MARK E. FULLER, District Judge.
Plaintiff Emile Greywoode ("Plaintiff" or "Greywoode") brings this lawsuit, alleging claims of race and national origin discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. Specifically, Greywoode alleges that his former employer, Defendant Science Applications International Corporation ("Defendant" or "SAIC"), subjected him to a "hostile and disrespectful" work environment based on his race (black) and his national origin (Sierra Leone, Africa), discriminated against him on these bases by disciplining him and ultimately terminating his employment, and also terminated him in retaliation for making complaints about discourteous and discriminatory treatment he was receiving from white co-workers.
Now before the Court is Defendant's Motion for Summary Judgment (Doc. #21), which was filed on October 29, 2012. Having reviewed the submissions of the parties and the record as a whole, the Court finds that, for the reasons explained below, Defendant's motion is due to be GRANTED IN PART and DENIED IN PART.
This Court has subject matter jurisdiction over the claims in this action under 28 U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
Once the moving party has met its burden, the non-moving party must "go beyond the pleadings and by his own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, a district court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the non-moving party has responded to the motion for summary judgment, the district court must grant summary judgment if there is no genuine dispute of material fact and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c).
The Court has carefully considered the submissions of the parties in support of and in opposition to the motion. The submissions of the parties, when viewed in the light most favorable to Greywoode, the non-moving party, establish the following material facts:
SAIC is a scientific, engineering, and technology applications and software company that provides various products and services to government and commercial customers. On September 15, 2006, Greywoode was hired by T.J. Nola ("Nola") to work as a senior software engineer on SAIC's Security Forces Management Information Systems ("SFMIS") team in Montgomery, Alabama. In connection with his employment, Greywoode received an ethics manual and was also made aware of SAIC's anti-harassment and discrimination policies.
The SAIC team members with whom Greywoode worked during the majority of his employment
During the majority of his employment with SAIC, Greywoode's immediate supervisors were Shah and Gober. Shah oversaw the technical aspects of Greywoode's employment, while Gober handled personnel matters.
During Greywoode's employment with SAIC, there were various interpersonal conflicts among the SFMIS team members, leading to very poor morale. Greywoode contends that these conflicts were more than mere work "disagreements." Indeed, Greywoode claims that he was harassed and discriminated against because of his race and national origin and that he was further retaliated against through written discipline and eventual termination for complaining about harassment and discrimination.
To support his claims, Greywoode points the Court to several instances of harassing
In early 2007, Greywoode complained to Nola that Ivison was constantly objecting to Greywoode's use of a certain aspect ratio in one of his designs. Greywoode considered Ivison's critique to be harassment because Ivison was not a software engineer, and therefore, was not qualified to critique his work or to oppose one of his engineering decisions. After Greywoode complained to Nola, Ivison's critique of his use of aspect ratio immediately stopped.
In May 2009, Ivison shouted at Greywoode during a team meeting and called his work "atrocious." Immediately after the meeting ended, Gober told Ivison to apologize to Greywoode, which he did. This is the only incident where Ivison called Greywoode's work "atrocious."
After Ivison became responsible for preparing the team members' work assignments, Greywoode complained that he was being given too much report construction and not the Java development tasks he desired to help him "learn the application" and become an asset to the company. Ivison instead assigned the Java tasks to Shah and Ronald Buchanan ("Buchanan"),
In the spring of 2008, Greywoode also complained to Ivison that he did not assign Greywoode sufficient tasks on an OPM project that provided additional remuneration above his salary. The majority of these tasks went to Paruchuri and Shah because Greywoode was already behind on his regular work, which affected the schedule. Moreover, the programmers who were assigned a larger portion of these tasks were fast programmers and had the time to accommodate extra work. After complaining, Greywoode asked Ivison to change the assignments, but Ivison refused. Greywoode then complained to Shah, who increased his OPM assignments. Greywoode received additional remuneration for this work.
Greywoode, who worked in a shared office,
The second incident involved Silva moving into a vacant private office in August 2008. Greywoode mistakenly believed that Caskey was responsible for this assignment because he saw Caskey preparing this office for Silva, but Caskey was not responsible for making this office assignment. Neither was Ivison. Gober instead made this office assignment based on functional factors to keep the three developers (Shah, Paruchuri, and Greywoode) physically close to one another and to keep testing (Silva) independent of the software development.
