KAREN STANLEY, Plaintiff, v. HONDA MANUFACTURING OF ALABAMA, LLC, Defendant.
Case No.: 4:06-CV-695-RDP
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION
July 18, 2007
FILED 2007 Jul-18 AM 10:39 U.S. DISTRICT COURT N.D. OF ALABAMA
I. INTRODUCTION
Pending before the court is Defendant Honda Manufacturing of Alabama, LLC‘s (“HMA“) Motion for Summary Judgment (Doc. # 12) filed on March 16, 2007. The court held a hearing on all pending motions in this case on May 25, 2007. The motion is now under submission and ripe for decision by the court. For the reasons set forth below, the court finds the motion is due to be, and is hereby, granted in part and denied in part. Specifically, the court grants Defendant judgment as a matter of law on Plaintiff‘s race discrimination and retaliation claims, but the court finds that a genuine issue of material fact precludes summary judgment for Defendant on Plaintiff‘s age discrimination claims.
II. STATEMENT OF FACTS
A. Honda Manufacturing of Alabama, LLC
HMA employs approximately 4,500 individuals at its Lincoln, Alabama plant. (Doc. # 14 Ex. B ¶ 4). HMA employees—known as associates—work in a rigid environment, in which team work is important and associates are expected to place parts on moving vehicles. (Doc. # 14 Ex. A at 32). Team Coordinators (“TCs“) distribute work assignments to associates, but do not have the
HMA has a progressive discipline policy, the purpose of which is to induce employees to correct their behavior so that they will not be necessary to involuntarily terminate their employment. (Doc. # 15 Ex. H at 15). This policy progresses through various disciplinary actions that HMA takes in reference to an employee: (1) verbal warning; (2) written warning; (3) Level I written counseling; (4) Level II written counseling; and (5) termination. (Doc. # 14 Ex. A Attach. 4 at 10). Any level of corrective action may be taken based upon the conduct‘s seriousness, the associate‘s employment and corrective action history, the effect of the conduct on associates and third parties, and any other relevant facts or circumstances. (Doc. # 14 Ex. A Attach. 4 at 12, Ex. B ¶ 10, Ex. D ¶ 6). TMs determine whether an incident will be reported to Associate Relations (“AR“) or not, and Associates may make complaints as well. (Doc. # 15 Ex. H 13). AR representatives investigate incidents (although there is some discretion in what gets investigated) and Associate Relations TM Robb
B. Plaintiff Karen Stanley
Plaintiff Karen Stanley (“Stanley” or “Plaintiff“) was hired by HMA as a Process Associate on Line 1 in September 2001; she requested and received a transfer to Line 2 in July 2003. (Doc. # 14 Ex. A at 61 & Attachs. 1 & 7). When she was hired, Plaintiff was a 53-year-old white female (id. at 14), and, with a birth date of May 4, 1948, she was the oldest line employee in her zone. (Id. at 14, 173). Plaintiff received a copy of the Mutual Respect Policy, understood its contents, understood HMA‘s policy of respect for the individual, and knew that complaints of harassment must be reported. (Id. at 33–34, 39–40 & Attach. 2).
C. Plaintiff‘s First Written Discipline for Inappropriate Conduct
In June 2003, TM Ray Blackburn (“Blackburn“) reported to AR that Plaintiff disrupted a team meeting by making an unprovoked, non-work related accusation that he and associate Janice
AR Representative Vickie Vaughan (“Vaughan“), a white female, investigated and determined not only that Plaintiff had interrupted the meeting by making the accusation about her TM and fellow associate dating, but also, through interviews with associates Marc Oglesby, Keith Mitchell, Les Osborne, and Sheldon Barclay, that Plaintiff was causing turmoil on the team. (Doc. # 14 Ex. F ¶¶ 2, 9–10 & Attach. A; Doc. # 15 Ex. L Attach. 12). After Vaughan‘s investigation, HMA issued Plaintiff a written warning on July 16, 2003 for inappropriate behavior and performance problems. (Doc. # 14 Ex. A at 56 & Attach. 6, Ex. F ¶ 11 & Attach. B).
