointments.” Chavez Dep. at
61. Other technicians at the service facility “were also upset and thought that
[Plaintiff] was getting special treatment by being able to take time off from work
and not having to make it up.” Weston Dep. at 148. Plaintiff told Randall to
“leave [Plaintiff] alone” because Plaintiff had Mrs. Weston’s personal number.
Chavez Dep. at 59-60. Mrs. Weston told Plaintiff “that it had been brought to
[Mrs. Weston’s] attention that [Plaintiff] had given the other employees the
impression that [Mrs. Weston] had given [Plaintiff her] cell phone number which
made [Plaintiff] special.” Weston Dep. at 144. Plaintiff received a verbal warning
regarding Plaintiff’s comment about getting special treatment from Mrs. Weston.
Mrs. Weston gave her personal cell phone number to the other technicians to dispel
any perception that Plaintiff was getting special treatment. Weston Dep. at 118.
Mrs. Weston observed Plaintiff change into heels and a dress on several
occasions at around 5:30 p.m., and then go back into the service facility area. As a
consequence, on December 16, 2009, Credit Nation issued a memo to all service
personnel, which explained that all technicians were required to be in uniform from
8:00 a.m. until 5:50 p.m., Monday through Friday.
On December 16, 2009, Kirk Nuhibian (“Nuhibian”), the shop foreman, told
Plaintiff not to use the unisex bathroom that is reserved for Credit Nation’s
customers and office personnel. Technicians at Credit Nation are required to use a
different bathroom because the technicians “wear dirty clothes,” and accumulate
oil and grease on their shoes. Chavez Dep. at 74; Nuhibian Dep. at 114; Weston
Dep. at 52. Plaintiff started to use the unisex bathroom because she was wearing
women’s clothes, and the technician’s bathroom “was quite dirty and grimy,” and
it was “hard to use . . . without ruining clothes.” Chavez Dep. at 73. Plaintiff
objected to Nuhibian’s instruction not to use the unisex bathroom because “[it]
meant [Plaintiff] was going to be ruining clothes, and [Plaintiff] did not like that.”
Later on December 16, 2009, Mrs. Weston emailed John McManus, an
attorney who handled legal matters for Credit Nation, for advice regarding
Plaintiff’s use of the unisex bathroom. In the email to McManus, Mrs. Weston
I wanted to give you a run down on what occurred today … There are
two restrooms located at the Service Center, both are unisex
bathrooms. One is designated at [sic] Technicians [sic] restroom and
the other is customer and office personnel. The technicians are
required to have their own restroom due to the oil and grease that
accoumilate [sic] on the bottom of their shoes and clothes. There was
a meeting discussing this two weeks prior … Louie returned today
and confronted the shop foreman asking why there was restricted
access to the customer restroom? He was told by the shop foreman
“all technicians have their own restroom, and we have to keep the
customer restroom clean for the customers.” Louie asked who is
allowed to use it? Shop foreman repsonded [sic] “Customers, Matt,
Philip, Ariel, and Jennifer (parts), everyone except technicians due to
the grease on shoes.” . . . Louie responded “If Jennifer in parts can
use it why can’t I use it, that is decrimination [sic], I will speak with
Phil about it.” . . . Phil came in and Louie approached him and
asked why can’t we use the customer restroom? Phil stated,
technicians have their own restroom, and remember the meeting we
had two weeks ago about the restroom use? Louie shrugged his
shoulders and turned and walked away.
[60-8 at 2-3]
McManus responded to Mrs. Weston with the following email:
Cindy: I am concerned that no matter what you do, [Plaintiff] is going
to come up with come [sic] complaint . . . I believe there needs to be
some report written by Phil indicating the issues about the restroom
and how that was resolved. Tomorrow will bring more issues and I
think this will get to a breaking point before very long. Just have the
management focus on work and performance of required duties and
the other issues should be written up one at a time.
On January 8, 2010, Plaintiff arrived at work and clocked in at 7:39 a.m.
