CALLIE V.S. GRANADE, Senior District Judge.
This matter is before the court on Defendants' Motion for Summary Judgment and Brief in support thereof (Doc. 89 and 89-1, respectively), Plaintiff's Response in opposition thereto (Doc. 91), and Defendants' Reply (Doc. 99). For the reasons explained below, the Court finds that Defendants' motion for summary judgment should be GRANTED.
This action arises as a result of Plaintiff, Christin Seals Flynn's ("Flynn") termination of employment with Defendants, CB&I Maintenance, LLC and CB&I LLC (collectively "Defendant" or "CB&I"). CB&I Maintenance, LLC provides warehousing services to UOP/Honeywell ("Honeywell") at Honeywell's warehouse located in Saraland, Alabama pursuant to a contract between CB&I and Honeywell. (Doc. 89-1 at 5). The Saraland warehouse distributes products manufactured by Honeywell. Honeywell Material Analyst Gregory Hendricks (Hendricks) plans the daily activities at the Saraland warehouse, but CB&I hires employees to execute Honeywell's plans and assigns duties requested by Honeywell. (Id.)
Plaintiff applied for a position with Defendant CB&I Maintenance to be the Assistant Warehouse Supervisor at Defendant's facility located in Saraland, Alabama in October, 2014. (Doc. 1 at 2)
In the early afternoon of January 9, 2015, Plaintiff, while on the way to the restroom, walked passed the breakroom where three employees, Kenyell Thomas ("Thomas"), Tim Taylor ("Taylor"), and Chris Hood ("Hood") were engaged in a very loud conversation which Plaintiff believed to be an argument or debate of some kind. (Id.) Thomas stopped Plaintiff and said he wanted her opinion regarding a rumor and then stated in a loud voice, "We are going to get your opinion" and "If a man was accused of rape would you still let him babysit your daughter?" (Id. at 4). Plaintiff ignored Thomas and continued walking at which point Thomas persisted "No, I'm serious. I want you to tell [Taylor] what your opinion is." (Id.) Plaintiff responded, "My God ya'll" in an effort to end the conversation and turned to leave the room." (Id.) Thomas again persisted and in an aggressive tone
Plaintiff felt she had a duty to report the conversation and immediately reported Thomas' comments to Kunath by stating something to the effect of "Look, something has happened. I need to bring it to your attention. I don't know how you handle things like this but this needs to be addressed immediately" and then described the conversation (as stated above). (Id. at 4-5). According to Plaintiff, Kunath seemed frustrated and/or annoyed and responded only by stating "okay". (Id. at 5). Taylor also reported the conversation to Kunath. (Id.) Kunath spoke with Thomas the same day about his comments to Plaintiff and Taylor. (Doc. 89-6 at 31).
At some point later in the afternoon, Thomas approached Plaintiff and said something to the effect of "Look, I didn't know it was going to offend you." (Doc. 1 at 5). Plaintiff responded that "We are not going to have this in the workplace", but found Thomas' behavior to be aggressive and his apology disingenuous. (Id.) Afterwards, Taylor approached Plaintiff and told her that she did the right thing by reporting the conversation to Kunath, but he feared that Plaintiff might consequently suffer. When Plaintiff asked what Taylor meant, he replied "Well, Kenyall [Thomas] is like a pet around here. But if they fire you they will be wrong." (Id.)
Kunath did not memorialize or report the January 9, 2015, incident to Human Resources or to any supervisor contemporaneously with the incident. (Id.) Later in the afternoon, however, Kunath drafted a memorandum describing Plaintiff's and Taylor's reporting the conversation to him, his conversations with Thomas about the problem with his remarks, and Thomas' apologizing for his actions. (Doc. 89-6 at 26-27, 31).
