Farrow v. Frazier et al

Filing 42

ORDER granting Defendant's 24 Motion for Summary Judgment and 39 Revised Motion for Summary Judgment with respect to all claims. The Clerk is DIRECTED to close this case. Signed by Judge Lisa G. Wood on 2/12/2019. (ca)

?IImteli ^tates( Btiettnct Court

for tfie ^outfiem Btsitrttt of (fleorgta
Prtttisifotck l9ti]ts(ton
LATISHA DENISE FARROW,

Plaintiff,
V.

CV 2:17-150
KING & PRINCE SEAFOOD

CORPORATION,
Defendant.

ORDER

Before

the

Court

is

Defendant

King

&

Prince

Seafood

Corporation's (the ''Company") Motion for Summary Judgment, dkt.
no. 24, and Revised Motion for Summary Judgment, dkt. no. 39.

In

accordance with the Court's Order granting in part and denying in
part Defendant's motion for judgment on the pleadings. Plaintiff's
remaining claims are for discrimination based on race and gender
in violation of Title VII; retaliation in violation of Title VII;
and hostile work environment in violation of Title VII.

No. 37 at 15.

See Dkt.

Defendant's Motion for Summary Judgment and Revised

Motion for Summary Judgment have been fully briefed and are ripe
for review.
are GRANTED.

A0 72A

(Rev. 8/82)

For the reasons set forth below. Defendant's Motions

BACKGROUND

During

discovery.

requests for admission.

Defendant

served

on

Plaintiff

written

Dkt. No. 39-1 at 119-32. Plaintiff failed

to respond within 30 days of being served these requests.

Thus,

pursuant to Federal Rule of Civil Procedure 36(a)(3), the requests
are deemed admitted for purposes of this case.

Further, pursuant

to Southern District of Georgia Local Rule 56.1, ^^All material
facts set forth in the statement required to be served by the

moving party will be deemed to be admitted unless controverted by
a statement served by the opposing party."

Plaintiff has not

responded to either of Defendant's Statements of Undisputed Facts,
dkt. no. 24-1 at 1-8; dkt. no. 39-1 at 1-8.

Thus, these facts are

deemed admitted for the purposes of Defendant's motions.

Will Frazier, a human resources employee for Defendant, hired
Plaintiff, a black female, on August 14, 2015.
1; id. at 106-07.

Will

Frazier,

Conduct;

Plaintiff was fired on March 1, 2017, also by

because

she

violated

specifically,

she

was

violence against a co-worker,
Plaintiff

was

Dkt. No. 39-1 at

hired,

she

the

reported

Company
as

Standards

having

threatened

dkt. no. 39-1 at 2; id. at 5.
was

provided

with

and

of

signed

When
an

acknowledgement of the Company's Employee Handbook, which included
the policy against Workplace Violence.

Id. at 2.

Plaintiff also

was provided with and signed the Company's Standards of Conduct,

which stated that certain violations of Company policy could result

in termination.

Id.

In addition to signing the Handbook and

Standards of Conduct, Plaintiff testified that she

knew of the

rules, the standards, and the consequences for violating them.
Id.

The day after Plaintiff was hired, she had an incident with
one of her supervisors, Brittany Leduc.

Dkt.

No. 28 at 134.

Plaintiff testified that Leduc told her "You got fake eyelashes

on.

You got to take them off." Id. at 135.

reported Leduc to human resources.

Id.

In response. Plaintiff

After that incident, Leduc

gave Plaintiff a nickname. Lashes, which caught on and others began
calling Plaintiff that.

Id. at 137.

Also in August 2015, Leduc

bumped into Plaintiff and tried to take her fake eyelashes off.
Id. at 143-44.

After Plaintiff was bumped by Leduc, the human

resources department "tried to get [Plaintiff] to write a statement
to say that we bumped into each other," but Plaintiff refused
because she knew that Leduc bumped into her.

Id. at 137.

On October 2, 2015, Plaintiff received a written warning for

a

violation

directions.

of the
Id.

Company's

policy of following

supervisors'

Plaintiff also repeatedly violated the Company's

attendance rules and received written warnings on February 17 and
June 15, 2016.

Id. at 3.

On June 6, 2016, Plaintiff received a

written warning and a one-day suspension for horseplay, calling
out a coworker, mounting the coworker, and pulling him to the

ground.

