VIRGINIA EMERSON HOPKINS, District Judge.
This is a race and age employment discrimination action brought by the plaintiff, Jennie McQueen, against the defendants, Wells Fargo Home Mortgage ("Wells Fargo") and Aerotek. The complaint first alleges one count for race discrimination under both Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq., ("Title VII"), and 42 U.S.C. § 1981. (Doc. 25, pp. 3-5.) The complaint also alleges one count of age discrimination in violation of both the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") and the Alabama Age Discrimination in Employment Act, Ala.Code § 25-1-22, et seq. ("AADEA"). (Doc. 25, pp. 5-6.) Finally, the complaint alleges retaliation in violation of 42 U.S.C. § 1981. (Doc. 25, p. 5.) All counts arise out of the plaintiff's employment.
The case comes before the court on the motions for summary judgment filed by the defendants. (Docs. 39 and 41.) For the reasons stated herein, the motions will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
Aerotek provides technical, professional, and industrial recruiting and staffing services. The company recruits, hires, and assigns temporary employees to work for various lengths of time on the premises of, and under the direction and supervision of, its clients. The business needs of Aerotek's clients determine the job duties and duration of the assignment for the employees assigned to work for that client. The plaintiff, Jennie McQueen, was experienced with such companies and their procedures. She worked for several different temporary employment agencies prior to Aerotek. Every assignment she was given through these agencies was a temporary placement ending at the client's discretion.
McQueen first contacted Aerotek in May 2009. On February 19, 2010, the plaintiff signed an employment agreement with Aerotek and acknowledged her receipt of Aerotek's Contract Employee Handbook, which contains Aerotek's written policies against discrimination and retaliation. For all work placements, the plaintiff submitted her work time to Aerotek and was
In March 2010, Aerotek offered, and the plaintiff accepted, a placement as a "Decisioner" in Wells Fargo's Loss Mitigation Department.
The plaintiff signed a separate employment agreement with regards to this assignment which states that "AEROTEK... conditionally offers to employ Jennie McQueen in the capacity of Decisioner commencing on March 8, 2010 at its client, Wells Fargo ... for services with the latter for a temporary period." (Doc. 42-1, p. 58). The agreement also states:
(Doc. 42-1, p. 58.) The agreement states that Aerotek is dependent on the client to approve the number of hours worked before McQueen could be paid. It also states: "Consequently, you also understand that and agree that subject to applicable law, your pay check may not be released unless client approves and verified time records have reached Aerotek's offices." (Doc. 42-1, p. 58.) The agreement also allowed Wells Fargo to end McQueen's employment, stating: "Termination. You understand that the length of the assignment is subject to the discretion and needs of the client." (Doc. 42-1, p. 59.) In her deposition, the plaintiff acknowledged that the assignment was for a temporary period, but stated that Warner told her that the job should last at least two years. (Doc. 42-1, p. 18(70).)
The plaintiff was placed in the "Loss Mitigation Department" of Wells Fargo. That department was divided into 12 teams, with each team consisting of employees classified as "Decisioners," "Communicators," and "File Clerks." Each team's job was to take Wells Fargo customers who had fallen behind on their mortgage payments and place them into one of Wells Fargo's payment programs.
The plaintiff's job as a Decisioner was to determine into which Wells Fargo's payment program, if any, the customer could be placed. Once a Decisioner made a recommendation, the customer's file was sent to second-level review where the Decisioner's recommendation was either approved or rejected. Pursuant to Wells Fargo policy, Decisioners are prohibited from placing a client in the program if their recommendation is denied by second-level review. If second-level review disagreed with a Decisioner's recommendation, the Decisioner had to make only the changes second-level review requests, and then either close the file or gather additional information and re-evaluate based on the new information.
Wells Fargo provided the supplies for McQueen to do her job. Wells Fargo communicated employment-related matters, including work schedules and hours of work relating to McQueen, directly to Aerotek. (Doc. 47-1, p. 18.) All of the plaintiff's work took place on Wells Fargo property.
The plaintiff's assigned team included another Decisioner named Deidre Strain, who is white and 50 years old. Strain was not employed by Aerotek.
The plaintiff admits that she made some mistakes while she worked with Wells Fargo, but that her mistakes "[were] not any worse than anybody else." (Doc. 77, p. 20(77).)
The plaintiff's team supervisor at Wells Fargo was Lending Manager Tyler Mardis. Although he became a Wells Fargo employee in September of 2010, at the time that the plaintiff worked under him he was an employee of another staffing company which had assigned him to work at Wells Fargo. (Doc. 42-5, p. 1.) Mardis reported to Senior Manager Maggie Ignace, also an employee of a staffing company,
The plaintiff's complaints of race and age discrimination are based solely on the alleged conduct of Mardis, and her ultimate termination. Regarding Mardis's conduct, the plaintiff testified:
(Doc. 42-1, p. 20 (77-78).) The plaintiff admits, however, that she did not witness every conversation between Mardis and Strain.
