Thomas v. Moore et al

Filing 50

ORDER granting Defendants' 48 Motion for Summary Judgment. The Clerk is DIRECTED to close this case. Signed by Judge Lisa G. Wood on 6/27/2019. (ca)

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RODERICK V. THOMAS,

Plaintiff,
No. 5:18-CV-OOOll

V.

ELIXIR EXTRUSIONS, LLC, MIKE
MOORE, RHONDA DOUGLAS, STEVEN

JONES, and DAVID WILKERSON,
Defendants.

ORDER

Before the Court is a Motion for Summary Judgment filed by
Defendants Elixir Extrusions, LLC, Mike
Steven Jones, and David Wilkerson.

Moore,

Dkt. No. 48.

Rhonda

Douglas,

The Motion has

been fully briefed and is ripe for review. For the reasons that
follow. Defendants' Motion is GRANTED.
BACKGROUND

I.

Plaintiff

Has

Not Responded

to Defendants'

Motion

for

Snxnxnary Judgment or Defendants' Statement of Undisputed
Material Facts

Plaintiff Roderick Thomas has not responded to Defendants'
Motion for Summary Judgment or Defendants' Statement of Undisputed
Material Facts.

Southern

District of Georgia Local Rule 56.1

provides that ^Ma]ll material facts set forth in the statement

A0 72A

(Rev. 8/82)

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

party."

Moreover, Local Rule 7.5 provides that ^'failure to

respond" to a motion ^'within the applicable time period shall
indicate

that there

is

no

opposition

to

a

motion."

Because

Plaintiff has not responded, pursuant to Local Rule 56.1, the facts
as stated in Defendants' Statement of Undisputed Material Fact are

deemed admitted for the purpose of considering Defendants' Motion.
This is so, even though Plaintiff is pro se.^

See Moon v. Newsome,

863 F.2d 835, 837 {11th Cir. 1989) (^'[0]nce a pro se [in forma

pauperis] litigant is in court, he is subject to the relevant law
and

rules

of

court,

including

the

Federal

Rules

of

Civil

Procedure."); see also Smith v. Mercer, 572 F. App'x 676, 678 (11th
Cir. 2014) (^^The

Federal Rules of Civil Procedure state that a

party asserting that a fact is genuinely disputed must cite to
specific materials in the record and a failure to do so allows the
district court to consider the fact as undisputed for purposes of

the

motion

for

summary

judgment."

(citing

Fed.

R.

Civ.

P.

56(c)(1)(A), (e)(2))); Reese v. Herbert, 527 F.3d 1253, 1268 (11th

Cir. 2008) (stating in relation to a functionally identical local

^ The Court is satisfied that Plaintiff was provided record notice of Defendants'
Motion for Summary Judgment and mailed copies of that Motion as indicated by
the docket.

See Dkt. No. 49.

The Motion was mailed to the same address—308

Live Oak Circle, Broxton, GA 31519—to which every other notice in this case was
sent.

See, e.g., Dkt. Nos. 3, 6, 19, 21, 30, 34, 40, 42, 43, 44.

Moreover,

that same address is listed on Plaintiff's pro se Complaint, dkt. no. 1, and on
his Status Report, dkt. no. 46.

rule: ^^The proper course in applying Local Rule 56.1 at the summary

judgment stage is for a district court to disregard or ignore
evidence relied on by the respondent—but not cited in its response
to the movant's statement of undisputed facts—that yields facts

contrary to those listed in the movant's statement.").

The Court

has reviewed the entire record to ensure that summary judgment is
appropriate.
II.

As explained below, it is.

Plaintiff's Employment with Elixir

This case involves Plaintiff's employment with, termination

by, and subsequent discrimination and defamation suit against his
former

employer.

Defendant

Elixir

Extrusions,

Elixir is a limited liability corporation

LLC

(^"Elixir").

that provides full-

service, custom aluminum extrusions and fabricated parts for a

variety of applications, including structural components, lighting
fixture components, and door frames.
operated

a

large

facility

located

Dkt. No. 48-1 f 1.^
in

Douglas,

Georgia

Facility"), and it employed 222 individuals in 2017.
Of

those

222

employees,

74

were

African

Caucasian, and 40 were of other races.

Elixir
("the

Id. If 2-3.

Americans,

108

were

Id. SI 4.

Plaintiff, who is African American, worked as a Fab Machine
Operator in the Fabrication Department at the Facility at all times

2 The Court will cite facts as written in Defendants' Statement of Undisputed
Material Fact since Plaintiff did not respond to Defendant's Statement thus
making the facts written therein uncontroverted.

See L.R. 56.1.

The Court

also notes that Defendant's Statement of Undisputed Material facts is supported
by the record.

See 48-1.

relevant to this suit.

Id. SISI 2, 6, 9. In this position. Plaintiff

was responsible for ensuring that when parts were sawed off, the

rough edges were smoothed before a product was packaged for the
customer.

Id. SI 10.

While working for Elixir, Plaintiff reported

to Defendants David Wilkerson, his supervisor, and Michael Moore,

his manager.

Id. SISI 8, 11.

Defendant Rhonda Douglas, Elixir's HR

Manager, was involved in initially hiring Plaintiff (along with
Michael Moore).

Id. SI 8.

Lastly, Defendant Stephen Jones is the

Vice President of Elixir.

