VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Melissa Kohser ("Ms. Kohser") initiated this job discrimination case against Protective Life Corporation ("Protective") on November 15, 2015, relating to her demotion and subsequent dismissal from the company. (Doc. 1). Her complaint contains seven counts: Count One is for discrimination under the federal Age Discrimination in Employment Act ("ADEA") (Doc. 1 ¶¶ 35-48); Count Two is for discrimination under the Alabama Age Discrimination in Employment Act ("AADEA") (Doc. 1 ¶¶ 49-54); Count Three is for race discrimination, harassment, and retaliation under 42 U.S.C. § 1981 (Doc. 1 ¶¶ 55-62); Count Four is for Title VII gender discrimination (Doc. 1 ¶¶ 63-69); Count Five is for violations of the Equal Pay Act (Doc. 1 ¶¶ 70-77); Count Six is for negligent and wanton hiring, training, supervision, and retention (Doc. 1 ¶¶ 78-85); and Count Seven is for conversion. (Doc. 1 ¶¶ 86-98).
This matter is before the court on the objections (Doc. 60) of Ms. Kohser to Magistrate Judge John H. England, III's report and recommendation (the "R&R") (Doc. 59),
The R&R was entered on January 13, 2015.
Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to `come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
A plaintiff in an employment discrimination case maintains the ultimate burden of proving that the adverse employment decision was made because of intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) ("Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984) ("A Title VII disparate treatment plaintiff must prove that the defendant acted with discriminatory purpose." (citing Clark v. Huntsville City Board of Education, 717 F.2d 525, 529 (11th Cir. 1983))).
Although the Supreme Court has established the basic allocation of burdens and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra; Desert Palace v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 56 L. Ed. 2d 84 (2003), that framework applies only in cases in which there is no direct evidence of discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987) ("The McDonnell Douglas-Burdine patterns of proof were designed to ease the evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are fortunate enough to have access to direct evidence of intentional discrimination."(citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir. 1985), abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L. Ed. 2d 40 (1993))).
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden of proving by a preponderance of evidence a prima facie case of discrimination. Second, once the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden, the plaintiff must either prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination or present sufficient evidence, of any type, for a reasonable jury to conclude that discrimination was a "motivating factor" for the employment action, even though the defendant's legitimate reason may also be true or have played some role in the decision. McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26; Burdine, 450 U.S. at 252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155.
The ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In order to fall under the ADEA's protections, an employee must be "at least 40 years of age[,]" 29 U.S.C. § 631(a), and the plaintiff "retains the burden of persuasion to establish that age was the `but-for' cause of the employer's adverse action."
The Eleventh Circuit "has adopted a variation" of the prima facie case standard articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir. 1992). "Under this variation of the McDonnell Douglas test for establishing a prima facie case of discrimination, the plaintiff must show that he (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was subject to adverse employment action, (3) was replaced with [or not selected for a position over] a person outside the protected group, and (4) was qualified to do the job." Mitchell, 967 F.2d at 566 (citing Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)); see also Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1333 (11th Cir. 1998) ("To establish his prima facie case of discriminatory failure to promote, Standard must show that (1) he was in a protected group; (2) he was not given the promotion; (3) he was qualified for the position and (4) someone outside of the protected group was given the position." (citing Coutu v. Martin County Bd. of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995))).
"If this is done, the defendant has the burden of going forward and articulating a legitimate, non-discriminatory rationale for the [adverse employment action]." Verbraeken, 881 F.2d at 1045. "Finally, if the defendant rebuts the presumption of discrimination, the plaintiff must prove by a preponderance of the evidence that the employer's asserted reason is merely a pretext for a discriminatory [action]." Id.
Ms. Kohser also asserts violations of the AADEA. Claims arising under the AADEA are analyzed according to the same framework as the ADEA. See Robinson v. Alabama Cent. Credit Union, 964 So.2d 1225, 1228 (Ala. 2007) ("[T]he federal courts have applied to AADEA claims the same evidentiary framework applied to federal age-discrimination claims."); id. (citations omitted) ("We agree that this framework . . . is the proper means by which to review an AADEA claim.").
After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982),
A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006).
"Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court."). However, the district judge has discretion to consider
"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
The R&R recommends that summary judgment be granted in favor of Protective on all counts of Ms. Kohser's complaint. In the introductory section of her objections, Ms. Kohser only plainly challenges the dismissal of her claims for age and sex discrimination:
(Doc. 60 at 2-3).
