Thе court has before it Defendant Dunn Construction Company, Inc.’s Motion for Summary Judgment (Doc. # 30) and supporting materials (Docs. # 31 and # 32), filed on February 15, 2012. The Motion for Summary Judgment has been fully briefed (Docs. # 35, 37, 38, and 47). For the reasons discussed below, the court finds that Defendant’s Motion for Summary Judgment is due to be granted.
Plaintiffs Amended Complaint asserts violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 (“ § 1981”). (Doc. # 17 at 1). The Amended Complaint asserts race discrimination and hostile work environment claims (Count One), retaliation claims (Count Two), and generally references a constructive discharge. Specifically, Plaintiff alleges that he (1) was paid less than Caucasian employees performing similar duties, (2) was subject to racially offensive language at work, (3) performed leadman duties without receiving commensurate pay, (4) was denied a leadman position, (5) was harassed in retaliation for engaging in protected activity, and (6) was constructively discharged on or about July 31, 2008. (Doc. # 17 ¶¶ 5-6, 9-10, 22).
Title VII prohibits discrimination against an employee by the employer on the basis of race “with respect to [ ] compensation, terms, conditions, or privileges of employment,” and discriminatory practices that would “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee....” 42 U.S.C. § 2000e-2(a)(2). Section 1981 proscribes discrimination in the making and enforcing of contracts (including employment contracts) based on a person’s race. 42 U.S.C. § 1981. Both § 1981 and Title VII prohibit an employer from retaliating against an employee for reporting discrimination or filing a charge of discrimination. CBOCS West, Inc. v. Humphries,
After a careful review of the record and the arguments made in this case, the court concludes that the record evidence is insufficient for Plaintiff to establish any of his claims. Further, Plaintiff has not exhausted his administrative remedies with respect to his Title VII constructive discharge claim. As set forth in more detail below, Plaintiffs claims in this case fail to pass muster under Rule 56 and Defendant is entitled to judgment in its favor.
I. STANDARD OR REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 .U.S. 317, 322,
The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
On the other hand, if the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in at least one of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the nonmoving party will be unable to prove its case at trial. Once the moving party satisfies its burden using this method, the nonmoving party must respond with positive evidence sufficient to resist a motion for directed verdict at trial. Second, a moving party who does not bear the burden of proof at trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of evidence in the record to support a judgment for the nonmoving party on the issue in question. This method requires more than a simple statement that the nonmoving party cannot meet its burden at trial but does not require evidence negating the nonmovant’s claim; it simply requires the movant to point out to the district court that there is an absence of evidence to support the nonmoving party’s case. Fitzpatrick,
II. RELEVANT FACTS
A. Plaintiffs Employment with Defendant
On June 15, 2004, Plaintiff, an African-American individual, submitted his first application for employment with Defendant, a construction company, where he applied for a position on the asphalt crew and as a laborer. (Docs. # 32-1 at 18 and # 32-2 at 44). Plaintiffs employment application provided that he had experience in “curbs and gutters,” “cement, asphalt, pipe and base laying experience,” and “grading experiences.” (Doc. #32-2 at 45-46). Additionally, his application listed that he had “worked on an asphalt crew and pipe crew” in 1996 for another construction company, H.N. Donahoo. (Id. at 45). In Plaintiffs deposition, however, he stated that his most recent job prior to working for Defendant was at Donahoo, a construction company, which was Plaintiffs only construction experience before working for Defendant. (Doc. # 32-1 at 13). Plaintiff worked at Donahoo for “a month or two,” where he spent some time on a road construction crew. (Id. at 13-14). Despite the conflicting information in Plaintiffs application, the parties’ understand Plaintiffs first stint in construction to be the month or two prior to June 15, 2004 that he spent working for Donahoo, and that in his deposition he clarified the scope of his prior experience.
On June 23, 2004, Billy Joe Nichols, the General Superintendent for Defendant, hired Plaintiff as a laborer on an asphalt crew. (Docs. # 32-1 at 18; # 32-4 at 4, 6; and # 32-12 at 44). Plaintiff commenced working for Defendant by shoveling asphalt on the road paving crew and later “ran the power broom, screed, rake, shovel, ... operated a little bit of paving ... and ran the, little bit, back-up roller.” (Doc. # 32-1 at 18, 49). Plaintiff also trained employees on the shovel and the rake. (Id. at 49). Sometime in 2006, Plaintiff asked his supervisor to allow him to take vacation days to attend an interview with Hyundai, but his supervisor denied his request. (Id. at 19). Plaintiff voluntarily left his job with Defendant in 2006, shortly after the Hyundai incident.
On August 6, 2006, Plaintiff applied to work for Defendant again and listed “rake-man” as the position for which he was applying.
During his second term of employment with Defendant, Plaintiff performed many different tasks and served in several different roles. Plaintiff worked primarily on the screed and occasionally worked the rake.
Oscar Wayne Snell, a superintendent of Defendant, supervised Plaintiff, personally observed Plaintiffs work, and testified that Plaintiff was a good screed operator, one of the best he had ever seen. (Doc. # 32-11 at 12-13). Snell testified that he had no criticism of Plaintiffs work performance. (Id. at 14).
Nichols testified that Defendant paid its employees within a particular pay range for their job classification, and that for pay purposes, Defendant considered what other employees were being paid and the employee’s experience.
Nichols testified that the most skilled job on an asphalt crew was a paver operator, and the other jobs on an asphalt crew were ranked as follows, in order from most skilled to least skilled jobs: roller operator, screed operator, raker, grader. (Doc. # 32-4 at 23). Nichols testified that as Defendant’s General Superintendent during some of Plaintiffs employment, he had some input in setting the employees’ pay rates, as did the foremen. (Id. at 15-16, 27-28). Snell similarly testified that Nichols and the foremen had input in the pay rates of the screed operators and that they would make a recommendation on the employees’ pay rates to Harry Thomas, Defendant’s Vice President of Operations. (Doc. # 32-11 at 16); (see Doc. # 32-12 at 24) (Thomas testified that Nichols and the foremen would make a recommendation about a screed operator’s pay rate “from the field”). The testimony in the record makes it clear that a foreman had some input in the pay rates of the employees he supervised.