Id. SI 14.^

III. The April 26, 2017 Incident

On April 26, 2017, employee Carroll Dale emailed Jones and

Douglas to inform them that a truck driver reported a small bag of
marijuana in the main aisle of the Facility.

Id. SI 14.

Dale

indicated in his email that he was alerted to what looked like a

bag of marijuana that someone dropped on the floor and that he had
placed the bag in his desk drawer.

Id. SISI 15-16.

Dale suggested

that Jones and Douglas check camera footage to see who dropped
it.^

Id. SI 17.

Jones retrieved the bag of marijuana and went to

Douglas's office where they both began an investigation into the
matter.5

Id. SISI 18-19.

Douglas and Jones obtained the footage

3 The Court will refer to Moore, Douglas, Jones, and Wilkerson collectively as
the

Individual

Defendants.

All

of

the

Individual

Defendants

are

Caucasian.

Dkt. No. 48-1 55 12, 14.

^ Elixir has surveillance cameras placed throughout the Facility. Id. 5 19.
5 Elixir's Employee Handbook contains a Drug and Alcohol Policy, which provides:

from

the

surveillance

cameras

and

reviewed

determine from where the marijuana came.

that

footage

to

Id. SSI 20-21.

In the video footage, Plaintiff is seen entering the vending
machine area from the Packing Department and begins speaking to
,co-worker Orlando Spellman.

Id. SS 22-23.®

Another co-worker,

Robert Keith Adams, can be seen standing toward the back of the
video frame.

Id. S 25.

At 7:20:38, the video shows Plaintiff

extending his right hand toward Spellman and the two appear to

exchange an item that is clear or white.

Id. S 26.

After this

exchange, Spellman immediately puts both hands into his pockets

The Company is concerned about the use of alcohol, illegal drugs or
controlled substances as it affects the workplace. Use of these
substances whether on or off the job can adversely affect an

employee's

work performance,

efficiency, safety and

health

and

therefore seriously impair the employee's value to the Company. In
addition, the use or possession of these substances on the job
constitutes a potential danger to the welfare and safety of other
employees and exposes the Company to the risk of property loss or

damage, as well as injury to other persons. For these reasons, it
is our policy to maintain a drug-free workplace in compliance with
the Georgia Drug-Free Workplace Acts, O.C.G.A. 50-2-1 et seq. and
O.C.G.A. 34-9- 410 et seq.
The
unlawful possession, sale manufacture, distribution and
dispensation, or use of drugs (including a controlled substance and
marijuana as referenced in O.C.G.A 50-24-2) is prohibited on Company

premises or while conducting Company business or operating a Company
owned or leased vehicle.

The

Company

may take

disciplinary

action,

up

to and

including

immediate discharge, against an employee for violation of this
policy.

Id. 55 92-93.

Plaintiff admits that he received Elixir's employee handbook and

that he was governed by the contents.

Id. 5 94.

® The Court cites to Defendants' Statement of Undisputed Material Facts for
clarity and efficiency, but the Court notes that it reviewed the video evidence
in its entirety.

Plaintiff often provided Adams a ride to work, and he did so on the morning
of April 26, 2017.

Id. 5 13.

and turns away from the camera as Plaintiff moves toward the
vending machine.

Id. SI 27.

Then, Plaintiff, Adams, and Spellman

are seen talking near the vending machine when Adams hurries into
the men's restroom near the vending machines.

Id. SI 28.

About

seven seconds after Adams enters the men's restroom, Spellman also
enters that same restroom.

Id. SI 29.

At 7:22:50, Plaintiff leaves the vending area after getting
a drink from the vending machine.
Adams emerges from the

Id. SI 30.

About a minute later,

restroom while drying

his

hands, then

abruptly turns around and walks back into the restroom.

Id. SI 31.

A few seconds later, Spellman leaves the restroom and walks toward
the vending machine areas, and then, he exits the frame and returns
back to the Packing Department.

Id. SI 32.

Next, Adams emerges

from the men's restroom a second time and is seen walking down the
main aisle of the facility.
main

aisle,

a

small

approximately 7:24:28.

Id. SISI 35-37.

package

falls

Id. SI 38.

out

While walking down the
of

Adams's

pocket

at

After the package drops, a small

dark spot can be seen on the floor as Adams exits the video frame.
Id. SI 39.

This package was dropped in the same spot where the

marijuana was found by Dale.

Id. SI 40.

Moore identified the individuals in the video for Douglas and

Jones,® and based off of their review of the video and the bag of

® Spellman and Adams are both African American.
6

Dkt. No. 48-6 at 156-57.

marijuana found on the floor, Douglas, Jones, and Moore believed
that Plaintiff, Adams, and Spellman were involved in bringing drugs

to work and distributing those drugs in violation of Elixir's Drug

and Alcohol policy.

Id. SISI 42-44.

In response, Douglas called

the Coffee County Sheriff s Department to tell them that a bag of
marijuana was found on the premises.
IV.

Id. SI 45.

Sheriff's Office and Elixir Investigations

Upon arrival. Detectives from the Coffee County Sheriff's
Department reviewed the video footage and agreed with Douglas and
Jones that, based on their experience, this behavior was consistent

with drug activity.

Id. SI 47-49.

The Detectives also agreed with

Defendants that the package that Plaintiff handed to Spellman
looked like it could be drugs.

Id. SI 48.