Mardis would tell the plaintiff "something like, you better get the production up." (Doc. 42-1, p. 50(197).) The plaintiff testified that Mardis counseled her "one time" because she did not keep her Wells Fargo email open, which was the way supervisors communicated with her about her work.
Neither Mardis nor Ignace ever made any derogatory comments to the plaintiff about her race or her age. Mardis once commented that the plaintiff was "pretty old" after the plaintiff told Mardis that she "had thirty years on [him]," but the plaintiff did not interpret this comment as derogatory because it was made as a joke in the context of a discussion about birthdays. (Doc. 42-1, p. 25(100).) No one at Aerotek ever made any derogatory comments to the plaintiff about her age or her race.
The plaintiff's first complaint of discrimination was to Dean in April of 2010. She told Dean that she thought Mardis was "always on my back and ... I felt like he was using my age and my race against me by the things he was doing." (Doc. 42-1, p. 23(92).) McQueen also asked Dean "if there was anything she could do about it." (Doc. 42-1, p. 23(92).) Dean said she would discuss it with Warner. (Doc. 42-1,
McQueen then "followed up" with someone she describes as "another girl" at Aerotek whose name she could not remember. (Doc. 42-1, p. 24(94).) In regards to this conversation, the plaintiff testified: "I was just asking her if she know that [sic] [Dean] had followed up on it, and she said that she was sure that she had. And she would, you know, mention it to her." (Doc. 42-1, p. 24(94).) Specifically, the plaintiff says that she told this other person: "I said I — I had a complaint against Wells Fargo, and I wanted to know if she had told [Warner], because I don't think [Warner] was back at the time. And she said that she would ask [Dean] when she got back to the office." (Doc. 42-1, p. 24(93-94).)
About one week before the plaintiff was terminated, Warner contacted the plaintiff by phone to discuss a paycheck issue. The plaintiff mentioned her complaint to him at that time. Specifically, she told Warner she felt she had been discriminated against because of her age and race, but she did not give him any additional details. In her deposition, the plaintiff was asked if she specifically mentioned the word "discrimination" in this conversation, to which she replied: "Yeah. I — I mean, I told him that I — my assessment was that I had been — being discriminated against because of my age and my color. That was my assessment. And so that is what I told him." (Doc. 42-1, p. 25(97-98).)
Neither Dean nor Warner recalls any complaint of discrimination by the plaintiff. Warner states that had he received a complaint of discrimination he would have reported it to Aerotek's legal team and to its Customer Service Supervisor. Additionally, Warner says that he would have asked the plaintiff to write a statement or an e-mail and he would have made a notation in the plaintiff's file.
The plaintiff does not know whether anyone at Wells Fargo had any knowledge of her alleged complaints to Dean and Warner. The plaintiff admits that neither Dean nor Warner reported any such complaint to Wells Fargo. (Doc. 40, p. 14; doc. 46, p. 3.) She also admits that Aerotek did not inform anyone at Wells Fargo about her complaint. (Doc. 43, p. 11; doc. 46, p. 4.)
Aerotek recruiters maintained activities logs to keep track of Aerotek employees at various placements. These logs track conversations, telephone calls, and other communications between Aerotek recruiters and account managers and employees. The activities log that Aerotek recruiters maintained for the plaintiff in 2010 contains no notation regarding any complaint of discrimination.
According to Dean, if she had received a complaint of discrimination, she would have contacted Aerotek's upper management to report the issue and find out what additional steps to take. Mardis never received a complaint from anyone that the plaintiff believed she was being discriminated against, and he is not aware of anyone at Wells Fargo receiving any alleged complaint from anyone that the plaintiff believed she was being discriminated against.
In May 2010, a recommendation made by the plaintiff was denied by second level review and the file was returned to her. Thereafter, the plaintiff made a change to the file, in what she says was an effort to correct a mistake she made on the file. She stated in her deposition that when the file went to second-level review, they disagreed with her original decision and sent it back to her with changes to the plan.
Wells Fargo became aware of the plaintiff's alteration of the file and determined that her assignment should be terminated. In Warner's declaration, he states: "Someone at Wells Fargo contacted Aerotek to request that Ms. McQueen be removed from her assignment at Wells Fargo because she had falsified loan documents, had low productivity, and failed to follow instructions." (Doc. 42-2, p. 3.) Neither Warner nor Dean had any input into Wells Fargo's decision to terminate the plaintiff's assignment.
Warner met with the plaintiff to inform her that her assignment was terminated. Specifically, Warner informed the plaintiff that Wells Fargo was letting her go because she had committed fraud with regard to the file she had altered. At that meeting, the plaintiff denied that she had committed fraud. She also asked Warner if he had spoken to Wells Fargo about her complaints of discrimination, but he did not want to discuss it. (Doc. 42-1, p. 29(116).)
