TERRY F. MOORER, Magistrate Judge.
On December 23, 2014, Plaintiff Arnesha Walker ("Plaintiff" or "Walker") filed a complaint against Defendant Hyundai Motor Manufacturing of Alabama, LLC ("Defendant" or "HMMA"). Doc. 1. Walker asserts two claims: (1) HMMA subjected her to a hostile work environment, and (2) HMMA terminated her employment in retaliation for submitting workplace complaints that she had been subjected to sexual harassment and threats. Id. The parties do not dispute that Count One of the Complaint is due to be dismissed. See Doc. 33-1, Pl's Dep., pp. 121-22; Doc. 40, Pl's Resp., p. 1. Consequently, the sole claim before the court is that Defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), by terminating her employment in retaliation for engaging in protected conduct. Doc. 40, Pl's Resp., p. 1.
This court has jurisdiction over the Title VII claims pursuant to 42 U.S.C. § 2000e-5. Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to a United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment. Now pending before the court is the Motion for Summary Judgment filed by HMMA on April 28, 2016. Doc. 31. The court has carefully reviewed the Motion, the supporting and opposing briefs, and evidentiary materials and concludes that the Motion for Summary Judgment is due to be GRANTED.
"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute]
Once the moving party meets its evidentiary burden and demonstrates the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; FED.R.CIV.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion."). A genuine dispute of material fact exists when the non-moving party produces evidence that would allow a reasonable fact-finder to return a verdict in his favor. Greenberg, 498 F.3d at 1263.
To survive a properly supported motion for summary judgment, the non-moving is required to produce "sufficient [favorable] evidence" establishing a violation of his constitutional rights. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-250. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) quoting Anderson, supra. Hence, when a party fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the party will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."); Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (if on any part of the prima facie case the plaintiff presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine [dispute] for trial.'" Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates that there is no genuine dispute of material fact and that the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine dispute as to a requisite material fact).
Walker was an employee of Aerotek, Inc. ("Aerotek"), a staffing agency which provides support to various companies, including HMMA. Pl's Dep., p. 21; Clevenger's Dep., pp. 129-30. Aerotek has an office in the General Assembly Building on the premises of HMMA, as well as an office on Zelda Road in Montgomery, Alabama. Pl's Dep., pp. 24-25. Walker's employment with Aerotek was "at-will," and HMMA used Aerotek's employees on an "as-needed basis." Clevenger's Dep., p. 130; Pl's Dep., pp. 53-54, Exh. DX-1. For purposes of the Motion for Summary Judgment, HMMA "will presume that it was a joint employer of Plaintiff." Doc. 32, Def's Memorandum, p. 11.
Aerotek assigned Walker to work at HMMA on March 13, 2013. Pl's Dep., p. 17. During orientation, Kesha, an Aerotek manager, instructed Walker to report any incidences she believed to be sexual harassment to Aerotek, or if no one from Aerotek was available, to her HMMA team leader or supervisor. Pl's Dep., p. 50. In addition, Aerotek provided the "Aerotek Contract Employee Handbook" to Walker, which includes a written policy on reporting harassment. Pl's Dep., p. 89-90, Exh. DX-2. Specifically, the policy states:
Pl's Exh. DX-2, pp. 5-6.
On or around April 25, 2013, Walker reported to an HMMA supervisor, as well as Aerotek managers Triphenia Guice ("Tri") and Kesha, that she was harassed by HMMA team member Chris Wright. Pl's Dep., pp. 57-58, 123. Walker submitted a written statement, alleging the following:
Doc. 33-3, Ex. B.
Tri called another Aerotek manager, Lisa Kerley ("Lisa"), to discuss Walker's allegations. Initially, Lisa indicated that Walker should return to work. Walker, however, told Tri that she "didn't feel comfortable" returning to the line after complaining that she "had just been touched." Id., p. 58. Tri told Walker that Lisa advised that "her only other option is to go home" and that she would not be paid. Id. Tri ended the telephone conversation with Lisa, told Walker that Lisa's information was incorrect, and gave her the number of Aerotek corporate headquarters. Id., p. 59. Walker decided to go home. Upon leaving HMMA, Walker called headquarters and left a voicemail message. A manager at the Aerotek corporate office returned Walker's call and advised her to remain home, that she would be paid until the investigation ended, and that someone from Aerotek would contact her. Id., pp. 59-60.