Greywoode complained to Shah that Caskey was criticizing his design on the Topaz Signature Card project. Greywoode
Greywoode complained to Caskey that Caskey spoke to him in a rude and disrespectful manner. Specifically, Greywoode complained that Caskey would "raise his voice" and "talk sharply." Greywoode also complained that Caskey sent him a hostile and disrespectful email in which Caskey did not address Greywoode by his name and capitalized the words "SOMEONE ELSE" and "THEY."
Sometime in the spring of 2009, after a customer meeting with Caskey, Ivison, and Greywoode, among other team members, in attendance, Caskey approached Greywoode in the parking lot and demanded to know what Greywoode had been muttering during the meeting. Greywoode told Caskey to leave him alone, but claims that Caskey "kept on." Greywoode "got annoyed" and shouted "strongly" at Caskey to leave him alone. Greywoode could not remember what, if anything, he was "muttering" during the meeting. However, Silva, who was also present at the customer meeting, testified that Caskey and Ivison were whispering to each other, and Greywoode said "gossip, gossip, gossip," while gesturing a mouth opening and closing with his hand.
Ivison made fun of the way Greywoode talked. However, this conduct never occurred in Greywoode's presence, and Greywoode has no personal knowledge of what Ivison said or did to make fun of the way he talked.
Greywoode claims that Gober discriminated against him by giving Caskey a lead position. Gober gave this position to Caskey because he had more experience with customer relations. Greywoode asked Gober to provide him with more opportunities
Greywoode also claims that, after the June 2009 team assessment, Gober discriminated against him by "bringing up memos that were not factual, discrediting my work, putting me on performance improvement plan and all the other things that she did up to the point that I was terminated." (Doc. #23-A.) Greywoode could provide no specific details for this claim other than describing Gober's conduct as not "quite right."
Greywoode made several complaints throughout his employment with SAIC. As noted above, in early 2007, Greywoode complained to Nola that Ivison was constantly objecting to Greywoode's use of a certain aspect ratio in his designs; after Greywoode complained, Ivison's critiques stopped. Greywoode further complained to Shah, Ivison, and Gober that Ivison was not giving him the type of programming tasks he desired; after complaining, Greywoode was given more opportunities to perform Java programming and was made lead Java programmer by Gober in early 2009. Greywoode complained to Ivison and Shah about tasks assignments on an OPM project; after Greywoode complained to Shah, he was given more of this work. Greywoode also complained to Shah that Caskey was criticizing his design on the Topaz Signature Card project; after complaining, Caskey's critiques stopped. Finally, Greywoode complained directly to Caskey about the manner in which Caskey communicated with him, which Greywoode considered to be discourteous and disrespectful; Caskey eventually apologized and said he would try to "do better."
In late April 2009, Greywoode complained to Gober that neither Ivison nor Caskey had improved their behavior towards him, and Greywoode reiterated his complaints about office assignments, tasks assignments, design criticisms, the parking lot incident, and comments on Greywoode's work on the Topaz Signature Card project. Shortly thereafter, on April 29, 2009, during a meeting with Gober and Caskey, Greywoode submitted a "formal" written complaint to Gober concerning Caskey's behavior towards him. Greywoode stated that Caskey "needlessly opposes [him], works against [him] and is still discourteous," and he outlined two specific complaints: (1) Caskey's criticisms of Greywoode's design work on the Topaz Signature Card project;
Notably, Greywoode never used the term "discrimination" in his written or oral complaints until after his termination. Gober does not recall Greywoode complaining to her specifically about discrimination, although Shah testified that Gober told him that Greywoode's discrimination complaint was the reason for the June 2009 team assessment. Although never the subject of a complaint, Greywoode testified in his deposition that Ivison asked him "are you going to call the Revered Al Sharpton to come to your rescue?" This is the only example provided by Greywoode of a comment made to him that he believed referenced his race or national origin.
Given the conflicts among the SFMIS team members, Gober requested assistance from human resources around June 5, 2009.
Lee conducted interviews with the other team members as well. Each one complained in some way about Greywoode's performance, attitude, or communication abilities.
After concluding the assessment, Lee reported to Kate Jacobson Sisson ("Sisson") and Tom Quigley ("Quigley") in human resources that Greywoode appeared to be the "root cause of disfunctionality of the team." (Doc. #23-H.) While Lee noted that a few team members had mentioned race as an issue with Greywoode,
Greywoode described Lee as "hostile" and took offense to Lee's use of the terms "our culture" and "your culture" in the outbrief meeting and her explanation that, in "our culture," we do not fold our arms in a meeting or use our hands when we talk. Greywoode also was offended when Lee referred to the SFMIS team as "you people" or "your group," and when she told Greywoode that he should not assume that people are always talking about him because he is not important.