The Detectives conducted

a walk-through in the parking lot around employee vehicles with
their K-9 unit.
Adams

Id. SISI 51-52.

was called to

Detectives

then

Adams

initially

Douglas' office.

quested

management employees.

After conducting the walk-through,

Adams

Id. SI 55.

denied

any

in

Id.

the

SI 54.

presence

One of the
of

When asked about the incident,

involvement

with

the

marijuana but later admitted that the package was his.
57.

Elixir's

package

of

Id. SISI 56-

Adams was then transported to the Coffee County Jail for the

charge of possession of marijuana.

Id. SI 58.

As for Spellman, he

was terminated for his involvement in the alleged distribution of

drugs at work and was transferred back to the Valdosta Transitional
Center where he was residing at the time.

Id.

60-61.

That afternoon. Plaintiff and other Elixir employees were

asked to take drug tests.

Id. SI 62.

that day, including Plaintiff, passed.
test. Plaintiff returned to work.
V.

All employees drug tested
Id. SI 63.

After the drug

Id. SI 64.

Plaintiff's Meeting with Management and Subsequent
Termination

Later that afternoon, Wilkerson asked Plaintiff to come to

Douglas's office to meet with him, Douglas, Jones, and Moore.
SISI 65-66.

Id.

Douglas showed Plaintiff the video footage and asked

him to explain what was occurring in the video.

Id. SISI 67-68.

Plaintiff responded that he did not know and asked Jones and
Douglas what they thought was in his hand.

Id. SI 70.

Defendants

continued to ask Plaintiff what it was that he gave to Spellman to

which he continued to respond that he did not know.
72.

Id. at SISI 71-

Plaintiff then told Defendants that he did not have drugs in

his hand.9
mentioned

Id. SI 74.

Defendants responded that they had not

anything about drugs.

Id.

SI

76.

Defendants asked

Plaintiff what was in his hand and explained that if he could not

tell them, they would have to walk him out to his car and terminate
his employment.

Id. SI 89.

Plaintiff provided no response so

5 Defendants had not mentioned drugs to the Plaintiff prior to him making this
statement.

Id. at 1 69.

8

Defendants walked him to his car and shook his hand.

Id. SISI 90-

91.

Plaintiff testified to a different account of the events in

his deposition.

Id. 5 77.

Plaintiff testified that after his

drug test, he was called into the office and was told" '''You good.
You can go back to work but we need you to tell me what's on this
video."

Id. f 78.

He then testified that he told Defendants that

"Tonya had told [him] to get her a monster drink . . . and she

gave [him] change."

Id.

S[ 79.

Plaintiff testified that on the

way to get the drink, he saw "Mr. Keith and Mr. Spellman, and [he]
bumped hands with Mr. Spellman."

Id. S[ 80.

Plaintiff later

clarified that he bumped fists with Spellman to greet him and then
went to get the drink requested by Tonya.

Id. S[ 81.

During his

deposition. Plaintiff testified that when Moore asked him what was
in his hand, he told Moore that he had change in his hand for the

monster drink.

Id. S[ 82.

According to Plaintiff's testimony,

Moore responded by saying "[w]ell that don't look like change. But
if you can't tell me what's in your hand, we're going to have to
walk you to the door."

Id. SI 83.

Plaintiff also testified that

Moore said at one point "there's clearly something in your hand."
Id. SI 102.

During his deposition. Plaintiff testified that he did

not have drugs and when asked what was in his hand, he stated

"that's change in my hand. That's—it's nothing else in my hand"
and said "there's no drug or nothing."

Id. SISI 84-85.

VI.

Procedural History

After

his

termination,

Plaintiff

filed

a

charge

of

discrimination with the EEOC, and on November 2, 2017, he received

a right to sue letter.

Dkt. No. 1-1.

Plaintiff filed his pro se

Complaint on February 15, 2018, alleging claims against Elixir as
well as the four Individual Defendants for disparate treatment and
retaliation under Title VII, 42 U.S.C. § 2000e, et. seq., and

defamation under Georgia law.

Dkt. No. 1.

On December 13, 2018,

the Court granted the Individual Defendants' Partial Motion to
Dismiss and dismissed Plaintiff's Title VII claims against the

Individual Defendants.

Dkt. No. 34.

On April 25, 2019, Defendants

filed the Motion for Summary Judgment currently at issue before
the Court arguing for summary judgment on the remaining Title VII
claims against Elixir and the defamation claim.

Dkt. No. 48.

Plaintiff has not responded to Defendants' Motion.
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

Cir.

Inv'r

Grp.

2011)

(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
10

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.Sd 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.

However, as in the instant case, where the nonmovant fails to

respond
movant's

to

the

movant's

Statement

of

motion

for

Undisputed

summary
Material

judgment
Facts

and

is

the

deemed

admitted, the Court '"must still review the movant's citations to

the record to determine if there is, indeed, no genuine issue of
material fact."

Mann v. Taser Int'l, Inc., 588 F.Sd 1291, 1303

(11th Cir. 2009); see also United States v. One Piece of Real Prop.
Located at 5800 SW 74th Ave., Miami, Fla., 363 F.Sd 1099, 1101-02
(11th Cir. 2004)

('''The district court cannot base the entry of

summary judgment on the mere fact that the motion was unopposed,
but, rather, must consider the merits of the motion.").
11

'"Even in

an unopposed motion, the moving party still bears the burden of
identifying

^the

interrogatories,

pleadings,

and

admissions

depositions,

on

file,

answers

together

with

to

the

affidavits, if any,' which it believes demonstrates the absence of

a

genuine issue of material fact."