Thereafter, the plaintiff attempted to apply for unemployment compensation. (Doc. 47-1, p. 11.) In a response to the Alabama Department of Industrial Relations request for information, provided by an agent of Aerotek, Aerotek stated that the plaintiff "was discharged for misconduct related to performance. The claimant made a mistake and instead of asking how to fix the mistake she tried to do it herself which involved forging a mortgage document." (Doc. 47-1, p. 11.) Aerotek records include a performance note received from Wells Fargo which reads:
(Doc. 42-2 p. 6.) Wells Fargo admits that it "informed Aerotek not to assign McQueen to work at the Wells Fargo facility located in Homewood, Alabama." (Doc. 47-1, p. 19.)
The plaintiff never spoke to anyone at Wells Fargo about the file or the basis for the termination of her assignment at Wells Fargo. She does not know who at Wells Fargo made the decision to terminate her assignment, but she assumes that it was Mardis and Ignace.
The plaintiff claims that, following the termination of her assignment at Wells Fargo, she contacted Warner about additional placements, but was not assigned to another position because she was "blackballed." Warner recalls that, during that time, there were very few other available positions for Aerotek employees aside from those available at Wells Fargo. In his declaration, Warner states that he "would not have precluded ... McQueen from being given another assignment and would have worked to place her with a
The plaintiff does not know anyone else who had "performance issues" and was not terminated. (Id. at 121:3-7.) Likewise, Mardis is unaware of any other Decisioner who "made the same mistake ... McQueen made and was not released from their assignment." (Doc. 42-5, p. 6.)
In Count One, the complaint alleges that "Aerotek discriminated against McQueen because of her race with respect to the termination in violation of ... 42 U.S.C. § 1981, and 42 U.S.C. § 1981a."
Aerotek first argues that the plaintiff's claim against it under the AADEA is barred by the statute of limitations. (Doc. 40, p. 16.) In her response brief, the plaintiff acknowledges that this claim is due to be dismissed as against Aerotek. (Doc. 46, p. 24, n. 5.) Accordingly, this count will be dismissed.
Aerotek argues that it is entitled to summary judgment on the plaintiff's section 1981 disparate treatment claim.
Phillips v. Aaron Rents, Inc., 262 Fed. Appx. 202, 207 (11th Cir.2008).
Dominguez v. Lake Como Club, 520 Fed. Appx. 937, 940 (11th Cir.2013).
Aerotek argues first that the plaintiff cannot make out a prima facie case of disparate treatment race discrimination because "she cannot establish that the behavior about which she complains amounted to an adverse employment action or that similarly situated Caucasian employees were treated more favorably than she." (Doc. 40, p. 19.) Next it contends that, even if the plaintiff can make out a prima facie case of discrimination, she cannot show that its proffered non-discriminatory reason was a mere pretext for discrimination.
The court must first address an important issue not raised by the parties. As to the race discrimination claim, the parties' briefs focus on some conduct which is not alleged in the complaint. The complaint seems to state that the race discrimination claims are based on the plaintiff's termination only. (Doc. 25, pp. 3-4.) It states: "The Defendant Wells Fargo discriminated against McQueen because of her race with respect to the termination;" and "The Defendant Aerotek discriminated against McQueen because of her race with respect to the termination." (Doc. 25, pp. 3-4.) The only other factual allegation in this count states vaguely that "McQueen was held to a different standard of employment than the similarly situated white employee for the production of files by ... Tyler Mardis." (Doc. 25, p. 4.) This last statement "epitomizes speculation and therefore does not amount to a short and plain statement of [the plaintiff's] claim under Rule 8(a)." Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir.2008) (alteration supplied) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) and Fed.R.Civ.P. 8(a) in the summary judgment context).
The Eleventh Circuit has upheld the practice of summarily dismissing claims based upon conduct not specifically set out in the complaint. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 973 (11th Cir.2008) (judgment affirmed where district court wrote: "[t]o the extent plaintiffs seek to include additional [hiring] decisions not identified in the complaint, those additional claims are not properly brought in this action"). This court finds that, in this case, allegations of racially discriminatory acts other than the termination, namely Mardis's conduct, are not properly before the court. Even if they were, as shown below, summary judgment is still appropriate as to these acts.
The parties agree that the plaintiff's complaints of race and age discrimination are based on: (1) the plaintiff's termination; and (2) the alleged conduct of Mardis while the plaintiff worked with Wells Fargo.
Clearly, termination is an adverse employment action, as it is an "ultimate employment decision." Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008). However, in a footnote, Aerotek writes: "arguably, even the termination of [the] [p]laintiff's assignment does not amount to an adverse employment action as to Aerotek because Wells Fargo made the decision to terminate her assignment." (Doc. 40, pp. 20-21, n. 9) (emphasis added). It does not elaborate upon this argument, and the plaintiff does not respond to it. However, the court sees this as an important and, indeed, dispositive point.