On April 25, 2013, Tri emailed a copy of Walker's statement regarding the incident to Lisa, and Lisa forwarded the allegations to HMMA Team Relations Member Robert Clevenger ("Clevenger"). Doc. 33-3, Ex. B. Aerotek continued to pay Walker in the form of a debit card during the time HMMA conducted the investigation. Pl's Dep., p. 67. On April 26, 2013, HMMA issued a Team Relations Memo from J. Marie Byrd ("Byrd"), the HMMA Team Relations Assistant Manager, to Clevenger, in which HMMA concluded that "[i]t was confirmed by Christopher's own confession, that he told her that her nipples were hard." Id., Ex. C, p. 3. HMMA also entered a "side note" that "Shane Nice called Marie Byrd on April 26, 2013, and informed her that Aerotek moved Arnesha [Walker] to Body Shop. They did this on their own accord and not by HMMA's recommendation. They stated that she requested to be moved." Id. On May 3, 2013, HMMA terminated Wright's employment on the grounds that Wright violated HMMA's policies on harassment and serious misconduct. Attach. to Walker's Dep., DX-8. The same day, HMMA produced a Team Relations Memo from HMMA Team Relations Member Byrd, to Aerotek Management, in which HMMA indicated that the investigation was complete and that "appropriate action has been taken to stop/prevent the behavior that was described." Id., Ex. D.
On July 27, 2013, Walker complained to Tommy, an HMMA supervisor, and Aerotek Shift Manager Misti Durham ("Misti") that she was harassed by the HMMA team leader Josh Davis. Pl's Dep., p. 64. Misti instructed Walker to go to an office in the welding department and write a statement. Id., p. 65. An HMMA representative took the statement and called Misti. At that time, Misti instructed Walker to go home and that "they had to do another investigation and just wait on her phone call." Id., p. 66. Aerotek continued to pay Walker during the investigation. Pl's Dep., p. 67.
On July 29, 2013, Lisa Kerley told HMMA Team Relations Assistant Manager Barry Jackson that "Walker had been sent home by Aerotek pending an investigation of a complaint of sexual harassment that Walker made against HMMA employee Josh Davis." Doc. 33-4, Def's Ex. 4, Jackson's Dec., p. 2. Jackson asked when Walker would return to work and Kerley advised him that "she would look into it." Id.
On August 5, 2013, HMMA produced a Team Relations Memo from Jackson to Clevenger summarizing the investigation. Doc. 33-3, Attach. to Clevenger's Dec., Def's Ex. E. Specifically, HMMA found that Walker's allegations that Josh invited Walker to watch a boxing match, that he said she had a "little booty," that he used profanity toward her on several occasions, and that he would "curse her" in front of other people were "substantiated". Id., p. 3.
On the same day, Jackson spoke with Aerotek Manager Eric Booker ("Booker") about the status of Walker's return. Doc. 33-4, Jackson's Dec., Def's Ex. 4. Jackson's recollection is that Booker told him that "he had spoken with Walker on the phone, and further stated that Walker informed [him] during their conversation that she was not going to return to work at HMMA." Id.
On August 12, 2013, HMMA concluded that Davis "made inappropriate comments regarding a female contractor, as well as us[ed] inappropriate language while engaging in conversations with her . . . in violation of HMMA's Harassment and Conduct Policies" and placed him in "Phase II of Corrective Action." Attach. to Pl's Dep., DX-9. On August 19, 2013, HMMA Team Relations Assistant Manager sent a letter to Lisa Kerley, the On-Premise Manager at Aerotek, reporting that the "investigation has been completed regarding the complaint and the appropriate actions have been taken." Id.
Lisa Kerley called Walker about returning to work in the General Assembly area. Walker told her that she "didn't want to come back" because she did not feel comfortable working around Josh. Pl's Dep., pp. 86-88. After Kerley explained that she would be assigned a job on the other side of the building, Walker agreed to return to work. Id., p. 88.
Walker returned to work on September 23, 2013. Aerotek assigned Walker to work in the Paint Department at HMMA. Pl's Dep., pp. 160-161. During the evening shift, Walker reported to Aerotek Shift Manager Misti, that she saw Davis stare at her in the cafeteria. Pl's Dep., pp. 68, 71, 155-56, 161. Misti told Walker to go home. Id., pp. 56, 71. Aerotek continued to compensate Walker during the time she was away from work. Id., p. 74.