Plaintiff did not change into Defendant’s required uniform. Plaintiff’s deposition
testimony was that there was “nothing to do,” because the parts for a vehicle that
Plaintiff was supposed to service had not arrived. Chavez Dep. at 77. Because it
was a “very cold day,” Plaintiff “decided to sit in [the] back of one of the cars [she]
was working on . . . to try and get a little bit warm.” Id. at 77-78. Plaintiff went to
sleep in the back of the car. At 9:20 a.m., Nuhibian saw Plaintiff sleeping in the
car. Nuhibian took a photograph of Plaintiff sleeping, and sent it to Mr. and Mrs.
Weston. At his deposition, Nuhibian testified that he photographed Plaintiff
because on past occasions, technicians had denied any wrongdoing when Nuhibian
had complained that the technicians had violated work rules. Nuhibian Dep. at 48,
At approximately 9:55 a.m., Plaintiff “heard a noise and I looked up and
realized that I had nodded off without intending to.” Chavez Dep. at 78. Plaintiff
worked through the rest of the day and went home for the weekend. Mrs. Weston
informed Mr. Torcia that Plaintiff was sleeping in the car “while on the clock,
which is against [Credit Nation’s] policy.” Weston Dep. at 74. Mr. Torcia and
Mrs. Weston agreed to fire Plaintiff, and Mr. Torcia instructed Mrs. Weston to
terminate Plaintiff’s employment. On January 11, 2010, Plaintiff was terminated
for sleeping on the job. A separation notice, dated January 11, 2010, explicitly
states that Plaintiff was terminated for “[s]leeping while on the clock on company
time.” [60-16 at 2].
Under Section 717 of Credit Nation’s Employee Handbook, theft of
company property results in immediate termination. Mr. Torcia and Mrs. Weston
testified that they considered sleeping on the job to constitute theft because an
employee is being paid, but is not working. Mrs. Weston also testified that another
employee, who did not have previous write-ups in his file, had been terminated for
sleeping on the clock. Weston Dep. at 112.
In November 2009 and September 2010, Plaintiff went to the Equal
Employment Opportunity Commission’s (“EEOC”) office in Atlanta to file a claim
against Credit Nation for sex discrimination under Title VII of the Civil Rights
Act. On both occasions, an EEOC investigator told the Plaintiff that she could not
file a discrimination claim because transgender persons are not protected from
discrimination on the basis of “sex” under Title VII. In April 2012, Plaintiff went
to the EEOC’s office after hearing news reports that transgender persons had filed
complaints with the EEOC. On this occasion, Plaintiff was allowed to file a
complaint for sex discrimination under Title VII.
On January 30, 2013, Plaintiff filed this action against Credit Nation,
asserting claims of sex-based discrimination under Title I, 42 U.S.C. § 1981(a),
and Title VII, 42 U.S.C. § 2000(e), of the Civil Rights Act of 1991.
On December 11, 2013, Credit Nation moved for summary judgment. On
July 18, 2014, Magistrate Judge Clay Fuller issued his R&R on the summary
judgment motion. In the R&R, the Magistrate Judge recommended that
(i) Plaintiff’s sex discrimination claim be equitably tolled because the EEOC
misled Plaintiff about the nature of Plaintiff’s rights under Title VII, and
(ii) Defendant’s Motion for Summary Judgment be granted because Plaintiff failed
to show that Credit Nation’s reason for terminating her employment was a pretext
for unlawful discrimination.
On August 1, 2014, Plaintiff filed Objections  to the R&R, arguing that
there are genuine issues of fact regarding whether Credit Nation’s decision to
terminate Plaintiff was a pretext for unlawful discrimination. On August 13, 2014,
Defendant filed its reply to the Plaintiff’s Objections to the R&R . Defendant
did not object to the R&R’s findings and recommendations.