Only the plaintiff's "employer" may be held liable under Title VII for alleged discrimination against her. 42 U.S.C.A. § 2000e-2 ("It shall be an unlawful employment practice for an `employer' ... to discriminate against any individual.") The complaint alleges that Aerotek and Wells Fargo were "joint employers" of the plaintiff for purposes of Title VII. (Doc. 25, p. 4.)
The Eleventh Circuit has held that the basis for finding a joint employer relationship is "`simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.'" Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1360 (11th Cir.1994) quoting National Labor Relations Board v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir.1982). Aerotek does not argue that it was not the plaintiff's employer. However, the Eleventh Circuit, citing to Virgo, has said that, when discrimination is based on an adverse employment decision, the joint employer theory "concentrate[s] on the degree of control an entity has over the adverse employment decision on which the Title VII suit is based." Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir.1998).
In Llampallas, Palmetto was a non-profit entity "formed to operate, manage, and administer a commercial condominium with seven units in Hialeah, Florida." Llampallas, 163 F.3d at 1240. Of the seven units in the condominium that Palmetto managed, six were owned by a company called Scientific Components Corporation. Id. Scientific Components Corporation was the parent company of an entity known as Mini-Circuits. Id. The plaintiff, Llampallas, was fired from her position as production supervisor at Mini-Circuits. Id. at 1244. In determining whether Palmetto could be liable for alleged discrimination concerning the firing, the Eleventh Circuit wrote:
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir.1998) (emphasis added). Compare, Frazer v. Johnson Controls, Inc., CV-11-RRA-3956-W, 2012 WL 5379238 (N.D.Ala. Mar. 29, 2012) report and recommendation adopted, 7:11-CV-03956-RRA, 2012 WL 5379186 (N.D.Ala. Oct. 29, 2012) (distinguishing Llampallas on the facts before the court, and holding that joint employer could be liable because of level of control it exerted).
In the instant case, there is no evidence that Aerotek had anything to with the plaintiff's termination. The plaintiff admits that Wells Fargo, not Aerotek, made the decision to terminate her. (Doc. 46, p. 14.) In his declaration, Warner states that "[s]omeone at Wells Fargo contacted Aerotek to request that Ms. McQueen be removed from her assignment at Wells Fargo because she had falsified loan documents, had low productivity, and failed to follow instructions." (Doc. 42-2, p. 3.) Further, it is undisputed that neither Warner nor Dean had any input into Wells Fargo's decision to terminate the plaintiff's assignment.
The court has been unable to find an Eleventh Circuit case directly addressing this issue in the context of a temporary placement agency. However, in Watson v. Adecco Employment Servs., Inc., 252 F.Supp.2d 1347, 1356-58 (M.D.Fla.2003), Judge Presnell of the Middle District of Florida addressed this very issue, and said the following regarding the termination of a temporary employee:
Id. at 1357.
In this case, the evidence shows that only Wells Fargo had anything to do with the plaintiff's termination. There is no evidence that Aerotek participated in any way other than to inform the plaintiff that she could not return to Wells Fargo. For that reason, the plaintiff's termination is not an adverse employment action attributable to Aerotek. Therefore, Aerotek's motion is due to be granted as to the plaintiff's disparate treatment claims relating to the plaintiff's termination.
As to Mardis's conduct, even if it is properly before the court, the Eleventh Circuit requires that conduct falling short of an ultimate employment decision must, in some substantial way,
Crawford, 529 F.3d at 970-71 (internal citations omitted). Not all conduct which negatively affects an employee constitutes adverse employment action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir.2001). "This limitation is consistent with the basic principle that Title VII ... is neither a general civility code nor a statute making actionable the `ordinary tribulations of the workplace.'" Davis, 245 F.3d at 1239 (internal quotations and citations omitted).
As set out in this court's statement of the facts, the plaintiff complains about how Mardis treated her at work. However, in her response brief, she does not discuss her allegations that Mardis: always made the plaintiff's mistakes seem like they were worse than other employees; loudly announced every time the plaintiff made a mistake while only telling Strain privately when she made one; spoke to the plaintiff in a condescending manner; acted "like [she] was retarded" if the plaintiff asked any questions; ignored the plaintiff; and gave some of the plaintiff's files to Strain, "to help her out on her production so she would look good" (doc. 42-1, pp. 22(88), 26(101)). Since the plaintiff makes no attempt to argue that these are adverse employment actions, the court treats them as abandoned. See, e.g., McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir.1999) (claim may be considered abandoned when district court is presented with no argument concerning a claim included in the plaintiff's complaint); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court "could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment"). Further, even if they were not abandoned, none of these acts are adverse employment actions. There was no serious and material change in the
What remains is Mardis's counseling the plaintiff for lack of production, being behind in her work, not performing her job correctly, and the one time she did not keep her Wells Fargo email open. The plaintiff's brief does allege that these were adverse employment actions. (Doc. 46, p. 21.)
