COX v. COCA-COLA

Filing 56

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - For the reasons stated above, Coca-Cola's Motion for Summary Judgment (Filing No. 45) is GRANTED in part and DENIED in part. Ms. Cox's claims for retaliation, reinstatement and puni tive damages are dismissed. Ms. Cox has demonstrated a dispute of material fact on her gender discrimination claim under the indirect method of proof, therefore her claim for discrimination based on gender survives summary judgment. (See order). Signed by Judge Tanya Walton Pratt on 6/9/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SANDRA D. COX,
Plaintiff,
v.
COCA-COLA,
Defendant.

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Case No. 1:14-cv-00936-TWP-DKL

ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court is on a Motion for Summary Judgment filed by Defendant
Coca-Cola Refreshments USA, Inc. (“Coca-Cola”). Following termination of her employment
with Coca-Cola, Plaintiff Sandra D. Cox (“Ms. Cox”) filed this action alleging claims for gender
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), retaliation,
failure to reinstate and punitive damages1. The reason given for her termination was that she
violated Coca-Cola’s attendance policy. Ms. Cox does not dispute that she violated the policy,
however, she alleges that several similarly situated male employees who violated Coca-Cola’s
attendance policy were either not terminated or if terminated they were later reinstated. Coca-Cola
denies that it discriminated against Ms. Cox because of her gender. For the following reasons, the
Court grants in part and denies in part Coca-Cola’s Motion for Summary Judgment (Filing No.
45).

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The parties previously stipulated to dismissal of the retaliation claim. (Filing No. 41; Filing No. 42.) In addition,
Ms. Cox did not respond to Coca-Cola’s arguments regarding the reinstatement claim either in her response or surreply
briefs. Accordingly, the Court considers Ms. Cox to have abandoned her reinstatement claim and GRANTS summary
judgment in favor of Coca-Cola on both the retaliation and reinstatement claims. See, e.g., Palmer v. Marion Cnty.,
327 F.3d 588, 597 (7th Cir. 2003) (observing that arguments not addressed in summary judgment response brief are
deemed abandoned); Cohen-Chaney v. Nat’l R.R. Passenger Corp., No. 1:10-cv-0400-JMS-TAB, 2012 WL 243676,
at *3 n.1 (S.D. Ind. 2012).

I. BACKGROUND
As required by Federal Rule of Civil Procedure 56, all inferences and all admissible
evidence is presented in the light most favorable to Ms. Cox as the non-moving party. See Zerante
v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
Coca-Cola’s Indianapolis, Indiana facility is divided into three groups: manufacturing,
distribution, and sales. In 2001, Ms. Cox began working for Coca-Cola as a machine operator in
the manufacturing division. Richard Johnson (“Mr. Johnson”) began his employment at CocaCola in May 2011 as interim Plant Manager and in November 2011 he was named as Plant
Manager, overseeing manufacturing operations at the facility. Ms. Cox worked under Mr.
Johnson’s authority from May 2011 until her termination on July 22, 2013.
Coca-Cola has Equal Employment Opportunity and Anti-Discrimination Policies which
prohibit discrimination or harassment on the basis of protected characteristics or classifications,
and prohibit retaliation for engaging in related protected activities. These policies also provide
many avenues through which employees may bring their complaints if they believe they are being
discriminated against.
Coca-Cola manufacturing employees are represented by the Retail, Wholesale, and
Department Store Union Local 1096 (the “Union”). Coca-Cola also maintains an attendance
policy for its manufacturing division, as dictated by the Collective Bargaining Agreement. Under
the attendance policy, a manufacturing employee is subject to termination if he or she accrues
twelve or more points within a rolling twelve-month period.
Ms. Cox does not dispute that during her tenure at Coca-Cola she received twenty-seven
disciplinary actions related to attendance or clocking violations, including fourteen 3-day