On October 7, 2013, Misti Durham sent the following email to HMMA:
Doc. 33-3, Def's Ex. G. HMMA conducted an investigation.
On October 10, 2013, an HMMA Team Relations Memo from Shymill Ivy to Barry Jackson and Marie Byrd summarized the investigation as follows:
Doc. 33-3, Def's Ex. H. HMMA did not discipline Davis. Clevenger's Dep., pp. 121-122.
On or around October 14, 2013, Walker returned to work in General Assembly. After working a couple of hours, Walker went to the restroom. As she walked out of the bathroom, an unknown man "randomly came up to [her] and he . . . called [her] a bitch and he said, `You got my cousin fired.'" Pl's Dep., p. 75. He also threatened to kill her. Id., p. 78. Walker ran to the line and told the HMMA team leader about the incident. Pl's Dep., pp. 76, 79. She then went to the Aerotek office and told Misti that she could not return to General Assembly because she was "still kind of . . . shooken (sic) up." Id. Misti told Walker that "we're going to send you home and . . . they [were] going to try to get the cameras and . . . figure out who exactly was that guy." Id. Afterward, Misti called Walker and told her that HMMA was unable to determine who threatened her because the cameras were not directed on the bathroom area. Id., p. 80. Aerotek continued to compensate Walker for the days she missed work. Id., p. 67.
On October 14, 2013, HMMA issued a Team Relations Memo from HMMA Team Relations Representative Sheila King to Jackson and Byrd which summarized the incident as follows:
Doc. 33-3, Def's Ex. I.
On October 15, 2013, HMMA Team Relations Assistant Manager Barry Jackson sent an email to several other Team Relations members, stating the following:
Def's Ex. J.
Later that day, HMMA Team Relations Specialist Sheila King responded to Barry Jackson's email, stating "I talked with Erick Booker tonight and Arnesha Walker called and said she was not coming back to work." Id. An HMMA Team Relations Weekly report generated on October 19, 2013, also indicates that "Aerotek employee Arnesha called in [on or around October 15, 2013] and told Erick Booker that she was not coming back to work." Def's Ex. K. HMMA closed the investigation. Id.
On October 30, 2013, Aerotek Manager Kerley mentioned to HMMA Team Relations Specialist Ivy that Walker would be returning to work. That same day, HMMA Team Relations Specialist Shymill Ivy sent an email to other Team Relations members regarding the "Lisa Kerley Conversation," stating as follows:
Def's Ex. L.
The following morning, HMMA Team Relations Assistant Manager Jennifer Byrd replied to Ivy's email, stating "We are all shocked by this. She quit Aerotek twice. We would not allow this with our TMs, period. When Barry told me this, I thought he was kidding. Our team was completely unaware." Id.
On or around November 1, 2013, Misti called Walker and told her that there were no other available departments at HMMA and asked if she would be willing to work for Sejong in Fort Deposit, Alabama. Id., pp. 81-82. Walker indicated that she would be unable to do so because the location was too far from her residence. Id. Walker suggested other departments at HMMA where she believed she could work, such as the Engine Department. Id., p. 82. Misti told her that they would find another spot for her at HMMA and to meet her at the Aerotek office at 2:30 p.m. Id., p. 83. HMMA Team Relations Assistant Manager Barry Jackson called Kerley and advised that "[d]ue to HMMA's essential job requirement of prompt, regular, predictable attendance, . . . HMMA did not wish for [Walker] to be assigned to work at HMMA's facility any longer due to Walker's poor attendance record." Doc. 33-4, Jackson's Dec., p. 2. One hour before the meeting, Misti called Walker and told her that HMMA would not allow her to return. Pl's Dep., p. 83. Aerotek subsequently "separated" Walker from employment with its company. Pl's Dep., p. 138.
Walker asserts that HMMA refused to reassign her to a job in retaliation for reporting violations of the anti-harassment policy against its employees.
In Vickers v. Hyundai Motor Manufacturing of Alabama, No. 2:14cv126-WKW (M.D. Ala., Sept. 30, 2015) (unpublished), this court summarized the general law on retaliation.