The Eleventh Circuit has stated:
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1242 (11th Cir.2001). In this case, the plaintiff argues that these counseling sessions were discriminatory because they were used as part of the justification for her discrimination termination. (Doc. 46, p. 21.) Under these circumstances, these events can be deemed adverse employment actions because those criticisms ultimately had a tangible impact on the terms, conditions, or privileges of her employment. Warner stated that "[s]omeone at Wells Fargo contacted Aerotek to request that Ms. McQueen be removed from her assignment at Wells Fargo because she had falsified loan documents, had low productivity, and failed to follow instructions." (Doc. 42-2, p. 3) (emphasis added). Accordingly, she was fired, at least in part, because of these issues. They are adverse employment actions.
As to Mardis's conduct, Aerotek did not raise, even in a footnote, the issue of whether it could be responsible for Mardis's conduct when he was not an employee of Aerotek. Again, no showing has been made that Aerotek, in any way, had control over Mardis. While not controlling, there is some authority that, under such circumstances, Aerotek could only be held responsible if it "knew or should have known of the conduct and failed to take corrective measures within its control." Watson, 252 F.Supp.2d at 1356-57. Even if the court were persuaded by this language, in contrast to the termination issue, the record is clear that the plaintiff made some complaints to Aerotek employees and management about Mardis's conduct. Because this issue was not briefed, it is unclear whether any of Mardis's conduct took place after these complaints, what control
Aerotek next argues that the plaintiff can show no similarly situated persons who were not black or were treated better than she. (Doc. 40, p. 21-22.) "The plaintiff and the employee she identifies as a comparator must be similarly situated `in all relevant respects.' The comparator must be nearly identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the employer." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.2004) (citing Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001)). Further, in the case of discipline,
Humphrey v. Napolitano, 847 F.Supp.2d 1349, 1355-56 (S.D.Fla.2012) aff'd, 517 Fed.Appx. 705 (11th Cir.2013). The plaintiff's response brief does not address this argument.
The court recalls, as set out in the previous section of this Memorandum Opinion, that the plaintiff contends only that her termination and Mardis's counseling sessions with her were adverse employment actions. Accordingly, the plaintiff must provide a similarly situated comparator who was not counseled after making the same mistakes as she, and who was not fired after committing the same alleged infraction as she made by changing a mortgage instrument. She does not identify any comparators on her race discrimination claims.
As to the termination, the plaintiff admitted in her deposition that she was unaware of anyone else who made the changes she did in a mortgage document
Aerotek does not argue pretext as to the plaintiff's disparate treatment race discrimination claim. However, as to the plaintiff's retaliation claim, it argues that the plaintiff has failed to show that its reason for removing the plaintiff from the assignment, that Wells Fargo asked it to, was pretextual. (Doc. 40, p. 27.) Not only has the plaintiff not attempted to show that this reason was a pretext for discrimination, she agrees that Aerotek played no part in the decision to terminate the plaintiff. It just informed her that Wells Fargo did not want her back. The employment agreement the plaintiff signed with Aerotek expressly stated that this was a temporary assignment and that "the length of the assignment is subject to the discretion and needs of [Wells Fargo]." (Doc. 42-1, p. 59.) The plaintiff has not shown pretext as to Aerotek.
The retaliation count is based upon the plaintiff being fired after she allegedly complained to Aerotek about discrimination. The Eleventh Circuit has stated:
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008). The defendant argues that the plaintiff cannot establish her prima facie case of retaliation, and that, even if she could, the plaintiff has not established that the stated reason for her termination was pretextual.
Aerotek argues that the plaintiff cannot show that she engaged in statutorily protected activity, and that, even if she did, she cannot show that that activity caused her to be fired.
The Eleventh Circuit has stated:
Padilla v. N. Broward Hosp. Dist., 270 Fed.Appx. 966, 970 (11th Cir.2008). Aerotek contends that the plaintiff's alleged complaints were not about conduct that could objectively be considered discrimination. The plaintiff does not respond to this specific argument, only arguing that there are "disputed issues [as to] whether Aerotek was informed of McQueen's discrimination... and if such views were expressed to Wells Fargo." (Doc. 46, p. 27.)
The court will first address the "non-counseling" conduct of Mardis. Assuming, as the court must, that the plaintiff did complain to Aerotek about everything Mardis did, no objective person could determine that Mardis's conduct was discrimination. Again, the plaintiff complains that Mardis: made her mistakes seem like they were worse than other employees; loudly announced every time the plaintiff made a mistake while not telling Strain privately when she made one; spoke to the plaintiff in a condescending manner; acted "like [she] was retarded" if the plaintiff asked any questions; ignored the plaintiff; and gave some of the plaintiff's files to Strain "to help [Strain] out on her production so she would look good." "Title VII... does not set forth a general civility code for the American workplace." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). Such things, while they may have upset the plaintiff, are not objectively discriminatory.