Standard of Review for R&Rs
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a
court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
Summary Judgment Standard
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
moving party has met this burden, the non-movant must demonstrate that summary
judgment is inappropriate by designating specific facts showing a genuine issue for
trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
The non-moving party “need not present evidence in a form necessary for
admission at trial; however, he may not merely rest on his pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.
“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (internal quotations omitted).
Findings of the R&R
Plaintiff failed to exhaust her administrative remedies because she did not
file a charge of discrimination with the EEOC within 180 days of the last
discriminatory act. See Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th
Cir. 2003). Title VII’s filing requirement is subject to equitable tolling under
certain circumstances. Bourne v. School Bd., 508 F. App’x 907, 909 (11th Cir.
2013). The limitations period under Title VII may be equitably tolled if the EEOC
misleads a complainant regarding the nature of his or her rights. Jones v. Wynne,
266 F. App’x 903, 906 (11th Cir. 2008). The Magistrate Judge concluded that the
statute of limitations should be equitably tolled in this case because the EEOC
misled Plaintiff regarding her rights by informing Plaintiff that transgender persons
cannot file claims for sex discrimination under Title VII.
In Price Waterhouse v. Hopkins, the United States Supreme Court held that
discrimination on the basis of gender stereotypes is sex-based discrimination under
Title VII. 490 U.S. 228, 235 (1989). In other words, Title VII prohibits employers
from discriminating against employees for “failing to act and appear according to
expectations defined by gender.” Glenn v. Brumby, 683 F.3d 1312, 1316 (11th
Cir. 2011). “[T]he very acts that define transgender people as transgender are
those that contradict stereotypes of gender-appropriate appearance and behavior
. . . there is thus a congruence between discriminating against transgender and
transsexual individuals and discrimination on the basis of gender-based behavioral
norms.” Id. “Discrimination against a transgender individual because of her
gender nonconformity is sex discrimination, whether its described as being on the
basis of sex or gender.” Id. at 1317.
The Magistrate Judge found that a majority of federal courts recognize that
Title VII protects persons from discrimination based on gender non-conformity,
and the EEOC misled Plaintiff when it told Plaintiff that she could not bring a
claim for gender discrimination under Title VII. The Court finds no plain error in
this finding. Because Title VII protects discrimination based on gender
stereotypes, Plaintiff can assert a sex discrimination claim because Plaintiff was
transitioning from a male to a female, and Plaintiff essentially claims that the
failure to conform to male stereotypes caused Plaintiff’s termination. The Court
finds no plain error in the Magistrate Judge’s recommendation that Plaintiff’s sex
discrimination claim is required to be equitably tolled. See Smith v. Baldwin Cnty.
Comm’n, No. 09-0616-CG-M, 2010 WL 2200713, at *3 (S.D. Ala. Mar. 26, 2010)
(applying equitable tolling to a discrimination claim because an EEOC investigator
incorrectly told plaintiff that she did not have a valid retaliation claim).
Under the McDonnell Douglas framework, a prima facie case of sex
discrimination is established if the plaintiff shows that “(1) she is a member of a
protected class, (2) she was qualified for the job, (3) she was subjected to an
adverse employment action, and (4) her employer treated similarly situated
employees outside her class more favorably.” Curtis v. Broward Cnty., 292 F.
App’x 882, 883 (11th Cir. 2008).
For the purpose of the Court’s review of the R&R, the Court assumes that
Plaintiff established a prima facie case of discrimination. Because Defendant
offered evidence of a legitimate business reason for Plaintiff’s discharge, and in
light of Plaintiff’s objection, the Court reviews de novo whether Plaintiff has
offered evidence that there are disputed issues of fact regarding whether the reason
for Plaintiff’s termination was a pretext for unlawful discrimination.2
Credit Nation articulated a legitimate, nondiscriminatory reason for
Plaintiff’s termination, and thus the burden shifts to Plaintiff to produce evidence
“sufficient to permit a reasonable factfinder to conclude that the reasons given by
[Credit Nation] were not the real reasons for the adverse employment decision.”