Finally, Lee noted that there was some possible race issues based on Silva's statements and reported perception that Ivison was a "racist." Indeed, Silva testified that she reported to Lee that Ivison made a comment when considering hiring a black female that the black people would outnumber the white people and that could not happen; however, Silva clarified that Ivison based his dislike of the interviewee's appearance on the fact that she always had a scowl on her face, which he did not believe would translate well with the customer.
Lee's notes from her interview with Shah also reflect that Greywoode complained about "bigotry." It is unclear from the record when and how many times Greywoode complained about "bigotry." However, Ivison testified that before the June 2009 team assessment, Greywoode complained twice during a team meeting that everyone ganging up on him was "bigotry."
After her meeting with Lee, Silva testified that she no longer knew whether she perceived Ivison as a "racist" and instead described him as a "puppet master" who liked to wreck havoc on others. (Doc. #23-J) ("I mean, it's not based on race."). Lee recommended that Gober inform Ivison that he needed to stop the "subversive practices" and "gossip sessions" immediately, and that "[r]acial remarks [would] not be tolerated." However, Gober did not recall Lee conveying to her the specifics of Silva's reports about Ivison's racial comments. Gober issued a written counseling to Ivison about his communications and interaction with the SFMIS team on July 20, 2009, which was after Greywoode's termination.
Prior to the June 2009 team assessment, Greywoode had not been given a written discipline or negative performance evaluation; however, as early as 2007 and again in 2008, Gober received complaints from Greywoode's co-workers about his work performance, including Shah, Silva, and Caskey. As a result, Gober had several informal discussions with Greywoode concerning his performance and ability to work with the team. None of these discussions appear to have been documented.
Greywoode received performance evaluations from Nola in 2007 and Gober in 2008 and 2009. In March 2007, Nola gave Greywoode a performance evaluation that ranked his overall performance as "Consistently Meets Expectations: Highly Successful Performance."
In March 2009, Gober gave Greywoode a performance evaluation that ranked his overall performance as "Frequently Exceeds Expectations: Exemplary Performance."
Gober testified that Greywoode's performance began to deteriorate after the March 2009 performance evaluation. His work had moved from coding into testing, and errors in Greywoode's work were becoming more obvious and urgent with looming contract deadlines. Coupling these issues with the results of the June 2009 team assessment, Gober determined that Greywoode's work performance and inability to work with the team warranted counseling. As a result, on June 11, 2009, Gober issued Greywoode an inter-office memorandum that provided feedback on his job performance and outlined specific areas in which Greywoode needed to improve.
After reviewing Greywoode's performance over a two-week period, Gober determined that Greywoode had not sufficiently improved in the areas outlined in the June 11, 2009 inter-office memorandum. Gober had also received complaints from Shah
On July 6, 2009, Greywoode met with Gober and Shah to discuss concerns with his performance. They specifically discussed eight DR's attributed to Greywoode, two of which admittedly resulted from reworks done by Greywoode. The remaining six were in production
Between July 13 and 15, 2009, Gober made the decision to terminate Greywoode after consulting with Sisson, Lee, Quigley, and Shah; neither Ivison nor Caskey was involved in the decision to terminate Greywoode's employment. In fact, Gober testified that Ivison had "no influence on [her] decisions who was hired and fired." (Doc. #23-B.) Gober based her decision to terminate Greywoode's employment on his failure to meet the skills and abilities of his position; continued input from Silva and Shah regarding Greywoode's failure to meet deadlines and his DR's, and the findings of the June 2009 team assessment.
Greywoode's claims in this case are asserted under Title VII and § 1981.
Count I of Greywoode's Amended Complaint alleges a claim for hostile work environment based on his race and national origin. (Doc. #9.) Specifically, Greywoode claims he was subjected to severe and pervasive conduct based on his race and national origin that adversely affected the terms and conditions of his employment. To establish a claim for hostile work environment, Greywoode must establish that: (1) he belongs to a protected group; (2) he was subjected to unwelcomed harassment; (3) the harassment was based on his race or national origin; (4) the harassment was sufficiently severe or pervasive to alter the terms, conditions, or privileges of his employment; and (5) SAIC knew or should have known of the harassment and failed to intervene. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). Based on the evidence presented in this case, the Court does not believe that Greywoode can establish a prima facie case of hostile work environment based on his race or national origin.