On the morning of Tuesday, January 13, 2015
Prior to January 13, 2015, Plaintiff's job performance was discussed between Kunath, Beasley, Hendricks, Rhonda Valliant
On January 12, 2015, Kunath contacted Human Resource Manager Rhonda Valliant and Beasley and notified them of Hendricks' and Hardee's complaints relating to Plaintiff's performance. (Doc. 89-6 at 2-3). He also attached a copy of his memorandum relating to Plaintiff's performance concerns to an email he sent to Valliant on January 12, 2015. (Doc. 89-6 at 33). Kunath, Valliant, and Beasley discussed Plaintiff's employment and Kunath recommended Plaintiff's termination, which was accepted and approved by Valliant and Beasley. (Doc. 89-6 at 23). Neither Beasley nor Valliant was aware of the incident between Plaintiff and Thomas at the time they decided to terminate Plaintiff. (Doc. 89-4 at 5; Doc. 89-6 at 14). Beasley testified that prior to Plaintiff's termination, Hendricks also told him that he wanted Plaintiff removed from her position. (Doc. 99-8 at 2). As part of the investigation of Plaintiff's claims, Hendricks provided a statement to the Equal Employment Opportunity Commission ("EEOC") and was deposed. (Doc. 91-2, generally; Doc. 91-2 at 28-29). Both his statement and his deposition testimony indicate that Hendricks never requested that Plaintiff be terminated. (Id.)
At the time of Plaintiff's hiring and termination, CB&I had a policy that addressed harassment and sexual harassment. Section III of the company policy defines "sexual harassment" in part as verbal conduct of a sexual nature where such conduct has the effect of "creating an intimidating, hostile or offensive work environment." (Doc 91 at 18-19; Doc. 91-5 at 121). The term "harassment" is defined in the policy as including "verbal" conduct that creates an intimidating, offensive or hostile working environment. (Doc. 91-5 at 121). Harassment is defined to include remarks made for the purpose of belittling or insulting someone on the basis of, among other things, sex or gender or on any other applicable protected basis. (Id.) The policy makes it mandatory for an employee who encounters workplace harassment or discrimination from any person or from co-workers to immediately report the conduct to management. (Id.) Defendant also had a code of conduct listing procedures for the prevention of harassment, discrimination and retaliation in the workplace. (Id. at 122). Under Section 1.2, "Harassment" is defined as the "unwanted and bothersome actions of one party or group towards another, including threats and demands that are generally considered offensive, intimidating and/or disturbing. This may be systemic and/or continued or a singular event, if sufficiently severe or hostile" (emphasis added). (Id.) There is no dispute that these policies were in effect or that Plaintiff was made aware of them prior to January 13, 2015. (Doc. 91 at 4; Doc. 89-3 at 11-17).
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted: "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The trial court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, at 249-250. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-movant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response. . . . must be by affidavits or as otherwise provided in this rule be set out specific facts showing a genuine issue for trial." Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). "A mere `scintilla' of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and citation omitted).
Plaintiff has not specifically identified a claim for sexual harassment in her Complaint. However, the Complaint does include a Preliminary Statement which states "Plaintiff files this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., seeking declaratory, injunctive and equitable relief; back pay, reinstatement, front pay, compensatory and punitive damages; and costs and attorney's fees for sexual harassment and retaliation suffered by Plaintiff as a result of her employment with Defendant." (Doc. 23 at 1). Based on the same, Defendant seeks dismissal of any claim of sexual harassment that has been alleged because Plaintiff has not presented any facts to support such a claim. More specifically, Defendant asserts dismissal is warranted because Plaintiff has not shown that the comments at issue were directed at her based on her gender and because the comments made were not sufficiently severe or pervasive so as to create a hostile work environment in violation of Title VII. (Doc. 89-1 at 15-20). Alternatively, Defendant argues that if Plaintiff has established a prima facie case of sexual harassment, the claim would still be barred by the Faragher-Ellerth defense. (Id. at 20-23). Plaintiff's response does not clarify whether she is, in fact, alleging a claim of sexual harassment
To establish a sexual-harassment claim Plaintiff must show that: (1) she belongs to a protected group; (2) she has been subject to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment was sufficiently severe to alter the terms and conditions of her employment; and (5) there is a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). To be actionable under Title VII, a hostile work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so." Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1247 (11th Cir. 2004) (internal quotes omitted). In the objective prong of a "severe and pervasive" inquiry, courts examine factors such as "the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and whether the conduct unreasonably interferes with the employee's job performance." Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 509 (11th Cir.2000) (citation and internal quotation marks omitted). "[N]o single factor is determinative, and either severity or pervasiveness can satisfy the element, if sufficient." Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1146 (11th Cir. 2008) (citations omitted). However, "sexual language and discussions that truly are indiscriminate do not themselves establish sexual harassment under Title VII." C.H. Robinson Worldwide, Inc., 594 F.3d 796, 809 (11th Cir. 2010) (citations omitted). Moreover, "Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination in the terms and conditions of employment." Id. at 807.