(citation omitted).

Mann, 588

F.3d at 1303

Thus, while ''the district court need not sua

sponte review all of the evidentiary materials on file at the time
the motion is granted," it still "must ensure that the motion
itself is supported by evidentiary materials."
Prop., 363 F.3d at 1101.

One Piece of Real

As such, the Court "must review all of

the evidentiary materials submitted in support of the motion for
summary judgment."

Id. at 1101-02.
DISCUSSION

In this case. Plaintiff asserted claims against Defendants

for disparate treatment and retaliation under Title VII, 42 U.S.C.
§ 2000e, et. seq.

In addition. Plaintiff also asserted a state

law claim of defamation.

Upon reviewing the evidence submitted by

Defendants in their unopposed Motion for Summary Judgment, the

Court finds that no genuine dispute of material fact exists as to
any

of

clearly

Plaintiff's

claims

demonstrates

that

elements of his claims.

because

the

Plaintiff

evidence

cannot

meet

in

the

the

record

required

Therefore, for reasons explained below.

Defendants' Motion is GRANTED.

12

I.

Title VII Disparate Treatment Claim
Plaintiff claims that Defendants discriminated against him by

terminating his employment based on his race. ''^Title VII prohibits

an employer from discharging, or otherwise discriminating against,
an individual with respect to his compensation, terms, conditions,

or privileges of employment because of his race."

Redd v. United

Parcel Serv., Inc., 615 F. App'x 598, 602-03 (11th Cir. 2015)

(citing 42 U.S.C. § 2000e-2(a)(1)).

A plaintiff pursuing a claim

of disparate treatment under Title VII must prove discrimination
through either direct or circumstantial evidence.
Joe^ s

Stone

2000).

Crab,

'''Direct

Inc.,

evidence

220
is

F.Sd

1263,

evidence

See E.E.0.C. v.

1286

that

(11th

establishes

Cir.
the

existence of discriminatory intent behind the employment decision

without
omitted).

any
""So,

inference

or

presumption."

Id.

(citations

direct evidence of discrimination is powerful

evidence capable of making out a prima facie case essentially by
itself."

Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321,

1323 (11th Cir. 1998).

'"Remarks by non-decisionmakers or remarks

unrelated to the decisionmaking process itself are not direct
evidence of discrimination."

Standard v. A.B.E.L. Servs., Inc.,

161 F.3d 1318, 1330 (11th Cir. 1998).

"Absent direct evidence, a plaintiff may prove intentional
discrimination through the familiar McDonnell Douglas paradigm for
circumstantial

evidence

claims."
13

E.E.0.C.,

220

F.3d

at

1286.

Under

requires

a

the

McDonnell

plaintiff

discrimination.

to

Douglas

show

a

framework,

prima

facie

the

case

first

of

step

racial

""^Presenting a prima facie case is not onerous as

it requires only that the plaintiff establish facts adequate to

permit an inference of discrimination."
520 F.3d 1269, 1275 {11th Cir. 2008).

Rioux v. City of Atlanta,

Under the traditional rule,

^'[t]o make out a prima facie case of racial discrimination a
plaintiff must show (1) [he] belongs to a protected class; (2)
[he] was qualified to do the job; (3) [he] was subjected to adverse

employment

action;

and

(4)

[his]

employer

treated

similarly

situated employees outside [his] class more favorably."

Crawford

V. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

If a plaintiff can establish a prima facie case, a presumption
of discrimination in favor of the plaintiff is created and the

burden of production then shifts to the employer to articulate a

^^legitimate, nondiscriminatory reason for its actions."
376 F.3d at 1087.

Wilson,

Although this is generally a light burden for

an employer to meet, see Smith v. Horner, 839 F.2d 1530, 1537 (11th
Cir.

1988)

(describing

employer's

burden

at

this

stage

as

^^exceedingly light"), an employer still must present some neutral,
non-discriminatory basis for the actions that he or she took.

the employer satisfies this burden, ^^then

the

If

presumption of

discrimination is rebutted, and the burden of production shifts to

the plaintiff to offer evidence that the alleged reason of the
14

employer is a pretext for illegal discrimination."
F.3d at 1087.

Wilson, 376

''The inquiry into pretext requires [the Court] to

determine whether, in view of all the evidence, 'the plaintiff has
cast doubt on the defendant's proffered nondiscriminatory reasons
sufficient to allow a reasonable factfinder to determine that the

defendant's proffered legitimate reasons were not what actually
motivated its conduct.'"

Webb v. Int'l Bus. Machines Corp., 458

F. App'x 871, 876 (llth Cir. 2012) (quoting Silvera v. Orange Cnty.
Sch. Bd., 244 F.3d 1253, 1258 (llth Cir.2001)).

"To show pretext,

[an employee] must demonstrate 'such weaknesses, implausibilities,
inconsistencies,

incoherencies,

or

contradictions

in

the

employer's proffered legitimate reasons for its action that a
reasonable
credence.'"

factfinder

an

employer's

substitute

employer."

his

and

them

unworthy

of

However, an employee is "not allowed to
proffered

business

nondiscriminatory

judgment

for

reasons

that

of

or

the

Chapman v. AX Transp., 229 F.3d 1012, 1030 (llth Cir.