To begin, Greywoode cannot establish that the conduct of which he complains was based on or the result of his race or national origin, as opposed to some other permissible reason. The harassing conduct by Ivison and Caskey of which Greywoode complains includes: (1) in May 2009, Ivison shouted at Greywoode during a team meeting and called his work "atrocious;" (2) Ivison did not given Greywoode the task assignments he desired; (3) in early 2007, Ivison criticized Greywoode's use of aspect ratio in programming with, what Greywoode believed, was no knowledge or basis for this criticism; (4) at unspecified times and never in Greywoode's presence, Ivison mimicked Greywoode's African accent; (5) Caskey criticized Greywoode's design work; (6) Caskey spoke to and communicated with Greywoode in what Greywoode considered to be a disrespectful and discourteous manner; and (6) Caskey confronted Greywoode in a parking lot about Greywoode's
While the Court is certain that there were personality conflicts and discourteous treatment by and between Greywoode, Ivison, and Caskey, as it appears that none of these individuals were particularly pleasant to work with, office squabbles and a lack of cohesiveness between team members does not demonstrate that Ivison and Caskey's purported harassing conduct towards Greywoode was because of his race or national origin. There is no evidence that any discriminatory comments, epithets, or insults were made directly to Greywoode or within his range of hearing. While Greywoode points the Court to Ivison's mimicry of his African accent, which is the only instance of harassing conduct identified by Greywoode that could arguably be based on his race or national origin, Greywoode admits that this mimicry never occurred in his presence and that he did not learn of it until after his termination.
The same can be said for the other incidents of harassing conduct alleged by Greywoode. There is no evidence that Ivison's critique of Greywoode's use of the aspect ratio in programming, his calling Greywoode's work "atrocious" in a team meeting, or his not giving Greywoode the exact task assignments he desired, was done because of Greywoode's race or national origin. There is likewise no evidence that Caskey's critique of Greywoode's design work, or his "disrespectful" manner of communicating with Greywoode, was because of Greywoode's race or national origin. These comments and actions, while insensitive and perhaps unprofessional, do not contain any racial or ethnic statements, insults, or overtones; they evidence nothing more than disagreements and discord among co-workers, which is not actionable under Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ("[d]iscourtesy and rudeness should not be confused with harassment") (internal quotations omitted)); Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (noting that not "every trivial personnel action that an irritable chip-on-the-shoulder employee did not like would form the basis of a discrimination suit") (internal quotations omitted)); Sasser v. Ala. Dept. of Corrections, 373 F.Supp.2d 1276, 1290 (M.D.Ala.2005) ("Title VII does not protect an employee from harsh criticism for [his] employer.") (internal quotations omitted)). Finally, the confrontation between Caskey and Greywoode in the parking lot does not evidence harassment based on Greywoode's race or national origin. Greywoode does not allege that Caskey ever made racial or ethnic statements or epithets to him during this dispute, or that this dispute was even attributable to his race or national origin. This dispute further ended with Greywoode admittedly shouting at Caskey to leave him alone. In short, none of the harassing conduct of which Greywoode complains is objectively discriminatory or attributable to his race or national origin.
While the Court recognizes that overt racial or national origin harassment is not necessary to establish a hostile work environment, Greywoode must still show that race or national origin was a substantial factor in his harassment and that if it were not for these protected traits, he would have been treated differently. Even when viewing the facts in a light most favorable to Greywoode, the most he has shown is that he worked in an unpleasant and tense working environment as a result of interpersonal conflicts and rifts among his co-workers, which is not actionable under Title VII or § 1981. See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301-02 (11th Cir.2007) (holding that Title VII does not prevent harassment alone).
Absent evidence that the harassing conduct at issue in this case was related to or because of Greywoode's race or national origin, his hostile work environment cannot survive. Still, even if there were such evidence in this case, Greywoode's hostile work environment claim would still fail as a matter of law because the conduct of which he complains was neither severe nor pervasive.
There is no doubt that Greywoode subjectively believes that he was subjected to severe and pervasive harassment by Ivison and Caskey. However, "[g]iven that any honest plaintiff subjectively perceives to have been victimized," the Court must ask whether a reasonable person in Greywoode's position would have felt the same way. Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254, 1262 (M.D.Ala.2001). To determine this objective component, the Court must consider the "totality of the circumstances." Harris, 510 U.S. at 23, 114 S.Ct. 367. In applying this test, the Court looks to: (1) the frequency of the conduct; (2) its severity; (3) whether it was physically threatening or humiliating; and (4) whether it unreasonably interfered with Greywoode's work performance. Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir.1997). "[N]o single factor is determinative, and either severity or pervasiveness can satisfy the element, if sufficient." Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F.Supp.2d 1336, 1348 (M.D.Ala.2009) (internal quotations and citations omitted). However, "teasing, offhand comments, and isolated incidents" do not constitute discriminatory changes in the terms, conditions, or privileges of employment. Faragher, 524 U.S. at 778, 118 S.Ct. 2275. To the contrary, the workplace must be "permeated with discriminatory intimidation, ridicule, and insult." Miller, 277 F.3d at 1276-77. These "standards for judging hostility are sufficiently demanding to ensure that [employment discrimination laws do] not become a general civility code." Faragher, 524 U.S. at 778, 118 S.Ct. 2275.
