SUSAN RUSS WALKER, Magistrate Judge.
Plaintiff Andre J. Mahone brings this action against defendant BBG Specialty Foods, Inc., d/b/a Taco Bell ("BBG"), alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Equal Pay Act, 29 U.S.C. § 206(d)(1) ("EPA"). See Doc. 9 (Amended Complaint). BBG is a Taco Bell restaurant franchisee. The plaintiff was employed by the defendant at a Taco Bell in Dothan, Alabama, from November 29, 2013 until he was fired on October 9, 2015. He was hired to the position of "team member," and defendant promoted him to "shift leader" on February 4, 2014. Plaintiff held the shift leader job title until his termination from employment. This lawsuit concerns allegations of disparity in plaintiff's pay relative to female shift leaders, as well as allegations that the defendant failed to promote the plaintiff to Assistant Manager because of gender discrimination. Plaintiff maintains that defendant terminated his employment on October 9, 2015 in retaliation for the plaintiff's complaints of gender discrimination.
This cause is presently before the court on defendant's motion for summary judgment. See Doc. 22. Plaintiff filed an opposition to the motion, see Doc. 29, and BBG replied, see Doc. 30. Upon review of the motion and the record, the court concludes that defendant's motion for summary judgment is due to be granted.
A movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For summary judgment purposes, an issue of fact is "material" if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S.Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish — "by producing affidavits or other relevant and admissible evidence beyond the pleadings" — specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A). "All affidavits [and declarations] must be based on personal knowledge and must sets forth facts that would be admissible under the Federal Rules of Evidence[.]" Josendis, F.3d at 1315; Fed. R. Civ. P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d at 1315; Fed. R. Civ. P. 56(c)(4). However, "[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted." Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted).
In the nearly two years that the plaintiff was employed by defendant, he received three pay raises. When defendant promoted plaintiff from team member to shift leader on February 4, 2014, plaintiff received a raise from $7.50 per hour to $8.25 per hour. He also received raises on May 28, 2014 and August 19, 2015 to $8.75 per hour and $9.00 per hour, respectively. The latter two raises came after the plaintiff complained in July 2015 to the Restaurant General Manager that female shift leaders were paid more per hour. Plaintiff complained about discrimination generally, but he did not specify that he was complaining about gender discrimination. The plaintiff testified that he was satisfied with the raise, and he did not have any conversation with a member of management about pay discrimination after July 2015. (Doc. 23-4; Pl. Dep. 155, 190-91). Further, in his brief in response to the instant motion, the plaintiff concedes that he did not make complaints about gender discrimination after July 2015. See Doc. 29 at 4 ("Plaintiff agrees that he never explicitly complained about being discriminated against after July 2015."). There is no evidence of record that the plaintiff complained at any other time about discrimination during his period of employment with the defendant.
Throughout the entirety of plaintiff's employment by defendant, the highest pay differential between the plaintiff and that of the highest paid shift leader was $0.75 per hour.
Defendant hired Bonnie Emerson as the Assistant Manager effective May 13, 2015. Defendant created the position because, in March 2015, the store began selling breakfast, there were employees on-site from 6:00 a.m. until 1:00 a.m., and the Restaurant General Manager could not be on-site for that amount of time. Emerson had twenty years of restaurant management experience at or above the assistant manager level, and she had been an Assistant Manager at another Taco Bell location in Tennessee. None of the shift leaders at the restaurant at the time Emerson was hired as the Assistant Manager had that amount of relevant experience, including the plaintiff. He had no management experience at a level higher than the shift leader position. He admits that Emerson was more qualified than he for the Assistant Manager position. See Doc. 29 at 6.
There is no evidence before the court that the plaintiff applied to be the Assistant Manager. The plaintiff testifies that, "[s]ometime in February or March 2015, [he] had conversations with [Restaurant General Manager] Charity Carnley about being promoted to the Assistant Manager position . . . . She said that [he] might get the position or that [he] would get the position." Doc. 29-2 at 2. One of defendants' former employees, Christopher Trawick, submitted sworn testimony that, "As early as December 2014, Charity Carnley. . . told [him] that [the plaintiff] would get the Assistant Manager position." Doc. 29-3. Plaintiff "believed" that Carnley "was the ultimate decision maker" with respect to promotions. Doc. 29-2 at 2. However, the defendant presents uncontroverted evidence that Carnley, as a Restaurant General Manager, lacked the authority to promote an employee.