D. Denial of Plaintiff‘s Promotion to Team Coordinator Position
In January 2004, Plaintiff met with Freddie Thomas (“Thomas“) and Mark Graham (“Graham“) in AR to discuss the July 2003 Written Warning. (Doc. # 14 Ex. A at 202–203 & Attach. 17, Ex. E ¶ 6 & Attach. A). Plaintiff asked for specific details as to why she was written up, which Thomas and Graham provided; Thomas and Graham also explained how the Written Warning impacted promotional opportunities. (Doc. # 14 Ex. A at 202–203 & Attach. 17, Ex. E ¶ 6 & Attach. A, Ex. F ¶ 11; Doc. # 15 Ex. K at 13–15).
Plaintiff applied for one of six available TC positions in October 2004 and would have been placed in the sixth position were it not for the July 2003 corrective action. (Doc. # 14 Ex. A at 176–77 & Attach. 14, Ex. B ¶ 13). Plaintiff alleges that TM Jay Spurwold (“Spurwold“) met with Plaintiff about the TC position and asked if she could handle it “because everyone else was younger.” (Doc. # 14 Ex. A at 114). Plaintiff did not file a timely EEOC charge regarding the TC position, did
E. Plaintiff‘s Complaint about Rickey Cotton
In January 2005, Plaintiff requested placement on A shift because she alleged that her TC, white male Rickey Cotton (“Cotton“), had called her “old” and “dumb ass” and was disrespectful to all of the associates in the zone. (Doc. # 14 Ex. A 189–91 & Attach. 16). TCs, such as Cotton, are non-supervisory employees who do not have the power to hire, fire, or adjust the work of HMA associates, but they do supervise a zone and make job assignments within their zones. (Doc. # 14 Ex. B ¶ 5). Plaintiff alleges that she had reported Cotton‘s comments, including the comment “there are your friends” directed at Plaintiff while a senior citizen group toured the plant, to John Cato, Production TM (“Cato“), TM Tim Sims, and Craig Harvey. (Doc. # 14 Ex. A at 112–13, 118). Despite those reports, Plaintiff claims Cato, Sims, and Harvey took no action. (Id.) Plaintiff further alleges that Cotton made an inappropriate comment in front of Cato, and Cato laughed. (Id. at 197–98). Plaintiff states that Cotton‘s conduct continued after AR‘s investigation in January 2005 and that she remained under his supervision. (Id. at 197; Doc. # 15 Ex. I at 14).
In January 2005, AR investigated Plaintiff‘s allegations against Cotton, and she identified only Tyrone Turner (“Turner“) and Anita Dent (“Dent“) as potential witnesses. (Doc. # 14 Ex. A at 190 & Attach. 16, Ex. C ¶ 12 & Attach. C). Turner reported that he did not witness Cotton being disrespectful to anyone. (Doc. # 14 Ex. A Attach. 16). Dent stated that Cotton could be stern but only because he was trying to do his job, that she had witnessed Cotton and Plaintiff “having words, that Plaintiff “gave as much as she took” from Cotton, and that numerous associates wanted to switch to “A” shift because of the TC. (Id.). Cotton denied making any inappropriate remarks to Plaintiff,
F. Plaintiff‘s Termination
On July 20, 2005, a discussion took place in Zone 24 about a Zone 23 associate‘s offensive odor. (Id. at 136–37, 139–40; Doc. # 16 Ex. N ¶ 9, Ex. O ¶ 5, Ex. P ¶ 10). Later that day, according to Defendant, Plaintiff went to the repair lot and confronted Mark Semerick (“Semerick“), a white male Process Associate over forty years of age, about the offensive smell while he was working. (Doc. # 14 Ex. A at 132, 138–40; Doc. # 16 Ex. N ¶ 10). Plaintiff alleges that she was directed by her manager, Cato, to find Semerick in the parking lot and ask him about the odor, and she found him sitting in a vehicle. (Doc. # 14 Ex. A at 137, 140, 141). Plaintiff further testifies that Semerick told her it was Mary, who smelled of “bug spray or something,” and then Plaintiff returned to the plant. (Id. at 139–40).