As the Court previously noted, the parties have identified approximately seven instances of harassing conduct by Ivison and Caskey towards Greywoode that span a two-year period of his five years of employment with SAIC. The Court considers these instances to be isolated, not frequent. Compare Cargo, 391 Fed.Appx. at 755 ("Five or six incidents over the course of three to four years is hardly frequent conduct."), with Miller, 277 F.3d at 1276 (holding that explicit racial name-calling, which occurred three to four times a day every day for a month, met the frequency requirement), and Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir.2000) (holding that "roughly fifteen separate incidents of harassment over the course of four months" was sufficiently frequent). While Greywoode testified that Caskey "was constantly telling me that the design I made, the design decisions I made were wrong" and that Ivison "continuously told me that what I had done was wrong when he was not a software engineer," there is no evidence of harassing behavior other than the instances identified above. Simply saying that you endured harassing conduct on a
Still, even viewing the evidence in the light most favorable to Greywoode, as the Court must at this stage in the proceedings, and assuming that Caskey and Ivison did continuously criticize Greywoode's design choices and work performance, there is no evidence that these criticisms or the other incidents of which Greywoode complains were attributable to his race or national origin, were severe, were physically threatening or humiliating, or unreasonably interfered with Greywoode's work performance. Employees do not have the right to work in an environment free from all critiques, no matter how unfounded. See Sasser, 373 F.Supp.2d at 1290 ("Title VII does not protect an employee from harsh criticism for [his] employer.") (internal quotations omitted). What the discrimination laws do protect employees from are discriminatory critiques dressed in business attire. Here, while Greywoode may have subjectively believed that Caskey and Ivison's constant critiquing of his design decisions and work performance was severe and pervasive harassment, the Court is not persuaded that a reasonable person in his position would make the same conclusion. See Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th Cir. 2001) (recognizing that Title VII does not prohibit "everything that makes an employee unhappy").
There is also no evidence that the harassing conduct that Greywoode claims to have endured was physically threatening or humiliating. Indeed, the only incident that could be considered threatening was the parking lot confrontation with Caskey. However, there is evidence that this incident was provoked by Greywoode and concluded with Greywoode admittedly shouting at Caskey. Moreover, Greywoode never claims that Caskey threatened or humiliated him during this incident. In sum, the remainder of the harassing conduct of which Greywoode complains amounts to offensive utterances, which are not prohibited under the law. See Harris, 510 U.S. at 21, 114 S.Ct. 367 (recognizing that Title VII is only implicated in the case of a workplace that is "permeated with discriminatory intimidation, ridicule and insult," not where there is a "mere utterance of an ... epithet which engenders offensive feelings in a[n] employee"); Miller, 277 F.3d at 1277 (noting that an employee overhearing occasional off-color remarks is not actionable conduct under Title VII). Finally, there is no evidence that the harassing conduct of which Greywoode complains unreasonably interfered with his work performance. Greywoode admitted that he was unaware of at least one incident of harassing conduct — Ivison's mimicry of his African accent — until after his termination. Thus, it would have been impossible for this conduct to have interfered with his work performance. Greywoode's becoming "disengaged" and not working well with his team does not demonstrate that severe and pervasive harassing conduct by Ivison or Caskey occurred, or that it unreasonably interfered with his work performance. To the contrary, the undisputed evidence shows that Greywoode's discord with his team was the result of personality conflicts and rifts among the team members, not unlawful harassment. Accordingly, SAIC's motion for summary judgment on Greywoode's hostile work environment claim is GRANTED.
Count II of Greywoode's Amended Complaint alleges that he was terminated
A plaintiff alleging a disparate treatment claim must show an intent to discriminate by the employer. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11th Cir.1994). In cases like this one, where there is no direct evidence of discrimination,
The elements of a plaintiff's prima facie disparate treatment case were set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Thus, in this case, to set out a prima facie case of disparate treatment, Greywoode must show that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) SAIC treated similarly situated employees outside his class more favorably that he was treated; and (4) he was qualified to do the job. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.2006). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Sasser v. Ala. Dept. of Corrections, 373 F.Supp.2d 1276, 1285 (M.D.Ala.2005) (internal quotations omitted). Moreover, "[t]he methods of presenting a prima facie case are not fixed; they are flexible and depend to a large degree upon the employment situation." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004).