Plaintiff was not a part of the decision-making team as to the hiring of an Assistant Manager. He did not know who had final hiring authority, but he testified at his deposition that he thought the decision would be made by the Restaurant General Manager and the Market Coach, Sandy Howell. However, those individuals did not have hiring authority. The Restaurant General Manager could make hiring recommendations to the Market Coach and to Kay Nailen, one of BBG's owners. The decision to hire Emerson was made by the Market Coach with final approval from Nailen.
Plaintiff was responsible for making bank deposits, and there was a question about a short deposit — a deposit that was less than defendant's records indicated that it should be — made by the plaintiff around October 2, 2015. Plaintiff testified that he was "very upset" about being accused of making a short deposit. Doc. 23-4; see also Doc. 23-13 at 15-23 (text messages). Beginning on October 3, 2015, plaintiff sent late-night, profanity laden texts to the Restaurant General Manager and the Market Coach about the deposit issue. Also on October 3, 2015, he argued with Assistant Manager Emerson about the deposit, and he raised his voice during the altercation. Emerson called the Restaurant General Manager to inform her about the argument. Thereafter, the Restaurant General Manager called the store and sent the plaintiff home. On October 5, 2015, management discovered that the deposit shortage was an error outside of the plaintiff's control, and that the money was in the defendant's bank account. The plaintiff was not disciplined for making a short deposit. However, he remained upset about the allegation of wrongdoing.
On the evening of October 8, 2015, plaintiff attended a meeting with his managers in the lobby of the restaurant. According to the plaintiff, there were one or two customers in the lobby or the nearby dining area. Near the end of the manager's meeting, plaintiff and a co-worker, Tawanna Stovall, argued. According to the plaintiff's deposition, he did not yell or curse at Stovall, but he raised his voice and he lost his temper. He asked the Restaurant General Manager if he could leave, she responded that he could, and he clocked out.
As plaintiff left the restaurant, another employee told plaintiff that the Restaurant General Manager caused the altercation between the plaintiff and Stovall. He reentered the restaurant, and confronted the Restaurant General Manager with a raised voice. He was yelling "a little bit" and he was upset, but he did not use profanity during his altercation with the Restaurant General Manager. Doc. 23-4 at 29. He also did not threaten her. See id.
The following day, the plaintiff was scheduled to work, and he texted the Restaurant General Manager to ask if he could miss his shift because he felt uncomfortable returning to the restaurant. According to the plaintiff, she responded that he could miss work if he found someone to cover the shift. For reasons that are not clear from the briefs or the evidence of record, the plaintiff reported to the restaurant on October 9. The Restaurant General Manager told him then that he was fired because he was "cussing" at her the night before. Doc. 23-4 at 29.
Plaintiff testified that he was terminated for a number of reasons, including his altercation with the Restaurant General Manager on October 8, his argument with Stovall on October 8, the issue with the deposit on October 2, his argument with Emerson about the deposit issue, his reaction to the accusation of wrongdoing about the short deposit, and the text messages that he sent to the Restaurant General Manager to ask that she prepare paperwork properly. See Doc. 23-4. The plaintiff testified that his termination came after he complained on July 5, 2015, about discrimination with respect to pay and promotion, but he did not testify that he was fired because of those complaints.
The plaintiff's claims are: (1) a Title VII claim for failure to promote him to the Assistant Manager position that was awarded to Bonnie Emerson; (2) a Title VII disparate treatment in pay claim due to gender discrimination based on plaintiff's complaint to management about discrimination in July 2015; (3) an EPA claim for disparate pay; (4) a Title VII retaliation claim due to defendant's termination of plaintiff's employment on October 9, 2015; and (5) and an EPA retaliation claim based on defendant's termination of plaintiff's employment. The plaintiff does not plead additional legal claims in the amended complaint, see Doc. 9, and no other claims are before the court.
The McDonnell Douglas framework was established by the Supreme Court for evaluating a Title VII plaintiff's claims of discrimination against an employer where, as here, there is no direct evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997); Brown v. Ala. Dep't of Trans., 597 F.3d 1160, 1174 (11th Cir. 2010). The plaintiff must first make out a prima facie case of discrimination. Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Walker v. Mortham, 158 F.3d 1177, 1183 (11th Cir. 1998); Combs, 106 F.3d at 1527-28. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case." Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254) (internal quotations marks omitted).