On July 22, 2005, Semerick reported to Thomas in AR that, while in the repair lot, Plaintiff “raised her arm and asked him if it stinks and then grabbed her crotch area and said smell this and see if it stinks.” (Doc. # 14 Ex. E ¶ 7; Doc. # 16 Ex. M Attach. 1, Ex. N ¶¶ 13–14). Semerick had also reported that two months prior, Plaintiff, without provocation, offered to show him and another male associate her breasts. (Doc. # 16 Ex. M Attach. 1). AR representative Jenny White (“White“), a white female, conducted the investigation into Semerick‘s complaint because she was working
In Plaintiff‘s interview regarding the incident, when she asked if she engaged in such conduct she stated “no I have not“. (Doc. # 14 Ex. A at 154). Plaintiff admitted that she stated that Cotton “needs to think with his other head,” but insisted that she was only repeating Dent‘s comments. (Id.). She further admitted that she spoke about her hysterectomy and breast reduction when asked, and admitted talking about candy in the shape of breasts and penises, but not that she had made any herself, and denied cursing or engaging in any other inappropriate behavior. (Id. at 67–68, 140, 147, 149, Attach. 2; Doc. # 15 Ex. H ¶ 18 & Attach. C; Doc. # 16 Ex. M Attach. 1). Plaintiff later swore
After conducting her investigation, White found the statements by other witnesses about Plaintiff to be truthful and did not believe Plaintiff‘s statements that she did not engage in the conduct alleged. (Doc. # 14 Ex. G ¶ 21). Through the investigation, White concluded Plaintiff had engaged in inappropriate behavior in violation of HMA‘s Mutual Respect Policy, particularly her comments to Semerick, her comments about the tightness of her vagina and what she believed it could do to a man‘s penis, her statement about her TC needing to think with his other head, and her offers to display her breasts to other associates. (Id. at ¶ 22). Plaintiff asserts that none of these comments were reported when made (except the comment to Semerick regarding the odor), that such non-reporting, although required under HMA policies, did not result in any discipline, and that none of the comments were offensive to the person to whom they were directed, which is a prerequisite to a violation of HMA‘s Mutual Respect Policy. (Doc. # 15 Ex. I at 37; Doc. # 16 Ex. M at 59, 71, 72, 76; Doc. # 19 Ex. 2 at 1, 9).
Citing the nature and severity of Plaintiff‘s sexually inappropriate conduct and gestures, and noting that she had previously been disciplined and counseled for engaging in inappropriate behavior and failing to treat her co-workers with respect, White recommended Plaintiff‘s termination as the appropriate action. (Doc. # 14 Ex. G ¶ 24; Doc. # 16 Ex. M 52). Cato concurred in the recommendation for termination, but could not independently make the decision. (Doc. # 15 Ex. I at 33). Bailey reviewed the Summary of Events prepared by White and approved the termination. (Doc. # 14 Ex. B ¶¶ 14–17 & Attachs. D, E, & F; Doc. # 15 Ex. H at 38–39). On August 3, 2005, White, Cato, and DM Jay Sturwold terminated Plaintiff‘s employment. (Doc. # 14 Ex. A at 127–29
G. Plaintiff‘s Evidence of “Comparators”
On July 20, 2005,1 the same day as Plaintiff‘s alleged repair lot conduct, Plaintiff reported to AR that Dent, a black female, placed a note on Kevin Wood‘s (“Wood“) back stating, “I love little boys.” (Doc. # 14 Ex. A 97–99 & Attach. 9, Ex. G ¶ 27 & Attach. F). Although Plaintiff understood the note to refer to pedophilia, Wood took the note as a joke, was not offended, and did not report it to AR himself. (Doc. # 14 Ex. G ¶ 30; Doc. # 16 Ex. Q ¶¶ 5–6). Plaintiff retrieved the note from the garbage and brought it to Peggy Anderson in AR. (Doc. # 14 Ex. A at 100–101, 105). White, working second shift, conducted the investigation into the note. (Doc. # 14 Ex. G ¶¶ 27–28); Doc. # 16 Ex. M 43–44, 77–78). Plaintiff alleges the investigation was superficial as it did not investigate the pedophiliac reference in the note. (Id.) White interviewed Plaintiff, Wood, Bolin, and Dent; Dent admitted placing the note on Wood‘s back because he hid her things. (Doc. # 14 Ex. G ¶¶ 29–32; Doc. # 16 Ex. M at 87–88 & Attach. 3). White determined that Dent‘s conduct was horseplay violating HMA‘s Mutual Respect Policy and Appropriate Conduct Policy. (Id.) Dent, who had no prior corrective actions, was issued a written warning on July 29, 2005. (Doc. # 14 Ex. A at 99, Ex. G ¶ 33 & Attach. G).