The parties do not dispute that Greywoode is a member of a protected class, that he suffered an adverse employment action, and that he was qualified for his job. What SAIC does argue is that Greywoode has failed to satisfy the third element of his prima facie case because he has failed to show that he was treated less favorably than a similarly situated employee. The Court agrees that Greywoode has failed to show that he was treated less favorably than a similarly situated employee; indeed, in his brief in opposition to
Recognizing this deficiency, Greywoode argues that his failure to identify any comparator evidence does not preclude his termination claim. Indeed, courts in this circuit have found, in certain circumstances, that the absence of a similarly situated employee does not automatically defeat a plaintiff's prima facie case if there is evidence from which an inference of discrimination could be found. See Hunter v. Mobis Ala., LLC, 559 F.Supp.2d 1247, 1255 (M.D.Ala.2008) (quoting Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir.1997)). "In other words, the lack of a similarly situated comparator should not defeat [a plaintiff's] prima facie case when there is otherwise sufficient circumstantial evidence of discriminatory intent." Id. at 1257 (emphasis added). Thus, Greywoode can meet his prima facie burden if he presented sufficient evidence to permit a reasonable trier of fact to infer that his termination was based on discriminatory intent. Id.
Greywoode points to Hunter v. Mobis Alabama, LLC, 559 F.Supp.2d 1247 (M.D.Ala.2008) in an effort to establish a prima facie case of discriminatory termination absent sufficient comparator evidence. Hunter involved an employee who claimed she had been terminated because of her pregnancy in violation of the Pregnancy Discrimination Act. Although the plaintiff did not present comparator evidence, the district court, in denying summary judgment, held that the plaintiff had met her prima facie burden by presenting sufficient evidence from which a reasonable juror could infer that the plaintiff's termination was based on discriminatory intent. Id. at 1257. The district court found that such an inference could exist based on the following evidence: (1) an email from the plaintiff's supervisor, Jaekwang Kim ("Kim"), who had the authority to hire or fire her, to the human resources manager that "I do not want to take care of [the plaintiff] anymore ... I need your help to terminate her;" (2) Kim's own testimony that when he decided to terminate the plaintiff, he asked the plaintiff's immediate supervisor if the company had a policy or something in the handbook that he could use to terminate the plaintiff for "bad tardiness or bad attendance;" (3) in the plaintiff's termination meeting, the plaintiff asked Kim why his demeanor towards her had changed after she informed him of her pregnancy, to which Kim responded: "I can't afford to take care of an employee like you;" (4) testimony from the plaintiff's immediate supervisor that she told the plaintiff not to tell Kim of her pregnancy because a previous employee "was fired in regards to being pregnant;" (5) evidence that other pregnant individuals had been fired and that other employees told the plaintiff not to tell Kim about her pregnancy because other pregnant individuals had been fired; and (6) evidence that Kim did not bother to familiarize himself with or enforce the company's attendance policy (the plaintiff was hired despite having absences during her probationary period, when she was not pregnant) until he needed to terminate the plaintiff based on tardiness and absences. Id. at 1257-58.
The evidence that Greywoode has presented to the Court from which he claims an inference of discrimination could be made is undeniably more tenuous than that presented to the district court in Hunter. To meet his prima facie burden, Greywoode points the Court to Silva's testimony
Indeed, the relevant issue with respect to Greywoode's discriminatory termination claim, as SAIC correctly pointed out, is Gober's motive — not Ivison's. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir.2004) ("Our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision."). There is no dispute that Gober made the decision to terminate Greywoode's employment. While Greywoode attempts to make a "cat's paw" argument, claiming that Gober "effectively became Mr. Ivison's instrument of discrimination," such an argument falls short here given the absence of any evidence showing that Ivison had any effect whatsoever on Gober's decision to terminate Greywoode. Gober testified that Ivison "had no influence on my decisions who was hired and fired" and that Ivison's "input carried very little weight with me." (Doc. #23-B.) There is also no evidence demonstrating that Gober had any discriminatory animus based on Greywoode's race or national origin. To the contrary, the evidence shows that most team members felt that Gober placated Greywoode and was protective of him.
