SHARON LOVELACE BLACKBURN, District Judge.
This case is presently before the court on defendant's Motion for Summary Judgment and defendant's Motion to Strike. (Docs. 11 and 25.)
A moving party is entitled to summary judgment if there is no genuine issue of material fact, leaving final judgment to be decided as a matter of law. See Fed.R. Civ.P 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the light most favorable to the non-moving party, with any doubt resolved in the non-movant's favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1609 (1970). Nevertheless, the non-moving party "need not be given the benefit of every inference, but only of every reasonable inference." Graham v. State Farm Must. Ins. Co., 193 F.3d 1274,1282 (11th Cir. 1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988) (emphasis added).
A party opposing a properly submitted motion for summary judgment may not rest upon mere allegations or denials of her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). In addition, the non-moving party's evidence on rebuttal must be significantly probative and not based on mere assertion or be merely colorable. See Rule 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). The language of Rule 56 "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
Plaintiff sues her past employer, pro se, for race discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Plaintiff is a 65 year old Caucasian female. (Doc. 24-3, Kilgore Aff. (Ex. PP), ¶ 1.)
In the light most favorable to Plaintiff, the scant evidence before the court reflects that Plaintiff began working for Hilton Garden Inn, Liberty Park, in September 2010. (Doc. 11-1, Plaintiff's Interrogatory Responses.) Plaintiff transferred to defendant owned Hilton Garden Inn, Trussville, to work as a front desk agent in December 2011. (Doc. 4, ¶ 18.) Quincey Beckwith was the front desk manager at all relevant times. (Doc. 11-2, Beckwith Aff., ¶ 2.) In February 2012 Joe Malik become General Manager for that hotel. (Doc. 4, ¶ 19.) According to Plaintiff's affidavit, Malik (a Caucasian male), made comments concerning Plaintiff's age and race in February and April 2012.
Specifically, on some unspecified date in "late-February of 2012" Malik told Plaintiff "You are old, Katie. Where's your sense of humor. . . ." (Doc. 24-3, Kilgore Aff., ¶ 3.) Malik then laughed and told Plaintiff to return to work. (Id.) Approximately a week later, the Housekeeping Manager went to Malik with a complaint about the plaintiff to which Malik told Plaintiff, "You're a stubborn, old woman, who either won't listen or can't hear what you're being told to do. This business between you and Cretta better stop, and stop now: you'll never win these battles; you're the wrong color, lady." (Id.) In April 2012 Plaintiff claims she and the Housekeeping Manager had another dispute, after which Malik told the Plaintiff, "Like I've said before, Katie, you're never going to win these battles; you're the wrong color, and, frankly, you're too old to fight the fight. . . ." (Id., ¶ 8.) Several days later, in response to a dispute between Plaintiff and another supervisor, Malik whispered to Plaintiff, "The old lady wins one; but it ain't over yet." (Id., ¶ 9.) That same supervisor, Quincey Beckwith, later called Plaintiff "You old white Bi . . ." (Id., ¶ 10.) Plaintiff did not hear the last word of this statement. (Id.) Plaintiff was terminated by Defendant on June 6, 2012. (Id., ¶ 11.)
Beckwith avers that Defendant received complaints regarding Plaintiff being rude to Defendant's hotel guests. (Doc. 11-2, Beckwith Aff., ¶ 4.) Plaintiff received a written reprimand in April 2012. That reprimand, dated April 19, 2012, states that a guest requested Plaintiff to check the lost and found for a missing tie, to which Plaintiff responded she was too busy and had already looked through the lost and found once. (Doc. 11-2, Exh. at 4-5.) He asked if she could look again, at which point another employee intervened and stated she would look for it. (Id.) The following day, while meeting with Plaintiff due to this incident, Quincey Beck with documented that Plaintiff stated "she was prejudice[d]." (Id., at 6.) Beckwith also documented that Plaintiff was told she would be terminated for another bad report. (Id.)
In June 2012 a negative guest survey (referred to by Defendant as a "SALT survey") was received and, upon investigation, Defendant believed the employee responsible for offending the guest was Plaintiff. (Doc 11-2, Beckwith Aff. ¶¶ 5-6.) Due to this incident, Beckwith and Malik jointly made the decision to terminate plaintiff. (Id., ¶ 7.) According to Beckwith, Plaintiff was terminated because of her "continually poor attitude towards [Defendant's] guests. (Doc. 11-2 Beckwith Aff. ¶ 9; doc. 11-2, Exh. at 7-9.)
Plaintiff was offered a job Defendant's laundry prior to her termination, but she declined. (Doc. 11-2, Beckwith Aff., ¶ 8.) According to Plaintiff, this offer was actually made in February 2012. (Doc. 24-3, Kilgore Aff., ¶ 4).
The plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that Defendant discriminated and retaliated against her on the basis of her age and race on June 15, 2012. (Doc. 4, ¶ 14; Doc. 24-3, at 32-33). She received a Notice of Right to Sue letter on November 21, 2012 and filed this action on February 13, 2013 (Doc. 1; Doc. 4, ¶ 15).
A plaintiff may prevail on an employment discrimination claim by either proving that intentional discrimination motivated the employer or producing sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason proffered by the employer, which permits, but does not compel, the trier of fact to find illegal discrimination. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004), citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000).