Further, the substance of Ms. Kohser's specific objections are largely limited to the magistrate judge's disposition of her age and gender discrimination claims. First, Ms. Kohser contends that the magistrate judge ignored Protective's failure to follow its established procedures before demoting her and terminating her employment. (Doc. 60 at 11-16). Second, Ms. Kohser complains that the magistrate judge ignored her own testimony when he found that there was no evidence to show that she was unaware of any performance issues before Protective demoted her. (Doc. 60 at 17-18).
Third, Ms. Kohser maintains that the magistrate judge improperly used the so-called "same actor" and "same group" inferences when recommending that summary judgment be granted on Ms. Kohser's age discrimination claim. (Doc. 60 at 18-22). Fourth, Ms. Kohser argues that the magistrate judge erred in concluding that Protective's decisionmaker had an honest and good faith belief for his employment-related actions that adversely affected her. (Doc. 60 at 22-28). Fifth, Ms. Kohser urges that the magistrate judge's R&R is wrong as a convincing mosaic of facts establish the existence of gender and/or age discrimination. (Doc. 60 at 28-29).
Finally, Ms. Kohser resists the dismissal of her derivative common-law negligent training count premised upon the AADEA and concludes her objections as follows:
(Doc. 60 at 29-30).
The court has studied Ms. Kohser's objections (Doc. 60) and nothing contained in them specifically contests or otherwise brings into question the analysis conducted by the magistrate judge in recommending a dismissal of Counts Three, Five and Seven. Instead, in contesting the R&R "in its entirety," Ms. Kohser has, at best, raised merely a generalized objection concerning these counts. As a result, this means that the magistrate judge's treatment of them is subject to only clear error scrutiny by this court.
Further, the court agrees with the contents of the R&R as to these three counts and concludes that a dismissal of them on summary judgment is appropriate. Accordingly, Ms. Kohser's general objection is
After her introductory section, Ms. Kohser sets out a summary of facts and claims which spans over ten pages. (Doc. 60 at 3-11). Ms. Kohser's facts do not correspond with the statement provided by the magistrate judge in his R&R, fail to indicate where any of her facts deviate from the R&R, and lack specific citations to the record.
As for support for her version of the facts, in a footnote Ms. Kohser vaguely states:
Doc. 60 at 3 n.1.
To the extent that Ms. Kohser's factual summary can be construed as an attempted solitary or multifaceted objection to the R&R, it is
Ms. Kohser directly contests only the proposed dismissal of Counts One (age discrimination under the ADEA), Two (age discrimination under the AADEA),
In the first section of her specific objections, Ms. Kohser, citing to several binding and non-binding authorities, contends that, in recommending summary judgment in favor of Protective, the magistrate judge improperly failed to factor in (i) Mr. Bell's delay in explaining his reasons for demoting Ms. Kohser, and (ii) Protective's deviation from its progressive-discipline policy as evidence of age or gender-related pretext in the decisions to demote and fire her. (Compare Doc. 60 at 12 ("It was only after this interaction with HR that Bell created his reasons to justify the demotion of Kohser."), with Doc. 59 at 31 ("[T]he fact the reasons were not communicated to Kohser [in writing] is not indicative of discrimination.")).
In support of her contention that Mr. Bell's delay in detailing why she was being demoted is relevant to the issue of pretext, Ms. Kohser cites to the unpublished panel decision of Mock v. Bell Helicopter Textron, Inc., 196 F. App'x 773 (11th Cir. 2006) for the proposition that "[t]he Eleventh Circuit has held that delays in explaining the basis for an adverse employment action is [sic] relevant to the issue of pretext." (Doc. 60 at 12). The court rejects this part of Ms. Kohser's objections for several reasons. First, Mock is merely persuasive authority and, consequently, to the extent the opinion arguably suggests that
Second, Mock involves a significantly distinguishable record. As the panel explained its pretext analysis in Mock:
