Smallwood v. T&A Farms

Filing 91

ORDER denying 70 Motion for Summary Judgment. It is granted as to Smallwood's Title VII claims against Alphine and Dinwiddie. Signed by Chief Judge Lisa G. Wood on 1/13/17. (slt)

3 the Entteb 'tate flitnct Court
for the Soutbern 3itritt of georgia
Vaptroma 38thoion
SHEILA. SMALLWOOD,
Plaintiff,
No. 5:14-CV-86

em
T&A FARMS, TIMOTHY DALE DAVIS,
ALPHINE DAVIS, and STACEY
DINWIDDIE,
Defendants.
ORDER

Before the Court in this race discrimination case is
Defendants T&A Farms, Timothy Dale Davis ("Dale"), Aiphine
("Alphine") Davis, and Stacey Dinwiddie's ("Dinwiddie") Motion
for Summary Judgment, dkt. no. 70. The motion is fully
briefed and ripe for disposition. Dkt. Nos. 81-82, 89. For
the reasons below, it will be DENIED. Plaintiff Sheila
Smallwood ("Smallwood") claims that Defendants ran a racist
workplace, she was forced out after being called an "uppity
nigger," and she could not come back without retracting her
discrimination claims. Dkt. No. 81 at 5. Smallwood has
raised genuine issues of material fact, and therefore, the
jury must decide this matter.
AO 72A
(Rev. 8/82)

Factual Background'
Smallwood Worked for and with Defendants

The Court views the evidence most favorably to the
nonmovant, Smallwood, as it must in deciding summary judgment.
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000). It ignores as immaterial any
inconsistencies in her case. Tomlin v. JCS Enters., Inc., 13
F. Supp. 3d 1330, 1332 n.l (N.D. Ga. 2014).
Smallwood worked for T&A Farms from May to November 2013.
Dkt. No. 81-1 ¶j 1-2. T&A Farms is a family egg farm. Dkt.
No. 70-1 ¶J 1-2, 13. Hens there lay eggs in nests, and the
eggs roll onto a conveyer belt, whence they are collected.
Id. ¶ 2. Two sorts of employees help with this process:
walkers and belt runners. Walkers train chickens to lay their

1

Two declarations that Smallwood submitted do not comply with 28 U.S.C. §
1746. Declaration of Tim O'Hara, dkt. no. 81-8, lacks a date and perjury
statement. Declaration of Lawrence Revis Jr., dkt. no. 81-11, lacks the
specific day that it was signed. These flaws could justify disregarding
the declarations. See, e.g., Orr v. Orbis Corp. (Wisc.), No. 1:07-CV2653, 2010 WL 3368124, at *3 (N.D. Ga. July 30, 2010), adopted, 2010 WL
3368119 (N.D. Ga. Aug. 23, 2010). However, the Court declines to do so
for four reasons. Defendants did not object. See Hepp v. Paul Revere
Life Ins. Co., No. 8:13-CV-2836, 2015 WL 4072101, at *2 (M.D. Fla. July 2,
2015) ("Given that . . . there is no dispute regarding the authenticity of
the declarations, and no showing of prejudice to Defendants, the Court
finds no reason to strike . . . ") The declarations' content "could be
'reduced to admissible evidence at trial,'" by having the declarants
testify. Macuba V. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999); see also
Calhoun v. McHugh, 2 F. Supp. 3d 1217, 1226 (N.D. Ala. 2014). Extrinsic
evidence could confirm the declarations' dates: O'Hara's refers to "last
Thursday" and "again on Saturday," dkt. no. 81-8 ¶ 5, while Revis's
specifies that it was signed in October 2016. Dkt. No. 81-11 at 6. See
Proch V. DeRoche, No. 3:08-CV-484, 2011 WL 6841319, at *3 n.8 (N.D. Fla.
Dec. 20, 2011) ("[E]xtrinsic evidence could demonstrate the period when
the declaration was signed . . - ."). Besides, the declarations are not
determinative of the present motion's outcome anyway.
AO 72A
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1

eggs inside the nests. Id. Belt runners take eggs from the
belts. Id. Each of T&A Farms' three chicken houses needed
one belt runner, plus either its own walker or a shared one,
Id. Jl 3-4; Dkt. No.

during peak season.

The farm also hired relief workers.

81-2

Dkt. No.

at 68:11-22.
70-1 ¶ 5.

Employees were at-will, without written contracts. Id. ¶ 14.
Peak egg season would come

six

to eight weeks after

chickens arrived and last for another six to eight. Id. ¶ 8.
When it was over, Defendants would halve their workforce. Id.
Smallwood was hired as a belt runner, and paid $35 - $40
daily. Dkt. No. 81-1 ¶ 21.

