MEMORANDUM OPINION
On May 12, 2015, the court ordered plaintiff Arthur C. Thomas, in light of its recent opinion in Savage v. Secure First Credit Union,
With discovery almost complete and the dispositive motions deadline nearing on August 3, 2015, the court entered an order extending the deadline for any response by defendant Kamtek Inc. (“Kamtek”) to run concurrently with the dispositive motions deadline. (Doc. 20). On August 3, 2015, Kamtek filed a motion for summary judgment on all four of Thomas’ claims. (Doc. 21). Thomas filed his response to Kamtek’s motion on September 8, 2015 (Doc. 26), and Kamtek filed a reply on September 21, 2015 (Doc. 28). Kamtek’s motion is now under submission.
For the reasons stated below, Kamtek’s motion for summary judgment will be denied as to Count I and granted as to all other counts.
“[C]onsidering all of the evidence and the inferences it may yield in the light most favorable to the nonmoving party... [s]ummary judgment is appropriate where the evidence shows ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Ellis v. England,
“Where, as here, there is no direct evidence of discrimination, a plaintiff may prove discrimination through circumstantial evidence, using the burden-shifting framework established in McDonnell Douglas.” McCann v. Tillman,
A. Prima facie case
“Under the McDonnell Douglas framework, [a plaintiff] must first make a prima facie case, which generally requires a showing that: 1) he belongs to a protected class; 2) he was qualified to do the job; 3) he was subjected to adverse employment action; and 4) and his employer treated similarly-situated employees outside his class more favorably.” Humphrey v. Napolitano,
i. Adverse action
“[T]o prove adverse employment action in a case under Title VIPs anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment ... Moreover, the employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.” Davis v. Town of Lake Park, Fla.,
While Kamtek argues at length that selection for a workplace drug test is not an adverse action,
ii. Similarly situated individuals
“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.” Maniccia v. Brown,
Thomas provides William Phillips, Charles McBride, and Robin Embry as similarly situated white Kamtek employees who were treated differently than he in respect to their drug tests. (Doc. 26 at 9-12). While it is undisputed by the parties that Phillips received more than two hours to produce urine during his drug test (Doc.
Yet, while Phillips is dissimilar, McBride and Embry were both drug tested under the same two hour policy as Thomas (Doc. 28 at 11-12; Doc. 26 at 10-11), and the parties offer conflicting testimony on whether that two hour time limit was applied preferentially. First, Shannon Hen-don, an employee of PSI, the temporary staffing company providing drug screening services for Kamtek, administered thé drug test to McBride and testified that when McBride “still couldn’t provide enough urine [][a]fter about an hour,” he phoned Kamtek HR manager Charman Meador who then told Hendon to give McBride three hours. (Doc. 22-4 at 9-10). While Hendon testified “I don’t know the exact amount of time [it took McBride to provide his urine sample]”, she also testified that after the phone call with Meador, McBride did not produce the sample “pretty quickly” but instead he had to drink more water and they both “had to sit in the cafeteria for a while.” (Doc. 22-4 at 10). In fact, Kamtek admits that “Meador agreed that additional time could be given if necessary.” (Doc. 21 at 15). Arguing in the alternative, Kamtek tries to distinguish McBride on the basis that he asked for more time during his drug test whereas Thomas did not. (Doc. 21 at 30). Aside from the disputed fact that Thomas did implicitly request more time when being escorted off the Kamtek premises (Doc. 22-2 at 31-32), Kamtek’s distinction is irrelevant given the undisputed testimony that Kamtek’s two-hour policy was inflexible (Doc. 21 at 7, 11, Doc. 22-1 at 5; Doc. 22-2 at 18, 25; Doc. 22-4 at 6-7; Doc. 27-1 at 54-59; Doc. 27-3 at 32, 82-85). Next, Nancy Crowder-Deed, an employee of PSI who administered the drug test to Embry, testified that when Embry got upset in the course of the drug test, HR manager Mea-dor got involved, reprimanded Crowder-Deed for not having the “right attitude,” and then Embry was allowed “two and a half hours” to produce her urine sample. (Doc. 27-3 at 83-84).
Therefore, when viewed in the light most favorable to Thomas, there is more than enough evidence for a prima facie case that during his drug test Thomas was not treated similarly to McBride and Em-bry.