Chapman v. Al Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). Plaintiff must
demonstrate “such weaknesses, implausibilities, inconsistencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation Patterns,
Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997). If the proffered reason
for termination “is one that might motivate a reasonable employer, an employee
must meet that reason head on and rebut it, and the employee cannot succeed by
simply quarrelling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.
The Magistrate Judge found that a reasonable juror would not conclude that
Neither party objected to the Magistrate Judge’s recommendation that Plaintiff
met its burden to show a prima facie case, and that Defendant met its burden to
show a legitimate, nondiscriminatory reason for the termination. The Court finds
no plain error in these findings.
Plaintiff’s failure to conform to gender stereotypes motivated Credit Nation’s
decision to terminate her employment, and thus recommended that summary
judgment be granted to Defendant. Plaintiff objects to the Magistrate Judge’s
finding that there is not any evidence that Credit Nation’s reason for terminating
her employment was motivated by unlawful discrimination. Plaintiff contends that
she raised five categories of evidence to show that Credit Nation’s decision was a
pretext for unlawful discrimination, and argues that the Magistrate Judge
improperly discounted the strength of the offered evidence. The Court disagrees.
Plaintiff argues that the circumstances, prior to, and at the time of her
termination suggest that she was fired because of her failure to conform to gender
stereotypes. To support this claim, Plaintiff argues that Mrs. Weston’s November,
12, 2009, request “to tone it down,” “was not a perfectly reasonable request not to
talk about breasts and surgeries, but an attempt to tell Plaintiff that her gender and
gender identity were not appreciated [at Credit Nation], that coworkers were
uncomfortable with her, and that she should tread carefully lest she find herself in
disciplinary trouble or worse.” Pl.’s Objections at 8. Plaintiff now concedes that
Mrs. Weston’s admonishment that Plaintiff should refrain from discussing graphic
details about Plaintiff’s transition with other employees was “perfectly
reasonable.” Id. There is no evidence to support Plaintiff’s contention that Mrs.
Weston made any statements that can be construed as a warning that Plaintiff
“should tread carefully lest she find herself in disciplinary trouble or worse”
because of her protected status. Id. Mrs. Weston testified that she told Plaintiff “to
tone things down” because Plaintiff “visit[ed] the other technicians’ stalls” during
work hours to “talk about surgeries,” including “breast augmentation.” Weston
Dep. at 34. Plaintiff has not presented any evidence to rebut Mrs. Weston’s
Plaintiff next argues that a December 16, 2009, email, from McManus to
Mrs. Weston, shows that Credit Nation was “searching” for reasons to terminate
her because Plaintiff is a transgender person. In the December 16, 2009, email,
McManus wrote to Mrs. Weston and stated that “tomorrow will bring more issues
and I think this will get to a breaking point before very long. Just have the
management focus on work and performance of required duties and the other
issues should be written up one at a time.” McManus’s cogent legal advice to
Credit Nation was given after Plaintiff received two disciplinary warnings. On
November 17, 2009, Plaintiff received a verbal warning for directing to Randall
work-related “derogatory comments.” On December 15, 2009, Plaintiff received a
verbal warning for giving other technicians the impression that Plaintiff was
“special” in the eyes of her immediate supervisor because Plaintiff had the
supervisor’s cell phone number. In this context, no reasonable juror would read
McManus’s email to conclude that Credit Nation was “searching” for reasons to
terminate Plaintiff because of Plaintiff’s failure to conform to gender stereotypes.
Plaintiff next argues that Mr. Torcia did not believe that sleeping on the
clock was a terminable offense. Plaintiff asserts that Mr. Nuhibian and
Mr. Weston allowed Plaintiff to remain asleep in the car for nearly 45 minutes.
Plaintiff speculates that if sleeping on the clock were a terminable offense,
Mr. Nuhibian and Mr. Weston would not have allowed Plaintiff to continue to
sleep. The Magistrate Judge rejected this argument because Plaintiff is required to
establish that the ultimate decisionmaker did not reasonably believe that sleeping
on the job was a serious offense subject to immediate termination. See Wiggins v.