Dale allegedly once told her she

was "the best damn worker I got out here. . . . You do your
job, and you do it well." Dkt. No. 81-2 at 91:7-9 (deposition
of Sheila Smaliwood).
Dkt. No. 70-1 ¶ 15.

Dale is sole proprietor of T&A Farms.
Aiphine is his wife, and Dinwiddie their

daughter. Id. ¶j 16-17, 22.
Alphine worked at the farm two to three times weekly.
Id. ¶ 24.
87:8-16.

She would assign some tasks. Dkt. No.

81-6

at

Employees would report issues to her in Dale's

absence. Id. at

87:19-23.

Dale and Aiphine claim that

Alphine had "no managerial or supervisory responsibility."
Dkt. No. 70-1 ¶ 21; see also Dkt. No. 70-4 ¶ 7.
Dinwiddie "regularly worked" at the farm. Dkt.
¶ 27.

A0 72A

(Rev. 8/82)

1

No. 70-1

Alphine allegedly once told Smallwood, "[Dinwiddie] is

over this farm now. . . . [W]hatever [Dinwiddie] say

[sic],

you do it." Dkt. No. 81-2 at 43:12-15 (deposition of Sheila
Smaliwood); see also Dkt. No. 81-7 at 49:16-19 (deposition of
Lawrence Revis, Jr.) ("[Alphine] . . . told us '[Dinwiddie] is
going to be the manager. I'm going to be out for a couple of
days. . . . You all need to do what she says.'"). Smallwood
considered Dinwiddie to be a "manager or supervisor." Id. at
54:2-3. Dinwiddie gave workers days off and assigned tasks.
Id. at 54:25-55:18; cf. Dkt. No. 81-6 at 85:8-86:6, 105:5-7
(confirming this, but conceding deponent did not believe he
had to follow her orders and did not consider her to be direct
manager); Dkt. No. 81-7 at 49:22-50:8 (describing Dinwiddie as
direct manager in Dale's absence). Her husband, Michael
Dinwiddie ("Michael") worked at the farm too, often doing
maintenance. Dkt. No. 70-1 ¶ 26.
Smallwood Alleges that Defendants Maintained Racist Work
Conditions

Smallwood alleges that T&A Farms was a hotbed of racism,
in terms of work conditions, bathroom access, epithets, and
ultimately, Smaliwood' s termination.
Smallwood asserts that Defendants required less work of
white employees than of black ones. Dkt. No. 81-1 ¶ 30. She
says that white employees "left their baskets of dirty eggs
behind to be cleaned" by black employees. Id. ¶ 31. Further,

AO 72A
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1

4

she claims that black employees, but not white ones, had to
carry buckets full of bad eggs to a pond and pour them in.
Dkt. No. 81-2 at 61:3-13.
Defendants supposedly paid white employees more than
black ones. Smallwood claims to have once found a payroll
paper indicating that white employees earned $55 to $60 a day.
Id. at 44:7-12; cf. Dkt. No. 81-9

1

6. Her coworker also

testified that he saw the paper; he said that it listed the
wages of all white employees, including two who were unrelated
to Dale, as $55 daily. Dkt. No. 81-7 at 25:18-27:11
(statement of Lawrence Revis, Jr.). The employee confronted
Dale, who allegedly told him, "If you don't like the way I run
this, you can leave." Id. at 32:4-7. Defendants say that all
employees other than Michael were paid $40 daily, and that
Michael only made $42.85 a day. Dkt. No. 70-1

It

10, 30.

Smallwood says that eating lunch in Defendants' office
was a right reserved to whites. Dkt. No. 81-2 at 87:13-23;
see also Dkt. No. 81-6 at 62:6-63:4 (testifying that white
employees ate lunch there daily, but black ones could not);
Dkt. No. 81-7 at 41:24-42:3, 48:5-13 ("[W]e weren't allowed to
go into the office, period, unless [Defendants] were in there,
and they called you in"—but white employees ate inside). So
was taking free water from, or using, a refrigerator. Id. at
88:6-90:7; see also Dkt. No. 81-7 at 47:17-19.
AO 72A
(Rev. 8/82)

1

5

Black employees could allegedly only sit on milk crates,
while white ones could use chairs. Id. at 58:4-6.

Smallwood

claims that Defendants cut black employees' hours and pointed
to financial concerns, but brought on paid white relief
workers to take the shifts. Id. at 86:8-25; see also Dkt. No.
81-6 at 82:4-83:16;

Dkt. No. 81-7 at 38:5-40:15.

Smallwood testified that she often complained to Dale
about Dinwiddie using the words "nigger" and "coon," including
on three office visits. Dkt. No. 81-9 ¶ 9. "Every time [she]
complained, [Dinwiddie] would take [her] days away," and she
would thus lose pay. Id. Dinwiddie allegedly told Smallwood
that "if (Smallwood] had kept [her] mouth shut and not
complained . . . [she] would have [had her] days." Id. ¶ 10.
Defendants Allegedly Denied Black Employees Bathroom Access

Smallwood presented evidence that black employees could
not use the only chicken-house bathroom. Dkt.
46:2-4.