To the extent that Plaintiff has stated a sexual harassment claim, the record fails to establish that such a claim can survive past the summary judgment stage. First, Plaintiff has not shown that the comments were directed to her based on her sex. Second, as a matter of law, the conduct that Plaintiff alleges was sexual harassment, i.e. comments made by Thomas regarding (1) whether Plaintiff would allow someone to babysit her daughter who was accused of but found not guilty of rape and (2) whether another employee (Taylor) would engage in sex with Plaintiff if she had AIDS, is not so objectively severe and pervasive as to create a jury question as to whether a hostile work environment existed that would violate Title VII. See Mendoza, 195 F.3d 1238.
Despite the sexual nature of the comments made, it is undisputed that Thomas directed his comments to both Plaintiff and another male employee, diminishing a causal relationship between the comments and Plaintiff's gender. Further, while Plaintiff now asserts that she believed she was sexually harassed because the comments were directed at her as a woman and were made in a room with only males, the record does not support her conclusory statements. (Doc. 91-8).
Even assuming the comments were made to Plaintiff because of her status as a woman, her claim of sexual harassment would still fail because Plaintiff has not established that those comments created a hostile work environment. While Plaintiff states that she "perceived" the comments to be sexual harassment, the record fails to offer any support for her position. Specifically, it is undisputed that immediately after the comments were made, Plaintiff did not report being "harassed", "sexually harassed", or subjected to a hostile work environment. (Doc. 1 at 4-5). Further, after describing the incident to Kunath in the manner that she did and becoming aware of Kunath's failure to reprimand Thomas beyond a verbal counseling, Plaintiff made no effort to further pursue her complaint despite the fact that Plaintiff was aware of company policy which provided additional avenues to report alleged harassment. (Doc. 91 at 4, 18-20; Doc 89-3 at 11-17). Further, because it is undisputed that the comments were made on only one occasion and because Plaintiff was not physically threatened
"To establish a prima facie case of retaliation under Title VII, `a plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.'" Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (quoting Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994)(internal citations omitted). Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment. Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11th Cir. 2000) (citing to Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) ("[T]he protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those, like [appellant], who informally voice complaints to their superiors or who use their employers' internal grievance procedures.").
Defendant contends that summary judgment is due to be granted on Plaintiff's retaliation claim because Plaintiff has failed to establish that she engaged in a protected activity. (Doc. 89-1 at 25). Alternatively, Defendant argues that it had legitimate, non-discriminatory reasons for terminating Plaintiff that were not pretextual. (Id. at 27-29). In response, Plaintiff asserts that she engaged in a statutorily protected activity relying, in part, on the fact that she does not have to prove that the conduct she opposed was actually unlawful or rose to the level of sexual harassment and, instead must only show that her belief that the Defendant engaged in unlawful employment practice was reasonable when measured against existing substantive law. (Doc. 91 at 16). Plaintiff additionally argues that the cases cited to by Defendant are not on point. For support, Plaintiff relies on CB&I's company policies which define "harassment" and "sexual harassment" to show that the comments made by Thomas subjected Plaintiff to unlawful harassment, in this case, sexual harassment. Specifically, Plaintiff asserts that "[t]he very policy of CB&I supports both Plaintiff's subjective and objective belief that the conduct that she was subjected to rose to the level of sexual harassment thus triggering a duty to report and making the report constitutionally protected activity. Plaintiff was aware of Defendant's personnel policies and believed she had a duty to report the incident that she perceived as sexual harassment. Plaintiff believed that the incident constituted sexual harassment as she was in a room with only male co-workers and the shocking and gross language itself was directed at her as a woman." (Doc. 91 at 23-24)(internal citations omitted).
In order for Plaintiff to demonstrate that she engaged in a protected activity, she must "show[] that [s]he had a good faith, reasonable belief that the employer is engaged in unlawful employment practices." Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010)(citation omitted). Plaintiff's belief that she engaged in a protected activity must also be objectively reasonable. (Id.) Moreover, "[t]he reasonableness of a plaintiff's belief that her employer engaged in an unlawful employment practice must be measured against existing substantive law." (Id. at 1245).