2000) (en banc).
on

find

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,

1265 (llth Cir. 2010).
recast

could

rebut

Rather, "an employee must meet that reason head

it,

and

the

employee

cannot

quarreling with the wisdom of that reason."

succeed

by

simply

Id.

Plaintiff has not offered any direct evidence of disparate
treatment in this case, and, therefore, he must establish his claim

through

circumstantial

evidence
15

under

the

McDonnel

Douglas

framework.

However, within this framework. Plaintiff's disparate

treatment claim fails for two reasons. First, Plaintiff- fails to

establish a prima facie case of disparate treatment because he has
failed to show that other similarly situated employees were treated

more

favorably.

Second,

Plaintiff

fails

to

rebut

Defendant's

proffered nondiscriminatory reason by showing that it is pretext
for illegal discrimination.
A. Prima Facie Case of Racial Discrimination

Plaintiff cannot establish

a

prima

facie

case

of racial

discrimination because he cannot prove that similarly situated

employees outside of his class were treated differently. Recently,
the Eleventh Circuit changed its rule regarding the definition of
a

comparator

in

the

prima

facie

analysis

for

employment

discrimination claims.

See Lewis v. City of Union City, 918 F.3d

1213 (11th Cir. 2019).

In Lewis, the Eleventh Circuit held that

^'a plaintiff asserting an intentional-discrimination claim under
McDonnell

Douglas must demonstrate that she

comparators

were

respects.'"

Id.

^similarly

at

1226.

situated

There,

the

and

in

Court

her

proffered

all

material

also

provided

similarities that would lead to a valid comparison. A similarly
situated comparator:

will have engaged in the same basic conduct (or
misconduct) as the plaintiff; will have been subject to
the same employment policy, guideline, or rule as the
plaintiff; will ordinarily (although not invariably)
have been under the jurisdiction of the same supervisor
16

as the

plaintiff;

will have

shared

the

plaintiff's

employment or disciplinary history.

Id.

at

1227-28.

Plaintiff

has

not

presented

any

evidence

suggesting that a similarly situated employee outside of his
protected class was treated differently.

In fact, Plaintiff has

not pointed to any other employee at Elixir to show that he was
treated

differently

by

Elixir's drug policy.

being

fired

for

allegedly

violating

See Payne v. Goodyear Tire & Rubber Co.,

760 F. App'x 803, 808 (11th Cir. 2019) (^^If a' plaintiff fails to
show

the

existence

of

a

similarly

situated

employee,

summary

judgment is appropriate where no other evidence of discrimination
is present." (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe

Ry. Co. V. White, 548 U.S. 53 (2006) and Lewis, 918 F.3d at 1213).

Additionally, the

record

is

devoid

of any ^^other

evidence

of

discrimination.

Id.; cf. Rioux, 520 F.3d at 1277 (finding prima

10 Rather, Defendants have actually presented evidence to the contrary, showing
that at least in one instance, a similarly situated employee outside of
Plaintiff's class was given the same treatment as Plaintiff. See Dkt. No. 481 5 99 (explaining that Elixir terminated a white employee in February 2019 who
violated the drug policy, was supervised by Moore, and held the same position
as Plaintiff).

11

Plaintiff

testified

in

his

deposition

that

he

believed

that

he

was

discriminated against because of his race when he was fired for violating the
drug policy because Defendants based their decision off of stereotypes, his
friendship with Adams and Spellman, and the fact that he drove Adams to work.

Dkt. No. 48-6 at 151-52.

However, Plaintiff did not present any evidence to

support these assertions. Plaintiffs subjective belief that he was stereotyped
based on his race and relationship with his co-workers, without more, is
insufficient to establish his prima facie case of discrimination based on an
"other

evidence

of discrimination" standard.

Cf.

Rioux,

520

F.3d

at

1277

(finding prima facie case met based on "other evidence" standard where
plaintiff's employer kept a race-tracking spreadsheet of personnel decisions,
desired to keep a racial balance of 50/50 black/white among the employees, a
17

facie case met where plaintiff presented no valid comparator but
presented

other

evidence

Plaintiff

has

failed

presented

any

other

to

of

discrimination).

point

evidence

to
of

any

Thus,

comparator

discrimination,

because

and
he

has

not

fails

to

establish the prima facie case for his disparate treatment claim.
B. Pretext

Assuming arguendo that Plaintiff could establish a prima facie
case,

his

disparate

treatment

claim

fails

to

survive

summary

judgment because Defendants have pointed to a non-discriminatory
reason

for

Defendants'

their

asserted

discrimination.

for

actions

violating

justification

and

Plaintiff

has

nondiscriminatory

failed

reason

is

to

show

that

pretext

for

Defendants assert that Plaintiff was terminated

the

company's

based

on

Drug

company

and

Alcohol

policy

is

Policy.

This

a

non-

valid

discriminatory justification.