Below is a chart compiling information from Defendant’s records, titled “2007 Hourly Pay Increases by Job Type: Asphalt Screed Operators”, showing which employees were classified as screed operators in 2007, the increase in the employee’s pay rate in 2007, and the race of the employee:
Previous Position 2006 Pay 2007 Pay
Name Position (if any) Rate Rate Race
Terry Lide screed
Michael Luster screed 12.00 13.00 Caucasian
Matthew Albright screed 12.50 12.95 Caucasian
Brvan Pilkington screed 12.20 12.55 Caucasian
Stanley Conley screed 10.70 11.50 Caucasian
Jason Evans screed 11.00 11.40 Caucasian
Keith Davis rakeman screed
John Turner screed 9.30 11.00 African-American
Martiel Smith labor screed 1015 10.90 African-American
Chadwick Brand SKLABR
Steven McCurry screed 10.00 10.90 African-American
Dmitri Jackson SKLABR screed 9.50 10.50 African-American
(Doc. # 32-12 at 35-37).
In 2007, Plaintiff was paid less than all five of the Caucasian screed operators and one African-American screed operator, Terry Lide. Lide, who had been hired in 1997, had been working for Defendant the longest out of all оf the screed operators and was paid the most out of all the screed operators. (Doc. # 32-12 at 37-38). Plaintiff was paid the same as one other African-American screed operator and more than four other African-American screed operators.
Below is a chart compiling information from Defendant’s records, titled “2008 Hourly Pay Increases by Job Type: Asphalt Screed Operators,” listing the screed operators’ pay rates in 2008, their 2007 pay rate, and their race:
Screed 2007 Pay 2008 Pay
Operator
Terry Lide 14.55 14.55 African-American
Anthony Shane Camp 14,00 14.00 Caucasian
Matthew Albright 12.95 13.65 Caucasian
Michael Luster 13.00 13.45 Caucasian
Brvan Pilkington 12,55 13.00 Caucasian
Stanley Conley 11.50 12,50 Caucasian
Martiel Smith 10.90 11.90 African-American
Tracey Moore_11.25_11.65___African-American
Sammy Blankenship_10.30_11.50_Caucasian_
John Turner_11.00_11.40_African-American
Steven McCurrv_10.90_11.30 _African-American
Keith Davis_11.00_11.25_African-American
Justin Williamson_10.00_11.00_Caucasian_
Demarcus Cotton_9.00_10.50_African-American
(Doc. # 32-12 at 35-38). Defendant’s records demonstrate that in 2008, Plaintiffs pay rate of $11.00 per hour was increased to $11.25 per hour. (Doc. # 32-12 at 36, 38). Lide still earned the highest pay rate out of all the screed operators. Including Lide, five African-American screed operators were paid more than Plaintiff, and seven Caucasian screed operators were paid more than Plaintiff.
All the employees on the 2007 and 2008 charts were evaluated by Nichols. (Doc. # 32-12 at 37-38). The charts list which foreman was assigned to each employee, and there are several different foremen assigned to different employees.
C. Plaintiffs Alleged Comparators
Plaintiff asserts that Anthony Shane Camp, Matthew Albright, and Jason Evans, all of whom are Caucasian, are proper comparators for purposes of his discriminatory pay arguments.
1. Matthew Albright
Albright had two terms of employment with Defendant, and worked for Defendant longer than Plaintiff. (Doc. # 32-1 at 33). Albright was hired for the second time on July 27, 2006. (Doc. # 32-3 at 38-39). In 2007, Albright was paid $12.95 per hour, and in 2008, his pay rate was increased to $13.65 per hour.
2. Anthony Shane Camp
Anthony Shane Camp began working for Defendant on October 11, 2007. (Doc. #32-15 at 14). Camp was hired by Defendant as a screed operator at a rate of $14.00 an hour. (Id. at 16). Nichols had hired Camp on behalf of Defendant and approved his hourly rаte. (Id. at 24). During the one year that Camp worked for Defendant, Camp operated equipment, including the screw, and baekhoe, but not the paver. (Doc. #32-15 at 7). During this year, Camp did not work for three months because of a shoulder injury. (Id.)
Plaintiff trained Camp on how to run the screed, particularly on how to raise and lower the screed. (Docs. # 32-1 at 50 and # 32-15 at 17). Snell remembered Camp working as a roller operator, not as a screed operator, on his projects. (Doc. #32-11 at 14). Notwithstanding Snell’s recollection, Camp must have operated the screed at some point since Plaintiff trained him on how to operate it. (See Docs. # 32-1 at 50 and # 32-15 at 17).
Defendant paid Camp at a higher rate than Plaintiff based on Defendant’s understanding of Camp’s experience, which was gleaned from Camp’s employment application, Camp’s interview with Nichols, and possibly an interview with the human resources department. (Doc. # 32-4 at 41-42, 45). Camp’s employment application with Defendant listed experience working in asphalt, though it did not list specific experience as a screed operator. (Doc. # 36-8 at 3-4). Camp’s application provided that while working at three different
In Defendant’s response to Plaintiffs EEOC charge, it states that when Camp began working for Defendant, Camp had about twelve years of prior experience laying asphalt. (Doc. # 38-5 at 3). Plaintiff asserts that Camp testified in his deposition that this was not true. (Doc. # 32-15 at 21). Defendant disputes this, citing the deposition text. (Doc. #47 at 20). The deposition text reveals a disagreement (or miscommunication) between Plaintiff’s lawyer, Larry R. Mann, and Camp, over whether Camp had twelve years of experience in asphalt, and whether there is a difference between experience “in asphalt” and experience “laying asphalt.” (Id. at 21-22). On Camp’s employment application, he reported six and a half years of experience working, in asphalt, much of which was performing lab work. (Id.) Although Camp testified that he does not know, where Defendant came up with the idea that he had twelve years of experience, Camp also testified that “yeah, [he had] been in asphalt for twelve years.” (Id.) Accordingly, given Camp’s inconsistent testimony, it is disputed whether Camp had twelve years of experience and whether his experience involved laying asphalt. The court construes Camp’s experi
3. Jason Evans
Defendant hired Jason Evans, Caucasian, on August 8, 2006. (Doc. # 32-12 at 37-38). Defendant classified Evans as a screеd operator. (Id.) Evans was paid $11.00 per hour in 2006, and his pay rate was increased to $11.40 per hour in 2007.
