JOHN H. ENGLAND, III, Magistrate Judge.
Plaintiff Lou Ann Maddox ("Maddox") brings this action against Defendants Grimmer Realty, Grimmer Realty Co., Inc., GRC Management LLC ("GRC Management"), and Quintard Mall, Ltd. ("Quintard Mall") (collectively "Defendants") alleging a racially hostile work environment, race and gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§1981"). (Doc. 47, Second Amended Complaint). Defendants seek summary judgment. (Doc. 68). The motion is fully briefed and ripe for review. (Docs. 68, 72, 78). For the reasons stated more fully below, Defendants' motion for summary judgment, (doc. 68), is
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish there is a "genuine issue for trial." Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact 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 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
GRC Management
On October 30, 2009, Maddox sued Grimmer Realty, a non-existent entity,
Quintard Mall and Grimmer Realty Co., Inc. have never had any employees. (Docs. 69-7 at 3; 69-8 at 3; & 69-9 at 4 (6:11-7:5)). Maddox was employed and paid by GRC Management. (Doc. 69-9 at 4 (7:6-9)). GRC Management had more than fifty employees in 2007, 2008, 2009, 2011, and 2012. (Doc. 69-6 at 17). Park Grimmer, along with his sister, Susan Grimmer, own GRC Management. (Doc. 69-9 at 4 (8:22-9:19)). Park Grimmer's email signature identifies him as the president of "Grimmer Realty Co, Inc." (Doc. 73-1 at 2).
Maddox became re-employed by GRC Management in September 2007, in the security department and reported to Dave Sailors ("Sailors"), the Operations Manager at the time. (Docs. 69-1 at 25-27 (95:12-101:2, 69-4, & 69-13)). Upon beginning each employment, Maddox was provided an opportunity to review the mall's Equal Opportunity and Anti-Harassment Policy, once in 2002 and once in 2007. (Docs. 69-3 at 20-13, 69-4 at 14-22, & 69-9 at 35 (131:18-19, 132:11-16)).
Amy Stone ("Stone"), a white female, became General Manager ("GM") of Quintard Mall in March 2008 and was GM during all relevant times. (Doc. 69-9 at 5 (10:18-11:10)). Stone reported to Park Grimmer. (Id. at 4 (9:20-21)). In approximately June 2008, Glenn Allgood ("Allgood"), a white male, became Operations Manager and "second-in-command" under Stone when Sailors retired. (Docs.69-14 at 6 (16:7-12), 23 (84:6-23) & 69-15 at ¶3). As operations manager, Allgood supervised approximately thirty employees and exercised the power to hire and fire, discipline, and award raises. (Doc. 69-14 at 7 (20:3-16)). Allgood was responsible for managing the maintenance and housekeeping departments. (Doc. 69-9 at 6 at 12-20).
Maddox worked in security until approximately February or March 2008 when she was offered a raise and agreed to move to maintenance, coming under the supervision of Allgood and Maintenance Supervisor Bridgett Ford ("Ford"), a white female. (Doc. 69-1 at 30-31 (116:7-117:15, 119:2-18), 69-5 at 11, 69-14 at 23 (83:9-84:2) & 69-16 at 6 (14:11-15:6)). Ford was Housekeeping Supervisor before becoming Maintenance Supervisor. (Doc. 69-16 at 4-5 (8:2-11, 13:3-5)). Although Maddox initially testified that she did not recall having any complaints about anyone she worked with while she worked in security, (doc. 69-1 at 30 (116:13-19)), and that she did not have any complaints about Allgood or anyone else when she worked in maintenance, (id. at 33-34 (128:22-129:6)), Maddox later testified, (apparently when the question was clarified), that while she worked in security, Sherry Cobb ("Cobb"), her second shift supervisor, called her a "Cherokee squaw" and often used the word "nigger" around her, (id. at 30, 40 (114:21-115:5,19-21)). These allegations will be addressed more fully below.
After about a month in maintenance, Maddox was asked to transfer to housekeeping and accepted the position of housekeeping supervisor over the second shift, making more money. (Docs. 69-1 at 31-32 (118:12-119:15, 120:16-121:23) & 69-5 at 12). Maddox worked as second shift housekeeping supervisor, supervising two people, for "about three months" until July 30, 2008, when she was transferred to the floor crew, keeping her same rate of pay and again coming under Allgood and Ford's supervision. (Docs. 69-1 at 33-34, 45, 47 (126:21-127:16, 130:7-13, 173:4-174:3; 182:18-20 & 69-5 at 13).