Because Defendants provided a legitimate, nondiscriminatory
reason

for

Plaintiff's termination,

the

burden

shifts

back

to

short list of candidates to replace plaintiff contained candidates all of a
different race from plaintiff, another employee was goaded into filing a
grievance against plaintiff by his employer, the difference in degree of an
investigation of plaintiff versus an investigation of another employee, etc.);
Robinson v. City of Darien, 362 F. Supp. 3d 1345, 1365 (S.D. Ga. 2019) (finding
other evidence of discrimination where, among other things, witnesses testified
that after plaintiff's interracial relationship with a coworker became public,
he was disciplined more often, evidence showed that plaintiff was subject to a
vehicle policy that other officers were not subjected to, plaintiff's
supervisors gave conflicting reasons for demoting him, plaintiff's supervisors

allowed a Nazi flag to be hung in the office, and plaintiff's supervisor admitted
to making discriminatory comments about interracial dating and telling a story
about shooting African Americans with a BB gun when he was younger).
18

Plaintiff to show that this proffered reason is pretext.

Plaintiff

did

not respond

with

any evidence that

However,

Defendants'

asserted reason is actually pretext for illegal discrimination.
Moreover, after reviewing the record, the Court finds no evidence

that would support a finding of pretext in this case. ""The inquiry
into pretext centers upon the employer's beliefs, and not the

employee's own perceptions of his performance."
F.3d

at

1565.

Thus, the

inquiry

here

is

Holifield, 115

whether

Defendants

reasonably and in good faith believed that Plaintiff violated

Elixir's drug policy, not whether he actually violated the policy
by distributing drugs at work.

See id. ('\[W]here the employer

produces . . . evidence of misconduct and insubordination that
demonstrate poor performance, an employee's assertions of his own

good performance are insufficient to defeat summary judgment, in
the absence of other evidence."); Elrod v. Sears, Roebuck & Co.,

939 F.2d

1466,

1470 (11th

Cir.

1991) (explaining

in the ADEA

discrimination context that "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"); Feise v. N. Broward Hosp. Dist., 683 F. App'x

746, 753 (11th Cir. 2017) (explaining in the FMLA retaliation
context that "an employer can hardly be said to have discriminated
or retaliated against an employee if it terminated the employee
19

based on a good faith belief that she violated a rule, even if the
purported

violation

never

actually

occurred");

Chapman

v.

AI

Transp., 229 F.3d 1012, 1030 (11th,Cir. 2000) (stating in the ADEA

discrimination context that an ^'employer may fire an employee for
a good reason, a bad reason, a reason based on erroneous facts, or
for

no

reason

at

all,

as

long

as

its

action

is

not

for

a

discriminatory reason").
Here,

the

record

shows

that

Defendants

after

finding

marijuana in the Facility, reviewing video footage, consulting law
enforcement,

believing

and

that

he

interviewing

was

Plaintiff,

involved

in

terminated

distributing

Facility in violation of Elixir's drug policy.

presented

no

evidence

showing

that

drugs

him

for

at the

Plaintiff has

Defendants'

decision

was

actually pretext for discriminating against him based on his race.
Indeed, Defendants could have been wrong in their belief that

Plaintiff violated the drug policy, but nothing in the evidence
shows that their reason, mistaken or not, had anything to do with
Plaintiff's

race.

Thus,

even

assuming

that

Plaintiff

could

establish his prima facie case, he still fails to meet his burden
to show that Defendants' proffered non-discriminatory reason was

pretext for discrimination.

For these reasons. Defendants' Motion

for Summary Judgment on Plaintiff's disparate treatment claim is
due to be GRANTED.

20

II.

Title VII Retaliation Claim

Plaintiff claims that Defendants terminated his employment in

retaliation against him for engaging in a protected activity under
Title

VII.

Title

VII

prohibits

an

employer from

retaliating

against an employee because the employee ^'opposed any practice"
made unlawful by Title VII. 42 U.S.C. § 2000e-3(a).

Accordingly,

Title VII forbids retaliation against an employee who reports race
discrimination in the

workplace.

Crawford

v. Metro. Gov^t of

Nashville & Davidson Cty., 555 U.S. 271, 273 (2009).

evidence
Douglas

of

discrimination,

framework

when

the

Court

analyzing

claims

employs
for

Absent direct

the

retaliation.

Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009).

framework,

retaliation

a

plaintiff

establishes

by showing that he:

a

McDonnell

prima

Under this

facie

(1) engaged in

a

See

case

of

statutorily

protected activity; (2) suffered a materially adverse employment
action; and (3) established a causal link between the protected
activity and the

adverse

action. Holifield,

115

F.3d

at 1566;

Gowski V. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).

Like his disparate treatment claim. Plaintiff relies on the
McDonnel

Douglas

framework

to

establish

his

retaliation

claim

through circumstantial evidence.

However, Plaintiff's retaliation

claim fails for three reasons.

First, Plaintiff fails to show

that he engaged in protected activity.

Second, even if Plaintiff

engaged in protected activity, he has failed to show a causal
21

connection between the alleged protected activity and the adverse

employment action.

Third, Plaintiff fails to rebut Defendants'

proffered nondiscriminatory reason by showing that it is pretext
for illegal discrimination.
A. Prima Facie Case of Retaliation

First,

plaintiff

fails

to

statutorily protected activity.

show

that

he

engaged

in

a

'''Statutorily protected activity

includes (1) ^oppos[ing] any practice made an unlawful employment

practice by' Title VII and (2) ^mak[ing] a charge, testif[ying],
assist[ing], or participat[ing] in any manner in an investigation,
proceeding, or hearing under' Title VII. 42 U.S.C. § 2000e-3(a)."
Smith V. City of Greensboro, 647 F. App'x 976, 983 (11th Cir. 2016)
(citing EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174-75
(11th Cir.2000)); see also Edwards v. Ambient Healthcare of Ga.,

Inc., 674 F. App'x 926, 930 (11th Cir. 2017)).