If the plaintiff establishes a prima facie case, the employer has the burden of producing "legitimate, nondiscriminatory reasons for the challenged employment action." Combs, 106 F.3d at 1528 (citing McDonnell Douglas, 411 U.S. at 802). "To satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 257). If the employer articulates a legitimate, nondiscriminatory reason for its decision, the mandatory inference of discrimination arising from the prima facie case is destroyed. Walker, 158 F.3d at 1184.
The plaintiff must then produce evidence "including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Combs, 106 F.3d at 1528. A plaintiff may establish pretext by producing evidence that reveals "such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in [the defendant's] proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence." Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)) (internal quotation marks omitted). However, "[a] reason is not pretext for discrimination `unless it is shown both that the reason was false, and that discrimination was the real reason.'" Id. (citing Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in the original)).
It is well-established in the Eleventh Circuit that:
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). "The comparators for the fourth prong must be "`similarly situated in all relevant respects.'" Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)).
The plaintiff is a member of a protected class, but he fails to meet any of the remaining elements of a prima facie case. Moreover, the plaintiff does not argue that he satisfies a prima facie case in his response to the defendant's motion for summary judgment, and he has waived any such arguments that could have been raised.
As to the second element of the prima facie case, the plaintiff did not apply for the position — he merely discussed the possibility that he might become the Assistant Manager with the Restaurant General Manager. See Taylor v. Austal, U.S.A., LLC, 829 F.Supp.2d 1162, 1177 (S.D. Ala. 2011) ("A plaintiff claiming that he was discriminatorily denied a promotion usually must show that he actually applied for the position as part of his prima facie case.") (citing Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999) and Combs, 106 F.3d at 1539 n. 11). The plaintiff subjectively believed that the Restaurant General Manager was the ultimate decision maker, but the undisputed evidence of record is that she lacked hiring or promotion authority. Also, the plaintiff adduces no evidence that he was qualified for the Assistant Manager position. As to the third element, Bonnie Emerson, a woman, was hired to the Assistant Manager position; however, the undisputed evidence is that the ultimate decision makers did not know of plaintiff's interest in the job. Accordingly, he has not shown that he "was rejected despite his qualifications." Wilson, 376 F.3d at 1089.
Finally, the plaintiff does not satisfy the fourth element. He "concedes" that his qualifications "were not superior" to Emerson's qualifications. Doc. 29 at 6. Thus, the remaining question at issue is whether plaintiff's and Emerson's qualifications are equal. See Wilson, 376 F.3d at 1089. The court concludes that they are not on this record. Prior to being hired to the Assistant Manager position, Emerson had approximately twenty years of restaurant management experience at the assistant manager, co-manager, or manager positions, including eighteen months as an Assistant Manager at a Taco Bell restaurant in Tennessee. The plaintiff's highest management position was that of team leader or the equivalent management level at other fast food restaurants. Simply put, the evidence of record does not present "a sufficient disagreement to require submission to a jury" on the issue of a comparison of plaintiff's and Emerson's qualifications. Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (citation omitted). No reasonable juror could find that the plaintiff and Emerson are equally qualified for the Assistant Manager position, and the plaintiff does not argue the point.
Assuming that plaintiff could make out a prima facie case, the defendant contends that Emerson was hired, in part, because of her superior qualifications, and that is a legitimate, non-discriminatory basis for a promotion or hiring decision. See Burdine, 450 U.S. at 259 (An "employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria."); Brooks v. Cty. Comm'n of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (an employer's hiring of a more qualified candidate meets is a legitimate business decision that shifts the burden to the plaintiff to show pretext); Beal v. Convergys Corp., 489 F. App'x 421, 423-24 (11th Cir. 2012) (an employer's decision to hire a more qualified candidate is a legitimate, non-discriminatory reason for a hiring decision).
Thus, the burden shifts to the plaintiff to show pretext. "A reason is not pretext for discrimination `unless it is shown both that the reason was false, and that discrimination was the real reason.'" Brooks, 446 F.3d at 1163 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742 (1993)). In the failure to promote context,
>Lee, 226 F.3d at 1253.