Id.

Less than a year into her employment. Plaintiff had

been written up five times.
In

November

Id.

2016, it became evident that Plaintiff

had

a

personality conflict with a coworker, Tawana Hardee, who is also
a black female.

Id.

Plaintiff testified that "'everybody knew"

that she and Hardee did not get along.

Id.

Plaintiff believed

that Hardee was "talking about her to other people, trying to get
them not to like her."

On

March

Plaintiff

1,

Id.

2017,

Plaintiff's

coworkers

was making threats against Hardee.

reported

that

Id. at 4.

One

coworker, Michael Arrington, told Human Resources that he "heard
Latisha say that if she sees [Hardee] outside of the job she would
jump on her, beat her, and drag her all over the place."
Hardee also reported to Human

Resources that Plaintiff told a

coworker "if I see her outside the job I'll drag her."
March

2,

2017,

Plaintiff

was

terminated,

the

Id.

"Reason

Termination" was "Violation of Company Standards of Conduct."
at 125.

Id.

On
for

Id.

In the Georgia Department of Labor Separation Notice, the

Reason for Separation states "Violation of Company Standards of
Conduct."

Id.

Frazier terminated Plaintiff "based solely on the

reports of her threats of violence against a coworker," and "did

not consider Plaintiff's race, gender, or any alleged complaints
from her."

Id.

Plaintiff,

in

written

statements

made

on

request

of the

Company about the incidents leading to her termination, did not
make

any

statement

retaliation.

about

Id. at 5.

race,

gender,

discrimination,

or

However, she later filed an EEOC charge.

On the first page of Plaintiff s EEOC charge. Plaintiff stated
that she "'was terminated . . . because another co-worker . . .

told Human Resources . . . that I was harassing her . . . [and

that] I said I was going to beat her up after work."

Id.

In her

written statement to the EEOC, Plaintiff fails to mention race,

gender, or discrimination.

Id.

that

disciplinary

as

a

policies

result

of

against

her

Further, Plaintiff has admitted

violence,

records,

horseplay,

the

and

Company's

threatening

communications, and the reported threats by her against a coworker,
she was not qualified for continued employment with the Company.
Id. at 125.

The Company has fired two white males for engaging in similar
misconduct as Plaintiff, but neither of them had a prior record of

progressive discipline.

Id. at 7.

The first was fired for using

racial slurs which could easily lead to violence.
was

fired

for

verbally

challenging

approaching him with his fists up.
Plaintiff

filed

this

action

another

Id.

working

The second
and

then

Id.
to

recover

damages

and

other

compensation, which Plaintiff claims is owed to her under Title
VII.

LEGAL STANDARD

Summary judgment is required where ^^the movant shows that
there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law."
56(a).
the

Fed. R. Civ. P.

A fact is ^^material" if it ^^might affect the outcome of

suit

under

FindWhat.com,

the

658

governing

F.3d

1282,

law."
1307

FindWhat
(11th

Inv^r
2011)

Cir.

Grp.

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

v.

A

dispute is "genuine" if the "evidence is such that a reasonable

jury could return a verdict for the nonmoving party."

Id.

In

making this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.

Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

The movant must show the court

that there is an absence of evidence to support the nonmoving
party's case.
burden,

the

Id. at 325.
burden

shifts

If the moving party discharges this
to

the

nonmovant

to

go

beyond

the

pleadings and present affirmative evidence to show that a genuine
issue of fact does exist.

Anderson, 477 U.S. at 257.

The nonmovant may satisfy this burden in two ways.

First,

the nonmovant "may show that the record in fact contains supporting

evidence, sufficient to withstand a directed verdict motion, which
was

^overlooked or ignored' by the moving party, who has thus

failed

to

evidence."

meet

the

initial

burden

of

showing

an

absence

of

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (llth

Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J.,

dissenting)).
additional

Second,

evidence

the

nonmovant "may

sufficient

to

withstand

come
a

forward

directed

verdict

motion at trial based on the alleged evidentiary deficiency."

at 1117.
with

with

Id.

Where the nonmovant attempts to carry this burden instead

nothing

more

"than

a

repetition

of

his

conclusional

allegations, summary judgment for the [movant is] not only proper

but required."

Morris v. Ross, 663 F.2d 1032, 1033-34 (llth Cir.