D. Plaintiffs Pay and Complaints Regarding his Leadman and Foreman Work
A leadman acts like an assistant foreman, and fills in for the foreman when the foreman leaves the job site, is unavailable, or is in the truck. (Doc. # 32-1 at 30-31). In the absence of a foreman, a leadman is supposed to communicate with the job superintendent to learn what needs to be completed and then convey this information to the rest of the crew. (Id. at 31-32). At times, Plaintiff filled in for the leadman and foreman, such as when the foreman had to leave the job site. (Id. at 30-31). Plaintiff was never told to perform the leadman or foreman’s duties, but voluntarily “assumed that role because no one else knew [what to do].” (Id. at 31). In addition to occasionally performing foreman duties, Plaintiff filled in for the foreman for a full shift (over a full day) for about four days, although he was never told that he was the foreman for a full shift. (Id. at 37).
Plaintiff was never promoted to a lead-man or foreman position while working for Defendant. (Id. at 31). He never saw any posting about an opening for a foreman or leadman position, and was never told about an open leadman or foreman position. (Id. at 51). Further, Plaintiff never received foreman or leadman pay. (Id. at 5). Caucasian employees, such as Albright, have also performed leadman duties without receiving additional pay.
However, Defendant’s employees who temporarily perform leadman or foreman duties do not receive additional compensation for performing these duties. (Docs. # 32-4 at 22 and # 32-12 at 34). Additionally, Defendant generally does not formally recognize a leadman position for pay purposes and dоes not provide additional compensation for employees who work in that capacity. (Docs. # 32^4 at 22 and
Plaintiff complained to his foremen, Yekel and Fallon, as well as Nichols about his pay. (Doc. # 32-1 at 33-34). He complained to Yekel several times (possibly more than five times). (Id. at 34). When Plaintiff told Yekel that he needed to be paid more, Yekel said that he understood and told Plaintiff he would get him a raise. (Id.) When Plaintiff complained to Fallon about his pay, Fallon told Plaintiff he had already “told them” that Plaintiff needed a raise and did not know what else to tell them. (Id.) Plaintiff asked Fallon for permission to speak to Nichols about his pay and Fallon said that it was fine with him. (Id.) Plaintiff complained to Nichols twice about his pay, and said that if he were going to be paid as a rakeman, he would perform the duties of a rakeman rather than those of a screed operator without getting screed pay. (Id.) Additionally, Plaintiff told Nichols he deserved to be paid more, and Nichols responded that he “was going to do like [he] was told to do.” (Id.)
Albright also temporarily served as leadman, (Docs. # 32-4 at 23 and # 32-1 at 32), and while serving as leadman on one project, Plaintiff testified that the superintendent, Snell, treated Plaintiff as if he were the leadman. (Doc. # 32-1 at 32). Plaintiff complained to Snell about Al-bright being appointed to the leadman position over him. (Id. at 51-52).
E. Defendant’s Policy Against Harassment and Discrimination
Defendant has a written policy prohibiting harassment and other discrimination in its workplace. (Doc. # 32-3 at 18-32). Defendant’s policy directs employees to report harassment and other discrimination to their “supervisor and Dunn’s Equal Opportunity Officer” (Docs. # 32-2 at 59 and # 32-3 at 1), who during Plaintiffs second term of employment with Defendant was William “Butch” Hopper. (Doc. #32-12 at 40). Defendant’s policy prohibits retaliation and provides that the company will investigate and, where necessary, remediate workplace discrimination. (Doc. # 32-3 at 1). On August 15, 2006, Plaintiff received a copy of Defendant’s employee
F. The Racial Comment Incident
Plaintiff alleges that Camp, a Caucasian coworker, made one racist comment to another African-American coworker, Carlos Treadwell, outside of work. (Doc. # 32-1 at 23-25). Plaintiff did not personally observe or hear the conversation in which Camp allegedly made that racist comment to Treadwell, but testified that Treadwell told him that Camp had invited Treadwell to his house, and after Treadwell had called Camp several times for directions, Camp called Treadwell the “n” word and told him to “stop bugging him” and find the house.
After Plaintiff learned about this encounter, Plaintiff confronted Camp at work about the racial slur. (Id. at 28). Camp told Plaintiff that “it slipped out.” (Id.) Plaintiff reported Camp’s use of the racial slur to Tim Fallon, Plaintiffs foreman in 2008, who had heard and witnessed Plaintiffs conversation with Camp.
Aside from Camp’s statement to Tread-well, Plaintiff is not aware of any other Caucasian employee using the “n” word or making other racially derogatory comments. (Doc. # 32-1 at 26). Plaintiff had heard some of Defendant’s African-American employees use a variation of the “n” word, but because this term was used by African-Americans, Plaintiff believed that their use of the term was not derogatory and that he had no reason to report this use. (Id. at 26-28). Plaintiff testified that he told his crew not to use the “n” word. (Id. at 25).
Camp testified that the “n” word was commonly used by employees on the paving crew while he was working for Defendant, but that he had only heard African-American employees use that word. (Doc. # 32-15 at 18-19). Snell, who is African-American, testified that he heard African-American employees use this racial slur on
G. Retaliation
Plaintiff testified that he complained to Fallon and Nichols about his pay, telling them that he thought he deserved to be paid more, and should be paid as a screed operator rather than a rakeman since he functioned as a screed operator. (Doc. # 32-1 at 33-34). Plaintiff alleged that Nichols often made comments to him, and Plaintiff was always outspoken and defended himself. (Id. at 37-38). For example, Plaintiff stated that Nichols told only him to button his shirt before work in the morning, even though all of the employees were required to button their shirts but never did, and Plaintiff defended himself to Nichols. (Id. at 37). When asked in his deposition whether Nichols ever told any other employee to button his shirt, however, Plaintiff testified that he “couldn’t tell you.” (Id. at 38). Further, Nichols made comments to and questioned Plaintiff when he walked through the office to get supplies, such as “what you doing in here” and “[Y]ou getting all the towels, you getting too many, put some of them back.” (Id. at 37-38). Plaintiff stated that he “never heard” other employees get questioned while getting supplies, and that he was known on his crew as the only one who got “bother[ed]” when getting supplies. (Id. at 38).