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suspensions and three final warnings. Further, she readily admits that she was terminated from
her employment on July 22, 2013 for receiving more than twelve points within a twelve month
period, in accordance with the attendance policy. (See Filing No. 50 at 4, 21; Filing No. 47-1 at
126; see also Filing No. 51-3 at 6; Filing No. 47-5 at 19.) However, Ms. Cox contends that she
was singled out and treated much more harshly than similarly situated males who violated the
attendance policy. She argues that the attendance policy was enforced in a discriminatory manner,
allowing “second chances” for males but not for females. It is on this theory that Ms. Cox stakes
her Title VII discrimination claim.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if 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). In ruling on a motion for summary judgment,
the court reviews the record in the light most favorable to the non-moving party and draws all
reasonable inferences in that party’s favor.
The party seeking summary judgment bears the initial responsibility of informing the court
of the basis for its motion, and identifying “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,” which demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (noting that,
when the non-movant has the burden of proof on a substantive issue, specific forms of evidence
are not required to negate a non-movant’s claims in the movant’s summary judgment motion, and
that a court may, instead, grant such a motion, “so long as whatever is before the district court
demonstrates that the standard . . . is satisfied.”). See also Fed. R. Civ. P. 56(c)(1)(A) (noting
additional forms of evidence used in support or defense of a summary judgment motion, including:

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“depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . . , admissions, interrogatory answers, or other materials”).
A non-moving party, who bears the burden of proof on a substantive issue, may not rest on
its pleadings but must affirmatively demonstrate, by specific factual allegations, that there is a
genuine issue of material fact that requires trial. Hemsworth v. Quotesmith.Com, Inc., 476 F.3d
487, 490 (7th Cir. 2007); Celotex Corp., 477 U.S. at 323-24; Fed. R. Civ. P. 56(c)(1). Neither the
mere existence of some alleged factual dispute between the parties nor the existence of some
“metaphysical doubt” as to the material facts is sufficient to defeat a motion for summary
judgment. Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997); Anderson,
477 U.S. at 247-48; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“It is not the duty of the court to scour the record in search of evidence to defeat a motion for
summary judgment; rather, the nonmoving party bears the responsibility of identifying the
evidence upon which [it] relies.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104
(7th Cir. 2008).
Similarly, a court is not permitted to conduct a paper trial on the merits of a claim and may
not use summary judgment as a vehicle for resolving factual disputes. Ritchie v. Glidden Co., ICI
Paints World-Grp., 242 F.3d 713, 723 (7th Cir. 2001); Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994). Further, a court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts. Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003) (“these are jobs for a factfinder”); Hemsworth, 476 F.3d at 490. Instead, when
ruling on a summary judgment motion, a court’s responsibility is to decide, based on the evidence
of record, whether there is any material dispute of fact that requires a trial. Id.

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III. DISCUSSION
A.

Title VII Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer, “to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2012). A
plaintiff alleging discrimination under Title VII may prove discrimination using either the direct
method, by proffering direct or circumstantial evidence that discrimination motivated the adverse
employment decision, or the indirect, burden-shifting method. Andonissamy v. Hewlett-Packard
Co., 547 F.3d 841, 849-50 (7th Cir. 2008); Miller v. Ind. Univ. Health, Inc., No. 1:12-CV-1667TWP, 2014 WL 4259628, at *4 (S.D. Ind. Aug. 29, 2014). Ms. Cox argues that she can prove
discrimination with both indirect and indirect evidence.
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Direct Method

The direct method of proof requires a plaintiff to produce either direct evidence or a
“convincing mosaic” of circumstantial evidence in order to prove that a defendant was motivated
by animus toward a protected class when the plaintiff suffered an adverse employment action.
Andonissamy, 547 F.3d at 849; Coleman v. Donahoe, 667 F.3d 835, 860 (7th Cir. 2012); Miller,
2014 WL 4259628, at *4 (S.D. Ind. Aug. 29, 2014).
Direct evidence establishes “the fact in question without reliance on inference or
presumption.” Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005); Miller, 2014 WL 4259628, at
*4. See also Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009) (“[d]irect
evidence would be an admission by the decisionmaker that the adverse employment action was
motivated by discriminatory animus”).

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In contrast, circumstantial evidence “allows a jury to infer intentional discrimination by the
decision maker”.

Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004)

(“circumstantial evidence, however, must point directly to a discriminatory reason for the
employer’s action”); Miller, 2014 WL 4259628, at *4. Circumstantial evidence in employment
discrimination cases typically comes in three categories, including: (1) evidence of suspicious
timing, ambiguous oral or written statements, or behavior or comments directed at other employees
in the protected group; (2) evidence that similarly situated employees outside the protected class
received systematically better treatment; and (3) evidence that the employee was qualified for the
job in question but was passed over in favor of a person outside the protected class and the
employer’s reason is a pretext for discrimination. Coleman, 667 F.3d at 860; Darchak, 580 F.3d
at 631.
Ms. Cox presents no direct evidence of discrimination, either in the form of an admission
by a decision-maker or in the form of circumstantial evidence. For instance, she presents no
evidence that the persons responsible for her termination made any derogatory or discriminatory
remarks based on her gender. Although she alleges that males were treated more favorably under
the attendance policy, as discussed in greater detail below, Ms. Cox presents only a small handful
of potential comparators whose employment was not terminated under the attendance policy. In
contrast, Coca-Cola submitted rebuttal evidence of alleged male comparators whose employment
was terminated under the attendance policy. Without more, Ms. Cox cannot establish that males
were “systematically” treated better than females under the attendance policy.
Accordingly, Ms. Cox has failed to present sufficient direct evidence of gender
discrimination and must, instead, establish her claim under the indirect method of proof. See
Andonissamy, 547 F.3d at 849-50; Miller, 2014 WL 4259628, at *4;

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2.

Indirect Method

Under the indirect method of proof, a prima facie case of discrimination requires a showing
that: (1) the plaintiff is a member of a protected class; (2) she was meeting the employer’s
legitimate employment expectations; (3) she suffered an adverse employment action; and (4) she
was treated less favorably than a “similarly situated” non-protected class member. Andonissamy,
547 F.3d at 849-50; Velez v. City of Chi., 442 F.3d 1043, 1049-50 (7th Cir. 2006). To establish
the prima facie case, a plaintiff must raise a genuine issue of material facts for each element.
DeLuca v. Winer Indus., Inc., 53 F.3d 793, 798 (7th Cir. 1995); Grady v. Affiliated Comput. Servs.
ACS, No. 1:13-CV-342-TWP, 2015 WL 1011355, at *4 (S.D. Ind. Mar. 4, 2015).
Once the plaintiff establishes a prima facie case of discrimination, the burden of production
shifts to the defendant to articulate a non-discriminatory reason for the adverse employment action.
Sun v. Bd. of Trs. of the Univ. of Ill., 473 F.3d 799, 814 (7th Cir. 2007); Grady, 2015 WL 1011355,
at *4. If the defendant does so, the burden shifts back to the plaintiff to submit evidence
demonstrating that the defendant’s explanation is pretextual. Keeton v. Morningstar, Inc., 667
F.3d 877, 884 (7th Cir. 2012); Grady, 2015 WL 1011355, at *4.
It is undisputed that Ms. Cox falls within a protected class and that she suffered an adverse
employment action. However, Coca-Cola argues that Ms. Cox cannot establish the remaining
prongs of a prima facie case and she cannot establish that Coca-Cola’s stated justifications for her
termination were pretextual.
a.

Legitimate Expectations

To meet the second element of a prima facie case, Ms. Cox must establish that she was
performing her job to the employer’s legitimate expectations at the time of the adverse
employment action. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 328-29 (7th Cir. 2002). Ms.

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Cox readily admits that she had accumulated the requisite number of disciplinary points within the
twelve month period to subject her to termination under the attendance policy. Further, Ms. Cox
does not contend that she was unaware of the attendance policy; that the policy did not apply to
her; or that the policy was not enforced against her according to its terms. Instead, she asserts that
Coca-Cola applied its legitimate expectations in a discriminatory manner, thus, the Court’s
analysis of the legitimate expectation prong of the prima facie case merges with its pretext analysis.
See, e.g., Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001) (where the issue is whether
the plaintiff was singled out for discipline based on a prohibited factor, it “makes little sense...to
discuss whether she was meeting her employer’s reasonable expectations”); Oest v. Ill. Dep't of
Corr., 240 F.3d 605, 612 n. 3 (7th Cir. 2001) (“legitimate expectations” prong of the prima facie
test is not necessary to the analysis, where the people judging the plaintiff's performance were the
same people she accused of discriminating against her). Accordingly, Ms. Cox’s admissions
regarding her significant attendance issues are not fatal to her prima facie case.
b.