No. 81-2

It had an out-of-order sign. Dkt. No.

at

70-1 ¶ 33.

Smallwood would occasionally sneak in, trying to avoid white
employees sitting in the office, and she says that its toilet
flushed just fine. Dkt. No.
also Dkt. No.

81-6

81-2

at 56:20-21;

at 46:14-15, 52:3-13;

Dkt. No.

81-7

see

at 43:3-44:15

(deposition of Lawrence Revis, Jr.) (describing bathroom as
exceedingly dirty, but functional).

AO 72A
(Rev. 8/82)

1

6

Smallwood testified that Michael once saw her heading
toward the bathroom and told her she was not allowed to use
it. Id. at 46:19-47:3.

Dinwiddie then allegedly put a chair

and fan against the door so that she would know whether anyone
had been inside. Id. at 47:5-15.

Dinwiddie allegedly said

that the bathroom was to be reserved for Dale and Alphine, and
that "Michael won't use it because he saw [Smallwood] going
in." Id. at 48:12-16.

Smallwood claims that Dinwiddie told

her to get permission any time that she wanted to use a nearby
store's bathroom. Id. at 48:20-25.

When Smallwood protested

to Dale, she says that he replied, "It's whatever [Dinwiddie]
said. I'm not going to go over her head . . .
51:10-12.

•"

Id. at

Smallwood alleges that Michael once denied

Smallwood permission to go to the store's bathroom, and so she
ended up cleaning up from menstruation in a chicken-house
corner. Id. at .49:2-9, 17-25.

Smallwood purports that white

employees could use the chicken-house bathroom, even when it
was supposedly out of order. Id. at

50:11-16;

see also Dkt.

No. 81-6 at 57:12-22.

Additionally,

Smallwood claims that Dale told black

employees not to use another farm bathroom, directing them to
the woods instead. Id. at 51:13-18; see also Dkt. No. 81-6 at
55:25-56:2; Dkt. No. 81-11 ¶ 9.

AO 72A
(Rev. 8/82)

1

7

Defendants deny all of this, claiming that the chickenhouse bathroom was out of order for a month due to extreme
dirtiness, and employees used the store bathroom during that
time. Dkt. No. 70-1 ¶J 33-35. All employees were free to use
the chicken-house bathroom thereafter. Id. ¶ 36. Defendants
claim that Dale never told black employees not to use the
bathroom, when it was in order. Id. ¶ 31.
Smallwood Alleges that Defendants Used Racial Epithets

Defendants allegedly infused racism into their language.
Dale purportedly used many slurs:
The "N" word came out maybe once every few weeks.
"Yard monkey" was him referring to [Smaliwood's]
grandbaby by one of the other black employees.
"I'll slap the black off [of you]" [ ] was if we
The "coon"
wasn't doing our work properly. . . .
word was used at least once, if not twice a
week.
Dkt. No. 81-2 at 40:13-41:7; see also id. at 41:10-16; Dkt.
No. 81-6 at 83:13-84:10 (deposition of John Smallwood); Dkt.
No. 81-8 ¶ 4 (declaration of Tim O'Hara) ("[Dale] admitted to
me that he called us the 'N' word, yardmonkeys and coons.");
Dkt. No. 81-10 ¶ 12 (declaration of John Smallwood)
(describing Dale making black-power salute and saying, "Ain't
that what y' all niggers do back in the day!"); Dkt. No. 81-11
¶ 7 (declaration of Lawrence Revis, Jr.) (describing Dale
calling black workers "coons" and "yard monkeys"); Cf. Dkt.

AO 72A
(Rev. 8/82)

1

No. 81-7 at 32:17 (deposition of Lawrence Revis, Jr.) ("He
called me 'boy'

.

i 2

Smallwood recalls protesting that Dale's use of "[t]he
'nigger' word . . . was offensive. [She] went to him three or
four times . . . ." Id. at 42:4-6. She testified that Dale
responded that when he was young, his father "slapped [him] in
his mouth" for using a black man's name, telling him, "Those
are niggers. That's what you call them." Id. at 42:10-17.
Dale supposedly told Smallwood, "Just take what we say and
move on." Id. at 42:20-21; cf. Dkt. No. 81-7 at 34:12-14
(deposition of Lawrence Revis, Jr.) (saying when confronted
about calling black men "boys," Dale "laughed it off").
After President Obama's reelection, Smallwood says that
Dale asked her and her husband, John Smallwood ("John"), "Why
did you all get that coon back into office?" Id. at 85:20-22.
Dale denies ever using any of these racial slurs against
black employees.