Nichols testified that he instructed many employees, both Caucasian and African-American, to button their shirts while working, and similarly questioned employees of all races about why they were in the supply area. (Doc. # 32-12 at 35). Nichols’ testimony conflicts with Plaintiffs statements from his deposition, though Plaintiffs statements are somewhat inconsistent. Nonetheless, the court concludes that it is disputed as to whether Nichols only questioned Plaintiff about getting supplies and only instructed Plaintiff to button his shirt, and therefore, viewing the facts in the light most favorable to Plaintiff, the court assumes for summary judgment purposes that Nichols only told Plaintiff to button his shirt аnd only questioned Plaintiff when he got supplies. On the other hand, it is undisputed that in light of Plaintiffs complaints and outspokenness, Defendant never demoted Plaintiff, discharged him, or reduced his pay. (Doc. # 32-1 at 41-42). In fact, Defendant later rehired Plaintiff. (Docs. # 32-1 at 19 and # 32-3 at 38).
H. Plaintiffs Resignation
On July 24, 2008, Plaintiff applied for employment with Wiregrass Construction, Defendant’s competitor. (Doc. # 32-13 at 5-8). On August 5, 2008, Plaintiff resigned from his position with Defendant, and on the next day, began working for Wiregrass Construction at $11.25 an hour. (Docs. # 32-13 at 5 and # 32-12 at 45). Plaintiff stated that he quit primarily because Camp used the “n” word outside of work, but also partly because he did not like his pay rate with Defendant and believed Defendant treated Tim Blue, another employee, unfairly.
The day Plaintiff resigned, Plaintiff testified that he told Mark Williams that he was giving his two-week notice and Williams withheld Plaintiffs final paycheck. (Doc. # 32-1 at 41). Plaintiff stated that he told Williams he was giving his two-week notice before and after Williams announced he would not give Plaintiff his paycheck. (Id.) When Plaintiff resigned in 2006, his foremen and Nichols were aware that he felt like he was being treated unfairly. (Id.)
I. Plaintiffs EEOC Charge
Plaintiff filed a charge with the EEOC on July 9, 2008, alleging race-based discrimination and retaliation against Defendant. (Doc. # 1 at 14-15). Plaintiff listed the earliest date of discrimination to be January 2006 and the latest July 9, 2008, noting that the discrimination is a continuing action. (Id. at 14). Plaintiff alleged thаt during his second term of employment with Defendant, he worked as a screed operator but was not paid as such. (Id.) He claimed that Albright and Camp were both paid as screed operators but did not know how to operate the screed. (Id.) Plaintiff asserted that he had complained to his supervisors about the “pay issue.” (Id.) It is not clear whether his complaint included allegations of discrimination (ie., disparate treatment due to his race). Plaintiff also described Camp’s use of the racial slur and discussed how Plaintiff functioned as a leadman but “a white man” was recognized as the leadman and paid as such. (Id. at 15). Further, he asserted that Caucasian employees are treated more favorably than he was with respect to “pay and jobs.” (Id.) Finally, he mentioned that he was retaliated against for complaining about Defendant’s discriminatory employment practices. (Id.) Plaintiff received a right to sue letter on April 30, 2010. (Doc. # 1 at 17). Plaintiff initiated this lawsuit on July 29, 2012. (Doc. # 1).
III. ANALYSIS
As Plaintiff readily concedes, this is a circumstantial, not direct, evidence case. (See Doc. #35 at 46-57) (analyzing his discrimination and retaliation claims under the framework for a circumstantial evidence case). Accordingly, Plaintiffs’ discrimination and retaliation claims are analyzed under the McDonnell Douglas framework, but that model does not apply to Plaintiffs hostile work environment and constructive discharge claims.
Because this is a circumstantial evidence case, Plaintiffs discrimination and retaliation claims must be evaluated under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green,
Despite the burden-shifting under the McDonnell Douglas framework, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Wilson,
1. Plaintiffs Disparate Pay Claim
a. Prima Facie Case
1) Similarly Situated Comparator
To establish a prima facie case of disparate pay, the plaintiff must demonstrate that he held a position “similar to that of a higher paid employee who is not a member of [his] protected class.” Crawford v. Carroll,
In this case, Plaintiff compares himself to Albright, Camp, and Evans, who are each Caucasian and were paid more than Plaintiff while they were working for Defendant. Plaintiffs comparisons are off the mark, however.
First, Albright had worked for Defendant longer than Plaintiff. Albright worked for Defendant from 1998-2001 and was rehired by Defendant on July 27, 2006, while Plaintiff worked for Defendant less than two years before being rehired on August 15, 2006. Further, Albright had more construction experience than Plaintiff. Albright had about eight years of construction experience prior to working for Defendant in 2006 while Plaintiff had about two years of construction еxperience when Defendant rehired him in 2006. In 2006, Albright was classified as a screed operator while Plaintiff was classified as a rakeman; Plaintiffs classification changed in 2007 to screed operator. Despite their similar classifications, Plaintiff and Al-bright largely performed different job duties. Albright worked on the paver and Plaintiff performed various job tasks, but primarily operated the screed. Nichols stated that a paver operator was a higher skilled job than a screed operator and deserved a higher pay rate. Based on the stark differences in the amount of years Abright and Plaintiff had worked for Defendant, their different levels of construction experience, and the different types of tasks they performed for Defendant, the court concludes that Abright and Plaintiff are not “similarly situated in all relevant aspects.” See Holifield,
Second, Camp began working for Defendant in 2007, about a year after Plaintiff began working for Defendant for the second time. Camp was classified as a screed operator (as was Plaintiff in 2007), and was paid a higher hourly rate than Plaintiff. At the time Nichols hired Camp, based on Camp’s employment application and Nichol’s interview of Camp, Nichols believed that Camp had over six years of experience in asphalt while Plaintiff, at this time, had about three years of experience in asphalt. Athough most of Camp’s experience was in the lab, Camp had told Nichols he knew how to operate the screed and Camp’s employment application listed that he had experience operating various
The Rule 56 record reveals that Evans is Caucasian, that he was hired about a year after Plaintiff was, paid at a higher rate than Plaintiff, and classified as a screed operator. (Doc. # 32-12 at 37-38). Plaintiff has not submitted any evidence of Evans’ experience, skills, or the tasks he performed while working for Defendant. Further, to the court’s knowledge, neither party deposed Evans. There is not enough evidence for the court to determine whether Evans was similarly situated to Plaintiff.