196 F. App'x at 774.
Ms. Kohser states in her objections that when she "tried to get
As the relevant portions of Ms. Kohser's deposition transcript from those pinpointed pages specifically read:
(Doc. 18-1 at 54-55 at 213-15 (emphasis added)). Thus, Ms. Kohser's deposition testimony fails to establish that she asked Mr. Bell
As for Ms. Kohser's pretext challenge premised upon Protective's disciplinary policy, while the Eleventh Circuit has held that departing from
Additionally, as a Rule 30(b)(6) designated witness for Protective, Human Resources Director Melanie Taylor McNary ("Ms. McNary") testified, the Corrective Action Form is not always used for disciplining management level employees, like Ms. Kohser. (Doc. 21-3 at 10 at 37-38; see id. at 37 ("It does not have to be a three-step process. Managers can skip levels, based on how egregious the performance deficiencies are; and there may be cases where the form is not used at all.")). In her objections, Ms. Kohser makes no effort to factually refute this Rule 30(b)(6) evidence relied upon by the magistrate judge. Further, in reviewing the record on a de novo basis and in light of Ms. McNary's unrebutted testimony about how deviations under the non-mandatory progressive disciplinary policy were not uncommon for managerial employees, Ms. Kohser has not adduced evidence from which a reasonable jury could conclude that Mr. Bell's treatment of her was a suspicious anomaly designed to cover up discrimination.
Additionally, while Ms. Kohser passingly asserts that Rita Cook ("Ms. Cook") (who the record shows is African-American) is an appropriate comparator of hers (Doc. 60 at 14 n.2), Ms. Kohser makes
As for age, Ms. Kohser does not state in her objections how old Ms. Cook is and, the mere favorable treatment of another employee, without more, does not establish valid comparator status. Further, even if Ms. Cook's age places her outside of the ADEA's protected category or establishes that she is "significantly younger" than Ms. Kohser, Ms. Kohser's position as a managerial employee means that her reliance upon Protective's treatment of a non-managerial employee, such as Ms. Cook, is not an adequate comparison. As Ms. McNary's uncontradicted testimony illustrates, Ms. Kohser and her subordinate employee, Ms. Cook, are not similarly situated when it comes to treatment under Protective's progressive disciplinary policy-the three-step process is not always followed with Protective's managerial employees. Cf. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011) ("Although Mitten pointed to certain preferentially treated black employees in non-supervisory positions, he failed to identify a more favorably treated black supervisory employee.").
Therefore, after having conducted a de novo review, for all the reasons stated above, the first part of Ms. Kohser's specific objections is
In the second section of her specific objections, Ms. Kohser contends that the magistrate judge improperly failed to factor in evidence, including her affidavit, that she was never told of any performance issues before her demotion. (See Doc. 60 at 17 (citing to Doc. 59 at 29 n.44)). Ms. Kohser also points out that, in the related evidentiary Memorandum Opinion and Order (Doc. 58) entered by the magistrate judge on January 7, 2015, he accepted much of Ms. Kohser's affidavit, including her lack of prior knowledge.
In footnote 44 of the R&R, the magistrate judge acknowledges that one reasonable reading of the record substantiates that her supervisor, Mr. Bell, never talked to Ms. Kohser about her deficiencies before he demoted her. (See Doc. 59 at 29 n.44 ("At best, this would show there is no evidence he talked with her . . . .")). Therefore, the court disagrees with Ms. Kohser's position that the magistrate judge's R&R turns upon an erroneous factual finding that she had knowledge of Mr. Bell's concerns about her performance issues in advance of her demotion.
Alternatively, even if the magistrate judge's R&R disregards the evidence contained in Ms. Kohser's affidavit and finds that Ms. Kohser had prior notice of Mr. Bell's dissatisfaction with her performance leading up to her demotion and discharge, such finding is of no consequence because, as the court has already explained above, Ms. Kohser is unable to substantiate that Mr. Bell treated her less favorably than others outside of her protected age or gender status under its non-mandatory progressive disciplinary policy, and whether Ms. Kohser ever
Accordingly, after having conducted a de novo review, for all the reasons stated above, the second part of Ms. Kohser's specific objections is
Concerning her age discrimination claim
In Williams v. Vitro Services Corp., 144 F.3d 1438 (11th Cir. 1998), the Eleventh Circuit explained the contours of the same actor inference:
144 F.3d at 1442-43 (emphasis added). Thus, in Williams, the Eleventh Circuit has made it clear that, within this Circuit, while the same actor inference may be a proper consideration for a jury, it is not for a court to use when deciding motions for summary judgment. Consequently, the third portion of Ms. Kohser's specific objections to the R&R in this
The Eleventh Circuit's treatment of the same group inference is less clear, as Williams only expressly deals with the same actor inference. The court is unaware of any binding authority which firmly discusses whether a district court can properly rely upon the same group inference in granting summary judgment, but several cases at least persuasively suggest that using such an inference when granting summary judgment is permissible.