Dkt. No. 70-3

¶I 47; see also id. ¶ 52

2
Smallwood also filed a recording, allegedly of a conversation between
Dale and John Smallwood. Dkt. No. 81-12 at 2; see also Dkt. No. 81-6 at
93:6-94:25 (statement of John Smallwood) (describing conversation and
asserting recording's authenticity). It is difficult to make out what is
Dkt. No. 81-6 at
said, and Defendants did not concede its veracity.
However, the supposed Dale does clearly ask the supposed
95:24-96:8.
John, "[H]ave you ever been called a coon before?" John says that he has,
and Dale replies, "You probably have. I'll admit it to you, I ain't going
to admit it to nobody else." Dkt. No. 81, Ex. 11 at 0:25-33.

AO 72A
(Rev. 8/82)

1

9

(claiming that he uses "boy," without racial overtones, to
refer to males, including friends and family members) .
According to Smallwood, Dale was not the only Defendant
to speak in a racist way. Aiphine supposedly said that
Smallwood's grandson's father "look[ed] like a yard monkey,"
and asked if she was "afraid that [her] grandson would come
out looking like a yard monkey and be as black as [the
father] ." Dkt.

No. 81-2

at

72:8-13.

When Smallwood

protested, Alphine allegedly replied, "This is my property,
and I can say and do what I want to." Id. at 74:8-9.

Aiphine

denies using any of the racial slurs alleged against

employees. Dkt. No. 70-4 ¶ 27.
Smallwood testified that Aiphine told her that Dinwiddie
was raised to use racial slurs: "Take it or leave it. That's
how it's going to be." Dkt. No. 81-2 at 43:14-23.

Dinwiddie

allegedly referred to black employees, but not white men, as
"boys." Id. at 78:17-79:8, 103:6-11;
at 51:23-52:3.

see also Dkt. No. 81-7

One day, Smaliwood's mixed-race adopted son

came to visit the farm. Id. at 80:9-13.

Dinwiddie supposedly

asked, "How cari you all have a mixed baby?" Id. at 80:13-16.
]Jinwiddie is alleged to have said that she was trying to
become a foster parent, but had rejected a black child. Id.
at 80:18-20. "I couldn't tell them I was racist, or I was a
Practically identical paragraphs appear in Aiphine's and Dinwiddie's
declarations. Dkt. No. 70-4 111 27, 32; Dkt. No. 70-5 ¶j 17, 22.
AO 72A
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10

bitch," she reportedly said, before going On: "A coon or a
nigger baby would never be welcome around our table." Id. at
81:10-11, 20-21; cf. Dkt. No. 81-7 at 51:5-18 (stating
Dinwiddie called black people "coon," "the 'N' word," and
"boy"). When Smallwood replied that her son would be taught
to see love and not skin color, Dinwiddie allegedly answered,
"[I]t's not like that in our house." Id. at 81:20-25.
Then, several other black employees walked in. Smallwood
says that Dinwiddie looked around and said, "You all make me
feel threatened, like you all want to jump on me." Id. at
82:7-15. "Ain't that what you all black people do, you all
gang up and jump on people?," she allegedly asked. Id. at
82:20-22. According to Smallwood, Dinwiddie also once
compared a group of black people to a cow herd. Id. at 83:1922. Dale had supposedly said something similar to Smallwood's
son. Id. at 83:22-23; cf. Dkt. No. 81-6 at 98:15-17 (saying
Dale admitted to comparing black people to "a bunch of cows
trying to jump on you.").
Finally, Dinwiddie is alleged to have told black
employees listening to rap that Dale "don't like you playing
that nigger music out here." Id. at 84:16-18; see also Dkt.
No. 81-10 ¶ 9.
Dinwiddie denies using the racial slurs alleged against
black employees. Dkt. No. 70-5 ¶ 17.
AO 72A
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II

II

11

Defendants Allegedly Terminated Smallwood after Calling Her an
Epithet

Tensions peaked one November 2013 day. Aiphine ordered
John to fix a water hose, throwing it at his feet. Dkt. No.
81-1 ¶ 3; Dkt. No. 81-2 at 18:19-22; Dkt. No. 81-6 at 34:2535:2. John had already fixed Smaliwood's hose, but Aiphine
had given it to Michael. Dkt. No. 81-2 at 18:18-19, 18:2319:3; see also Dkt. No. 81-6 at 34:21-24. Smallwood protested
John being made to fix another hose. Id. In the ensuing
argument, Aiphine supposedly sniped, "You think you got too
much education because you're in school.
nigger."