Therefore, Camp is the only “comparator” Plaintiff has pointed to, but before turning to Defendant’s reasons for paying Camp more them Plaintiff, the court notes the fact that there were African-American employees who were paid more than Plaintiff. This calls Plaintiffs allegations of disparate pay into doubt. See Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
In 2007, Terry Lide, an African-American screed operator, was paid more than Plaintiff, and in fact, was paid the most out of all the screed operators. Lide had been working for Defendant since 1997, the longest of all the screed operators. There is no evidence in the Rule 56 record discussing Lide’s experience and (for obvious reasons) Plaintiff has not asserted that he is a proper comparator to Plaintiff/ Of course, the fact that Lide was paid more than Plaintiff lends some support to Defendant’s argument that it did not discriminate against Plaintiff because of his race. In addition, once the 2008 pay raises went into effect, five African-American screed workers, Lide, Smith, Moore, Turner, and McCurry, were paid more than Plaintiff,
2) In the Absence of a Similarly Situated Comparator Plaintiff Cannot Create a Triable Issue of Fact Based Upon Other Circumstantial Evidence
Plaintiff argues, relying on Smith v. Lockheed-Martin Corp., that if the court finds that he has not identified proper comparators, there is still sufficient circumstantial evidence for the jury to infer that he was discriminated against because of his race. See
Plaintiff contends that since (1) numerous employeеs have filed EEOC charges asserting race discrimination against Defendant, (2) Defendant allegedly ignored these charges, (3) Defendant allegedly condoned the “racially charged” atmosphere in the workplace, and (4) Defendant failed to take any action against Camp, the facts of Plaintiffs case present a “convincing mosaic of circumstantial evidence” that a jury could find amounted to discrimination. See id. The court disagrees. First, there is no evidence that Defendant’s environment was “racially charged.” Further, even if Plaintiff had made such a showing, there is no Rule 56 evidence suggesting that Defendant condoned it. Further,
b. Legitimate, Non-Discriminatory Reasons
The only prima facie case evidence that Defendant must respond to is the difference in pay between Camp and himself. Defendant has asserted that it hired Camp at $14.00 per hour based on its understanding of Camp’s experience at the time it hired him. The court concludes that the Rule 56 evidence shows that Defendant’s understanding of Camp’s prior experience was in good faith and thus is a legitimate non-discriminatory reason for paying Camp at a higher pay rate than Plaintiff. See Blount v. Ala. Co-op. Extension Serv.,
c. Pretext
To the extent Plaintiff argues that Defendant’s reason for Camp’s pay rate is pretext, Plaintiff seems to reiterate his opinions that because Plaintiff had more experience and was a better screed operator than Camp, Defendant’s reason for paying Camp a higher rate based on his experience must be pretext. Plaintiff, however, has failed to introduce sufficient Rule 56 evidence to support his argument. As previously discussed, it is undisputed that when Camp’s initial pay rate was determined, Camp’s employment application and interview revealed that he had more construction experience than Plaintiff at the time the latter’s initial pay rate was determined. Even if Camp successfully exaggerated his experience in his employment application and interview, as Plaintiff believes, there is no evidence suggesting that Defendant knew or should have known this or otherwise did not act in good faith. Accordingly, Plaintiffs have not presented any facts that call Defendant’s legitimate, non-discriminatory reason into question.
Further, there is a legal reason that Plaintiff cannot show pretext. The Eleventh Circuit has stated that “[t]he inquiry into pretext centers upon the employer’s beliefs, and not the employee’s own perceptions of his performance.” Holifield,
2. Plaintiffs Disparate Treatment Claim based on Performing Lead-man Work Without Receiving Lead-man Pay or Recognition
a. Prima Facie Case
To assert a prima facie case for disparate treatment in a race discrimination case, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) his employer treated similarly situated employees outside of his protected class more favorably than he was treated; and (4) he was qualified to do the job. Burke-Fowler v. Orange Cnty., Fla.,
Plaintiff argues that he endured disparate treatment by not receiving lead-man or foreman pay for temporarily performing these roles while other Caucasian employees were paid for performing such duties. However, the undisputed evidence demonstrates that Defendant does not pay its employees additional compensation for temporarily performing these duties. Moreover, although Albright was paid more than Plaintiff was and temporarily served as a leadman, there is no evidence that Albright received higher pay than Plaintiff because he performed these temporary duties. Indeed, the record evidence reveals that Defendant determined Albright’s pay rate because of his prior experience, not because he was expected to perform leadman duties. Plaintiff has failed to identify any of Defendant’s employees that have received additional compensation for temporarily performing lead-man or foreman duties. Along with failing to establish that he suffered an adverse employment action, Plaintiff has thus failed to establish a proper comparator.
3. Plaintiffs Retaliation Claims
To establish a prima facie case of retaliation, the plaintiff must demonstrate that: (1) he engaged in statutorily protected activity; (2) he suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White,
The Eleventh Circuit has held that “a racially derogatory remark by a co-worker, without more, does not constitute an unlawful employment practice under [ ] Title VI ... and opposition to such a remark, consequently, is not statutorily protected conduct.” Little,
Here, Plaintiff asserts that by complaining to his foremen and the superintendent about his pay, and by complaining to his foreman about Camp’s use of a racial slur, he engaged in statutorily protected activity. First, however, the court notes there is no allegation (or evidence) that Plaintiff ever complained to his superiors that he was being paid less because of his race; he merely complained about his pay rate. Complaining about his pay without alleging discrimination does not constitute engaging in statutorily protected activity. See Pipkins,
Further, Plaintiff cannot establish that he had a reasonable good faith belief that Defendant discriminated against him in connection with Camp’s racial slur. “Where binding precedent squarely holds that particular conduct is not an unlawful employment practice by the employer, and no decision of the [Eleventh Circuit] or of the Supreme Court has called that precedent into question or undermined its reasoning, an employee’s contrary belief that the practice is unlawful is unreasonable.” Butler v. Ala. Dep’t of Transp.,
Title VII prohibits a hostile work environment in which “a Series of separate acts [ ] collectively constitute one ‘unlawful employment practice.’ ” Nat’l R.R. Passenger Corp. v. Morgan,
A hostile work environment is one that “is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create and abusive working environment.” Rojas v. Fla.,
Although Plaintiff alleges that Caucasian employees have made racially derogatory comments about African-Americans, the record evidence contains merely one incident of a Caucasian employee — Camp—using a racial slur. The slur was directed at another employee who Camp had invited to his home. Plaintiffs only information about the slur was what the other employee told him. When Plаintiff decided to confront Camp about the incident, Camp said the word “slipped out.”