Plaintiff's position that she engaged in protected activity is not compelling. First, as discussed herein above, Plaintiff conclusively states that she believed she was sexually harassed at the time the incident occurred, but the record does not support her position. Plaintiff did not report that she was "harassed" or more specifically, "sexually harassed" to Kunath and she did not report that Thomas' comments subjected her to some kind of hostile work environment. Instead, Plaintiff described the conversation to Kunath after stating something to the effect of "I don't know how you handle things like this. . .". (Doc. 1 at 4-5). While Plaintiff argues that her reporting the incident to Kunath substantiates her belief that the conduct was sexual harassment based on her familiarity with company policy, the reporting of the incident, alone, does not wholly confirm her reason for reporting the incident, i.e., her belief that the incident was sexual harassment versus inappropriate behavior. This distinction is more significant in Plaintiff's case because Plaintiff was Thomas' supervisor and she testified that she did not document the incident and that in hindsight she should have looked into the policy she relies on, to determine whether she could have initiated a more formal type of reprimand herself. (Doc. 89-3 at 31-33). Accordingly, the manner in which Plaintiff reported the incident, in fact, does not confirm that she subjectively believed the comments amounted to sexual harassment. Further, even after Thomas apologized and Plaintiff was informed that Kunath had not disciplined Thomas, Plaintiff did not further complain that she was sexually harassed or that Thomas should have been disciplined for sexual harassment via any other avenue for reporting potential sexual harassment per company policy. Instead, Plaintiff testified that once Kunath spoke with Thomas and after Thomas apologized, she felt the incident had been handled. (Doc. 89-3 at 39). "A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination." Murphy v. City of Aventura, 383 Fed.Appx. 915, 918 (11th Cir. 2010) (employee's internal complaint that supervisor had used "vulgar, inappropriate language" and had engaged in "bullying" was not protected activity where she did not complain that such conduct "was sexually hostile or sexually harassing")
Nevertheless, even if Plaintiff had established that she subjectively believed that she was sexually harassed, her claim would still fail if she could not show her subjective belief was objectively reasonable when measured against existing substantive law. See Howard, 605 F.3d at 1245. To that end Plaintiff relies on her reporting of the incident and CB&I company policy to show objective reasonableness. (Doc. 91 at 16-20).
Based on the facts of this case, the Court finds that an employee in Plaintiff's position could not reasonably believe that a Title VII sexual harassment claim would be supported by the comments that were made to both Plaintiff and another male employee on a single occasion. While a single incident, if extraordinarily severe, may constitute harassment as Plaintiff urges (see Doc. 91 at 19 citing to Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Cruz v. Coach Stores, Inc., 202 F.3d at 570 (2nd Cir. 2000), Plaintiff does not offer any legal support wherein the facts are substantially similar to those in the instant action and support her position the conduct about which Plaintiff complains is objectively extraordinarily severe. Rather, as discussed herein above, substantive caselaw reveals that actions more severe than those complained of by Plaintiff have been held not to constitute sexual harassment as a matter of law. See Mendoza, 195 F.3d 1238; See also Roberson v. BancorpSouth Bank, Inc., 2013 WL 6254108, *9 (S.D. Ala. December 4, 2013)( "[A]lleged harassing conduct (i.e.,[Employee] commenting about the "hotness" of female employees, discussing Viagra on one occasion, giving a Viagra pill to plaintiff's husband on one occasion, sending joke emails with punchlines about "the pricks in your life" or "I be yankin' off alone," and forwarding "People of Wal-Mart" emails) falls far short of the requisite objective severity and pervasiveness.")
Lastly, Plaintiff's reliance on CB&I company policy to show that the conduct was objectively unreasonable is misguided as the same is not the appropriate tool by which to measure reasonableness in this Circuit. As a result, even if Plaintiff had a subjective belief that she was exposed to sexual harassment, the belief was not objectively reasonable in light of the facts of the present case and substantive case law and, accordingly, Plaintiff has failed to establish that she engaged in protectedactivity.
Assuming arguendo that Plaintiff has established that she engaged in a protected activity, she would still need to establish that the protected activity and the adverse action were casually related. Thomas, 506 F. 3d at 1363. To establish a causal connection between participation in a protected activity and adverse employment action, "a plaintiff need only show that the protected activity and the adverse action were not wholly unrelated." Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quotations omitted). To make this showing, a plaintiff must generally establish "that the decision maker was aware of the protected conduct at the time of the adverse employment action." Id. "[C]lose temporal proximity between the employee's protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection." Id.