Plaintiff later testified that she heard inappropriate comments made by Dent, Semerick, Genesis Maddox, Carlos Chavers, Calvin Beard, Wood, and McBurnett, but admits she did not
White was aware of Plaintiff‘s complaints about the co-workers before she recommended Plaintiff‘s termination on July 26, 2005. (Doc. # 16 Ex. M at 120–21). White interviewed Crosby, Chavers, Pam Twymon, Beard, Wood, McBurnett, Semerick, Althea Thornton, and Kenneth Anthony about the allegations Plaintiff first reported on July 26, 2005, but none of those witnesses provided support for Plaintiff‘s allegations. (Doc. # 16 Ex. M at 76 & Attach. 1). White determined that Plaintiff‘s allegations of sexually inappropriate conduct by her co-workers interview were unsubstantiated. (Doc. # 14 Ex. G ¶ 19).
Kevin Bennett, a 27-year-old white male, was terminated on August 22, 2005 following a complaint against him for sexually inappropriate comments and gestures that was substantiated by
At the time of his termination, Bennett had the following discipline: (1) he reported to work under the influence of alcohol, and then lied about it to AR (Doc. # 15 Ex. K at 29–30);2 (2) Bennett violated the Appropriate Behavior and Mutual Respect policies by engaging in horseplay and for this offense he received a Level I written counseling (Doc. # 15 Ex. K at 37–38; Doc. # 19 Ex. 6); (3) Bennett had two coachings for harassment and horseplay (Doc. # 19 Ex. 8); (4) Bennett had received a verbal coaching for inappropriate conduct towards a female whom he had been dating (Doc. # 15 Ex. K at 46); (5) Bennett received a Level II written warning for eleven violations of safety and performance policies and five violations of the Appropriate Conduct Policy (Doc. # 19 Ex. 7); (6) when caught spray painting graffiti on the wood floor conveyor, Bennett lied to AR, and one of the spray-painted images was a smiley face with a long, oblong object protruding from its mouth (Doc.
AR representative Jean Pruitt issued a Level II written counseling to a 48-year-old, black male associate, Marvin Moore (“Moore“), based on a complaint by associate Antonio Sandridge (“Sandridge“). (Doc. # 16 Ex. M Attach. 8). Sandridge complained that Moore had made him uncomfortable by looking around the divider wall in the men‘s restroom and had made threatening remarks to him. Moore admitted he threatened that Sandridge “would lose a chunk of his ass” in an argument but stated he had accidentally stepped on Sandridge‘s foot, causing him to believe he was looking around the divider wall. (Id.). Other associates reported Moore and Sandridge saying “fuck you” to each other, that Moore had called other associates “do do boy,” and had told Sandridge to “make his ass cheeks clap.” (Id.). Moore was terminated on September 1, 2005, based on the recommendation of White and Cato, for stating to his supervisor that he was tired of these “fucking rules” and that he was going to “fucking AR.” (Doc. # 15 Ex. H at 24, 32; Doc. # 16 Ex. M at 110). Plaintiff does not dispute this, but adds that the majority of Moore‘s conduct occurred in May and June 2005 and notes that not all of the AR files surrounding these incidents has been located by HMA. (Doc. # 15 Ex. H at 26; Doc. # 19 Ex. 10).