For example in Ehrhardt v. Haddad Restaurant Group, Inc., 443 F. App'x 452 (11th Cir. 2011), an unpublished panel reasoned on summary judgment:
Ehrhardt, 443 F. App'x at 456; see also Howard v. Steris Corp., 886 F.Supp.2d 1279, 1300 (M.D. Ala. 2012) ("And because they were in the same protected [age] class, it makes it unlikely they would discriminate against him on the basis of a shared characteristic." (citing Elrod)).
Similarly, in reversing the judgment entered on a jury verdict in Elrod, the Eleventh Circuit found that the plaintiff failed to offer "any substantially probative evidence that age more likely than not motivated his discharge" and further indicated that the plaintiff "faces a difficult burden . . . because all of the primary players behind his termination . . . were well over age forty and within the class of persons protected by the ADEA." 939 F.2d at 1471. However, Elrod was decided on a trial record and does not directly address to what degree the same group inference can be invoked by the court on summary judgment.
However, despite any conceivable legal error committed by the magistrate judge in relying upon the same actor and same group inferences, the court nonetheless concludes that summary judgment is still appropriate on Ms. Kohser's age discrimination claim due to the absence of sufficient pretext. In an effort to demonstrate satisfaction of this prong in the context of her age discrimination claim, Ms. Kohser relies upon what she claims to be examples of age-stereotyping made about her in the factual portion of Protective's brief filed in support of its Motion:
(Doc. 60 at 20 (citing to factual portion of Protective's brief filed in support of its Motion)). As her primary legal authority, Ms. Kohser cites to Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988) as well as other two other later cases arising in the Fifth Circuit, Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005) and Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004).
In Bienkowski, the plaintiff's "supervisors allegedly commented that Bienkowski looked `sharp' if he was going to look for another job. The supervisors also commented on his inability or willingness to `adapt' to new systems in the department." 851 F.2d 1503, 1507 n.4. In reversing the district court's order granting summary judgment, the Fifth Circuit held:
Bienkowski, 851 F.2d at 1507, 1508 (emphasis added).
As the magistrate judge correctly contrasted this record with that before the Fifth Circuit in Bienkowski, the level of specific evidence presented by Ms. Kohser concerning the caliber of her job performance is lacking. (Doc. 59 at 50). Thus, Ms. Kohser simply has not met the Bienkowski standard,
Alternatively, to the extent that Ms. Kohser's meager evidence is enough to satisfy Bienkowski, the court is not persuaded to follow that authority. Bienkowski is not binding on this court and, based upon this court's own independent research, the Eleventh Circuit has neither cited to Bienkowski favorably nor embraced its "barely sufficient" formula in finding a triable claim under the ADEA. Cf. Rachid, 376 F.3d at 315 ("Comments to look `sharp' and comments concerning an employee's willingness to `adapt' to new systems
Accordingly, after having conducted a de novo review, for all the reasons stated above, the third part of Ms. Kohser's specific objections is
The fourth part of Ms. Kohser's specific objections suggests that summary judgment is inappropriate because "Bell did not act on the basis of an honest good faith belief that Kohser was unable to perform her duties when he demoted and later terminated her." (Doc. 60 at 27). Ms. Kohser further states that "the [m]agistrate [j]udge's conclusion that Defendant has established the good faith belief defense is erroneous." (Id. at 28). In asserting this objection, Ms. Kohser fails to reference any specific pages of the R&R in which she contends the magistrate judge erred. Consequently, the specific objection is
The objection is also
However, as explained in Elrod v. Sears, Roebuck and Co., 939 F.2d 1466 (11th Cir. 1991), the honest belief rule is a binding employment law principle within the Eleventh Circuit that deserves consideration on summary judgment.
Elrod, 939 F.2d at 1470.
Further, the magistrate judge appropriately described and relied upon the honest belief rule in his R&R. (See Doc. 59 at 51 ("Although Kohser has presented her own testimony to support her contention Bell's reasons for demoting and terminating her were erroneous, she has been unable to present evidence leading to a reasonable inference Bell, the decisionmaker, did not have a good faith belief in the truth of his reasons, which is the question relevant to his intent.")).