You're an uppity

Id. at 19:9-11; see also Dkt. No. 81-6 at 37:20-

38:3. Smallwood criticized Aiphine's tone. Id. at 19:12-13.
In turn, Dale, who was nearby

,

4

chastised Smallwood for

hers. Id. at 19:15-16; cf. Dkt. No. 81-1 ¶f 7-8; Dkt. No. 816 at 40:9-41:20. According to Smallwood, she protested
Alphine's "calling [her) out of [her] name," and Alphine
interjected, "This is my property, my home. I can do what I
want to do." Id. at 19:17-20. Smallwood then allegedly
threatened to call the Department of Labor. Id. at 19:22-23;
see also Dkt. No. 81-6 at 39:11-18.
She walked back to her chicken house, but Dale supposedly
told John, "Take her ass home.

. . . Get her off of my

The three references describe Dale's location differently from each
other. Inconsistencies in Smaliwood's evidence are irrelevant to
Defendants' motion for summary judgment. See discussion supra.
AO 72A
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12

property." Id. at 20:3-8; see also Dkt. No. 81-6 at 42:5-7.
Smallwood says that Dale said, "You'll be back. You're broke,
you're black, and you need me." Id. at 20:14-17; see also
Dkt. No. 81-6 at 42:10-12. Smallwood allegedly answered, "You
don't pay me enough money to deal with the way that you all
talk to me. I will not be back." Id. at 20:19-21.
Defendants recall the day differently, claiming that
Smallwood was doubly upset by her daughter's pregnancy and
discovering that her hose was missing. Dkt. No. 70-1 ¶J 4344; but see Dkt. No. 81-9 ¶ 13 (sworn declaration of Sheila
Smallwood) (denying that the pregnancy upset her). Smallwood
argued with Aiphine and Michael about the hose. Id. ¶ 45.
Aiphine did not use a racial slur, but Smallwood characterized
Defendants as "rich white folks." Dkt. No. 70-4 ¶ 21; see
also Dkt. No. 70-3 ¶ 38. Dale did not like Smaliwood's tone,
and asked John to take her home because she was out of
control. Dkt. No. 70-1 ¶j 45, 47. Smallwood said that she
would not return. Id. ¶J 50-51.
Smallwood Claims that Defendants Made Smallwood Choose Between
Her Job and Her Discrimination Claims, and She Filed the
Present Suit

Smallwood spoke to the Department of Labor, a fact that
Dale allegedly learned. Dkt. No. 81-2 at 21:16-17, 20. Dale
twice told John that he did not want her to come back yet,
then supposedly conditioned her return on "sign[ing] papers
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II

II

13

stating that [she] lied about everything." Id. at 21:13-24.
Smallwood refused, so Dale replaced her with a white worker.
Id. at 21:24-22:2; see also Dkt. No. 81-10 ¶ 10.
Smallwood filed an EEOC charge on December 18, 2013.
Dkt. No. 70-6 at 30. EEOC issued notice of her right to sue
on August 4, 2014. Dkt. No. 1-1 at 1. Smallwood filed this
lawsuit on October 28, 2014. Dkt. No. 1. She complained of
violations of 42 U.S.C. § 2000e et seq. ("Title VII") and 42
U.S.C. § 1981 ("Section 1981"): (1)
discrimination;

color and race

(2) disparate treatment; and (3) retaliation.

Dkt. No. 7 ¶J 32-49.
A current employee claims that Dale "has paid [him] extra
money and offered to buy [him] a car if [he] agree[s] to
testify on [Dale's] behalf and say what [Dale] want[s] [him]
to say." Dkt. No. 81-8 ¶ 5. He says that Dale "has
been . . . asking the black employees to take up for [Dale] in
court." Id. ¶ 6.
Dale says that Smallwood decided to make "highly
inflammatory, false" allegations against him and his family
after visiting the EEOC's website. Dkt. No. 70-3 ¶ 49. He
believes that "Smallwood, with her strong personality,
persuaded her fellow African American co-workers to join with
her in a conspiracy to sue [him] and [his] family for money in
a bogus discrimination case." Id. ¶ 50.
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14

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." Fed. R.
Civ. P. 56(a). A fact is "material" if it "might affect the
outcome of the suit." FindWhat Inv'r Grp. v. FindWhat.com ,
658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson

V.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is
"genuine" if the "evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Id.
The court must view the evidence most favorably 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 movant must establish that there is no genuine issue
of material fact by showing that the nonmovant's case lacks
supporting evidence. Celotex Corp. v. Catrett, 477 U.S. 317,
323, 325 (1986). If it does, then the noninovant can show
"that the record in fact contains [such] evidence, sufficient
to withstand a directed verdict motion, which was 'overlooked
or ignored' by the [movant], who has thus failed to meet [its]
initial burden." Anderson, 477 U.S. at 257 Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting
Celotex, 477 U.S. at 332 (Brennan, J., dissenting)). Or, the
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II
II

15

nonmovant can present "additional evidence sufficient to
withstand a directed verdict motion at trial based on the
alleged evidentiary deficiency." Id. at 1117.
DISCUSSION

Smaliwood's discrimination and retaliation claims survive
summary judgment.'
I. SNALLWOOD'S DISCRIMINATION CLAIMS SURVIVE.