Plaintiff asserts that a causal connection exists because her termination was discussed on January 9, 2015, the same day she complained of Thomas's remarks to Kunath and because she was formally terminated on January 13, 2015, just two days after the complaint was made. (Doc. 91 at 21). Defendant did not raise an argument with regard to causal connection in its motion for summary judgment, but in its Reply (Doc. 99) it has pointed out that the discussions of Plaintiff's termination on January 9, 2015, took place hours before Thomas' remarks were made or Plaintiff complained and that it is undisputed that two of the three persons responsible for Plaintiff's termination were wholly unaware of Thomas' remarks or Plaintiff's complaining of the same at the time Plaintiff was terminated. (Doc. 99 at 5). In support of its position, Defendant has provided a typed document drafted by Kunath that memorialized problems with Plaintiff's performance and indicated a need to "find someone who can handle the job". (Doc. 99-5 at 7-8; Doc. 99-5 at 9). Kunath has testified that he drafted the memorandum between 6:30a.m. and 9:00a.m. on January 9, 2015. (Doc. 99-5 at 7-8).
In response, Plaintiff does not dispute that two of the decision makers, Beasley and Valiant, were unaware of the incident prior to her termination. Rather, Plaintiff has called into question whether Kunath, in fact, drafted the memorandum prior to Plaintiff's reporting of Thomas' comments and to that end, Plaintiff points to the deposition testimony of Rhonda Valliant wherein Valliant admits that she was unaware of the memorandum before January 12, 2015, and that as of the date of her deposition, CB&I had not been able to confirm the date the document was created. (Doc. 91 at 11-12). However, Valliant's testimony does not actually contradict Kunath's testimony that he drafted the document prior to Plaintiff's complaints being made. There is also a lack of facts from which a jury could conclude that Kunath's testimony as to when he drafted the memorandum is untruthful or even mistaken. As a result, there are no facts to rebut that Plaintiff's performance concerns, including the need to possibly replace Plaintiff, were considered by Kunath prior to the alleged protected activity occurring. "When an employer makes a tentative decision before protected activity occurs, the fact that an employer proceeds with such a decision is not evidence of causation." Saffold v. Special Counsel, Inc., 147 Fed.Appx. 949, 951 (11th Cir. 2005) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001))( holding that when an employer contemplates a given action before the harassment takes place, temporal proximity between the action and the incident of harassment alone will not suffice to show causation.) See also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227 (11th Cir. 2006). Further, no causal connection can be made between Plaintiff's termination and the other two decision makers' action because they were wholly unaware of Plaintiff's allegedly protected activity. As a result, the facts in this action simply do not support the causal link between Plaintiff's complaints and her termination based solely on temporal proximity.
Despite the above conclusions, the Court finds it necessary to address the final argument posed by Plaintiff, i.e., that the reasons set forth by Defendant for terminating Plaintiff are pretextual.
Assuming Plaintiff has established a prima facie case of retaliation, the Defendant is entitled to articulate a legitimate business reason for the actions as an affirmative defense to liability. Goldsmith v. Bagby Elevator Co. Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). Should the Defendant carry this burden, "the presumption of discrimination is eliminated and `the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima-facie case, sufficient to permit a reasonable fact finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.'" Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (citations omitted). A Plaintiff may show that an employer's reasons are pretextual by demonstrating such "weaknesses, implausabilities, inconsistencies, incoherencies, or contradictions" in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); See also Chapman, 229 F.3d 1012.
Assuming Plaintiff has established a prima facie case of retaliation (which she has not), Defendant asserts that Plaintiff was terminated based on non-discriminatory performance concerns. Namely, concerns over Plaintiff's ability to oversee and conduct inventory, count inventory, label shipments, and understand the daily functions of the Saraland warehouse. (Doc. 89-1 at 28). Therefore, it is Plaintiff's burden to show that the proffered non-discriminatory reasons provided by Defendant are pretextual. Plaintiff asserts that pretext is apparent based on the number of contradictions in testimony between Hendricks, Beasley, Kunath, and Valliant over Plaintiff's termination, but most notably, because Beasley's testimony was unequivocal that but for a client request, Plaintiff would not have been fired and Hendricks' testimony that he, the client, did not request that Plaintiff be fired. (Doc. 91 at 22-24). Plaintiff asserts the contradictions on record also call into question whether the other performance concerns proffered by Defendant are legitimate. Lastly, Plaintiff contends that pretext is established by the safety rating given to Plaintiff on her separation notice because Plaintiff was given the highest rating, which negates Beasley and Kunath's position that Plaintiff was terminated, in part, due to safety concerns. (Id. at 23). For support, Plaintiff relies on Everett v. Lake Martin Area United Way, 46 F.Supp.2d 1233, 1237 (M.D. Ala. 1999), where the Court held that there is an inference of pretext when the employment decision involves the employee's performance but there is no supporting documentation of performance concerns prior to termination. (Doc. 91 at 22).