Treatment of Similarly Situated Employees

To meet the fourth element of a prima facie case, Ms. Cox must establish that she was
treated less favorably than a “similarly situated” employee outside of her protected class. Warren
v. Solo Cup Co., 516 F.3d 627, 630-31 (7th Cir. 2008); Grady, 2015 WL 1011355, at *6. To
establish a “similarly situated” comparator, a plaintiff must show that there is someone, not of the
protected class, who is directly comparable to her in all material aspects. Id.
In the usual case, a plaintiff must show that the comparators dealt with the same supervisor,
were subject to the same standards, and engaged in similar conduct without any differentiating
circumstances to distinguish their conduct or their employer’s treatment of them. Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000); Argyropoulos v. City of Alton, 539

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F.3d 724, 735 (7th Cir. 2008) (“[a] meaningful comparison is one which serves to eliminate
confounding variables, such as differing roles, performance histories, or decision-making
personnel, which helps isolate the critical independent variable: complaints of discrimination”);
Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 689 (7th Cir. 2006)
(noting that the central question is whether a plaintiff and his colleagues engaged in conduct of
comparable seriousness but received dissimilar treatment). Moreover, the similarly-situated
analysis calls for a “flexible, common-sense” examination of all relevant factors. Henry v. Jones,
507 F.3d 558, 564 (7th Cir.2007).
Ms. Cox identifies three male co-workers who she asserts had a significant number of
disciplinary points but were not terminated by Coca-Cola: Lewis Allen (“Mr. Allen”); Tim Glass
(“Mr. Glass”); and Matt Zimmerman (“Mr. Zimmerman”). Like Ms. Cox, these three male coworkers each worked in Coca-Cola’s Indianapolis manufacturing division under the authority of
Mr. Johnson and dealt with the same decision-makers. However, as explained below, a closer
review of the evidence reveals that only Mr. Allen and Mr. Glass qualify as “similarly-situated”
comparators.
The parties do not dispute that on April 22, 2013, Mr. Allen accrued twelve points under
the attendance policy. However, unlike Ms. Cox, Mr. Allen’s employment was not terminated.
Coca-Cola contends that this was the result of Coca-Cola’s executives not having enough time to
evaluate the accuracy of the accrued points before one of Mr. Allen’s disciplinary points “rolled
off” at the start of a new twelve month period. In contrast, Ms. Cox, contends that Coca-Cola
“expedited” her termination, but intentionally dragged its feet when disciplining Mr. Allen and did
so based on gender bias. Although there is no direct evidence in the record that her termination
was expedited, there is evidence that management was “looking forward to terminating Ms. Cox

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that week.” (Filing No. 51-4 at 5.) Mr. Allen and Ms. Cox were similarly situated in terms of
supervisors and alleged misconduct. As such, a reasonable jury could conclude that Mr. Allen is
a similarly-situated comparator for purposes of establishing a prima facie case.
A reasonable jury could also conclude that Mr. Glass was a similarly-situated comparator.
In an amended affidavit2, Mr. Glass testified that Coca-Cola’s Human Resources department
notified him that he had accrued more than twelve disciplinary points. (Filing No. 59-1 at 2.)
Thereafter, Mr. Johnson told Mr. Glass that he would give him a “second chance” and that “he
was going to reduce my points” below the requisite number of points needed to trigger termination.
Id. In response, Coca-Cola notes that Mr. Glass’ employment files show no evidence that Mr.
Glass ever exceeded twelve points or that Mr. Glass was contacted by Human Resources regarding
violation of the attendance policy. (Filing No. 47-7 at 14; Filing No. 47-9 at 5.) In addition, Mr.
Johnson denies ever telling Mr. Glass that he would give him a “second chance” and denies
adjusting Mr. Glass’ attendance points downward. (Filing No. 47-5 at 57.)
Ms. Cox explains the discrepancy between Mr. Glass’ affidavit and the lack of
corresponding employment records in Mr. Glass’ employment file to be attributable to Coca-Cola
withholding critical documents from the employment file during discovery. (See Filing No. 50 at
28-29.) Coca-Cola asserts that Ms. Cox’s allegations of litigation malfeasance are unsupported