On the evidence of record, no reasonable juror could find that the defendant's hiring of Emerson was motivated by discriminatory animus upon comparing the qualifications of the two employees for the Assistant Manager position. See Lee, 226 F.3d at 1255 ("None of Lee's proffered evidence established that she was more qualified than Hines, let alone so clearly more qualified for the position than Hines that a reasonable juror could infer discriminatory intent from the comparison.") (emphasis in original and citations omitted); Beal, 489 F. App'x at 424 (The plaintiff "failed to show that no reasonable person could have chosen the selected candidates over her.") (citing Brooks, 446 F.3d at 1163 (holding that in the failure-to-promote context, "[a] plaintiff must show that the disparities between the successful applicant's and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff")).
Moreover, the plaintiff has not provided any argument or evidence that the defendant's hiring of Emerson is based on gender discrimination. The plaintiff maintains that defendant should have made a different promotion decision because the Restaurant General Manager told plaintiff that he would be promoted and because Emerson had a performance problem during her short tenure as a team leader.
The defendant is entitled to summary judgment on plaintiff's Title VII failure to promote claim because plaintiff has not made out a prima facie case of gender discrimination and, even assuming that he did so, he cannot establish pretext.
A plaintiff can sue his employer for gender-based pay disparities under Title VII and the EPA. In Miranda v. B & B Cash Grocery Store, Inc., the Eleventh Circuit explained the similarities and differences between these federal statutory remedies. Similarly to the instant case, Miranda
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1525-27 (11th Cir. 1992) (footnotes omitted).
Under Title VII, it is unlawful for an employer to discriminate against an employee on the basis of his gender with respect to the terms and conditions of his employment, including compensation. See 42 U.S.C. § 2000e-2(a); Gooden v. Internal Revenue Serv., 679 F. App'x 958, 964 (11th Cir. 2017) ("Title VII prohibits employment discrimination on the basis of race or gender[.]"). "To prevail on a disparate treatment claim, a plaintiff must generally demonstrate that an employer intentionally discriminated against [him] on the basis of a protected characteristic." Gooden, 679 F. App'x at 964 (citing Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). Here, the plaintiff must present evidence that, when viewed in a light most favorable to him, demonstrates that the defendant discriminated against him on the basis of his gender.
In adjudicating a motion for summary judgment on a Title VII disparate treatment in pay claim based on gender discrimination, the court employs a variant of the McDonnell Douglas framework, as follows:
Dimino v. Georgia Dep't of Admin. Servs., 631 F. App'x 745, 749 (11th Cir. 2015).
The plaintiff has shown that he is a member of a protected class and that he received lower wages than women who were employed as shift leaders by the defendant at the Taco Bell where the plaintiff also worked as a shift leader. The plaintiff identifies Bonnie Emerson, Tawanna Stovall, and Kimesha Massaline as shift leaders who earned a higher hourly rate of pay than he did. Doc. 29 at 7-8. Assuming, without deciding, that Emerson, Stovall, and Massaline are similarly situated comparators, and that the plaintiff establishes a prima facie case, the defendant nevertheless has met its burden to show legitimate, non-discriminatory reasons for the differences in the hourly rates of pay. See Combs, 106 F.3d at 1528.
Emerson was paid $9.00 per hour as a team leader, which was $.25 more than the plaintiff during this time, because of Emerson's substantial restaurant experience. Doc. 23 at 24. Stovall worked as a shift leader with defendant for two years longer than the plaintiff, and defendant justifies her higher rate of pay as due to "her prior experience and length of service." Id. at 24-25. Massaline made $.25 more per hour than the plaintiff from August 2014 to August 2015 because she had nine more months of experience as a shift leader while employed by the defendant. Id. at 25-26. The plaintiff does not rebut the defendant's proffered legitimate, non-discriminatory reasons for these pay disparities.