Smallwood alleges discrimination and disparate treatment
in violation of Title VII and Section 1981.6 Dkt. No. 7 ¶J

Mostly. Smallwood surrenders her Title vii claims against Aiphine and
Dinwiddie, because non-employers are not liable under Title VII. Dkt. No.
81 at 7 n.3; see also Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.
2006). Defendants' motion is GRANTED as to these claims.
6
Defendants contend that Smallwood lacks standing under Section 1981, as
she was an at-will employee without a contract. Dkt. No. 70-2 at 23-25.
The Court follows every circuit court-and every Eleventh Circuit district
court-to decide the question in holding that an at-will employee can
assert a Section 1981 racial discrimination claim, at least as long as
(like in Georgia) state law deems at-will employment contractual. See,
e.g., Aquino v. Honda of Am., Inc., 158 F. App'x 667, 673 n.3 (6th Cir.
2005); Walker v. Abbott Labs., 340 F.3d 471, 472 (7th Cir. 2003); Turner
v. Ark. Ins. Dep't, 297 F.3d 751, 756, 759 (8th Cir. 2002) (holding law
clearly established); Lauture v. Int'l Bus. Machs. corp., 216 F.3d 258,
263 (2d Cir. 2000); Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir.
1999); Fadeyi v. Planned Parenthood Ass'n of Lubbock, Inc., 160 F.3d 1048,
1050-52 (5th Cir. 1998); Forehand v. Fulton County, 510 F. Supp. 2d 1238,
1252 (N.D. Ga. 2007); Ultimax Transp., Inc. v. British Airways, Inc., 231
F. Supp. 2d 1329, 1339 (N.D. Ga. 2002) (Carnes, J.); Farrior V. H.J.
Russell & Co., 45 F. Supp. 2d 1358, 1366 (N.D. Ga. 1999). It adopts
Farrior's reasoning that "the on-going exchange of labor and pay
represents [an unwritten] contract." 45 F. Supp. 2d at 1365 (citing
Georgia law); see also Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018
(4th Cir. 1999); Lane v. Ogden Ent., Inc., 13 F. Supp. 2d 1261, 1272 (M.D.
Ala. 1998) ("'Contract' is used in § 1981 in its basic legal
meaning . . . ."). Recognizing such relationships as covered by Section
1981 is especially important given that that law exists to protect
minority employees-many of whom are employed at-will. Id. at 1365-66.
As for Smallwood's supposed lack of a contract, she submitted an
application, was hired, and worked for pay. Dkt. No. 81-1 ¶J 1-2, 21;
Dkt. No. 81-3 at 2. Although "the contract was not written, was not for a
specific term, and apparently was terminable at-will by either party,"
there was at least the sort of "informal business arrangement" that
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32-42.

Both statutes use "the same standards of proof

and . . . analytical framework." Bryant v. Jones, 575 F. 3d
1281, 1296 n.20 (11th Cir. 2009)
Title VII only applies to employers with at least fifteen
employees. 42 U.S.C. § 2000e(b). There is a genuine issue of
fact as to whether this requirement is satisfied here.
Questions of fact also remain as to the merits of Smaliwood's
case. The Court must therefore deny summary judgment.
A. An Issue of Fact Remains as to the Number of T&A Farms
Employees.

Defendants first argue that T&A Farms does not have
fifteen employees, and so is exempt from Title VII. Dkt. No.
70-2 at 3-4. A fact issue remains. Title VII only applies to
those employers who have "fifteen or more employees for each
working day in each of twenty or more calendar weeks in the
current or preceding calendar year." 42 U.S.C. § 2000e(b).
Employees are all those in ongoing employment relationships—
not just those working on any given day. Walters v. Metro.
Educ. Enters., Inc., 519 U.S. 202, 206-08 (1997).
Defendants argue that they do not have fifteen employees.
Dale testifies that he does not have more than six full-time
employees "at any given time." Dkt. No. 70-3 ¶ 3; see also
id. ¶ 8. He also avers that he usually does not hire relief