As the court can find no direct evidence of discrimination,
Once a defendant presents a legitimate, nondiscriminatory reason for its action, the presumption of discrimination drops from the case. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094 and n.10. The plaintiff must then demonstrate by a preponderance of the evidence that the reason offered by the defendant was not the true reason for the employment decision, but rather a mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The focus of the case after the defendant meets its burden of production is on the defendant's subjective intent and the motivation behind the defendant's adverse employment action directed at plaintiff. Harris, 99 F.3d at 1083.
An employer's stated reason is not a pretext unless it is shown that both: (1) the reason was false; and (2) the real reason was unlawful. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff may show a pretext either "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at. 1095. In both instances, a plaintiff must show pretext with "concrete evidence in the form of specific facts." Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). Mere "conclusory allegations and assertions" will not suffice. Id.
The plaintiff meets her prima facie burden of proving racially discriminatory discharge by establishing that (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was terminated despite her qualifications, and (4) she was replaced by someone outside her protected class. Connelly v. Metropolitan Atlanta Rapid Transit Authority, 764 F.3d 1358, 1364 (11th Cir. 2014) (citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (stating that an employee must be "replaced by a person outside his protected class" to establish prima facie case of discrimination (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824)). The fourth element of plaintiff's prima facie case may also be stated as that "her employer treated similarly situated employees [outside her class[ more favorably." McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). "To show that employees are similarly situated, the plaintiff must show that the employees are similarly situated in all relevant respects. . . ." Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (internal quotation marks omitted). The plaintiff fails to meet this burden regardless of which version of the fourth prong the court applies.
The court has carefully read the evidentiary submissions. Lacking from the submissions is any evidence at all that the plaintiff was treated any differently than any other employee, regardless of race, about whom guests complained. Plaintiff's allegations and affidavit establish that she believed she was treated poorly by Malik. Her affidavit establishes that Malik made comments to her based on her race (and age). It does not provide evidence that Plaintiff was treated any differently than an individual outside her protected class, nor does it establish that she was replaced by someone of a different race.
Even if Plaintiff could satisfy her prima facie burden, Defendant has provided an explanation for its actions that is not discriminatory in nature. See e.g., Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999). Defendant asserts the plaintiff was terminated from her position due to complaints from guests about her demeanor. Thus, the burden returns to Plaintiff to establish Defendant's stated reason was a mere pretext for discrimination, "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005)).
Plaintiff again fails to meet this burden as she simply disputes defendant's allegation, claiming that Defendant has not proven the complaints about her were legitimate. (Doc. 24, at 9.) She states only that the guest in question failed to identify her by name and that the defendant has not produced an affidavit from that guest. (Id.) She does not assert that she was not the front desk clerk about whom the guest complained. "[I]f the employer fired an employee because it honestly believed that the employee had violated a company policy, even if it was mistaken in such belief, the discharge is not `because of race' and the employer has not violated [Title VII]." Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987). Courts may not be concerned with whether an employment decision is prudent or fair, but only with whether it was motivated by unlawful animus. Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1361 (11th Cir. 1999). An "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984). In other words, "[i]f the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it[;] . . . [q]uarreling with that reason is not sufficient." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004) (internal citation omitted) (emphasis added).
For the reasons stated herein, Plaintiff has failed to meet her burden. Although Plaintiff disputes numerous "facts" set forth by the defendant, none of those facts are "material" facts. For example, whether Malik acted on his own in terminating Plaintiff, or jointly with Beckwith, is not a material fact. (Doc. 24 at 8-9.) Similarly, whether the lawsuit "purports" or "alleges" does not matter. (Doc. 24, at 8.) The material facts include that defendant believed plaintiff was the employee about whom a guest complained concerning rudeness, this was not the first complaint Defendant received about Plaintiff, and Defendant terminated Plaintiff based on this complaint.
The court finds the evidence before the court does not support Plaintiff's allegation of race discrimination. Having considered the foregoing, the court finds that the plaintiff has failed to demonstrate any genuine issue of material fact on her claim of race discrimination, such that a jury could find in her favor on this claim. Therefore, defendant's motion for summary judgment on this claim will be granted by separate order.
The ADEA prohibits an employer from discharging an employee who is at least 40 years of age because of that employee's age. 29 U.S.C. §§ 623(a)(1), 631(a). The burden of proof for ADEA claims differs from the employment discrimination statutes. "[T]he ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174, 129 S.Ct. 2343, 2349, 174 L.Ed.2d 119 (2009). Instead, "[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the `but-for' cause of the challenged employer decision." Id. at 177-178. A plaintiff may meet this burden by presenting direct or circumstantial evidence. See Mora v. Jackson Mem'l Fund, Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). In general, a plaintiff may assert a prima facie case of unlawful age discrimination by alleging sufficient facts to show that: (1) she is a member of the protected group of persons over age forty; (2) she suffered an adverse employment action; (3) she was replaced by a person outside the protected group, or at least by a substantially younger person (or was rejected for a position in favor of the younger person); and (4) she was qualified for the job at issue. See, e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (an ADEA plaintiff must show that she was replaced by someone "substantially younger," not necessarily by someone under age forty).
Plaintiff fails to establish her prima facie case. She has offered no evidence that she was replaced at all, let alone by someone "substantially younger" than her. Nothing in the evidence before this court could feasibly support a jury finding that Plaintiff would not have been terminated "but-for" her age. In the light most favorable to Plaintiff, her affidavit establishes that Malik called her "old" on several occasions.
Having considered the foregoing, and finding that Plaintiff has failed to establish any genuine issue of material fact on either claim in her complaint, the court finds Defendant's Motion for Summary Judgment (doc. 11) is due to be
Federal Rules of Civil Procedure Rule 56.