In the discussion, supra, of the plaintiff's disparate treatment claims, this court found that Mardis's counseling of the plaintiff was an adverse employment action because it ultimately was used as a basis for the plaintiff's termination. However, that does not mean that such conduct objectively amounts to discrimination. The plaintiff has not alleged that she did not make the mistakes for which she was counseled. Indeed, she has admitted that she made mistakes and was sometimes behind on her work. Further, her white co-worker, Strain, was also counseled for mistakes. Under these circumstances, an objective person could not determine that these counselings were discrimination.
Because the plaintiff has not shown that she engaged in statutorily protected activity, her prima facie case of retaliation against Aerotek fails.
Additionally, because it is undisputed that Wells Fargo told Aerotek to tell the
As noted in the previous section, the plaintiff has failed to show that Aerotek's stated reason for removing the plaintiff from the assignment, specifically, that Wells Fargo asked it to, was pretextual. For this reason as well, the plaintiff's claim against Aerotek for retaliation fails.
As to Wells Fargo, the complaint alleges disparate treatment race discrimination in violation of both Title VII and 42 U.S.C. § 1981. It also alleges discrimination on the basis of age in violation of the ADEA and the AADEA. Finally, the complaint alleges that Wells Fargo retaliated against the plaintiff in violation of 42 U.S.C. § 1981. Wells Fargo moves to for judgment of dismissal of all of these claims. Each claim will be addressed in turn.
Wells Fargo first argues that it was not the plaintiff's "employer" under Title VII, the ADEA, or the AADEA. All of these statutes require that Wells Fargo be the plaintiff's "employer" for liability to attach. See Reeves v. DSI Sec. Servs., 331 Fed.Appx. 659, 661 (11th Cir.2009) (citing Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); 42 U.S.C. § 2000e-2)("The establishment of an employment relationship is required to obtain relief pursuant to Title VII."); Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d 1398, 1401 (11th Cir.1991) (plaintiff must be employee to sue under the ADEA); 29 U.S.C. §§ 621-634; Ala.Code § 25-1-21 ("No employer, employment agency, or labor organization shall discriminate in employment against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment") (emphasis added).
Again, the plaintiff claims that Wells Fargo and Aerotek were her "joint employers." (Doc. 25, p. 4.) Wells Fargo disputes this, writing:
(Doc. 43, p. 13)(internal citations omitted).
While a direct employment relationship is the usual method by which liability is imposed upon an employer,
Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 992-93 (6th Cir.1997) (citations omitted).
The Eleventh Circuit has held that the basis for finding a joint employer relationship is "`simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.'" Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1360 (11th Cir.1994) quoting National Labor Relations Board v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir.1982). The Eleventh Circuit has more recently stated:
Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1234 (11th Cir.2004). When discrimination is based on an adverse employment decision, the Eleventh Circuit, citing to Virgo, held that the joint employer theory "concentrate[s] on the degree of control an entity has over the adverse employment decision on which the Title VII suit is based." Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir.1998). See also, Clark v. St. Joseph/Candler Health Sys., 225 Fed. Appx. 799, 800 (11th Cir.2007) (citing Virgo and noting that the test for joint employer status is whether the non-direct employer retained sufficient control over the terms and conditions of the employee's employment such that it and the direct employer were joint employers of the employee).
In light of this case law, it is clear that, at least as to the termination, Wells Fargo was the plaintiff's employer. The employment contract states that Wells Fargo would determine how long the plaintiff could remain there. Further, it is undisputed that the plaintiff left Wells Fargo only after Wells Fargo informed Aerotek that it did not want her to return.
Further, even as to Mardis's conduct, Wells Fargo was the plaintiff's employer. It is also undisputed that the plaintiff worked at Wells Fargo's facility, that Wells Fargo directed the plaintiff's work while she was there, that Wells Fargo approved the hours the plaintiff worked, and that Wells Fargo provided and paid for the materials used in the plaintiff's work. Wells Fargo's motion fails in this regard.
Wells Fargo next argues that the Age Discrimination claim against it must fail. It contends first that the plaintiff may not make a "mixed-motive" claim of age discrimination under the ADEA. Next, it argues that the plaintiff cannot establish her prima facie case of age discrimination. Finally, it argues that, even if the plaintiff establishes her prima facie case, she has failed to show that the Wells Fargo's stated reasons for its conduct are a mere pretext for discrimination.
Due to a fairly recent Supreme Court decision dealing with the burden or persuasion in ADEA cases, the Eleventh Circuit has recently set out the following framework within which ADEA claims should be evaluated in a summary judgment context:
Sims v. MVM, Inc., 704 F.3d 1327, 1331-33 (11th Cir.2013).