Plaintiff has not presented evidence of other Caucasian employees using racially derogatory language. Plaintiff acknowledges that African-American employees have used a variation of the racial slur, but he did not find these uses offensive. Therefore, under these circumstances, Camp’s one racial slur made outside of the workplace and outside Plaintiffs presence is insufficient to show that Plaintiff was subject to harassment severe or pervasive enough to alter his employment conditions.
Moreover, in Blue v. Dunn, Blue similarly presented “me too” evidence to establish an inference of discrimination by Dunn Construction Company against Blue. (See Doc. # 32-14 at 14-15). Judge Acker considered the “me too” evidence and looked at whether the allegations of discrimination occurred close in time to Blue’s allegations, whether the other employees alleging discrimination had similar job positions as Blue, whether they were demoted or terminated for reasons similar to Defendant’s proffered reason for demoting Blue, and whether there was a common decision-maker. (Id.) Judge Acker ultimately determined that the “me too” evidence was irrelevant to Blue’s case. (Id.) Further, Judge Acker concluded that “even if the EEOC charges were relevant under FRE 401, they would be excluded as unfairly prejudicial under FRE 403. Any probative value of the EEOC charges, especially when such charges do not include a final determination, is substantially outweighed by the danger of unfair prejudice to the defendant. See McWhorter v. [City of] Birmingham,
The court finds Judge Acker’s analysis persuasive and applicable to the case at hand. It would be unproductive and unnecessary for the court to parse through Plaintiffs evidence to explain why each specific piece of evidence concerning Blue, Maddox, Coleman, Taylor, and Dixon is not relevant to Plaintiffs case, particularly since Plaintiff has not bothered to explain why he believes this evidence is relevant. See Resolution Trust Corp. v. Dunmar Corp.,
C. Constructive Discharge
Defendant argues Plaintiff has failed to exhaust his administrative remedies for his constructive discharge claim under Title VII. In Alabama, a charge of discrimination must be filed with the EEOC within 180 days of the allegedly discriminatory act as a prerequisite to asserting a Title VII claim based on that act. § 2000e-5(e)(l); Wilkerson v. Grinnell Corp.,
With respect to Plaintiffs constructive discharge claim under § 1981, and even if Plaintiff had exhausted his Title VII administrative remedies, Plaintiff cannot satisfy the elements of a constructive discharge claim. “A constructive discharge occurs when a discriminatory employee imposes working conditions that are ‘so intolerable that a reasonable person in [the employee’s] position would have been compelled to resign.’ ” Fitz v. Pugmire Lincoln-Mercury, Inc.,
Here, because Plaintiff has failed to establish the existence of a hostile work environment, he cannot as a matter of law establish that a constructive discharge occurred. See Hipp,
IY. CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment (Doc. #30) is due to be granted. The court will enter a separate order granting the Motion.
Notes
. The facts presented are undisputed, unless the court notes otherwise. When the facts are in dispute, they are stated in the manner most favorable to Plaintiff. See Chapman, 229 F.3d at 1023. The analysis of the issues related to this motion has been made more challenging than usual owing to several factors, including but not limited to: (a) the voluminous record submissions by the parties; and (b) the parties' "characterizations” of the facts. In particular, the court has been frustrated by the manner in which the parties have presented the facts and purported factual disputes. For instance, Plaintiff improperly labeled his personal opinions, arguments, and inferences as "facts.” Additionally, Plaintiff's list of additional undisputed facts did not comply with the Uniform Initial Order (Doc. # 6 at 17), because it contained facts that had already been referenced in Defendant’s statement of facts. Although these shortcomings may not appear to be particularly problematic in a vacuum, they make the court’s Rule 56 analysis more difficult.
. In his deposition and EEOC charge (Docs. #32-1 at 19 and #32-2 at 48), Plaintiff states that he left his job with Defendant in May, but Defendant’s records (Doc. # 32-2 at 50) indicate that he left in February. The exact month in which Plaintiff left his job with Defendant is irrelevant because what is clear is that Plaintiff left his job before he applied to work for Defendant for a second time in July 2006.
. A rakeman is "basically like a finisher.” (Doc. # 32-1 at 20). When there are "bad spots” in the asphalt, the spot is dug out and the shovelman pours asphalt in that spot. (Id.) The rakeman is responsible for smoothing asphalt and raking the joints. (Id.)
. In Anthony Shane Camp’s deposition, Camp explained that the "screed is the back of the paver. The screw is what operates it.” (Doc. #32-15 at 8).
. Plaintiff asserts that it is undisputed that he was rehired as a screed operator (Doc. # 35 at 24), but the Rule 56 record facts do not support this assertion. Defendant’s records indicate that Plaintiff was initially classified as a rakeman, (Doc. # 32-3 at 38), and Plaintiff’s application stated he was applying for a rakeman position in his application (Doc. # 32-2 at 51). Further, Plaintiff testified that he performed numerous types of jobs for Defendant in addition to operating the screed. (Doc. # 32-1 at 49-50). The deposition page to which Plaintiff cites for support reveals that he worked as a screed operator, but not that he was hired to operate the screed. (Id. at 21). Overall, the Rule 56 facts do not support Plaintiff's assertion and it is unclear what Plaintiff was hired to do in 2006. Indeed, the facts suggest that Plaintiff was hired to do rakeman work.