2015 WL 5736909, at *7-8.
HMMA argues that Walker's complaint that Davis stared at her is not protected conduct because a stare by itself is not a discriminatory, harassing, or retaliatory action and Hyundai did not approve of such conduct. HMMA also argues that Walker's report that an unidentified HMMA employee threatened her is not protected conduct because the employee's actions were not authorized by Hyundai and "it is clear that he was motivated by his belief that Plaintiff had cost a family member his job, and not by Plaintiff's sex — or her race, religion, or any other protected status for that matter." Doc. 32, Def's Resp., p. 17. There is no argument, however, that the submission of her remaining harassment claims are considered protected activity under Title VII. The court questions whether there is a causal connection between the harassment allegations and any adverse employment action on the part of HMMA. It is strongly arguable that HMMA was not Walker's "employer" and that it did not at any time instruct her to leave work or otherwise excuse her absences. Nonetheless, for purposes of the Motion for Summary Judgment, HMMA presumes it is Walker's "joint employer". Doc. 32, Def's Memorandum, p. 11.
Even assuming the elements of a prima facie case are met, the court concludes that Walker fails to rebut the nondiscriminatory reasons given by HMMA for ending Walker's temporary employment at its facility, i.e. her frequent absences and its impression that she quit her job on at least two occasions. See Pennington, 261 F.3d at 1268 (assuming without deciding a prima facie case is met in order to proceed to the salient issues of a pretext analysis); Rawls v. Alabama Dep't of Human Resources, 507 Fed. Appx. 895, 898, 2013 WL 500456, at *3 (11th Cir. Feb. 11, 2013) (affirming district court that moved ahead to pretext and assumed a prima facie case); Long v. Alabama Dept. of Human Resources, 2014 WL 8843764, at *27 (M.D.Ala. Nov. 10, 2014), adopted in relevant part by Long v. Alabama Dept. of Human Resources, 2015 WL 2345240 (M.D.Ala. Jan. 30, 2015) (declining to undergo a prima facie analysis so as to examine evidence of pretext as to a retaliation claim); Shuford v. Alabama State Bd. of Educ., 978 F.Supp. 1008, 1017 (M.D.Ala.1997) (Where the "court has sufficient evidence to determine whether the employee has been a victim of discrimination, the court need not go through the McDonnell Douglas burden shifting process and should instead reach the ultimate issue of discrimination.").
HMMA articulates a non-retaliatory reason for its action. HMMA claims that it refused to allow Aerotek assign Walker to another position due to her attendance record and its understanding that she refused to return to work on at least two occasions. Absenteeism is a legitimate non-discriminatory reason for terminating employment. See, e.g., Gaddis v. Russell Corp., 242 F.Supp.2d 1123, 1148 (M.D. Ala. 2003); Fantroy v. Publix Super Markets, Inc., No. 8:12cv1940-T-33EAJ, 2013 WL 6768369, *9 (M.D. Fla., Dec. 19, 2013); Lewis v. K2 Indus. Services, Inc., No. 06cv0497-WKW, 2007 WL 3442189, *11 (M.D. Ala., Nov. 14, 2007). Thus, HMMA satisfies its "exceedingly light" burden to proffer a legitimate, non-discriminatory reason for its action. See Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994).
To establish pretext, Walker must show that HMMA's "proffered reason is not the true reason for the employment decision." Jackson v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). Walker argues that HMMA's reason is pretext because (1) HMMA did not express that her absenteeism was a problem at any time during her employment, (2) an email indicates HMMA's legal counsel had concerns that preventing her from working at HMMA could result in "possible retaliation claims," and (3) HMMA's corporate representative indicated that he did not "have any information from any source that Aerotek ever informed Hyundai that Ms. Walker stated she would no longer return to work and refused to return to work in August." Doc. 40, Pl's Reply, pp. 22-23.