Sec’y Dep’t of Army, 520 F. App’x 799, 801 (11th Cir. 2013) (“When considering
whether the basis for an employer’s termination was merely pretext, the proper
inquiry is whether the decisionmaker believed the employee was guilty of
misconduct and whether that belief was the reason for the employee’s discharge.”).
Plaintiff failed to offer evidence that Mr. Torcia, or any of Plaintiff’s supervisors,
did not reasonably believe that sleeping on the job is an offense subject to
Mr. Torcia, the owner of Credit Nation, was the ultimate decisionmaker, and
he testified unequivocally that sleeping on the job is a terminable offense. There
also is no dispute that Credit Nation terminated another employee for sleeping on
the job even though that employee had an unblemished disciplinary record.
Plaintiff states that the Magistrate Judge overlooked that “there is an inference that
[Nuhibian and Weston allowed Plaintiff to continue sleeping] because [they] were
part of a silent agreement to find some reason to terminate [Plaintiff].” Pl.’s
Objections at 11. This conclusory and speculative allegation is not supported by
specific facts in the record, and it is insufficient to defeat a motion for summary
judgment. See Ojeda v. Louisville Ladder, Inc., 410 F. App’x 213, 214 (11th Cir.
2010) (holding that conclusory allegations have no probative value, and a
nonmoving party cannot rely on conclusory allegations to avoid summary
Plaintiff argues that Mr. Nuhibian’s statement to her that “I know for a fact
you were run out of [C]redit [N]ation,” shows that Plaintiff was fired because of
her failure to conform to gender stereotypes. Mr. Nuhibian testified at his
deposition that this statement referred to the fact that he was the one who took
Plaintiff’s picture and ultimately got her fired. Nuhibian Dep. at 31-33. Mr.
Nuhibian disputed that Credit Nation was looking for ways to terminate Plaintiff.
Plaintiff has failed to show that the reason for her termination—sleeping on the
job—was a pretext for unlawful discrimination.
Plaintiff next argues that Credit Nation’s decision was a pretext for unlawful
discrimination because Defendant failed to abide by its progressive discipline
policy. This claim is unconvincing. Credit Nation reserves the right to use
progressive discipline at its discretion, and the Employee Handbook explicitly
states that Credit Nation has the “right to terminate employment at will, with or
without cause or advance notice.” See Vergers v. Am. Vulkan Corp., 8:10-CV2164-T-24, 2012 WL 95306, at *8 (M.D. Fla. Jan. 12, 2012) (finding no evidence
of pretext where a progressive discipline policy was discretionary). Plaintiff has
not presented any evidence that Credit Nation applied its disciplinary rules in a
discriminatory manner. The uncontested evidence shows that another employee
was immediately terminated for sleeping on the job, even though the employee did
not have any disciplinary problems. The evidence further shows that Plaintiff
previously had received two disciplinary warnings regarding work related conduct
showing that progressive discipline was administered, even if not required in this
case based on the sleeping episode.
Finally, Plaintiff asserts that the “circumstances suggest a post-hoc
fabrication of a zero-tolerance policy” for sleeping on the job, and that Defendant’s
rationale for termination changed over time. An employer’s decision to rely on
evidence obtained after the decision to terminate an employee has already been
taken may be evidence of pretext. Rosenfeld v. Wellington Leisure Prod. Inc., 827
F.2d 1493, 1496 (11th Cir. 1987). That is not the case here. On January 11, 2010,
Plaintiff was terminated for sleeping on the job. A separation notice, dated January
11, 2010, explicitly states that Plaintiff was terminated for “[s]leeping while on the
clock on company time.” Credit Nation did not rely on any evidence obtained after
Plaintiff was terminated. Credit Nation’s reason for terminating Plaintiff has not
changed. In its Motion for Summary Judgment, Credit Nation proffered additional
reasons to justify Plaintiff’s termination, including two disciplinary warnings,
violation of six other work rules, and excessive absences. “If an employer offers
different reasons for terminating an employee, those reasons must be
fundamentally inconsistent in order to constitute evidence of pretext.” Phillips v.