Plaintiff claims

that Defendants retaliated against him based on his race because
he bumped hands with another employee and transported a co-worker
to and from work.

Dkt. No. 48-1 SI 86.

terminated as an example ^^to show
[Elixir]

won't

tolerate

this

type

He explained that he was

the rest of the plant that
of

behavior."

Id.

SI

87.

However, neither of these actions constitute protected activity
under Title VII, and Plaintiff has not alleged any unlawful conduct
by Defendants that he was opposing in any way.

22

In

order

to

constitute

protected

activity,

Plaintiff's

activity must fall under the opposition clause or participation
clause of Title Vll.

See Total Sys. Servs., Inc., 221 F.3d at

1174 {^'Under the opposition clause, an employer may not retaliate

against an employee because the employee ^has opposed any practice
made an unlawful employment practice by this subchapter.'

And,

under the participation clause, an employer may not retaliate

against an employee because the employee
testified,

assisted,

or

participated

in

^has made a charge,
any

manner

in

an

investigation, proceeding, or hearing under this subchapter.'"
(quoting 42 U.S.C. § 2000e-3(a))}.

In other words, protected

activity occurs when an employee opposes employment practices made
unlawful by Title Vll or participates in a Title Vll investigation.
Here, Plaintiff fails to allege any unlawful conduct by

Defendants that he acted in opposition of and alternatively fails

to allege that he was part of any Title Vll investigation during
his employment.. A fist bump and transporting a co-worker do not

constitute

protected activity because they were

not done in

opposition to any alleged unlawful conduct of Defendants and were

not part of a Title Vll investigation.

In other words. Plaintiff

has failed to show that he took any action protected by Title VII
for

which

he

was retaliated

against.

Thus, Plaintiff cannot

establish a prima facie case of retaliation because he fails to
show that he engaged in protected activity.
23

Second, Plaintiff fails to show a causal connection between

the alleged protected activity and his termination.^2

Because

Plaintiff fails to show that he engaged in any protected activity,
he also fails to show a causal connection.

Without a protected

activity, he cannot show a connection between a protected activity
and an adverse action.

Thus, for these two reasons. Plaintiff

fails to establish a prima facie case of retaliation.
B. Pretext

Assuming
facie

case,

arguendo that Plaintiff could
his

retaliation

claim

would

establish

still

fail

a

prima

under

the

McDonnell Douglas burden-shifting framework that also applies to
Title VII retaliation claims.
1307 (11th Cir. 2009).

first

establish

a

See Bryant v. Jones, 575 F.3d 1281,

Under McDonnel Douglas, the employee must

prima

facie

case

for

retaliation. •

This

^^create[s] a presumption that the adverse action was the product
of an intent to retaliate."

Id. at 1308.

has been established, ^^the

burden

Once a prima facie case

of production shifts to the

defendant to rebut the presumption by articulating a legitimate,
non-discriminatory reason for the adverse employment action."

Id.

If the defendant satisfies this burden, then the presumption is

12 Plaintiff's termination clearly meets the second element of a materially
adverse action.
See Williams v. Apalachee Ctr., Inc., 315 F. App'x 798, 799
(llth Cir. 2009) (''In order to constitute an adverse employment action for

purposes of establishing a prima facie case under Title VII's anti-retaliation
provision, the action must be materially adverse from the standpoint of a
reasonable employee, such that it would dissuade a reasonable employee from
making a discrimination charge.").
24

rebutted and the burden shifts back to the plaintiff to demonstrate

^^that the defendant's proffered reason was merely a pretext to
mask discriminatory actions."

Id.

Assuming that Plaintiff was able to establish a prima facie
case of retaliation, the burden shifts to Defendants to provide a

legitimate,

non-discriminatory

reason

for

his

termination.

Defendants met this burden by showing that Plaintiff was terminated
for violating the company's Drug & Alcohol Policy. Now, the burden
shifts back to Plaintiff to demonstrate that Defendants' reason

was merely pretext.

Plaintiff did not respond and therefore fails

to meet his burden.

Moreover, as explained above in the disparate

treatment analysis, the Court finds that the record is devoid of
any evidence that would support a claim of pretext.

Because

Plaintiff failed to show that Defendants' "proffered reason was

merely

a

pretext

to

mask

discriminatory

establish this element of his claim.

retaliation

claim

fails,

and

Id.

actions," he

cannot

As such. Plaintiff s

Defendants'. Motion

for

Summary

Judgment on Plaintiff's retaliation claim is due to be GRANTED.
Ill. State Law Defamation Claim

Plaintiff claims that Defendants made false and defamatory

statements regarding
work.

his involvement in distributing drugs at

"To establish a cause of action for defamation, a plaintiff

must submit evidence of (1) a false and defamatory statement about

himself; (2) an unprivileged communication to a third party; (3)
25

fault by the defendant amounting at least to negligence; and (4)

special damages or defamatory words ^injurious on their face.'"
RCO Legal, P.S., Inc. v. Johnson, 820 S.E.2d 491, 498-499 (Ga. Ct.

App. 2018) (quoting Chaney v. Harrison & Lyman, L.L.C., 708 S.E.2d
672, 676 (Ga. Ct. App. 2011)).