In the original affidavit, Mr. Glass testified that Mr. Johnson suggested he could give Mr. Glass a “second chance”
and that his points were subsequently reduced below the twelve needed for termination. (Filing No. 47-2 at 73.) In
the amended affidavit, Mr. Glass added that Mr. Johnson, himself, reduced Mr. Glass’ attendance points below the
requisite number needed to trigger termination. (Filing No. 59-1 at 2.) Coca-Cola asks the Court to strike the amended
affidavit, submitted for the first time with Ms. Cox’s response brief and not during discovery, as it offers
“contradictory” testimony to the original affidavit. However, the Court is not persuaded. The amended affidavit
clarifies rather than contradicts the testimony in the original affidavit. See Brown v. Sam’s Club, Inc., 75 F.3d 290,
292-93 (7th Cir. 1996) (noting that the purpose of the exclusionary rule is to prevent subsequent, contradictory
testimony being used to override an earlier admission); Bank of Ill. Allied Signal Restraint Sys., 75 F.3d 1162, 1173
(7th Cir. 1996) (Cudahy, J., concurring) (“[w]hen a party seeks to create an issue of fact by simply submitting an
affidavit which directly contradicts a witness’ earlier sworn comments, a court rightly ignores the later submission
since it creates no genuine factual dispute”) (emphasis added and in original).
2

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and speculative conjectures which cannot be used to prove that Mr. Glass was, indeed, in violation
of Coca-Cola’s attendance policy. Liu v. T&H Mach., Inc., 191 F.3d 790, 797 (7th Cir. 1999) (“[a]
party must submit more than mere speculation or conjecture to defeat a summary judgment
motion”). Nevertheless, resolving all factual inferences in favor of Ms. Cox, the Court will
assume, for purposes of summary judgment, that Mr. Glass actually exceeded twelve disciplinary
points as he alleged. Accordingly, a reasonable jury could conclude that Mr. Glass was similarlysituated to Ms. Cox.
However, Mr. Zimmerman is not a similarly-situated comparator because he was not
subject to discipline because of accruing more than twelve points under the attendance policy.
Instead, Mr. Zimmerman was subject to discipline because of his failure to be at his work station
for his full scheduled shift. (See Filing No. 47-7 at 25-36.) Ms. Cox does not dispute that Mr.
Zimmerman’s offense was disciplined under a different work rule than the twelve-point attendance
policy. (See Filing No. 50 at 26.) Because Mr. Zimmerman’s alleged offenses are not the same
as Ms. Cox’s attendance violations, the Court finds that Mr. Zimmerman is not a similarly-situated
comparator to Ms. Cox. See, e.g., Plummer v. Potter, 237 Fed. App’x 90, 92 (7th Cir. 2007)
(unpublished opinion) (holding that an employee terminated for misrepresenting a medical
condition could not compare herself to employees disciplined for unrelated issues such as
absenteeism).
In sum, because the legitimate expectations and pretext analysis merge in this case, and
because Ms. Cox has identified at least one potential comparator, she has established a prima facie
case of gender discrimination.
c.

Non-Discriminatory Justification and Pretext

Once the defendant employer asserts a non-invidious explanation for its employment

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decisions, the plaintiff must then present sufficient evidence to show that the employer’s
explanation is merely pretextual. Keeton, 667 F.3d at 884; Grady, 2015 WL 1011355, at *4.
Pretext means “a dishonest explanation, a lie rather than an oddity or an error.” Kulumani
v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000); Miller, 2014 WL 4259628, at
*5. Accordingly, the question is not whether the employer’s explanation for its employment
decision was “accurate, wise, or well-considered”, but whether the employer’s explanation was
“honest”. Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006). While the Court is not
in the position to “sit as a superpersonnel department that will second guess an employer’s business
decision . . . [the Court] need not abandon good reason and common sense in assessing an
employer’s actions.” Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001); Miller,
2014 WL 4259628, at *6.
A plaintiff can demonstrate that the employer’s explanations are pretextual either directly,
by showing that “a discriminatory reason more likely motivated” the employer’s actions, or
indirectly, by showing that the employer’s explanations are “unworthy of credence.” Senske v.
Sybase, Inc., 588 F.3d 501, 507 (7th Cir. 2009). To show that the employer’s non-discriminatory
explanations are not credible, the plaintiff must point to evidence that the employer’s stated reasons
are not the real reasons for the employer’s action, have no grounding in fact, or are insufficient to
warrant the employer’s decision. Id.; Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th
Cir. 2007) (noting that a plaintiff must identify such “weaknesses, implausibilities, inconsistencies,
or contradictions” in the employer’s asserted reasons that a reasonable person could find them not
credible).
Ms. Cox presents no evidence or argument that she was terminated for any reason other
than violating the attendance policy. She admits that she had accumulated the requisite number of