The defendant argues that, since the plaintiff alleges that the discrimination was based upon both age and race, the case is due to be dismissed. (Doc. 43, p. 16.) It cites the following portion from Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009), where the court held that
Gross, 557 U.S. at 180, 129 S.Ct. 2343. It also cites to Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir.2010), where the Eleventh Circuit, citing Gross, wrote: "Because an ADEA plaintiff must establish `but for' causality, no `same decision' affirmative defense can exist: the employer either acted `because of' the plaintiff's age or it did not." Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir.2010). Wells Fargo then states that "[b]ecause this is precisely the type of mixed-motive claim prohibited by Gross, [p]laintiff's age discrimination claims should be dismissed." (Doc. 43, p. 16.) However, the defendant cites no authority for the proposition that the plaintiff cannot allege that race and age both caused the discrimination at issue. Nor does this court hold that the Supreme Court's decision in Gross should be read so restrictively.
Judge Walker in the Middle District of Alabama recently addressed a similar issue, writing:
Ross v. Renaissance Montgomery Hotel & Spa at the Convention Ctr., 2:11CV301-MEF, 2012 WL 1030323 *4-5 (M.D.Ala. Feb. 27, 2012) report and recommendation adopted as modified, 2:11-CV-301-MEF, 2012 WL 1032618 (M.D.Ala. Mar. 27, 2012); accord Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (requiring an ADEA plaintiff to show that age had a "determinative
Of course, Hazen (cited for this point with approval in Gross, 129 S.Ct. at 2345) is binding upon this court. The court further finds Judge Walker's opinion, and the Archie case cited therein, persuasive and holds that, under the ADEA, the plaintiff can allege that the alleged discriminatory acts were committed both because of her age and race. Consequently, Wells Fargo's motion fails in this regard.
Wells Fargo argues that the plaintiff has not proven a prima facie case of age discrimination. To establish a prima facie case under the ADEA and the AADEA, the plaintiff must show that:
Alexander-Igbani v. Dekalb Cnty. Sch. Dist., 1:11-CV-4535-AT-JSA, 2013 WL 2897251 (N.D.Ga. June 13, 2013) (citing Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998)).
Wells Fargo states that Mardis's conduct cannot be considered an adverse employment action. This court has already determined that, except for the counseling sessions, this is correct. Therefore, Wells Fargo's motion is due to be granted as to all of Mardis's conduct complained of in the complaint other than his conduct relating to the counseling sessions.
It has been noted that "[t]he gravamen of a discrimination case requires a plaintiff to show that a similarly situated employee outside of plaintiff's protected class was treated more favorably." Marcelin v. Eckerd Corp. of Florida, Inc., 8:04-CV-491-T-17MAP, 2006 WL 923745 *5 (M.D.Fla. Apr. 10, 2006) (citing e.g., Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1313 (11th Cir.1998), superseded in part by 151 F.3d 1321 (11th Cir. 1998)). Where the plaintiff fails to provide evidence of a comparator, his claim fails. See e.g., Connor v. Bell Microproducts-Future Tech, Inc., 492 Fed.Appx. 963, 966 (11th Cir.2012) (plaintiff failed to establish a prima facie case of race or age discrimination, when he did not establish a similarly-situated comparator).
The plaintiff identifies Strain as her comparator for her age discrimination claims. At the time of her termination, the plaintiff was age 62. (Doc. 25, p. 2.) It is undisputed that Strain was 50 years old at the time of the events alleged in the complaint. (Doc. 43, p. 7; doc. 46, p. 4.) The Eleventh Circuit has held that an age difference as little as 3 years is "substantially younger." See Carter v. Decision-One Corp. Through C.T. Corp., 122 F.3d 997 (11th Cir.1997) (explaining that the Eleventh Circuit has found a three-year age difference to be "legally significant for ADEA purposes"); see also Carter v. City of Miami, 870 F.2d 578, 582-83 (11th Cir. 1989) (finding that a prima facie ADEA case was established when a 49-year-old plaintiff was replaced by a 46-year-old woman). Strain was twelve years younger than the plaintiff and held the same position and performed the same duties that the plaintiff held and did. Thus, to the extent that Wells Fargo's motion is based on plaintiff's identified comparator being
Still, as also argued by Wells Fargo, the plaintiff has made no attempt to show that Strain is "similarly situated in all relevant respects" to the plaintiff. Even assuming that she was similarly situated, as explained supra in the discussion of Aerotek's motion, the plaintiff admits that Mardis counseled Strain for her mistakes as well. Further, there is no evidence that Strain made the same type of change to a mortgage and was not fired. The plaintiff has failed to provide evidence of any similarly situated employee who was treated differently. Thus, Wells Fargo's motion is due to be granted as to the age discrimination claims on this alternative basis.
Finally, Wells Fargo argues that the plaintiff has failed to show that its reason for not wanting her to return was actually a pretext for discrimination. To establish pretext, the plaintiff has to demonstrate that the proffered reason for the actions taken against her was not the true reason for the employment decision. "[The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proferred explanation is unworthy of credence." Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir.2006) quoting Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.2005). She could do the latter by pointing to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the proferred explanation. Id. Thus,
Brooks, 446 F.3d at 1162-63.