The evidence further suggests that Gober did not have knowledge of the actions on which Greywoode relies to establish an inference of discrimination. There is no evidence demonstrating that Gober had knowledge of Ivison's mimicry of Greywoode's African accent. There is also no evidence that Gober had knowledge that Ivison was trying to get Greywoode fired. Rather, Silva did not report to Gober that Ivison allegedly said he wanted to get Greywoode fired until a year after Greywoode's termination, at which time Silva also told Gober that she believed Ivison wanted to get her (Caucasian) and Cedrone (Caucasian) fired as well.
Count III of Greywoode's Amended Complaint alleges that Greywoode engaged in protected activity and that, after doing so, SAIC subjected him to adverse employment actions, including discipline, a performance improvement plan ("PIP"), and ultimately termination. (Doc. #9.) Title VII prohibits an employer from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas framework, a plaintiff has the initial burden of establishing a prima facie case of unlawful discrimination by a preponderance of the evidence. See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "`As with a discriminatory treatment claim, a plaintiff alleging a retaliation claim under Title VII must begin by establishing a prima facie case.'" Sasser, 373 F.Supp.2d at 1286 (quoting Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, 47 F.3d 1068, 1074 (11th Cir.1995)).
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) he engaged in statutorily protected activity; (2) he suffered adverse employment action; and (3) a causal link exists between the adverse employment action and protected activity. Brush v. Sears Holdings Corp., 466 Fed.Appx. 781, 786 (11th Cir.2012). SAIC does not dispute that Greywoode's discipline and termination are adverse employment actions; however, it does dispute whether Greywoode engaged in statutorily protected activity and, if he did, whether there is a sufficient causal link between this activity and Greywoode's discipline and ultimate termination by SAIC.
With respect to the "protected activity" element of Greywoode's retaliation claim, SAIC focuses on Greywoode's April 29, 2009 "formal complaint," arguing that it does not qualify as "statutorily protected activity" because it did not mention race or national origin discrimination and instead focuses on Caskey's hostile email and the fact that Greywoode did not get an office assignment he desired. SAIC points the Court to cases in which activities were not considered to be statutorily protected because the plaintiffs were complaining internally about emails they found offensive and the complaints did not specifically mention race, racial discrimination or harassment, or that the employer was engaging in an unlawful employment practice. See Saffold v. Special Counsel, Inc., 147 Fed.Appx. 949, 951 (11th Cir.2005);
However, while the Court agrees that Greywoode's April 29, 2009 "formal complaint," which complained about quibbles over an office assignment and an email from Caskey that Greywoode found offensive because of its tone, this is not the only complaint that Greywoode made during his employment with SAIC. Indeed, there is evidence that Greywoode complained about "bigotry" during a staff meeting, that his complaints about discrimination led to the June 2009 team assessment, that Greywoode complained about bigotry to Lee during their interview in early June 2009, that Greywoode complained to Gober on June 25, 2009, that she issued him the PIP in "retaliation for the discrimination, bias and other complaints I've made," and that Greywoode complained to Gober on July 6, 2009, that SAIC was trying to fabricate fault with his work to retaliate against him for his complaints. Taking this evidence in the light most favorable to Greywoode, the Court believes that Greywoode had a subjective, good-faith believe that SAIC was engaged in unlawful employment practices and that SAIC knew of this belief in June and July 2009.
Having established the "protected activity" element of his prima facie retaliation claim, Greywoode must also prove a causal connection between his protected activity and his termination. "The causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Sasser, 373 F.Supp.2d at 1287 (internal quotations and citations omitted). "One common method of establishing the causal link element is close temporal proximity between the adverse employment action and the protected activity. Of course, this is not the sole means of establishing the causal link element; rather it is merely the most commonly used approach." Walton v. Neptune Tech. Group, Inc., No. 2:08-cv-5-MEF, 2009 WL 3379912, at *15 (M.D.Ala. Oct. 20, 2009). The undisputed evidence in this case shows that Gober began discussing Greywoode's termination and issued him his first written disciplinary action
Once a prima facie case is established, the burden shifts to the defendant to rebut the presumption of retaliation by producing a legitimate, non-discriminatory reason for the adverse employment action. If the defendant offers a legitimate, non-discriminatory reason, then the presumption of retaliation disappears, and the plaintiff must show that the employer's proffered reason for taking the adverse employment action was actually a pretext for unlawful retaliatory conduct. Brown, 211 Fed.Appx. at 864. Pretext can be demonstrated through evidence showing
SAIC has offered a legitimate, non-discriminatory reason for Greywoode's termination — his poor work performance. As such, the burden shifts to Greywoode to present sufficient evidence from which a reasonable juror could conclude that SAIC's proffered reason for his termination was pretext for an unlawful, retaliatory motive. The Court believes that Greywoode has met this burden. "`[F]or an employer to prevail the jury need not determine that the employer was correct in its assessment of the employee's performance; it need only determine that the defendant in good faith believed plaintiff's performance to be unsatisfactory.'" Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir.1991) (quoting Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982) (emphasis omitted)). In the Court's opinion, Greywoode has presented sufficient evidence calling into question whether Gober believed in good faith that Greywoode's performance was unsatisfactory and warranted termination, or whether this reason was simply proffered to disguise the fact that Greywoode was terminated in retaliation for his complaints of discrimination.