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disciplinary points within the twelve month period to subject her to termination under the
attendance policy. (See Filing No. 50 at 4, 21; Filing No. 47-1 at 126) (“I was terminated for myI mean, the point system, I’m not denying that”). In addition, Coca-Cola points out that its decision
to terminate Ms. Cox was the result of a careful investigation by Ms. Cox’s immediate supervisor,
Jason Cossell, Coca-Cola’s Labor Relations Consultant, Odinaka Ezeokoli, Coca-Cola’s
Operational Manager, John Eady, and Coca-Cola’s Plant Manager, Mr. Johnson. (See Filing No.
46 at 9-10; see also Filing No. 51-3 at 6; Filing No. 47-5 at 19.) Ms. Cox also does not contend
that any of those individuals failed to enforce the attendance policy according to its terms.
Ms. Cox presents no circumstantial evidence to suggest that the individuals involved in her
termination were motivated by a discriminatory animus in enforcing the policy, such as verbal
abuse or comments made in the workplace. Instead, she points to the fact that two similarlysituated male comparators—Mr. Allen and Mr. Glass— incurred the requisite number of points
under the attendance policy and were not terminated, suggesting gender animus is what actually
motivated Coca-Cola to terminate her employment.
In rebuttal, Coca-Cola offers at least four similarly-situated male employees who reached
the requisite number of attendance points and were terminated under the attendance policy:
Edward Bolen, Darryl Davis, William Edwards, and Terry Howard. (See Filing No. 46 at 12-13.)
Edward Bolen was a machine operator who was terminated in August 2011 for accumulating 14
attendance points. Darryl Davis was a machine operator who was terminated on March 29, 2012,
for accumulating 14 attendance points. William Edwards was a machine operator who was
terminated on August 8, 2012 when he accumulated 14.5 points. Terry Howard was a fleet
mechanic who was terminated on February 17, 2014 when he accumulated 13 attendance points.

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Mr. Johnson was either the interim Plant Manager or the Plant Manager at the time of these
terminations.
Ms. Cox does not dispute that these individuals incurred more than twelve points and were
terminated under the attendance policy. However, she contends that they are not comparators
because Mr. Johnson was not involved in any of their terminations. Mr. Johnson did not recall
whether any of these four men worked under his chain of command and Mr. Johnson’s name does
not appear on the termination paperwork for any of these men. (Filing No. 50 at 13.) Coca-Cola
relies on Mr. Johnson’s testimony that, as Plant Manager, he reviews all termination decisions and
must give his approval on termination decisions. (Filing No. 51-2 at 3) (“I review all terminations
with either our labor relations team or HR BP, which is the human resources professional . . .”).
(See also Filing No. 51-2 at 8.) However, Ms. Cox has designated evidence which disputes that
Mr. Johnson approved all terminations while he was Plant Manager. For example, Andre Long
was a maintenance mechanic under Mr. Johnson’s authority who was terminated in March 2012
and Mr. Johnson admitted that he was not a part of the discussion or dismissal of Mr. Long. (Filing
No. 51-2 at p. 10.) Mr. Johnson also testified that he did not recall Daryl Davis or William Edwards
and Coca-Cola has offered no documentary evidence to show that Mr. Johnson participated in the
decision to terminate these men. With respect to Edward Bolen, Mr. Johnson was the interim Plant
Manager at the time of his termination and Mr. Johnson testified that he did not believe Edward
Bolen ever worked under his chain of command. In fact, Jay Edwards, the Plant Manager prior to
Mr. Johnson was copied on Edward Bolen’s termination letter, not Mr. Johnson. (Filing No. 51-2
at 12.) Additionally, Terry Howard was not terminated until February 17, 2014, which was several
months after Ms. Cox had been terminated and after she filed her discrimination charge with the
Equal Employment Opportunity Commission. Ms. Cox argues that these terminations have no

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relevance to whether she was meeting Coca-Cola’s legitimate expectation as these men are not
similarly situated. The Court agrees that it is reasonably disputed whether Mr. Johnson was
involved in these four employment decisions.
Coca-Cola argues that it has produced comparator evidence that Terry Howard and three
other males were terminated for exceeding twelve points which is at least probative to show that
it did not engage in systematically better treatment of male employees. A trier of fact might draw
that conclusion, but it equally might find that Mr. Johnson—the decision-maker for Ms. Cox’s
termination—had nothing to do with these terminations, and therefore, these four men are not
comparators. Coca-Cola is welcome to make this argument to a jury as they are the ones charged
with resolving this disputed issue of material fact.
The Court finds that evidence exists which creates genuine issues of fact as to whether
Coca-Cola’s asserted reason for terminating Ms. Cox employment in July 2013 is pretextural. Ms.
Cox has presented evidence that similarly situated males were treated more favorably by Mr.
Johnson as the decision-maker on these terminations.