Plaintiff bases her age claim on: TC Cotton‘s alleged comments to her (and for which he was not disciplined); Sturwold‘s alleged question as to whether she could handle the TC position because everyone was younger; an unidentified person saying HMA had to hire a certain number of people over 40; her assertion she did not do the things for which she was fired; her averment that HMA did not consistently enforce its policies and discipline associates; other evidence (i.e., that she was replaced by Donna Davis, who is substantially younger than Plaintiff); and her general speculative belief that HMA does not value older people. (Doc. # 14 Ex. A at 96, 112–15, 124–26; Doc. # 19 Exs. 3–10). Plaintiff bases her race claim on: statements allegedly made by Honda of Canada employees that black people had to be hired; that Canadian employees, Cotton, and TC Tim Sims (“Sims“) said HMA was afraid of being sued by blacks; her allegation that Jason Nichols, Sims, and Cotton mentioned several times that Honda favors blacks over whites; her allegation that Sims stated a few times to Plaintiff that “nothing is going to happen to them, they are black“; that Dent and Moore were treated and disciplined differently from Plaintiff; and that Genesis Maddox, who is black, had been written up for sexual harassment, but not fired. (Doc. # 14 Ex. A at 115–24; Doc. # 19 Ex. 4, 9, & 10). Finally, Plaintiff claims she was terminated in retaliation for reporting the note Dent attached to Wood‘s back and the allegations she made about Cotton calling her old and falsifying documents. (Doc. # 14 Ex. A at 98, 159–60). As additional evidence to support her claims, Plaintiff submits that although White testified under oath at Plaintiff‘s unemployment benefits hearing, in granting Plaintiff her unemployment benefits, the appeals referee stated: “The most competent evidence does not support a finding that the claimant [Plaintiff] displayed any deliberate disregard for reasonable standards of behavior, or that her discharge was a result of
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
The method used by the party moving for summary judgment to discharge its initial burden on the motion depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115–17 (citing United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991) (en banc)). If the moving party bears the burden of proof at trial, then it can only
If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the non-moving party will be unable to prove its case at trial. Once the moving party satisfies its burden using this method, the non-moving party must respond with positive evidence sufficient to resist a motion for directed verdict at trial.
The second method by which the 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 non-moving party on the issue in question. This method requires more than a simple statement that the non-moving party cannot meet its burden at trial. But it does not require evidence negating the non-movant‘s claim; it simply requires that the movant point out to the district court that there is an absence of evidence to support the non-moving party‘s case. See Fitzpatrick, 2 F.3d at 1115–16. If the movant meets its initial burden by using this second method, the non-moving party may either point out to the court record evidence, overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the non-moving party may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. However, when responding, the non-movant can no longer rest
IV. ANALYSIS
A plaintiff in an employment discrimination case maintains the ultimate burden of proving that the adverse employment decision was made because of intentional discrimination. See Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 143 (2000); St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Nix v. WLCY Radio/Rahall Commc‘ns, 738 F.2d 1181, 1184 (11th Cir. 1984). Although the Supreme Court previously established the basic allocations of burdens and order of proof in a disparate treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), as modified by Desert Palace v. Costa, 539 U.S. 90 (2003), that model applies only in cases where there is no direct evidence of discrimination. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987).
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden of proving by a preponderance of evidence a prima facie case of discrimination. Once the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden of production, the plaintiff must either present substantial evidence which shows (1) that the legitimate reasons offered by the defendant are merely a pretext for discrimination or (2) a reasonable jury could conclude that discrimination was a “motivating factor” for the employment action, even though defendant‘s legitimate reason may also be true or have played some role in the decision. McDonnell, 411 U.S. at 802; Burdine, 450 U.S. at 253–54; Desert Palace, 539 U.S. at 99–102.