Maddox testified, when she went to third shift floor crew, Don Van Vleck ("Van Vleck"), a white male and regular maintenance employee, told her she "was being stuck with [her] own kind." (Doc. 69-1 at 47 (183:7-10)). Allgood was present at the time Van Vleck made this comment. (Id. (183:21-23)). Because the only person on floor crew at the time was a black male, Maddox testified she didn't understand the comment. (Id. (184:16-17)). Defendants offer evidence Allgood and Ford moved Maddox to floor crew because she had experience operating the necessary machinery (a "tenant machine"), and the position opened when another employee was terminated. (Docs. 69-5 at 13, 68-14 at 22-23 (81:15-82:4), 69-16 at 7, 19 (18:12-20:18, 66:17-67:21), ¶ 69-15 at ¶10).
As indicated above, Maddox testified
(Doc. 69-1 at 40 (155:13-23)). Maddox told Cobb she "didn't like that kind of language" and told Sailors she didn't like the way Cobb was talking about other races. (Id. at 40-41 (156:18-157:2, 16-18)).
Maddox also testified that, in May or June 2008, Allgood, in Ford's presence, asked her what "race [she had] in her besides white." (Doc. 69-1 at 37 (142:3-22)). She further testified Van Vleck "started calling [her] names not long after [she] told [Allgood and Ford] what [her] race was. It was shortly after that he started." (Id. at 38 (147:14-148:2)).
In June or early July 2008, when she was still a second shift supervisor, Maddox claims to have had problems with the first shift housekeeping supervisor, Carolyn Gore ("Gore"), a white female.
(Doc. 69-1 at 34-35 (132:14-133:8)). She continued:
(Id. at 35 (135:16-136:16)). At some point in time, Van Vleck told Maddox (in Allgood's presence) that she did not fit in with his kind, which Maddox understood as meaning white people. (Doc. 69-2 at 16 (242:12-22)). Maddox told Ford, Allgood, and Stone about these issues, and they told her they would get her some help, but never did. (Doc. 69-1 at 35-36 (136:19-137:14)).
Maddox went to Stone "in late June or early July" 2008 and "broke down crying." (Id. at 36 (139:6-20)). Maddox testified she "went into [Stone's] office and told her [she] need[ed] to talk to her . . . [a]nd tried to explain to her what happened." (Id.; see also doc. 69-5 at 23-41). Stone told Maddox she would deal with the issue. (Id. (139:20-21)). Maddox testified:
(Id. (139:20-140:8)). Maddox tried to report this incident to Stone, but she wouldn't listen. (Id. at 140:12-20). The others, presumably Allgood, Ford, and Gore, told Maddox Stone was only over security, and not to deal with her anymore. (Id.). Because Ford, Gore, and Allgood's offices were on the hall before Stone's office, Maddox believed there was always someone preventing her from reporting these incidents to Stone. (Doc. 69-2 at 2 (187:11-18)). They also threatened Maddox's job if she complained to Stone or Park Grimmer. (Doc. 69-1 at 43-44 (168:19-169:4)).
At one point when Park Grimmer was visiting the mall, he asked Maddox how things were going. (Id. at 44 (169:10-17)). Maddox testified she wanted to tell him, but Allgood was standing behind Park Grimmer shaking his head "no." (Id.). According to Maddox, Allgood took his thumb and made a horizontal motion across his throat indicating to Maddox she better not say anything to Park Grimmer. (Id.).
At the end of July/early August 2008, people did not ask Maddox if she was ok when she returned to work after being out sick, "[w]hen [she] tr[ied] to talk to anyone they ignore[d] [her]," Allgood sent Gore to "buy breakfast for all employees but [her]," and she "wasn't even asked if [she] wanted anything," and Gore and Ford bought everyone else breakfast for two separate occasions but not her. (Docs. 69-2 at 12 (226:5-20) & 69-5 at 23-41).
Maddox also claims Gore, Ford, Allgood, Van Vleck, and Cobb (discussed above) made comments about her Native-American race. (Doc. 69-1 at 37 (142:23-243:5)).
(Doc. 69-1 at 37 (143:2-144:8)). Maddox verbally reported Gore's statements to Allgood and Stone but did not put them in writing. (Id. at 37-38 (146:20-147:13)).
(Id. at 41 (157:22-158:22)).