qualifies as a contract for purposes of Section 1981. Ultimax Transp.,
Inc., 231 F. Supp. 2d at 1339. Defendants' argument is thus meritless.
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workers for "more than a few days at a time." Id. ¶ 4. And
even Smallwood testified that T&A Farms had three belt runners
and three walkers on any day. Dkt. No. 81-2 at 31:18-19.
However, Smallwood has evidence indicating that there may
have been at least fifteen employees. She has testified that
there were fifteen or sixteen employees. Id. at 35:10-20; see
also Dkt. No. 81-9 ¶ 4 (naming 30 T&A Farms employees in
2013). John counted between ten and fifteen, some of them
relief workers. Dkt. No. 70-7 at 33:20-34:11. A third
employee testified that there would be up to fifteen, eight to
thirteen of whom would be present on any given day. Dkt. No.
70-8 at 22:4-23:25. Some documentation supports these
estimates: Timothy and Alphine cut checks to 25 people between
late December 2012 and the start of 2014. Dkt. No. 81-14 at
7-55. Smaliwood's evidence defeats summary judgment based on
the number of T&A Farms employees.
B. Issues Remain as to the Merits of Smaliwood's Case.

Smallwood has also presented enough evidence of
discrimination and disparate treatment 7 to prevent summary
judgment. An employer can be liable for discrimination if it

The parties do not distinguish between these two claims, and so neither
will the Court. See generally Dkt. Nos. 70-2, 81, 89; Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en bane) ("There
is no burden upon the district court to distill every potential argument
that could be made based upon the materials before it on summary judgment.
Rather, the onus is upon the parties to formulate arguments . . .
(internal citation omitted)).
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makes an employment decision that is motivated by
discriminatory intent. Holland v. Gee, 677 F.3d 1047, 1055
(11th Cir. 2012). A plaintiff can establish such intent using
direct, circumstantial, or statistical evidence. Carter v.
City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) . Smallwood
survives summary judgment based on her direct evidence.
Direct evidence defeats summary judgment, "even where the
movant presents conflicting evidence." Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). It is what
can "prove[ ] existence of [the] fact in issue without
inference or presumption." Castle v. Sangamo Weston, Inc.,
837 F.2d 1550, 1558 n.13 (11th Cir. 1988) . Direct evidence of
discrimination is that which "reflects 'a discriminatory
attitude correlating to the discrimination . .

. complained of

by the employee." Van Voorhis v. Hillsborough Cty. Ed. of
Cty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (per
curiam) (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1086 (11th Cir. 2004) (quoting Damon v. Fleming Supermarkets
of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999))).
This includes "statements displaying discriminatory
animus . . . directed at an employee and made
contemporaneously with an adverse employment action toward
that employee." Lamothe v. Bal Harbour 101 Condominium Ass'n,
Inc., 316 F. App'x 844, 846 (11th Cir. 2008) (per curiam)
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(unpublished opinion). Smallwood presents direct evidence in
the form of just such a statement: Aiphine's purportedly
calling her an "uppity nigger," which allegedly led directly
to Dale both ordering Smallwood off the property and
terminating her employment. Dkt. No. 81-2 at 19:9-20:21
(alleging that Aiphine's words caused Smallwood to protest,
leading Dale to remove her); Dkt. No. 81-6 at 37:20-42:5-7.
It does not matter that Aiphine supposedly made the
remark, whereas Dale was the one who ejected Smallwood. Dale
was allegedly standing only a few feet away when Alphine
uttered the epithet. Dkt. No. 81-2 at 19:15-16; Dkt. No. 81-1
¶j 7-8; Dkt. No. 81-6 at 40:9-41:20. Aiphine was not a random
employee who happened to make a racist remark around the time
that Dale decided to fire Smallwood. She was Dale's wife and
the farm's "silent partner." Dkt. No. 70-3 ¶ 19 (sworn
declaration of Timothy Dale Davis); see also Dkt. No. 81-4 at
3 (identifying farm's legal name as "Timothy and Alphine Davis
Farm, LLC"). As Dale's right hand, her calling Smallwood by
an epithet is thus akin to a "management memorandum saying,
'Fire Early—he is too old'"—which the Eleventh Circuit has
said would be direct evidence of discrimination. Dixon v. The
Hallmark Cos., 627 F.3d 849, 855 (11th Cir. 2010). '

8

At the very least, Aiphine's alleged epithet, that it was supposedly
heard by Dale, its timing in relation to the termination, that Smallwood
was "immediately replaced with a[ I [white worker]," Dale's and
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Besides Aiphine's general role in the farm, there is no
break in Smaliwood's narrative between Aiphine's statement,
Smaliwood's reaction, and Dale's action, such that Aiphine and
her comments were "unrelated to the decisionmaking process."
Standard v. A.B.E.L.