The problem with Walker's argument is that the record indicates that Aerotek repeatedly represented to HMMA representatives that Walker declined to return to work. For example, the evidence indicates that, on August 5, 2013, Aerotek Manager Eric Booker told HMMA Assistant Manager Barry Jackson that Plaintiff told him that she would not return to work. See Doc. 33-4, Jackson's Dec., Def's Ex. 4. In addition, an October 7, 2013, email from Aerotek Manager Durham to HMMA representatives indicates Walker did not wish to work in the paint area because of its proximity to one of her accused harassers. Clevenger's Dep., pp. 32-34, 36, 96, Exh. PX-14; Pl's Ex. DX-10. On October 15, 2013, HMMA Team Relations Specialist King sent an email to HMMA Team Relations Manager Jackson indicating that Aerotek Manager Booker told her that that Walker said that she was not returning to work. Clevenger's Dec., Exhs. J & K.
Walker's reliance on the corporate representative's acknowledgement in a deposition that HMMA did not receive information from anyone from Aerotek about a refusal to return to work in August is likewise unavailing. Shortly after the deposition, HMMA Team Relations Manager Clevenger provided a transcript errata sheet with the October 2013 emails between HMMA team relations members indicating that is was their impression from conversations with Aerotek representatives that Walker did not intend to return to work and that she had quit on two prior occasions. Doc. 45-1, Def's Ex. A.
Walker, however, alleges that she never told anyone at Aerotek or HMMA that she did not want to work. "The pretext inquiry focuses on the honesty of the employer's explanation; raising a question about the correctness of facts underlying that explanation without impugning the employer's honest belief, fails to create a triable pretext issue." Dawson v. Henry County Police Dep't, 238 Fed. Appx. 545, 549 (11th Cir. 2007); Lee v. GTE Fla, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (determining that a mistake in fact does not demonstrate pretext); DeLeon v. ST Mobile Aerospace Engineering, Inc., 684 F.Supp.2d 1301 (S.D. Ala. 2010). Furthermore, it is not Plaintiff's subjective opinion that guides the analysis. See, e.g., Doe v. Dekalb County School Dist., 145 F.3d 1441, 1448-49 (11th Cir.1998) (holding that courts are not bound to a "subjective standard" when determining whether an employment decision is adverse and that an "objective" standard is appropriate). "If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it. Quarreling with that reason is not sufficient." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004) (citations omitted). There is no evidence that any HMMA decisionmaker and/or any HMMA Team Relations member who objected to Walker's return had any knowledge of the specific reasons for Walker's prolonged absences from work, with the exception of one brief investigatory period. In addition, all of the facts indicate that HMMA Team Relations Members were under the impression that she quit on at least two prior occasions. There is also no evidence that any HMMA manager instructed Walker to leave work during the investigatory periods or at any other time.
With one exception, there are no evidentiary materials indicating that any HMMA employee knew of the reason for Walker's prolonged absences. The record does clearly indicate that HMMA Assistant Manager Jackson knew that Walker missed work from July 27, 2013 through the close of the investigation on or around August 19, 2013; however, there is nothing indicating the reason for her missing work from the time the investigation closed on August 19, 2013, until her return to work on September 23, 2013. HMMA was also not informed by either Walker or Aerotek of the reasons for her other absences.
If anything, the evidentiary materials demonstrate that HMMA was under the impression that Walker's prolonged absences were due to her decision not to return to work. With the exception of the absences during HMMA's investigation of Davis, there are no records indicating HMMA had any knowledge that Walker was instructed by Aerotek not to return to work. In addition, the evidentiary materials indicate that HMMA was repeatedly informed by Aerotek that Walker told them that she would not return to HMMA and that HMMA relied on these representations. Doc. 33-3, Def's Ex. I, K & L; Doc. 33-4, Def's Ex. 4.
Vickers v. Hyundai Motor Mfg. of Alabama, LLC, No. 2:14-CV-126-WKW (WO), 2015 WL 5736909, at *7-9 (M.D. Ala. Sept. 30, 2015), aff'd sub nom. Vickers v. Hyundai Motor Mfg. Alabama, LLC, No. 15-14905, 2016 WL 1459112 (11th Cir. Apr. 14, 2016).
This court therefore concludes that Walker fails to demonstrate a genuine dispute from which a reasonable factfinder could find that HMMA's reason for disallowing Walker's return to work at its facility is unworthy of credence. Accordingly, HMMA's Motion for Summary Judgment as to Plaintiff's Title VII retaliation claim is due to be GRANTED.
It is
ORDERED that the Motion for Summary Judgment be and is hereby GRANTED in favor of Defendant. Doc. 31. A separate judgment shall issue.