As to pretext, the plaintiff has produced no evidence whatsoever that the defendant's pay decisions were discriminatory. He asserts that Emerson's performance as a shift leader was substandard, that plaintiff's prior experience as an employee of "a separate company associated with the [defendant's] owners" is equivalent to Stovall's experience as a shift leader, and that plaintiff's experience as a shift leader at a Backyard Burger restaurant should count the same as Massaline's experience as a shift leader with defendant. Doc. 29 at 7-8. However, a plaintiff cannot show pretext by disagreeing the wisdom of an employer's decisions or by arguing that other decisions should have been made. See Lee, 226 F.3d at 1253. As with the plaintiff's failure to promote claim, he has presented no evidence beyond his own conclusory opinion that the defendant discriminated against him on the basis of his gender. A court is under no obligation to consider a party's conclusory testimony in ruling on summary judgment. See Merriweather v. Charter Commc'ns, LLC, 2015 WL 790771, at *19 (M.D. Ala. 2015) (a plaintiff's conclusory opinion on a material issue of fact is not properly considered at summary judgment); see also id. at n. 17 ("A court is under no obligation to consider a party's conclusory testimony when ruling on summary judgment.") (citing Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 and n. 6 (11th Cir. 1998)). Moreover, "[s]peculation or conjecture cannot create a genuine issue of material fact, and a mere scintilla of evidence in support of the nonmoving party cannot overcome a motion for summary judgment." S.E.C. v. Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014) (internal quotation marks omitted). The plaintiff simply has not identified or supplied any evidence of record from which a reasonable juror could conclude that defendant discriminated against him on the basis of his gender. See Brooks, 446 F.3d at 1163 ("A reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.") (internal marks and citation omitted).
Because plaintiff does not carry his burden to show gender discrimination, defendant is entitled to summary judgment.
The burden-shifting paradigm that a court must employ in assessing the viability of an Equal Pay Act claim on summary judgment is as follows:
Nelson v. Chattahoochee Valley Hosp. Soc., 731 F.Supp.2d 1217, 1235-36 (M.D. Ala. 2010).
Regarding the prima facie case, while "the plaintiff need not prove that [his] job and those of [his] comparators are identical [,] . . . the standard for determining whether jobs are equal in terms of skill, effort, and responsibility is high." Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994) (internal quotation marks and alterations omitted). The plaintiff bears "the burden of demonstrating that the `jobs at issue are substantially similar[.]'" Blackman v. Fla. Dep't of Bus. & Prof'l Regulation, 599 F. App'x 907, 910 (11th Cir. 2015) (quoting Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th Cir. 1998)). To satisfy this burden, the plaintiff must come forward with evidence that his job is "substantially similar" to his comparators. Id. "Job titles are a factor for consideration, but are not dispositive." Mulhall, 19 F.3d at 592 (citation omitted). If a plaintiff leaves "the district court in the dark regarding the content of [a comparator's] position . . . [the plaintiff] fail[s] to establish a prima facie case under the EPA." Blackman, 599 F. App'x at 910. Such is the case here.
As in his Title VII disparate treatment in pay claim, the plaintiff identifies Emerson, Stovall, and Massaline as his comparators. See Doc. 29 at 7-8. While it is undisputed that those individuals are women and that they were paid at a higher rate than the plaintiff, these are not the only factors that the court must consider.
As before, the plaintiff makes no effort to identify evidence in the record to meet his burden to establish a prima facie case on his Equal Pay Act claim. See Doc. 29. On that basis alone, the plaintiff has waived and abandoned the issue, and defendant is entitled to summary judgment. See n. 6, supra.
The plaintiff's omission notwithstanding, there is no evidence of record to satisfy his heavy burden to make a prima facie showing under the EPA. At all times relevant to the plaintiff's EPA pay claim, the plaintiff and Emerson, Stovall, and Massaline held the job title of "shift leader." As noted supra, a job title alone is insufficient for a plaintiff to make a prima facie case under the EPA. See Mulhall, 19 F.3d at 592. The only evidence in the record about the shift leader position is found in Market Coach Gail Gilmore's affidavit, which the plaintiff does not cite. Gilmore testifies that,
Doc. 23-14 at 1.
There is a "descriptive" component that the plaintiff is required to satisfy at the prima facie stage. Mulhall, 19 F.3d at 590 (citing Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 547 (11th Cir. 1991); EEOC v. White & Son Enters., 881 F.2d 1006, 1009 (11th Cir. 1989)). Gilmore's affidavit testimony does not shed any light on the "skill, effort, and responsibility" associated with the shift leader position except in noting that a shift leader is expected to work with others and lead subordinates to perform well. Mulhall, 19 F.3d at 592. There is no record evidence that Gilmore's testimony articulates the entirety of the job requirements for a shift leader, and there is no evidence that all shift leaders must have the same skills, exert similar effort, and carry out the same job responsibilities. In addition, Massaline is identified as having been a "traveling shift leader" for part of the relevant time period, see Doc. 23 at 25, and the plaintiff does not explain whether and how that position is comparable to a shift leader's position.