As noted supra in the discussion of Aerotek's motion, the only adverse employment actions which the plaintiff identified are her termination and Mardis's publicly counseling her for lack of production, being behind in her work, not performing her job correctly, and the one time she did not keep her Wells Fargo email open. (Doc. 46, p. 21.)
Wells Fargo states that the counselings did not occur because of the plaintiff's age or race, but occurred because the plaintiff actually had these performance issues. The plaintiff makes no attempt in her response
Wells Fargo states that it asked Aerotek not to have the plaintiff return to work because the plaintiff
(Doc. 43, p. 24.) The plaintiff attacks this reason only by arguing that the defendants have offered "inconsistent post-hoc explanations for [the] decision." (Doc. 46, p. 22.) Specifically, she notes that Warner stated in his declaration that "[s]omeone at Wells Fargo contacted Aerotek to request that Ms. McQueen be removed from her assignment at Wells Fargo because she had falsified loan documents, had low productivity, and failed to follow instructions." (Doc. 42-2, p. 3.) She compares that statement to Mardis's declaration, where he calls what the plaintiff did a "mistake," and states that he is unaware of anyone else who has made that same mistake who was not released. (Doc. 42-5, p. 6.) Lastly, the plaintiff notes that, in a response to the Alabama Department of Industrial Relations's request for information, provided by an agent of Aerotek, Aerotek stated that the plaintiff "was discharged for misconduct related to performance. The claimant made a mistake and instead of asking how to fix the mistake she tried to do it herself which involved forging a mortgage document." (Doc. 47-1, p. 11.)
In Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 210 (11th Cir.2008) the Eleventh Circuit noted that there was a different between additional and inconsistent reasons for termination. The court wrote:
Phillips v. Aaron Rents, Inc., 262 Fed. Appx. 202, 210 (11th Cir.2008) (emphasis added). The reasons given by the defendants are not fundamentally inconsistent with each other. While sometimes they may have referred to the modification of the loan document as a mistake, other times as falsification, and still other times as forgery, there is no evidence, as the plaintiff suggests, that calling it "fraud" or "falsifying" or "mistake" made a difference. The reasons for her termination are that she was not doing the job the way Wells Fargo expected, and that she changed the mortgage document. None of the defendants' explanations is inconsistent with these reasons. The plaintiff has failed to show pretext. Accordingly, Wells
The only difference between this claim and the disparate treatment claim made against Aerotek, is that, as against Wells Fargo, the claim is also made under Title VII, whereas it was made against Aerotek only under 42 U.S.C. § 1981. "The same analysis applies to claims for employment discrimination brought under Title VII as to those brought under § 1981." Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 207 (11th Cir.2008). Accordingly, the analysis is the same and the disparate treatment claims against Wells Fargo fail, as they did against Aerotek, because, as to the only adverse employment actions the court has found, the counseling sessions and the termination, the plaintiff has no evidence of any comparators. The claim also fails because the plaintiff has not shown that the reasons that Wells Fargo gave for these actions are a pretext for discrimination.
As shown in the discussion of the retaliation portion of Aerotek's motion, the plaintiff's retaliation claim against Wells Fargo fails because the plaintiff cannot show that she engaged in statutorily protected activity.
Wells Fargo also argues that the causation element is not met because there is no evidence that the plaintiff ever complained to anyone at Wells Fargo about any alleged discrimination. In her response brief, the plaintiff only states that "[t]here is a disputed issue of fact [as to] whether Aerotek was informed of McQueen's discrimination complaint and if such views were expressed to Wells Fargo." (Doc. 46, p. 27.) The plaintiff is incorrect. She has only produced evidence that she spoke to Aerotek employees about the conduct. In her deposition, the plaintiff stated that she did not know whether anyone at Wells Fargo had any knowledge of the complaints. (Doc. 42-1, p. 25.) The plaintiff admits that neither Dean nor Warner reported any such complaint to Wells Fargo. (Doc. 40, p. 14; doc. 46, p. 3.) She also admits that Aerotek did not inform anyone at Wells Fargo about the plaintiff's complaint. (Doc. 43, p. 11; doc. 46, p. 4.)
The Eleventh Circuit has held:
Bass v. Bd. of Cnty. Comm'rs, Orange Cnty., Fla., 256 F.3d 1095, 1119 (11th Cir. 2001) (overruled on other grounds). Absent evidence that anyone at Wells Fargo knew about the alleged protected conduct, the retaliation claim fails as to this defendant.
Based on the foregoing, the court finds that there is no genuine issue of material fact and that the movants are entitled to judgment as a matter of law on all of the claims against them. Accordingly, it is
Further, even if the court were to find that such a claim had been made, the parties have cited no evidence of harassment based upon race. Accordingly, a hostile work environment claim, had it been made, would also fail on the merits. See Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir.2009) (setting out prima facie elements).