Under Georgia Law, 'Mp]ublication

of the statement is imperative and, without it, the defamation
claim fails."

Saye v. Deloitte & Touche, L.L.P., 670 S.E.2d 818,

821 (Ga. Ct. App. 2008); see O.C.G.A. § 51-5-1(b) (''The publication
of

the

libelous

matter

is

essential

to

recovery.").

The

publication requirement is expressed in the second element of a
claim

of

defamation.

"Generally,

publication

is

achieved

by

communicating a defamatory statement to anyone other than the

person being defamed."

Saye v. Deloitte & Touche, L.L.P., 670

S.E.2d 818, 821 (Ga. Ct. App. 2008).
during

private,

intra-corporate

However, "statements made

investigations . . . are

not

[considered] 'published' for purposes of a defamation claim. Lewis
V. Meredith Corp., 667 S.E.2d 716, 719 (Ga. Ct. App. 2008) (citing
O.C.G.A. § 51-5-7(2), (3)).

Further, "A plaintiff cannot prove

publication without introducing evidence of the specific statement
used in an allegedly defamatory communication." Lewis v. Meredith
Corp., 667 S.E.2d 716, 718 (Ga. Ct. App. 2008).
Plaintiff cannot establish a claim of defamation because he

fails

to

Defendants

identify
and

a

fails

false
to

or

satisfy
26

defamatory
the

statement

publication

made

by

requirement.

Plaintiff does not point to any specific false or defamatory
statements made by Defendants and, even if he did, those statements

were

made

therefore

during
not

an

intra-corporate

considered

^^published"

investigation
for

and

are

of

his

false

and

purposes

defamation claim.

First,

Plaintiff

claims

that

Defendants

made

defamatory statements regarding his involvement in distributing
drugs at work, but he fails to point to any specific false
statement made by Defendants.

In fact, when questioned about his

defamation claim. Plaintiff mentioned only one statement made by

Defendant Moore—"there's clearly something in [Plaintiff's] hand."
Plaintiff cannot claim that this statement was false or defamatory

as he later admits that he had change in his hand at the time.

This is the only statement that Plaintiff testified to as being
false or defamatory, and his own testimony invalidates this claim.
Because Plaintiff fails to offer evidence of specific false or

defamatory statements made by Defendants, he cannot satisfy the
first element of his defamation claim.

Second, assuming arguendo that Plaintiff could point to a

specific false and defamatory statement made by Defendants, his
claim would also fail because these statements occurred during a

private,

intra-corporate

investigation

and

are

^^published" for purposes of a defamation claim.

not

considered

Plaintiff admits

that all of the allegedly false statements were made during the
27

investigation.

See Dkt. No. 48-1 5 103.

Specifically, these

statements were made during the meeting in Defendants' office.
Therefore, even if Plaintiff had identified specific false or

defamatory statements made during that meeting, those statements

would

not

defamation

qualify
claim

as

being

because

^'published" for

they

fall

under

purposes

the

of

his

intra-corporate

exception to the general rule.

Although

Plaintiff

testified

that

the

statements

were

^^published" when ^^it got out" that his employment was terminated,
he was unable to identify the individuals who made the alleged
statements.

He further testified that the statement that Moore

made about there being something in Plaintiff s hand was not told

to anyone else.

Dkt. No. 48-6 at 193.

Rather, he testified that

it was made to others present in the office. Id. at 192. Moreover,
Plaintiff does not identify any other individuals who made any

alleged statements.

Dkt. No. 48-6 179-181.

Finally, Plaintiff

admits that he is not aware of any of the individual Defendants

telling

others

statements

about

about

him.

the

investigation

Dkt.

No.

or

making

48-6 at .193,

defamatory

196-97.

Thus,

Plaintiff has failed to establish the first two elements of his

defamation claim,

for these reasons. Defendants' Motion for

13 Additionally, Plaintiff cannot prove the third element of his defamation
claim that Defendants acted at least negligently because any statements made
about what was in his hand on the video were made in a private office with only
management present. Under such circumstances, without evidence to the contrary,
28

Summary Judgment on Plaintiff s Defamation Claim is due to be
GRANTED.

CONCLUSION

For the reasons stated above. Defendants' Motion for Summary

Judgment, dkt. no. 48, is GRANTED.

The Clerk of Court is DIRECTED

to close this case.

SO ORDERED, this 27th day of June, 2019.

HON*r LISA GODBEJy WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

even assuming the statement or statements made were false. Defendants did not
make them negligently.

14 Moreover, Elixir cannot be held liable for defamation in this case for the
additional reason that Plaintiff has failed to show that it directed or
authorized slander of Plaintiff or that the alleged defamatory statements were

made by an employee acting within the scope of his employment.

See H&R Block

Eastern Enters, v. Morris, 606 F.3d 1285, 1296 (llth Cir. 2010) ("Under Georgia

law, an employer is not liable for a slanderous statement made by its employee
unless the employee ^was expressly directed or authorized to slander the
plaintiff or if the employee was ^acting within the scope of his employment.'"
(quoting
Lepard v. Robb, 410 S.E.2d 160, 162 (Ga. Ct. App. 1991)) (citing
Garren v. Southland Corp., 228 S.E.2d 870, 871 (Ga. Ct. App. 1976))).

A0 72A

(Rev. 8/82)

29