B. Pretext
“When a plaintiff has established a prima facie case of discrimination, the burden of production then shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse employment action ... [and] [i]f the defendant is able to do so, the burden shifts back to the plaintiff to show that this reason is really a pretext for unlawful discrimination” Winborn v. Supreme Beverage Co. Inc.,
While Kamtek offers Thomas’ work-rule violation of failing to produce a urine sample during his drug test as its legitimate, nondiscriminatory reason for terminating him (Doc 21 at 6-9, 31-33), the record contains sufficient evidence to create a genuine issue of material fact as to whether Kamtek’s reason is pretextual.
A. No work rule violation
The “defense that [an] employee was fired for violation of work rules is arguably pretextual when a plaintiff submits evidence that [he] did not violate the cited work rule.” Rojas v. Florida,
Neither party disputes that as an employee of Kamtek, Thomas was subject to Kamtek’s written Drug/Alcohol Testing Policy, which states in part:
3. An employee who test [sic] positive for drugs or alcohol will be subject to discipline up to and including discharge.
4. An employee who fails to appear for a drug test, or provide a sample for such test, will be considered to have incurred a positive test result and will be subject to disciplinary action.
(Doc. 22-2 at 93) (emphasis added). It was also Kamtek’s policy to allow an employee two hours to provide a urine sample,
Despite Kamtek’s assertion that Thomas was given the full two hours (Doc. 21 at 24-25), the record contains conflicting testimony and a genuine issue of material fact as to whether Thomas received the full two hours. First, Thomas testified that contrary to Kamtek policy, he was given “nowhere near two hours.” (Doc. 22-2 at 18, 41).
B. Comparators and deviation from policy
“A typical means of establishing pretext is through comparator evidence.” Walker v. St. Joseph's/Candler Health Sys., Inc.,
Consistent with Thomas’ prima facie case, and viewing the testimony of Thomas, Hendon, and Crowder-Deed in the light most favorable to Thomas, comparators McBride and Embry were given the full two hours or even longer to produce a urine sample whereas Thomas was not even given the full two hours. See infra.
Furthermore, while according to Kam-tek HR manager Meador “it was Kamtek’s policy to allow employees two hours to produce a sample” (Doc. 22-1 at 5), there is conflicting testimony that Kamtek bent the rules for McBride and Embry while inflexibly applying it to Thomas. First, Hendon testified that when she administered the drug test to McBride, Kamtek’s HR manager Meador told her that she “needed to go by the DOT guidelines with the drug screening [which were] ... three hours.” (Doc 22-4 at 9). When Hendon .called Crowder-Deed “about Department of Transportation regulations per Charman’s request ... [Crowder-Deed] informed her that we don’t follow DOT regulations ... [w]e follow the two-hour rule.” (Doc. 27-3 at 78-80). Hendon was not asking Crow-der-Deed whether it was two hours or three, but rather the oddity of “why would Charman ask her to refer to Department of Transportation three-hour rule as it re
Because there is more than enough evidence to establish a prima facie case and to create a genuine issue of material fact as to whether Kamtek’s legitimate, nondiscriminatory reason is pretextual, summary judgment on Count I in favor of Kamtek is inappropriate.
Counts II, III, and IV
On May 12, 2015, the court ordered Thomas, in light of its recent opinion in Savage v. Secure First Credit Union,
Thomas does not respond to Kamtek’s motion as to Counts II, III, and IV, and he effectively concedes that these counts are not viable by narrowly praying that Kam-tek’s motion for summary judgment only be “denied with regard to his race case.” (Doc. 26 at 19). Where a party fails “to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. Proc. 56.