Accordingly, after having conducted a de novo review, for all the reasons stated above, the fourth part of Ms. Kohser's objections is
Ms. Kohser alternatively contends that, regardless of her ability to satisfy the more common comparator evidence model, a convincing mosaic of a facts establishes a material factual dispute about Protective's discriminatory intent in its treatment of her. (Doc. 60 at 28); see also Smith, 644 F.3d at 1328 ("A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents `a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination
However, in an attempt to validate her gender and age claims under this convincing mosaic framework, Ms. Kohser merely points out that a male took over her duties and that Protective (incorrectly, according to Ms. Kohser) claims "that she was unwilling to adapt to change." (Doc. 60 at 29). As explained in more detail below, these parts of the record do not
For example, merely because a male employee subsequently assumed her job duties, this fact, alone, does not create a reasonable inference that Mr. Bell demoted and fired Ms. Kohser on the basis of her gender. Instead, given Mr. Bell's performance-related explanation for his treatment of Ms. Kohser and in the absence of a suitable comparator, more circumstantial evidence of a gender bias on the part of Mr. Bell or some other gender-driven proof would be needed for a reasonable jury to infer the existence of gender discrimination under Smith's mosaic model.
As for her age claim, Protective has taken the position in its brief as well as in other parts of the record that Ms. Kohser was "resistant to changes." (Doc. 19 at 15 ¶ 77 (citing Doc. 18-1 at 49 at 166-69; Doc. 21-2 at 27-31 at Ex. 36)).
However, the particular underlying evidence relied upon by Protective in an effort to substantiate this factual contention has nothing to do with Mr. Bell or any arguably age-driven comments that he (or any other employee) made about Ms. Kohser. Instead, Protective references only Ms. Kohser's own deposition testimony, (which describes her dealings with Tonya Pettis ("Ms. Pettis") over the preparation of Protective's Schedule S to be filed with regulatory agencies), and contends that this evidence underscores Ms. Kohser's resistance to change. (See Doc. 18-1 at 49 at 166-69; see also Doc. 21-2 at 27-31 at Ex. 36 (attaching email communications between Ms. Kohser and Ms. Pettis about Schedule S)).
Relying upon Protective's factual contention made in its brief to circumstantially show Mr. Bell's discriminatory age-based intent misses the mark in several respects. First, this factual contention offered in a brief is not evidence, but rather only Protective's lawyer's characterization of the evidence. Second, the critical inquiry in this circumstantial evidence case is whether Mr. Bell, the undisputed sole decisionmaker, ever expressly made any discriminatory comments or otherwise demonstrated a discriminatory animus from which a reasonable jury could infer the existence of age discrimination. Cf., e.g., Steger v. General Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003) ("A decision maker's discriminatory comment which may not qualify as direct evidence of discrimination may constitute circumstantial evidence which could assist a jury in disbelieving the employer's proffered reasons for the adverse action.").
Here, Ms. Kohser has only linked one nebulous arguably age-related assessment of her by Mr. Bell. See court's discussion of Protective's EEOC position statement at 31 n.15, supra. Ms. Kohser has not developed a record from which a reasonable jury could conclude that Mr. Bell's had an age-focused bias that infused the decisionmaking process.
Instead, granting summary judgment on Ms. Kohser's gender and age claims is consistent with the Supreme Court's decision in Reeves:
Reeves, 530 U.S. at 148, 120 S. Ct. at 2109 (emphasis by underlining added).
Here, to the extent that Ms. Kohser has created an issue of fact about the truthfulness of Mr. Bell's decision to demote and fire her, she has, at best, only shown a weak dispute or a weak mosaic of discriminatory evidence. Further, the record otherwise confirms that Mr. Bell's decision was free from any considerations of Ms. Kohser's age or gender.
Accordingly, after having conducted a de novo review, for all the reasons stated above, the fifth part of Ms. Kohser's specific objections is
Finally, within the conclusion of her objections, Ms. Kohser states that "[b]ecause [she] can establish that she was demoted and/or terminated because of her age, the Magistrate Judge erred in recommending that her claim for Negligent/Wanton Hiring, Training, Supervision, and Retention Claim be dismissed." (Doc. 60 at 29-30).
Because this court has concluded de novo that Ms. Kohser has no triable age discrimination claim, it agrees with the magistrate judge that "her derivative claim [premised upon the AADEA] for negligent/wanton hiring, training, supervision, and retention is due to be
Accordingly, after having conducted a de novo review, for all the reasons stated above, the sixth part of Ms. Kohser's objections is
For the reasons set out above, the court
Rachid, 376 F.3d at 315-16 (emphasis added).
644 F.3d at 1340. Ms. Kohser's purported discriminatory proof is considerably less.