As Plaintiff has not alleged any direct evidence of racial discrimination, the burden-shifting framework of McDonnell Douglas/Burdine governs Plaintiff‘s reverse race discrimination claims. Plaintiff may establish a prima facie case in one of two ways. She may show that: (1) she is a member of a protected class; (2) she suffered an adverse job action; (3) her employer treated similarly-situated employees outside her classification more favorably; and (4) she was qualified to do the job. McDonnell Douglas, 411 U.S. at 802; Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations omitted); Coutu v. Martin City Bd. of City. Comm‘rs, 47 F.3d 1068, 1073 (11th Cir. 1995). Alternatively, she could demonstrate that: (1) she is a member of a protected class; (2) she was qualified for her job; (3) she was discharged; and (4) her former position was filled by a person outside her protected class. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1290 (11th Cir. 1998). Thus, Plaintiff must prove that she was treated less favorably than a similarly-situated African-American employee because of intentional discrimination or that she was replaced by an African-American. Here, she can do neither, and thus has failed to establish a prima facie case of discriminatory discharge.
It is undisputed that Plaintiff was replaced by a white female (albeit a younger female, a point that will be discussed infra). Nevertheless, Plaintiff insists that she can still establish a prima facie case by showing that she was treated less favorably than Dent and Moore, African-American employees who were similarly-situated to her.
“In determining whether employees are similarly situated for purposes of establishing a prima facie case it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998), opinion modified by 151 F.3d 1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). “The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.” Id. (internal quotations and citations omitted). We require that the quantity and quality of the comparator‘s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges. See See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) (“Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.“).
Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir. 1999) (emphasis added). “Absent some other similarly situated but differently disciplined worker, there can be no disparate treatment.” Abel v. Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000).
In this case, Plaintiff has not produced substantial evidence that any non-white HMA associates engaged in “nearly identical” conduct and were not terminated. Defendant asserts that the conduct of Dent and Moore is not sufficiently similar to that of Plaintiff to make them valid comparators. The court need not decide this part of the case on that basis.4 Rather the court finds
that Dent and Moore differ from Plaintiff in that they did not have any previous disciplinary records for violations of the Mutual Respect Policy, under which Plaintiff was terminated. Dent, who had no prior corrective actions, was issued a written warning for putting the sign on Wood‘s back. (Doc.B. Plaintiff Has Failed to Establish a Genuine Issue of Material Fact Related to Her Retaliation Claim.
1. Plaintiff Has Failed to Establish a Prima Facie Case.
To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in protected activity; (2) a materially adverse action; and (3) a causal connection between the two. Cooper v. S. Co., 390 F.3d 695, 740 (11th Cir. 2005). The court finds Plaintiff has failed to offer sufficient evidence to establish the protected activity and causal connection elements of her retaliation claim.
To establish a prima facie case of retaliation under the Opposition Clause,6 Plaintiff must show that “she had a ‘good faith, reasonable belief that the employer was engaged in unlawful
None of Plaintiff‘s reports7 to HMA appear to concern conduct that she could have subjectively and objectively believed to be an unlawful employment practice. Plaintiff‘s report regarding co-worker Dent‘s placement of an “I love little boys” note on another co-worker‘s back on one occasion cannot objectively be viewed as a report of an actionable sexually hostile environment under Title VII, especially considering Plaintiff admits that she did not know the history of the note or its effect upon Wood, was not offended by the note, and that HMA investigated the incident and disciplined Dent (and Plaintiff was aware of this). (Doc. # 14 Ex. A at 99, Ex. G ¶ 33 & Attach. G). Plaintiff‘s reports of the sexually-related conduct of other associates, which were made for the first time during the investigation into Semerick‘s complaint about Plaintiff‘s repair lot behavior, were investigated by HMA and found to be unsubstantiated. (Doc. # 14 Ex. G ¶ 19; Doc. # 16 Ex. M at 76 & Attach. 1). Furthermore, Plaintiff admitted she was not offended by any of the conduct she reported, save, possibly, for that which she attributes to Cotton. (Doc. # 14 Ex. A at 81, 83, 86, 89, 91, & 106).