Plaintiff's position is not compelling and the contradictions pointed out by Plaintiff do not sufficiently establish pretext. Even taking into consideration the contradictions in the testimony of Beasley, Hendricks, Kunath, and Valliant, and the safety rating given to Plaintiff on her separation notice there remain several incidents relating to Plaintiff's performance that were discussed prior to her termination that are not contradicted. Specifically, prior to Plaintiff's termination, Hendricks commented to Kunath that Plaintiff had made errors counting inventory on two occasions (Doc. 89-5 at 5-6), co-workers complained to Kunath about the manner in which Plaintiff handled an issue with another employee (Doc. 89-4 at 27), and Hardee had a conversation with Kunath about Plaintiff's performance deficiencies, including her inaccurate count of inventory, mislabeling of shipments, lack of leadership qualities, and inability to grasp the instructions (Doc. 89-7 at 2). Plaintiff has not presented evidence to rebut these performance issues. Further, Plaintiff's reliance on Beasley's testimony that Plaintiff would not have been fired but for Hendrick's request that she be fired and Hendricks' testimony that he did not make such a request to Kunath does not establish pretext, when it is wholly undisputed that neither Beasley nor Hendricks had any knowledge of the incident between Plaintiff, Thomas, and Taylor — much less knowledge that Plaintiff reported the incident. Thus, despite the contradictions established by testimony after-the-fact as to whether or not Hendricks informed Kunath that Plaintiff should be terminated, it remains that at the time Plaintiff was terminated, Beasley (a decisionmaker) understood that Hendricks had made such a request and had no knowledge of Plaintiff's complaints against Thomas. The same holds true for Valliant (another decisionmaker), who at the time of the termination was under the impression that Plaintiff had multiple performance deficiencies and that Hendricks had requested termination and who had no knowledge of Plaintiff's incident or her reporting of the same. Plaintiff cannot merely rely on contradictions, she must show that those contradictions support that the real reason she was terminated was based on her allegedly protected activity. See Chapman, supra. With regard to Beasley and Valliant, Plaintiff has not established pretext.
Lastly, as has been discussed above, Plaintiff has not offered any evidence that Kunath's memorandum detailing Plaintiff's performance issues was not written before Plaintiff's incident occurred — as Kunath testified. Further, to the extent that Plaintiff has called into question Kunath's veracity in reporting Hendricks' request that Plaintiff be terminated to Beasley and Valliant, the same would not negate the reasons provided by Defendant for Plaintiff's termination because the record reflects that Beasley did not solely rely on Kunath's comments. Rather, Beasley testified that Hendricks also told him, personally, that he wanted Plaintiff removed or returned to a class one employee. (Doc. 99-8 at 2). As a result, while a question of fact exists as to whether or not Hendricks requested that Plaintiff be terminated, the facts when considered in a light most favorable to Plaintiff, i.e., that Hendricks's deposition testimony is true and he did not tell Kunath that Plaintiff should be removed and that Kunath's statements to Beasley were untruthful, there is still no indication of pretext because Beasley was under the impression that Hendricks wanted Plaintiff removed based on his own independent conversations with Hendricks, not based on Kunath's reporting of Hendricks' desire. Lastly, unlike in Everette, supra, prior to Plaintiff's termination there were two memoranda drafted by Kunath detailing problems with Plaintiff's performance, both of which support the proffered reasons for termination. (Doc. 89-6 at 35; Doc. 91-5 at 112). There is also evidence that Kunath spoke with Plaintiff on one occasion regarding the amount of time Plaintiff took while operating the forklift
In this action, even if Plaintiff had established that she engaged in protected activity that was causally related to her termination, dismissal would still be warranted because there is no question of material fact to support that the reasons proffered by Defendant for Plaintiff's termination were pretextual.
For the reasons stated above, the Defendant's motion for summary judgment is be