In short, the plaintiff has asked the court merely to conjecture that he, Emerson, Stovall, and Massaline are comparators. Evidence which the plaintiff might have gathered and filed into the record is conspicuously absent. For example, the plaintiff did not file a deposition of defendant's corporate representative, at which plaintiff's counsel could have attempted to elicit testimony about the material aspects of the shift leader position, and about whether the skill, effort, and responsibilities are substantially similar for all who hold that job title. And, even if plaintiff could not have secured such a deposition, he did not produce evidence by any other means to meet the high standard for determining that jobs are equal in terms of skill, effort, and responsibility. Blackman, 599 F. App'x at 910.
The plaintiff has not established a prima facie case under the EPA, and the court's inquiry ends here. The defendant is entitled to summary judgment on plaintiff's EPA pay claim.
"Retaliation is a separate violation of Title VII." Gupta v. Florida Board of Regents, 212 F.3d 571, 586 (11th Cir. 2000). Section 704(a) of Title VII of the Civil Rights Act of 1964 provides protection for employees who oppose or participate in activities to correct an employer's discriminatory practices.
42 U.S.C. § 2000e-3(a). Congress thus recognized two predicates for retaliation claims: one for opposition to discriminatory practices, and another for participation in protected activity.
Equal Employment Opportunity Commission v. Total System Services, Inc.,221 F.3d 1171, 1174 (11th Cir. 2000) (citations omitted). The plaintiff's retaliation claim is brought under the opposition clause. See Doc. 9.
Proving that an employer retaliated against an employee is rarely a straightforward undertaking. A plaintiff's case generally rests on circumstantial evidence, because direct evidence of an employer's intent or motivation often is either unavailable or difficult to acquire. See Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1071 (3rd Cir. 1996) (en banc). Such is the case here, where the parties rely only on circumstantial evidence. Federal courts typically evaluate the sufficiency of circumstantial evidence using some variant of the McDonnell Douglas framework. See St. Mary's Honor Center, 509 U.S. 502.
"A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1) [he] engaged in an activity protected under Title VII; (2) [he] suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action."
The Supreme Court recently clarified a plaintiff's burden, holding that, as to the causation standard for a retaliation claim, a plaintiff must "show that the [adverse employment action] would not have occurred in the absence of — that is, but-for — the defendant's conduct." University of Texas Southwestern Med. v. Nassar, 570 U.S. 338, 346-47, 133 S.Ct. 2517, 2525 (2013). In other words, a plaintiff has to "establish that his or her protected activity was a but-for cause [and not just a motivating factor] of the alleged adverse employment action by the employer." Nassar, 570 U.S. at 362.
The Eleventh Circuit
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). The plaintiff does not have to "prove the underlying discriminatory conduct that [she] opposed was actually unlawful in order to establish a prima facie case and overcome a motion for summary judgment[.]" Id. However, the objective reasonableness of her belief that the conduct is unreasonable must be shown. The court is required to "measure `against existing substantive law' the objective reasonableness of [a plaintiff's] belief that [her employer] engaged in an unlawful employment practice." Tatt v. Atlanta Gas Light Co., 138 F. App'x 145, 147 (11th Cir. 2005) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)).
Here, the plaintiff testified that he believed that he was discriminated against on the basis of his gender. However, his subjective belief is not objectively reasonable in light of the evidence proffered in this case. Plaintiff's gender discrimination claims are premised on the general facts that women who held the position of "team leader" were paid more per hour than the plaintiff, and that a woman, not the plaintiff, was promoted to the position of Assistant Manager. Other than noting the different genders of those involved, the plaintiff provides nothing beyond conclusory speculation that defendant discriminated against him because of his gender. The plaintiff's speculation is not evidence that can overcome a properly supported motion for summary judgment. See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011) (stating that "`evidence' consisting of one speculative inference heaped upon another" was "entirely insufficient" to overcome summary judgment); Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.") (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931-32 (7th Cir. 1995)). Plaintiff has not identified any action or comment that objectively could be construed as having been motivated by his gender. The only evidence of gender discrimination is the plaintiff's conclusory assertion. That alone, is not enough to establish objective reasonableness.