Moreover, as several courts have held, “any inference of retaliatory intent otherwise created by a short lapse of time can be dispelled when intervening factors are established.” Wu v. Se.-Atl. Beverage Corp., 321 F. Supp. 2d 1317, 1337 (N.D. Ga. 2004) (citing, e.g., Robinson v. AFA Serv. Corp., 870 F. Supp. 1077, 1084 (N.D. Ga. 1994) (finding absence of causal link, despite termination one day after employer learned of plaintiff‘s discrimination charge, where plaintiff had been warned numerous times regarding her job performance); Booth v. Birmingham News Co., 704 F. Supp. 213, 215–16 (N.D. Ala. 1988) (holding that a short span of time created no reasonable inference of retaliation where the record contained “intervening factors,” i.e., other reasons for the adverse action arising after the protected activity), aff‘d without opinion, 864 F.2d 793 (11th Cir. 1988)). Here, as in Wu and Robinson, Plaintiff had been previously warned by HMA about violating the Mutual Respect Policy and Appropriate Conduct Policy. Furthermore, and in any event, there is a discrete intervening event9—i.e., AR learned of Plaintiff‘s repair lot conduct via Semerick‘s report (the exact conduct for which HMA claims Plaintiff was terminated)—that would break the causal link between Plaintiff‘s report regarding Dent‘s conduct and HMA‘s alleged retaliation. Therefore, Plaintiff cannot establish the causation requirement of her prima facie retaliation claim.
2. Plaintiff Has Failed to Produce Substantial Evidence of Pretext.
Plaintiff has also failed to establish that HMA‘s aforementioned reasons for her termination, namely sexually inappropriate comments and gestures and a history of inappropriate conduct towards team members, were mere pretext for retaliation. She offers no evidence—aside from the timing of her AR report regarding Dent‘s conduct and her own behavior reported by Semerick to AR10—that any of her complaints caused her termination. As the court has previously discussed, no matter whose version of the facts is believed, when she reported Dent‘s note and sexually inappropriate conduct of other associates in the zone, Plaintiff had already engaged in the conduct leading to her termination. (Doc. # 14 Ex. A at 136–37, 139–40, 228–29). Also, as previously noted, temporal proximity between Plaintiff‘s report to AR regarding Dent and her own termination is insufficient to establish pretext where Plaintiff had previously been warned about inappropriate behavior and continued to engage in conduct violating HMA policies (i.e., the repair lot conduct). Wu, 321 F. Supp. 2d at 1337 (citing, e.g., Robinson, 870 F. Supp. at 1084; Booth, 704 F. Supp. at 215–16). Thus, for all these reasons, Plaintiff has failed to offer any other evidence to establish that HMA‘s reasons for terminating her were pretextual or that retaliation was the true reason.
As noted above, HMA has put forward substantial evidence that: (1) after investigating Plaintiff‘s conduct, it believed in good faith that Plaintiff had violated (for a second time) its Mutual Respect Policy; and (2) there is no evidence that Plaintiff was treated less favorably than a similarly situated person of a different race. If there were all there was to this case, HMA would be entitled to summary judgment on all of Plaintiff‘s claims. Unfortunately, for HMA, at least as it relates to Plaintiff‘s age discrimination claim, there is “the rest of the story.”
The Age Discrimination in Employment Act of 1967 (“ADEA“) provides that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual‘s age.”