Despite Thomas’ allegation in Count II of discrimination on the basis age, Thomas admitted in his deposition that he had no basis for his ADEA claim. (Doc. 22-2 at 37). Furthermore, since Thomas alleges he was terminated based on his race in violation of Title VII (Doc. 1 at 5-6; Doc 22-2 at 34-35; Doc. 26), age cannot be the “but-for” cause of his termination. See Hendon v. Kamtek, Inc.,
Despite Thomas’ allegation in Count III of discrimination on the basis of a disability, Thomas admitted in his deposition that he had no basis for his ADA claim. (Doc. 22-2 at 37). Furthermore, since Thomas alleges he was terminated based on race in violation of Title VII (Doc. 1 at 5-6; Doc 22-2 at 34-35; Doc. 26), a disability cannot be the “but-for” cause of his termination. See Savage,
Finally, despite Thomas’ allegation in Count IV that Kamtek retaliated against him in violation of Title VII for reporting discrimination, Thomas admitted in his deposition that he had no basis for his retaliation claim. (Doc. 22-2 at 37). Furthermore, since Thomas alleges he was terminated based on race in violation of Title VII (Doc. 1 at 5-6; Doc 22-2 at 34-35; Doc. 26), retaliation cannot be the “but-for” cause of his termination. See Donald v. UAB Hosp. Mgmt., LLC,
In contrast to Thomas’ response to the court’s May 12, 2015 show cause order, his pleading was deficient as to “all claims except that in Count One.” (Doc. 16). The disposition of this case on a Rule 56 motion for summary judgment rather than a Rule 12(b)(6) motion to dismiss illustrates the importance of requiring plaintiffs to elect between multiple “but-for” employment discrimination claims at the motion to dismiss stage of litigation. See e.g. Culver v. Birmingham Bd. of Educ.,
The necessity of resolving multiple “but-for” claims at the motion to dismiss stage is rooted in the pleading standard of Rule 8(a) itself, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). In the bygone era of the “no set of facts” approach in Conley v. Gibson,
When pleading “but-for” causation consistent with Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. -,
Specifically in Iqbal, the general pleading of discriminatory intent was conclusory and “respondent’s complaint d[id] not contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of mind.” Iqbal,
This gatekeeper function of Rule 8(a) per Iqbal and Twombly practically ensures that deficient claims are “exposed at the point of minimum expenditure of time and money by the parties and the court.” Twombly,
Rather than waiting until summary judgment whence discovery has been already fully conducted, Rule 8(a) stands as an efficient and practical gatekeeper at the motion to dismiss stage. As the Supreme Court explained in Twombly:
It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management... given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. See, e.g., Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 638 (1989) (“Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves”). And it is self-evident that the problem of discovery abuse cannot be solved by careful scrutiny of evidence at the summary judgment stage, much less lucid instructions to juries; the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no reasonably founded hope that the discovery process will reveal relevant evidence to support a § 1 claim.
Twombly,
Finally, while a party may plead alternative or inconsistent claims or defenses under the federal rules, Fed. R. Civ. Proc. 8(d), alternative pleading does not relieve a plaintiff of its obligation un
If plaintiffs like Thomas were allowed to continue inclusion of claims similar to Counts II, III, and TV in their complaint, it would unlock the doors of discovery on these claims armed with nothing more than irreconcilable conclusions. Resolving these irreconcilable claims on summary judgment, rather than a motion to dismiss, wastes the time and money of the parties and the court. A review of the discovery materials attached to the parties’ summary judgment briefing demonstrates the futility of allowing multiple “but-for” employment discrimination claims beyond the motion to dismiss stage. (Doc. 22-1; Doc. 22-2; Doc. 22-4; Doc. 27-1; Doc. 27-2; Doc. 27-3). Additionally, Thomas fails to explain how alternative pleading alleviates the factual inconsistencies of his complaint.
CONCLUSION
For the reasons stated above, this court by separate order will deny Kamtek’s motion for summary judgment on Count I and grant the motion on Counts II, III, and IV.
Notes
. Nowhere in Thomas' complaint (Doc. 1), deposition (Doc, 22-2), or briefing (Doc. 27) does he assert that his selection for a drug test was an adverse action. In fact, when asked in his deposition if "what [he] wanted ... was [for Kamtek] to let [him] not have to take the test that morning”, Thomas responded "I never said that ... I just wanted to be treated fair ... I took the test.” (Doc. 22-2 at 31).
. The record only contains a summary of Kamtek's written Drug/Alcohol Testing Policy, which states "[a] complete copy of the Drug and Alcohol Testing Policy may be obtained in the Human Resources Office.” (Doc. 22-2 at 93). While the complete policy is absent from the record and the written summary is silent on the amount of time an employee is given for testing, both parties agree that it was Kamtek’s policy to give employees two hours to produce a urine sample. (Doc. 21 at 8; Doc. 26 at 5). Kamtek’s HR manager, Charman Meador, stated in her declaration that "it was Kamtek’s policy to allow employees two hours to produce a sample.” (Doc. 22-1 at 5). In his deposition, Thomas similarly acknowledged it was Kamtek’s policy to give employees a two hour time limit to produce the urine sample. (Doc. 22-2 at 18).
. Kamtek’s focuses on certain "inconsistencies” in Thomas’ statements (Doc. 21 at 3, 23, 27), however these "inconsistencies” are not blatant contradictions and at most relate to Thomas’ credibility, which is assessed by the factfinder and not on summary judgment. Cf. White v. Georgia,
. Specifically, a Social Security Disability Insurance claim requires a plaintiff assert “total disability” whereas an ADA claim requires the essential element that a plaintiff "is a qualified individual with a disability.. .who, with- or without reasonable accommodation, can perform the essential functions of her job.” Cleveland, 526 U.S. at 806,
. Similar to the approach in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,