Even assuming that plaintiff has demonstrated objective reasonableness, his opposition claim does not survive summary judgment because he has not satisfied the third prong of a prima facie case of retaliation — causation. The plaintiff argues that causation is clear because he was questioned about the October 2, 2015 deposit shortage issue and "no female employee was questioned about such deposit shortage." Doc. 29 at 6. However, the assertion that defendant did not question any women is made by plaintiff's counsel, without citation to evidence of record. As noted above, "[s]tatements by counsel in briefs are not evidence." Skyline Corp., 613 F.2d at 1337; see also Gilley, 2016 WL 814885, at *1 n. 2. Thus, the court does not consider this unsubstantiated statement. Even assuming that the statement could be corroborated by evidence, the plaintiff does not argue, and it is not self-evident, how defendant's failure to question other employees about an issue regarding a deposit made by the plaintiff demonstrates that defendant terminated plaintiff's employment because of his July 2015 complaint of discrimination.
The plaintiff's other contention in opposition to summary judgment on his retaliation claim is that defendant terminated his employment after he argued with Stovall at the October 8, 2015 meeting, but Stovall kept her job, and she went on to become the Restaurant General Manager. See Doc. 29 at 7. That argument ignores key, undisputed evidence. First, the plaintiff does not contest that the defendant's articulated reason for terminating his employment is because of his altercation with the Restaurant General Manager immediately after his argument with Stovall. In fact, he testified that he believed that one of the reasons for his termination was his altercation with the Restaurant General Manager. Viewing the evidence in a light most favorable to the plaintiff, the defendant did not fire the plaintiff because of his argument with Stovall, and the fact that Stovall's employment was not terminated is irrelevant because she did not engage in substantially similar conduct to that of the plaintiff — e.g., she did not have an altercation with the Restaurant General Manager.
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The plaintiff has not shown that he and Stovall were disciplined differently for the same infractions.
Further, plaintiff has not identified or produced evidence that would allow a reasonable factfinder to find causation. Moreover, viewing the facts in the light most favorable to plaintiff, he cannot establish that retaliation was the "but-for" cause of his termination. See Butterworth v. Laboratory Corp. of America Holdings, 581 F. App'x 813, 817 (11th Cir. 2014) (holding that without establishing but-for causation, plaintiff failed adequately to support her claim for Title VII retaliation). To the contrary, he testifies that a number of reasons were the cause of defendant's decision to terminate his employment. See Doc. 23-4. Accordingly, he has not made out a prima facie case of retaliation based on his complaint in July 2015 and his termination in October 2015, and defendant is entitled to summary judgment on that claim.
Also, assuming, without deciding, that plaintiff established a prima facie case, he cannot overcome defendant's legitimate, non-retaliatory reason for terminating his employment. Defendant relies on the undisputed evidence of record, which includes the plaintiff's deposition testimony, that it terminated his employment because of his altercation with the Restaurant General Manager on October 8, 2015, during which the plaintiff raised his voice. This is a legitimate, non-retaliatory explanation for the defendant's decision to terminate the plaintiff's employment.
Thus, it is plaintiff's burden to come forward with evidence sufficient to permit a reasonable factfinder to conclude that defendant's stated reasons were not the real reasons for his termination, but merely pretexts for retaliation. Plaintiff cannot demonstrate pretext unless it is shown both that the reasons were false and that retaliation was the real reason. See St. Mary's Honor Ctr., 509 U.S. at 515. See also Chapman, 229 F.3d at 1030 (stating the plaintiff must meet each proffered reason "head on," and cannot succeed by simply disputing the wisdom of the employer's proffered reasons). Here, the plaintiff disputes the defendant's stated reason for terminating his employment without identifying evidence that indicates that the reason was false and the true motivation was retaliation. Further, in light of the plaintiff's deposition testimony that his altercation with the Restaurant General Manager was a reason for his termination, plaintiff has testified that he believes the defendant's stated reason, and he cannot demonstrate on the evidence of record that it was not the real reason or that the reason was false. Also, there is no evidence of record that the plaintiff's termination was retaliation for his July 2015 complaint of discrimination.
As the plaintiff cannot establish a prima facie case of retaliation, show pretext, or meet the onerous Nassar standard to maintain a retaliation claim under Title VII, defendant's motion for summary judgment is due to be granted as to defendant's retaliation claim.