The court further finds that unlike her race claim, Plaintiff can point to a sufficient comparator to go forward with her age claim. That is, Plaintiff has presented sufficient evidence from which a trier-of-fact could conclude that she was disciplined differently than a similarly situated younger person, Kevin Bennett. Bennett was a 27-year old employee, who was terminated on August 22, 2005 following a complaint against him for sexually inappropriate comments and gestures that was substantiated by an AR investigation. (Doc. # 14 Ex. B ¶ 19; Doc. # 14 Ex. E ¶¶ 13–14 & Attach. E & F). Associate Catrina Boley complained to AR representative Mark Graham that Bennett had made inappropriate sexual comments to her calling her “wonder bush” and “shaggy”
At the time of his termination, Bennett had the following discipline: (1) he reported to work under the influence of alcohol, and then lied about it to AR (Doc. # 15 Ex. K at 29–30); he received no discipline for this, but he did get a paid suspension in spite of the fact that having alcohol in one‘s system violates policy as does providing false information (Id. at 31, 32, 43; Doc. # 19 Ex. 5); (2) Bennett violated the Appropriate Behavior and Mutual Respect policies by engaging in horseplay and for this offense he received a Level I written counseling (Doc. # 15 Ex. K at 37–38; Doc. # 19 Ex. 6); (3) Bennett had two coachings for harassment and horseplay (Doc. # 19 Ex. 8); (4) Bennett had received a verbal coaching for inappropriate conduct toward a female whom he had been dating (Doc. # 15 Ex. K at 46); (5) Bennett received a Level II written warning for eleven violations of safety and performance policies and five violations of the Appropriate Conduct Policy (Doc. # 19 Ex. 7); (6) when caught spray painting graffiti on the wood floor conveyor, Bennett lied to AR, and one of the spray-painted images was a smiley face with a long, oblong object protruding from its
Defendant asserts that Bennett‘s conduct is materially different from Plaintiff‘s, and that he is not her valid comparator for purposes of her prima facie case under the ADEA or in order to show that their proffered reason for her termination (her repair lot conduct and previous discipline) is pretextual. The court disagrees. Bennett was specifically found to have violated the Appropriate Behavior and Mutual Respect policies and had previously received verbal coaching for numerous offenses, including inappropriate conduct (involving physical contact) toward a female whom he had been dating.
At oral argument, HMA also insisted that Bennett‘s behavior was substantially different from Plaintiff‘s because, although Bennett‘s actions were sexual in nature and directed at a member of the opposite sex, the female target of his conduct was not employed by HMA, but by their food service provider. The court finds this argument does not hold water because it is clear that HMA‘s policies prohibit HMA associates from the harassment of employees and non-employees alike.
Finally, Defendant insisted at oral argument that the “first time” Bennett did anything sexual in nature toward another employee, he was terminated. The court disagrees that this is the only reasonable inference that can be drawn from the Rule 56 evidence. A reasonable trier-of-fact could conclude that Bennett‘s drawing graffiti on the wood floor conveyor depicting a smiley face with a
This evidence of HMA‘s different treatment of Bennett, taken together with the negative age-related comments Plaintiff has attributed to Cotton (and which Cato allegedly concurred), is sufficient to allow Plaintiff to present her age claim to a jury. (Doc. # 14 Ex. A 112–13, 118, 189–91, 197–98 & Attach. 16).
V. CONCLUSION
For the reasons set forth above, the court finds HMA‘s motion for summary judgment (Doc. # 12) is due to be granted in part and denied in part. Specifically, the court grants Defendant judgment as a matter of law on Plaintiff‘s race discrimination and retaliation claims, but the court finds that a genuine issue of material fact precludes summary judgment for Defendant on Plaintiff‘s age discrimination claims. The court will enter a separate order in accordance with this memorandum opinion.
DONE and ORDERED this 18th day of July, 2007.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Notes
O‘Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). Thus, the fact that Plaintiff, who was 57 years old at the time of her termination, was replaced by a 44 year old, who is also in the ADEA‘s protected group, is of no moment. Her replacement by someone who was substantially younger than herself is sufficient to establish that element of the prima facie case.[The ADEA] does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age.