Servs.,

Inc., 161 F.3d 1318, 1330 (11th

Cir. 1998); cf. Dixon, 627 F.3d at 854 (holding statement,
"You're fired . . . You're too religious," to be direct
evidence of discrimination, despite its not including the word
"because"). Smallwood thus offers direct evidence that her
termination was motivated by discriminatory intent.
The only way that Defendants can overcome such evidence
is by showing that they would have acted the same way even had
they been unbiased. McCarthney v. Griffin-Spalding Cty. Bd.
of Educ., 791 F.2d 1549, 1553 (11th Cir. 1986). A reasonable
jury could obviously believe that Smallwood never would have
been terminated but for Defendants' racial prejudice, were it
to find that Defendants ejected her for being "an uppity
nigger."

and Smaliwood's other evidence of
Dinwiddie's purported slurs,
evidence of
circumstantial
differential treatment are enough
discriminatory intent to create a genuine issue of material fact as to
pretext. See Copley v. Bax Glob., Inc., 80 F. Supp. 2d 1342, 1351 (S.D.
Fla. 2000); Dkt. No. 81-2 at 21:24-22:2; Kilgore v. Trussville Dev., LLc,
646 F. App'x 765, 776 (11th Cir. 2016) (per curiam) (unpublished opinion)
(reversing summary judgment for the defendants, partly because "[the
manager and supervisor] made comments to [the plaintiff] about her
race, and these comments were relatively close in time to her termination
by [the manager] . . . ."); Dkt. No. 81-10 ¶ 10. This is another reason
that summary judgment must be denied.
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The question right now is not whether these alleged
events happened. Nor is it whether, if they did occur,
Defendants could place them in a nondiscriminatory context.
It is only whether a rational juror could find that invidious
discrimination based upon race took place. One could only
decide otherwise by finding facts and weighing credibility.
This takes this case outside the scope of the Court's
responsibility, and so summary judgment as to Smallwood's
discrimination claims must be DENIED.
II. SMALLWOOD'S RETALIATION CLAIM SURVIVES.

The same is true of Smaliwood's retaliation claim.
Direct evidence that retaliatory intent drove an employment
decision is enough to defeat summary judgment. Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997);
Burkette v. Montgomery Cty. Bd. of Educ., No. 2:07-CV-1121,
2008 WL 5114313, at *10 (M.D. Ala. Dec. 4, 2008) ("[D]irect
evidence of retaliation . . . cannot be rebutted.").
Smallwood presented two pieces of direct evidence. First, she
testified that her hours were reduced (and she thus lost pay)
every time that she complained of Dinwiddie's racial epithets.
Dkt. No. 81-9

jj 9-10. This testimony defeats summary

judgment. See Cotton v. Cracker Barrel Old Country Store, 434
F.3d 1227, 1231 (11th Cir. 2006) ("A reduction in an
employee's hours, which reduces the employee's take-home pay,
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qualifies as a[n] . . . employment action."); Cf. Howell v.
Corr. Med. Servs., 612 F. App'x 590, 591 (11th Cir. 2015) (per
curiam) (unpublished opinion), reversing in relevant part
Howell v Corizon, Inc., Civ. A. No. 12-0272, 2013 WL 6068346,
at *8 (S.D. Ala. Nov. 18, 2013) (reversing district court's
holding that plaintiff's complaints about "two comments with a
mild racial flavor, plus four brief incidents of yelling over
work matters," plus a minor physical altercation, were
unprotected from retaliation).
Smallwood also claims that Dale told her that she could
not come back to work unless she disowned her discrimination
claims as lies, and she was replaced when she would not. 9
Dkt. No. 81-2 at 21:21-22:2; Dkt. No. 81-6 at 43:12-16. This
evidence likewise defeats summary judgment. See Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 73 (2006) (holding
defendant could be liable for suspending employee without pay
because

"[a] reasonable employee facing the choice between

retaining her job (and paycheck) and filing a discrimination
complaint might well choose the former.").

Smallwood first went to the Department of Labor—which is not the EEOC.
It is thus questionable whether she was engaging in statutorily protected
expression. However, she testified that before Dale threatened her, she
Dkt. No. 81-2 at
'contacted the right person"—presumably, the EEOC.
Given that Defendants have not put any weight on this
2119-20.
ambiguity, and Smaliwood's EEOC charge pointed to EEOC activity as the
target of Dale's retaliation, dkt. no. 81-2 at 30 ("I was terminated
after . . . reporting that I would report to the EEOC."), the Court finds
that Smallwood was engaged in protected activity when Dale supposedly
threatened her.
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At trial, Defendants will be able to contest Smaliwood's
evidence, and to present evidence of permissive motives for
their actions. But their case turns on credibility, not
undisputed facts. Therefore, summary judgment on Smaliwood's
retaliation claim must be DENIED.
CONCLUSION.

For the reasons set forth above, Defendants' Motion for
Summary Judgment, dkt. no. 70, is DENIED. It is, however,
GRANTED as to Smallwood's Title VII claims against Aiphine and

Dinwiddie.
SO ORDERED, this 13th day of January, 2017.

L SA GODBEY qOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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