The defendant assumes for the sake of argument that an EPA retaliation claim is cognizable, and it sets out the standard for a retaliation claim under the Fair Labor Standards Act ("FLSA"), within which the EPA is codified, as the balancing test that this court should employ. See Doc. 23 at 21-22 (citing 29 U.S.C. §§ 206(d); 215(a)(3) and quoting Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000) (setting out elements of FLSA retaliation)). The plaintiff is silent on the issue. See Doc. 29.
The court has not located any Eleventh Circuit case setting out the test that a court should employ in adjudicating a motion for summary judgment on an EPA retaliation claim. However, a sister district court in the Eleventh Circuit has followed the example set by the United States Court of Appeals for the Seventh Circuit and found that a plaintiff must show the same elements as would be required to make out a prima facie case for retaliation under Title VII and the EPA. See Saridakis v. S. Broward Hosp. Dist., 681 F.Supp.2d 1338, 1353 (S.D. Fla. 2009) (citing Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005) (citing, in turn, Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001)). Also, the elements and the burden-shifting paradigm for a claim of retaliation under the FLSA and Title VII are substantively identical.
Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000). Thus, the court is persuaded that the analytical framework endorsed in Saridakis and set out in Wolf is the correct way to approach an EPA retaliation claim that is challenged on a motion for summary judgement.
In opposing defendant's motion for summary judgment on the EPA retaliation claim, the plaintiff incorporates by reference his arguments in opposition to summary judgment on his Title VII retaliation claim. See Doc. 29 at 7. The plaintiff concedes that the temporal proximity between plaintiff's complaint about pay in July 2015 — the last time he complained about pay discrimination — and his termination in October 2015 is too remote as a matter of law to show causation. See Doc. 29 at 6 ("The Plaintiff concedes that, if temporal proximity, were the only consideration, his claim would be due to fail, as a matter of law."). The court agrees. See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (temporal proximity can be evidence of causation but "mere temporal proximity, without more, must be `very close.'" (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001)). Moreover, the undisputed evidence of record is that the plaintiff received the pay raise after the July 2015 complaint effective in August 2015, see Doc. 23-14 at 1 (Market Coach Aff.), and that he was satisfied with that resolution. See Doc. 23-4. The plaintiff maintains that he complained that his pay raise was not added to his paycheck until September 2015, but complaining about the timing of a raise is not the same as complaining about wage discrimination.
For the reasons discussed supra regarding defendant's entitlement to summary judgment on plaintiff's Title VII retaliation, summary judgment is due to be granted in defendant's favor on the EPA retaliation claim as well.
For the foregoing reasons, it is ORDERED as follows:
A separate final judgment will be entered.
The plaintiff did not make a claim in the Amended Complaint for failure to promote to the Restaurant General Manager position. See Doc. 9 at 4. He also did not attempt to amend his complaint to include a such a claim after his deposition. The same is true for the Title VII claim for disparate treatment in terms of discipline or work conditions that the plaintiff attempts to assert in his brief in opposition to the motion for summary judgment. See Doc. 29 at 4 (plaintiff felt "singled out" and discriminated against due to his gender when he was accused of having a short deposit and none of his female coworkers were "questioned" in connection with the deposit problem). These claims are not pled in the amended complaint, and they are not before the court. Pursuant to Federal Rule of Civil Procedure 8(a), a plaintiff's complaint or amendments thereto must set out the plaintiff's claims for relief, and "[a] plaintiff cannot amend a complaint through an argument in a brief opposing summary judgment." Nickson v. Jackson Hosp. & Clinic Inc., 2017 WL 4366735, at *4 (M.D. Ala. Sept. 29, 2017) (citing Hall v. Dekalb Cty. Gov't, 503 F. App'x. 781, 786 (11th Cir. 2013)). Thus, defendant is entitled to summary judgment on plaintiff's failure to promote claim with respect to the Restaurant General Manager position as well as plaintiff's disparate treatment claim regarding defendant's treatment of him and the investigation related to the short deposit in October 2015 because the plaintiff did not assert such claims in the amended complaint.
Reaves v. Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1149 (11th Cir. 2017). Also, "[t]he onus is upon the parties to formulate arguments[.]" A.L. v. Jackson Cty. Sch. Bd., 635 F. App'x 774, 787 (11th Cir. 2015) (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)).