1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION

I. Title VII Discrimination on the Basis of Race and Gender

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

2(a)(1) 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

individual's

race,

color,

of

employment,

religion,

sex,

or

because

of

such

national

origin."

"This provision forbids Misparate treatment' of, or ^intentional
discrimination' against, employees on the basis of race[, gender,]
or national origin."

Jefferson v. Sewon Am., Inc., 891 F.3d 911,
7

920 (11th Cir. 2018) (quoting Equal Emp^t Opportunity Common v.
Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015)).

^'To establish a prima facie case for disparate treatment in a race
discrimination case, the plaintiff must show that: (1) she is a
member of a protected class; (2) she was subjected to an adverse

employment action; (3) her employer treated similarly situated
employees outside of her protected class more favorably than she
was treated; and (4) she was qualified to do the job."

Burke-

Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).

Regarding

the

third

element,

similarly

situated, ""it

is

to

determine

necessary

to

if

an

consider

employee
whether

is
the

employees are involved in or accused of the same or similar conduct
and are disciplined in different ways."

Jones v. Bessemer Carraway

Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.) (quoting Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)), opinion superseded in
part on denial of reh^g, 151 F.3d 1321 (11th Cir. 1998).

"The

most important factors in the disciplinary context are the nature
of

the

offenses

imposed."

Id.

committed

and

the

nature

of

the

punishments

"[T]he quantity and quality of the comparator's

misconduct [must] be nearly identical."

McCann v. Tillman, 526

F.3d 1370, 1373 (11th Cir. 2008) (quoting Burke-Fowler v.- Orange
County, Fla., 447 F.3d 1319, 1323 (11th Cir.2006)).

Defendant argues that Plaintiff has not established the third

or fourth elements of a prima facie case, and it has provided
8

evidence showing that Plaintiff cannot prove these elements as a
matter of law.

First, Defendants have established that two white

males were fired for engaging in similar misconduct and that they
had no prior record of progressive discipline, while Plaintiff
did.

Turning to the fourth element. Plaintiff has admitted that

as a result of her disciplinary records, the Company's policies
against violence, horseplay, and threatening communications, and
the

reported

qualified for

threats

by

her

against

continued employment

a

with

coworker,

the

she

Company.

was

not

Because

Defendant has shown that there is no genuine issue of material
fact

as

to

the

third

and

fourth

elements

of

Plaintiff's

discrimination claims, the burden shifts to Plaintiff to establish

a

genuine

issue

of

material

fact

on

both

of

these

elements.

Plaintiff has not satisfied this burden.

Plaintiff has put forth some evidence regarding the third
element for her racial discrimination claim (but not her gender

discrimination claim).

Plaintiff testified that Leduc bumped into

her and touched her eyelashes and that Leduc was not punished for
this and that Leduc was not even called into the human resources
office to talk about either incident.

is

similarly situated

to

Plaintiff.

The issue is whether Leduc

She

is

not

because ""the

quantity and quality of the comparator's misconduct [is] not nearly
identical." McCann, 526 F.3d at 1373.

Leduc bumped into Plaintiff

and attempted to take off her fake eyelashes and told Plaintiff,

^^You got fake eyelashes on.
28 at 134.

You got to take them off."

Dkt. No.

This conduct is not nearly identical to Plaintiff's

history of tardiness, horseplay, and threatening to beat and drag
around another employee.

In other words, as compared to Leduc,

Plaintiff had a greater history of conduct violations and beating
and dragging a coworker is far more severe than bumping into one
and attempting to take off fake eyelashes.

jury

could

find

that

considering

that

two

this
white

similar to Plaintiff's.

element
males

is

were

Thus, no reasonable

met,

especially

terminated

for

when

conduct

Nevertheless, even if a reasonable jury

could find for Plaintiff on the third element, which one cannot.

Plaintiff has admitted that she was not qualified for the job

because of her repeated violations of the Company's policies.

As

a matter of law, then. Plaintiff cannot satisfy the third and
fourth elements.

Accordingly, Defendant's Motions with respect to

Plaintiff s racial and gender discrimination claims are due to be
GRANTED.