. Plaintiff disputes Nichols’ testimony and the manner in which Defendant determined the pay of its employees. Plaintiff points to his deposition as evidence, in which he stated that he worked as a screed operator but was paid as a rakeman, and opined that he should have been paid as a screed operator. (Doc. # 32-1 at 21, 51). Further, Plaintiff points to his deposition testimony which indicates he believed that Anthony Shane Camp did not have any experience operating the screed, and though he was paid as a screed operator, he did not deserve that pay rate. (Id. at 50). Plaintiff argues that this deposition testimony shows that Defendant could not have based employees’ pay on experience because of the discrepancies between Plaintiff’s and Camp’s pay rates and experiences. However, outside of his own opinions regarding what Camp should have been paid, Plaintiff has no personal knowledge of how Defendant paid its employees and has nоt pointed to any specific facts that call Nichols’ deposition testimony into doubt. Again, Plaintiff merely relies on his personal opinion as stated in his deposition. Accordingly, Plaintiff has not presented a dispute.
. Plaintiff disputes the fact that Nichols set employees’ pay with his foremen's input. Ironically, to show this is in dispute, Plaintiff pointed to testimony where Nichols stated that he and his foremen have input in setting the employees’ pay rates. (Doc. # 35 at 7-8). Further, Plaintiff presented Nichols' deposition from February 19, 2010 in Blue v. Dunn Construction Company, Inc., No. 09-864 (N.D.Ala. Aug. 16, 2010) (Judge Acker), aff'd by No. 10-14345 (11th Cir. Nov. 23, 2010), where Nichols stated that although the foremen had some input in the employees’ pay, the ultimate decision rested with Nichols and Harry Thomas, the Vice President of Operations. (Doc. #36-3 at 102). This deposition testimony does not controvert the fact that Nichols and the foremen had some input in setting employees’ pay rates. Plaintiff has failed to present specific, contrary evidence to create a dispute.
. The court has used the term "screed” throughout this chart to refer to a screed operator position.
. Defendant's records reveal that during Plaintiff’s second term of employment with Defendant, Plaintiff was initially classified and paid as a rake laborer, at an hourly rate of $10.15. (Doc. #32-12 at 35-36). In 2007, Defendant changed Plaintiff's job classification from rakeman to screed operator, and simultaneously increased Plaintiff's hourly pay rate from $10.15 to $11.00. (Doc. # 32-12 at 35-37). Defendant asserts that by reclassifying Plaintiff it promoted him. Plaintiff disputes that he was promoted to screed operator because, he asserts, he had already been working as a screed operator. Resolving this dispute in Plaintiff’s favor, the court does not construe this reclassification as a promotion.
. “SKLABR” has not been defined in the record, though the court assumes it stands for "skilled laborer.”
. All of the employees listed were previously classified as screed operators, except for Justin Williamson and Demarcus Cotton. Williamson's job classification changed in 2008 from "SKLABR” to screed operator and Cotton’s job classification changed in 2008 from "LABOR” to screed operator.
. The two charts created by the court do not reflect all of the information from Defendant’s charts. Any information from Defendant’s records not contained in the court's charts that are important to this case will be referenced elsewhere.
. Plaintiff has no personal knowledge on how to read Defendant’s charts and, disregarding Nichols' testimony about these charts, has misinterpreted Defendant's records. (See Doc. # 32-12 at 35-36). Nichols explained that the 2007 chart shows what the employee's pay rate was in 2006 and what it was increased to in 2007. Plaintiff has incorrectly read the chart as indicating that Al-bright was paid $12.50 per hour in 2007 (which was actually Albright’s hourly rate for 2006) and that his 2008 hourly rate was $12.95 (which was actually his pay rate for 2007) .
. Defendant characterizes Albright's employment history, as described in his 2006 application, as having experience in construction for the past eight years. (Docs. # 47 at 25 and # 32-8 at 44). The writing on the application is difficult to decipher; specifically,
. The paver is the vehicle to which the screed is attached. (Doc. # 32-1 at 32-33).
. Plaintiff claims, without providing specific ■ evidence, that there is a dispute as to several facts found in this paragraph, such as how Defendant determined Camp’s hourly pay rate, how much experience Camp had and what this experience meant, what Camp's employment application showed, and what Camp told Nichols during his job interview. Much of this involves Plaintiff's interpretation of the facts and Defendant's reasons for determining pay, which are not properly discussed in the facts section. Plaintiff has not presented any evidence that controverts the fact that Defendant determined Camp's pay rate based on its understanding of Camp's experience at the time Camp was hired. Plaintiff challenges this fact by asserting that Camp did not have any experience operating the screed, pointing to the lack of screed operator experience in Camp's employment application, the fact that most of Camp's experience was in the lab, and Plaintiff's personal opinion. However, Camp’s lab experience and the lack of screed experience in his application do not disprove the fact that Defendant considered Camp's employment application and interview statements when determining his pay. Any assertion by Plaintiff contesting whether Camp actually had the screed operator experience that he told Nichols he had is Plaintiff's mere personal opinion unsupported by any evidence. Moreover, whether Camp exaggerated or lied about his experience does not change the fact' that Defendant took Camp’s statements and his application into consideration when determining his pay. The undisputed fact is how Defendant determined the rate at which it would pay Camp, not whether Defendant’s understanding of Camp’s experience turned out to be accurate. In sum, Defendant and the court have described Camp’s application as is, and it is therefore undisputed that Defendant paid Camp based on its understanding 'of his experience. Plaintiff has once again inaccurately represented to the court that there is a dispute of a material fact by couching his beliefs as "facts.”
. Plaintiff has misinterpreted Defendant's records. (See Doc. # 32-12 at 35-36); supra n. 13. Although Nichols explained that the 2007 Hourly Pay Increases chart shows what the employee’s previous pay rate was in 2006 and what it was increased to in 2007, Plaintiff has incorrectly read the chart as indicating that Camp as paid $11.00 per hour in 2007, which was actually Camp's hourly rate for 2006.
. Plaintiff has again misinterpreted Defendant’s records. See supra n. 13. Defendant’s 2008 Hourly Pay Increases chart demonstrates that Camp’s pay rate was increased from $11.40 per hour in 2007 to $11.80 in 2008.