First, there is evidence that Greywoode did not receive a written disciplinary action or negative performance evaluation until after the June 2009 team assessment, which transpired, at least in part, because of Greywoode's discrimination complaints. Indeed, Greywoode's performance evaluations from March 2007, March 2008, and March 2009, were positive, with Greywoode receiving his highest marking of "exemplary" performance in March 2009, just a few months before his June 2009 discrimination complaints. While a positive performance evaluation followed by a negative performance evaluation alone cannot establish pretext, when considering Greywoode's documented positive work history with the fact that he received his first written counselings, a PIP, and was eventually terminated within a few months of his June 2009 discrimination complaints, the Court believes a reasonable juror could infer that SAIC's marked reassessment of Greywoode's performance was pretext for a retaliatory motive.
SAIC contends that the change in Greywoode's performance evaluations resulted from his errors and performance deficiencies becoming much more obvious as contract deadlines grew closer in the summer months of 2009, and that this non-retaliatory explanation precludes Greywoode from establishing pretext. Viewing the evidence in the light most favorable to Greywoode, the Court cannot agree. Indeed, Greywoode has presented evidence that Gober agreed that some issues identified in his performance counselings were not correct and that Shah agreed that several of the DR's listed as attributable to Greywoode during a performance counseling were in fact not. Moreover, there is evidence that, after Silva discovered that her June 24, 2009 email to Gober was not a completely accurate assessment of Greywoode's performance,
Greywoode also relies on his denial of any performance deficiencies in an effort to establish pretext. More specifically, Greywoode argues that his denial of a concrete fact — in this case, his performance deficiencies — requires the denial of summary judgment. In response, SAIC argues that Greywoode's differing opinion of his performance does not create a dispute of fact, and the Court agrees. Unvariably, a plaintiff terminated for poor performance will almost always have a differing opinion as to his or her performance abilities than that of the former employer, and Greywoode is no different. Indeed, the evidence shows that Greywoode has an unwavering high opinion of himself and his work performance. However, if every plaintiff who was terminated for poor performance was allowed to create a factual issue as to pretext by simply disagreeing with the employer's opinion as to his work performance, and offering his own opinion and evaluation instead, then performance-based terminations would always move past summary judgment on the issue of pretext. Nevertheless, when coupling Greywoode's denial of performance issues with the changes in his performance evaluations, the temporal proximity between his June and July 2009 discrimination complaints and his termination, and evidence that Gober had knowledge that some of the performance deficiencies on which she relied to terminate Greywoode were not accurate, the Court believes that a reasonable juror could find pretext sufficient to warrant the denial of summary judgment on Greywoode's retaliation claim. Accordingly, SAIC's motion for summary judgment on Greywoode's retaliation claim is DENIED.
For the reasons stated above, it is hereby ORDERED as follows:
1. Defendant SAIC's Motion for Summary Judgment (Doc. #21) is hereby GRANTED as to Plaintiff's hostile work environment claim under Title VII and § 1981 (Count I), and those claims are DISMISSED with PREJUDICE;
2. Defendant SAIC's Motion for Summary Judgment (Doc. #21) is hereby GRANTED as to Plaintiff's discrimination claim under Title VII and § 1981 (Count II), and those claims are DISMISSED with PREJUDICE; and
3. Defendant SAIC's Motion for Summary Judgment (Doc. #21) is hereby DENIED as to Plaintiff's retaliation claim under Title VII and § 1981 (Count III).
(Doc. #23-B.)
(Doc. #23-B) (alteration to original).
(Ex. 3, Doc. #23-A.) This memorandum also noted that "[u]se of cell phones or Blackberries during meetings is inappropriate unless it is an emergency or you inform the group you must take a specific call if it occurs during the meeting before the meeting begins." (Ex. 3, Doc. #23-A.) Greywoode claims, however, that including this in the memorandum was a mistake because he never owned a Blackberry (although he did admittedly own a cell phone during his employment with SAIC and testified that it "maybe ... went off" during a meeting).