II. Title VII Hostile Work Environment

To

establish

a

hostile

work

environment

claim

under

Title VII, a plaintiff must show that the workplace is
permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to
alter the conditions of ... employment and create an
abusive working environment.
To prove a prima facie
case of hostile work environment, a plaintiff must
establish that: (1) he or she belonged to a protected
group, (2) he or she was subjected to unwelcome
harassment, (3) the harassment was based on a protected
characteristic, (4) the harassment was sufficiently
10

severe or pervasive to alter the terms and conditions of
his or her employment and create an abusive working
environment, and
employer liable.

(5)

a

basis exists for

holding the

It is a bedrock principle that not all objectionable
conduct or language amounts to discrimination under
Title VII.
Therefore, only conduct that is based on a
protected category . . . may be considered in a hostile
work environment analysis.
see also Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 809 n.3 (11th
Cir.2010) (^'[T]he Courts of Appeals have uniformly
observed that Title VII is not a civility code, and that
harassment must discriminate on the basis of a protected
characteristic in order to be actionable."). Innocuous

statements or conduct, or boorish ones that do not relate

to the [age or gender] of the actor or of the offended
party (the plaintiff), are not counted.
Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1195

(11th Cir. 2016) (internal quotation marks and citations omitted).
In one of Plaintiff's filings, she states that she ^'had been
harassed repeatly [sic] over and over by different employees," and

that ^'nobody ever came and protected me from anybody."
38

at

3.

She

testified

that

she

was

called

Lashes

employees and that Hardee repeatedly harassed her.

Dkt. No.
by

other

This is the

extent of Plaintiff's evidence regarding this claim.
Defendant

argues

that

Plaintiff

has

failed

to

show

any

evidence that any event of which she testified or complained of
was

motivated

by

racial

or

gender

animus.

In

other

words.

Plaintiff cannot satisfy the third element that the harassment was
based on a protected characteristic.

Having shown that no genuine

issue of material fact exists for the third element, the burden

11

shifts

to

Plaintiff.

Plaintiff

cannot

satisfy

her

burden

of

showing a genuine issue of material fact as to the third element.
Looking at the third element. Plaintiff has not shown any
evidence that any of the harassment that she testified about was

based on a protected characteristic. She simply has shown evidence
that she testified under oath that she was harassed.

The reason

for the harassment, she testified, was ^^because I wore lashes and

I intimidate people.

That's why.

That's really why. . . . that

was the problem with [Hardee] and [Leduc]."

Dkt. No. 28 at 157.

Thus, Plaintiff testified that she was not harassed because of her

race

or

gender

but

because

she

specifically, Hardee and Leduc.
could

find

that

the

third

was

intimidating

to

others—

Accordingly, no reasonably jury

element

is

satisfied

based

on

this

record.

For these reasons. Defendant's Motions with respect to the
hostile work environment claim are due to be GRANTED.
Ill. Ti-ble VII Failure 'bo Promobe

'MT]o prevail on a claim of failure to promote, a plaintiff

may establish a prima facie case of [ ] discrimination by showing
that:

(1)

she

is a

member

of a

protected

class; (2)

qualified and applied for the promotion; (3) she

she

was

was rejected

despite her qualifications; and (4) other equally or less qualified
employees

who

were

not

members

12

of

the

protected

class

were

promoted."

Wilson v. B/E Aerospace, Inc., 376 F.Sd 1079, 1089

(11th Cir. 2004).

Defendant argues that Plaintiff s disciplinary record shows
that she was not qualified for any employment.^

Thus, it argues

that Plaintiff cannot satisfy the second element.

Given that

Plaintiff has admitted that she was not qualified for the job she

held,

and

necessarily

any

promotion,

because

of

her

repeated

violations of Company policies, she has also admitted that she
cannot satisfy this element.

Thus, Plaintiffs failure to promote

claim must fail as a matter of law.

Accordingly,

Defendant's

Motions with respect to the failure to promote claim are due to be
GRANTED.

CONCLUSION

For these reasons. Defendant's Motion for Summary Judgment

and revised Motion for Summary Judgment are GRANTED with respect
to all claims.

The clerk of court is DIRECTED to close this case.

SO ORDERED, this 12th day of February, 2019.

HON^ LISA GODBRY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

DISTRICT OF GEORGIA

^ Defendant has provided evidence that it has discovered during this
litigation that Plaintiff falsified her initial employment application
and thus that she was never qualified to work at the Company. Even if
this was true. Defendant did not know this during Plaintiff's employment.
Thus, Defendant cannot use this as a reason to not have promoted

Plaintiff while she was working for the Company.
13