. Plaintiff disputes this point, referring the court to page 196 in his deposition. The testimony on that page, however, does not support Plaintiff's assertion. It seems Plaintiff may have intended to refer to page 123 of his deposition, where he stated that he saw Albright's paycheck and Albright was paid more than he was paid. (Doc. # 32-1 at 33). Notably, Plaintiff did not state in his deposition that Albright was paid more than he because Albright performed leadman duties; he merely stated that Albright was paid more than he was. (See id.) There is no evidence in the record, nor has Plaintiff pointed to any evidence, that shows that Albright was paid more because he performed leadman duties. Accordingly, inasmuch as Plaintiff has not pointed to any specific facts to controvert the assertion that Caucasian employees have served as leadman without receiving additional pay, the court views this fact as undisputed.
. Plaintiff disputes that there is no official leadman position and that employees do not receive additional compensation for acting as a leadman. Plaintiff has submitted a "payroll rate adjustmenpincrease” form from 2008 showing that Michael Wallace received a pay increase when his "Mill Operator” position was changed to "Job Foreman Ass[isstan]t.” (Doc. # 38-3 at 2). Plaintiff asserts that Wallace is Caucasian. The document indicates that Wallace was promoted to a permanent position as a foreman assistant. However, this document does not controvert Nichols’ testimony that employees temporarily serving as leadman or foreman do not receive additional compensation. Further, Plaintiff admitted in his deposition that he is not sure whether employees who function as leadmen are paid more. (Doc. # 32-1 at 33). The evidence concerning Wallace's job position does not create a dispute; it corroborates the fact that under certain (and apparently unique) circumstances, Defendant has permanently assigned an employee to a leadman or foreman's assistant position.
. It is not clear when Treadwell informed Plaintiff that Camp called Treadwell a racial slur. Plaintiff asserts it occurred right before he resigned in August 2008 (Doc. # 35 at 26), but Plaintiff reported this incident to the EEOC on July 9, 2008 (Doc. # 32-3 at 48). Thus Treadwell must have told Plaintiff some time before July 9, 2008.
. Fallon has also been referred to as "Failin'' throughout the record. Both variations of the name refer to the same person.
. To support this fact, Plaintiff relies on the absence of any disciplinary record of this incident in Camp’s personnel file. Defendant dis-pules this, stating that there is no evidence showing that Camp was never disciplined for this conduct. Further, Defendant asserts that Camp could have been verbally reprimanded since Snell testified that he verbally told employees to stop using the "n" word but could not recall which employees he spoke to about this racial slur. (Doc. #32-11 at 15). Construing this dispute in the light most favorable to Plaintiff, and noting that there is no record evidence demonstrating that Camp was ever disciplined for the racial slur, for the purposes of its Rule 56 ruling the court assumes that Camp was not disciplined for calling Treadwell a racial slur outside of work.
. In Paragraph 50, Plaintiff admitted that Defendant promoted Plaintiff to a screed operator position. (Docs. #31 at 12 and # 35 at 22). The court views this as a mistake on Plaintiff's part, since Plaintiff's view throughout his brief has been that he was never “promoted” to a screed operator position. (Doc. # 35 at 9).
. Plaintiff tries to dispute this, stating in his Response that he stopped working for Defendant because “he could no longer take the
. The court concludes that Plaintiff has satisfied the administrative remedies for all of his Title VII claims, except for the constructive discharge claim, which is discussed in Section C of Part III.
. Moreover, after comparing the dearth of record evidence on Evans to the extensive • evidence on Camp and Albright, the court does not perceive Plaintiff’s assertions that Evans is a proper comparator as a bona fide argument. If Plaintiff were truly pursuing this argument, he would have at a minimum deposed Evans.
. The court's analysis for disparate pay focuses on the employee’s initial pay rates because the record evidence and the parties' arguments focus on employee pay rates at the time they were hired. Aside from general statements that Nichols and the foremen had input in setting the pay rate of Defendant’s employees, there is scant specific evidence regarding how Defendant dеtermined its employees’ pay raises in 2007 and 2008. The record evidence reveals that in 2007 and 2008, all the employees listed were evaluated by Nichols, presumably for pay purposes, and the foreman to which each employee was assigned is listed. Plaintiff surmises that Nichols and his foreman knew he had more experience than others who were paid more than he and thus should have paid him at a higher rate, but has submitted no such evidence to support this. Accordingly, because there is an absence of specific evidence to support the argument that Plaintiff's 2007 and 2008 pay raises were based on discrimination, summary judgment is due to be granted in Defendant’s favor with respect to this aspect of Plaintiff's claim.
. The court views Plaintiff's allegations that he performed leadman work without receiving commensurate pay as part of his discrimination claim. However, because Plaintiff has alleged that Defendant discriminated against him by failing to pay him as a screed operator and failing to pay him for leadman work, the court addresses his work in these two roles separately. Further, because it is undisputed that Defendant does not pay employees additional compensation for temporarily performing leadman duties, and because Plaintiff's claim over his leadman role encompasses more than just pay, the court analyzes his allegations regarding leadman work and pay together as a disparate treatment claim.
. The typical failure-to-promote prima facie case is as follows: (1) the plaintiff belonged to a protected class; (2) the plaintiff applied for and was qualified for a position that the employer was seeking to fill; (3) the plaintiff was rejected despite his qualifications; and (4) the position was filled with an individual outside the protected class. Vessels v. Atl. Indep. Sch. Sys.,
To the extent Plaintiff's claim that he was not paid as a leadman includes the argument that Defendant should have, but did not, promote him to an official leadman position, the typical failure-to-promote prima facie case does not apply here because of the way Defendant described how it came to formally recognize a leadman for pay purposes. Defendant formally recognized a leadman when the exceptional employee came around, not because of a vacancy. To prove a claim of discrimination against Defendant under these circumstances, Plaintiff must at least establish that he was an exceptional employee and Defendant should have officially recognized him as a leadman for pay purposes. However, due to the lack of Rule 56 evidence and argument showing why Defendant should have recognized Plaintiff as the exceptional employee, and the fact that Plaintiff's claim is due to be dismissed, the court does not view it necessary to establish the firm contours of a prima facie case for this unique situation.
. Even if Plaintiff had established that he engaged in statutorily protected activity, he did not suffer any materially adverse employment action due to his protected conduct. A materially adversе employment action is one that causes a "serious and material change in the terms, conditions, or privileges of employment.” Davis,
. Plaintiff relies on Reeves v. C.H. Robinson Worldwide, Inc., a gender discrimination case