Aaron Rents, Inc., 262 F. App’x 202, 210 (11th Cir. 2008). Plaintiff was
terminated for sleeping on the job, and there is no conflict between that reason for
her termination and any other reason that has been offered by the Defendant in this
litigation or before the EEOC.
There is no evidence of unlawful discrimination in this case. Mr. Torcia’s
isolated remarks regarding Plaintiff’s transition that were made in a meeting
unrelated to the adverse employment action taken against Plaintiff are insufficient
to establish discrimination in the absence of “some additional evidence supporting
a finding of pretext.”3 Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223,
1229 (11th Cir. 2002). Plaintiff has failed to present evidence to support that the
reason for her termination was a pretext for unlawful discrimination. Plaintiff was
terminated for sleeping on the job, and Plaintiff has failed to “meet that reason
head on and rebut it, and [Plaintiff] cannot succeed by simply quarrelling with the
wisdom of that reason.” Chapman, 229 F.3d at 1030. Based on de novo review of
the R&R, the Court determines that Plaintiff’s objections to the Final R&R are
required to be overruled, and Credit Nation’s Motion for Summary Judgment is
granted because, in light of the entire record, no reasonable juror would find that
Plaintiff’s discharge was a pretext for unlawful discrimination.4 See Scott, 295
Mr. Torcia’s comments here are not evidence of discriminatory animus. He only
mentioned that Plaintiff’s transition—for which he expressed unreserved support
so long as Plaintiff performed her duties—might impact his business. Mr. Torcia’s
support of Plaintiff and her decision to transition was accompanied by Defendant’s
willingness to give Plaintiff considerable time off for all of the transition
Plaintiff concedes that federal courts in this circuit apply the McDonnell Douglas
burden-shifting analysis to single motive cases and mixed-motive cases alike, but
insists that the Magistrate Judge should have applied the Sixth Circuit’s test for
“mixed-motive” to determine whether Credit Nation terminated her employment
because of her failure to conform to gender stereotypes. Plaintiff does not explain
why this action is a “mixed motive case,” and why the Sixth Circuit’s test for
“mixed-motive” cases applies here. In “mixed-motive cases, the theory of liability
is that the employer was motivated by both legitimate and discriminatory motives
F.3d at 1230 (observing that “evidence relating to the discriminatory comments
had to be read in conjunction with the entire record and considered together with
the other evidence in the case. Because the alleged comment . . . was an isolated
comment, unrelated to the decision to fire [the plaintiff], it, alone, is insufficient to
establish a material fact on pretext”) (internal citations and quotation marks
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation  is ADOPTED, and the Plaintiff’s Objections
 are OVERRULED.
IT IS FURTHER ORDERED that the Defendant’s Motion for Summary
Judgment  is GRANTED.
in making the challenged decisions.” Woods v. Austal, U.S.A., LLC, CIV. A. 090699-WS-N, 2011 WL 1380054, at *10 (S.D. Ala. Apr. 11, 2011). In a “mixedmotive” case, the plaintiff bears the initial burden to “present sufficient evidence
for a reasonable jury to conclude [that her sex] was a motivating factor” in the
challenged employment decision. Lewis v. Metro Atlanta Rapid Transit. Auth.,
343 F. App’x 450, 455 (11th Cir. 2009). Even if the Court applied the “mixedmotive” test in this matter, Plaintiff has failed to show that Plaintiff’s failure to
conform to gender stereotypes was a “motivating factor” that drove Credit Nation’s
decision to terminate her employment. Plaintiff was terminated for sleeping on the
job. That was the event that resulted in Plaintiff’s termination.
SO ORDERED this 12th day of September, 2014.
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