Both Mr. Allen and Mr. Glass had

accumulated well over the 12 point maximum within a twelve month period and neither was
terminated. As such, Ms. Cox has presented evidence that Coca-Cola’s stated reason – that she
violated the attendance policy – creates inconsistencies and is not the real reason for her
termination. See Senske, 588 F.3d at 507; Boumehdi, 489 F.3d at 792 (noting that a plaintiff must
identify such “weaknesses, implausibilities, inconsistencies, or contradictions” in the employer’s
asserted reasons that a reasonable person could find them not credible). In light of her poor
attendance record, it may be difficult for Ms. Cox to convince a jury that her gender is what lied
behind the decision-maker’s adverse job action. However, taking the summary judgment record
in the light most favorable to Ms. Cox, which the Court must do, the Court concludes that Ms. Cox

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has survived summary judgment on her gender discrimination claim. Accordingly, summary
judgment is DENIED with regard to her Title VII discrimination claim.
B.

Punitive Damages
Finally, the Court must address whether punitive damages are warranted in this matter. To

recover punitive damages Ms. Cox must show that Coca-Cola engaged in intentional
discrimination and has done so with malice or reckless indifference to her federally protected
rights. 42 U.S.C. §1981a(b)(1). The designated evidence must demonstrate that the defendant has
engaged in some “egregious” misconduct. See Kolstad v. ADA, 527 U.S. 526, 534 (1999). In
other words, Coca-Cola must have been “motivated by evil motive or intent, or . . . involve[d]
reckless or callous indifference to the federally protected rights of others.” Id. at 536. Carelessness
or negligence is not enough. See Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 636 (7th Cir.
1996). This is a higher hurdle than merely proving the underlying unlawful discrimination. Id.
Emmel is a type of case where punitive damages were warranted. Emmel is not a simple indirect
evidence or statistical case of discrimination by the employer, rather, the evidence introduced by
plaintiff included a number of statements by the owner, the president, the vice president, and the
vice president for the northern zone, which indicated a clear corporate resistance to women holding
positions in upper management. Id at 637.
Here, Ms. Cox suffered no gender based verbal abuse or comments in the workplace and
the alleged discrimination is shown only through the burden shifting indirect method. Ms. Cox
does not dispute that she had chronic attendance problems and that she received twenty-seven
disciplinary actions related to attendance or clocking violations, including fourteen 3-day
suspensions and three final warnings. She admits that the 12.5 points she accumulated under the
policy were calculated correctly, and that Coca-Cola undertook a deliberate and good faith process

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to confirm that her points were correctly calculated. Although question of material fact exist as to
whether Mr. Johnson was involved in the termination of similarly situated male employees who
accumulated more than twelve points, there is no evidence that Coca-Cola as a company had a
policy of discrimination against women. After all, Coca-Cola terminated some males who violated
the policy, such as Edward Bolen, Darryl Davis, William Edwards, and Terry Howard. The
designated evidence demonstrates that Coca-Cola did not act with malice, fraud, gross negligence,
or oppressiveness in terminating Ms. Cox, therefore, Coca-Cola’s motion for summary judgment
on her claim for punitive damages is GRANTED.
IV. CONCLUSION
For the reasons stated above, Coca-Cola’s Motion for Summary Judgment (Filing No. 45)
is GRANTED in part and DENIED in part. Ms. Cox’s claims for retaliation, reinstatement and
punitive damages are dismissed. Ms. Cox has demonstrated a dispute of material fact on her
gender discrimination claim under the indirect method of proof, therefore her claim for
discrimination based on gender survives summary judgment.

SO ORDERED.

Date: 6/9/2016

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DISTRIBUTION:
Gregory A. Stowers
STOWERS & WEDDLE PC
[e-mail]
Koryn Michelle McHone
BARNES & THORNBURG LLP
[e-mail]
John T. L. Koenig
BARNES & THORNBURG, LLP
[e-mail]

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