Maddox alleges Van Vleck made similar comments:
(Doc. 69-1 at 38-39 (147:14-148:13, 149:13-14). Maddox further testified
(Id. at 42 (162:5-163:6)).
Maddox claims another co-worker, Drenda Rogers, a white female, called her a Cherokee squaw. (Id. at 43 (165:6-166:6)). Maddox also claims a white male employee named Michael, whose last name she cannot remember, called her a "Cherokee squaw and savage. And he asked [her] how did Cherokee squaw women fuck." (Id. at 44 (171-13-21)). Maddox testified she reported this incident to Allgood, who just laughed. (Doc.69-1 at 44 (171:17-18)).
Maddox testified she "had been dating a black guy [Patrick Ackles] before this time, and they had asked [her] questions about him, too."
(Doc. 69-2 at 16-17 (244:17-245:4)). According to Maddox, she overheard Allgood
(Doc. 69-1 at 43 (166:9-167:5)). Although, when asked if she stated everything she recalled, Maddox testified "I know there are more things, but I don't recall them all right now. That's just the basics of it." (Id. (168:4-8)). In a later submitted affidavit, Maddox stated:
(Doc. 71-20 at 2-3).
Sonya McKinney Ramey ("Ramey"), who worked at Quintard Mall from 2007 through 2011 in Security, heard Allgood make jokes about Native Americans, including comments about Maddox scalping people, (doc. 71-19 at ¶3), telling Van Vleck to be careful Maddox would "scalp [his] ass," (id. at ¶4), and laughing at moccasins Maddox wore, (id. at 8). Ramey also heard Allgood, Gore, and Ford make comments like these while outside smoking a couple times a week. (Id. at ¶5).
Maddox testified she told Van Vleck and Gore their comments were offensive and asked them to please stop saying those things to her. (Doc. 69-1 at 38 (148:18-22)). Maddox further testified she reported the comments to Allgood and the others, including Stone "several times, but the last time I had made one and she [Stone] said something to them, my job was threatened. I was told that if I told [] Park [Grimmer] or [] [Stone] anything that was going on with me at the mall I would be fired." (Id. at 43-44 (168:9-169:4)).
Additionally, Maddox contends that, while she was a housekeeping supervisor, she told Allgood that Kathy Wynn ("Wynn"), a black female reporting to her, "had complained about being discriminated against." (Doc. 69-2 at 14 (233:15-235:6)). She testified: I just remembered that [Wynn] felt like she was being discriminated against because she was black. And I asked her why, and she just had a breakdown with me. So I discussed it with [] [Allgood] and that's all I remember about that conversation was that part." (Id. (234:8-17)). Maddox does not know whether Allgood relayed this complaint to anyone. (Id. (234:5-20)). Other than this purported conversation with Maddox, Wynn never complained of discrimination of any kind at GRC Management or Quintard Mall and is still employed at the mall. (Doc. 69-15 at 3).
Shawn Scott ("Scott"), a white male and GRC Management employee terminated on October 20, 2009,
In addition to the comments discussed above, Maddox testified that on one occasion in November 2008, Van Vleck called her "a stupid Cherokee freak" and hit her in the back with a water jug. (Doc. 69-2 at 2-3 (186:4-6, 190:14-191:4)). Maddox further testified Allgood, Ford, and Gore prevented her from telling Stone about the incident, although she admits she never tried to call Stone stating: "I could have I guess, but I had tried before and nothing was done." (Id. at 2 (185:14-188:2)). Maddox filed a written police report with the Oxford Police Department but did not swear out a warrant against Van Vleck. (Id. at 2-3 (186:4-191:7)).
Stone found out about this incident sometime in November and requested Allgood meet with Maddox to find out if someone was bothering her. (Doc. 69-9 at 8, 17, 23, 28 (24:3-8, 60:11-16, 85:10-17, 104:17-105:13)). She told Allgood to include Ford and Graham Boozer ("Boozer"), a training supervisor, in any meeting as witnesses. (Doc. 69-9 at 8 (24:12-18)). Specifically:
(Doc. 69-17 at 7-8). Officer Glanze and O'Hara made Stone aware that Maddox had "paperwork in the break room, asking other folks to get involved." (Doc. 69-9 at 37 (139:14-19)). It was at or around this time Officer Glanze told Stone he had heard Maddox was going to swear out a warrant against another employee and she asked Allgood to meet with Maddox (discussed above). Specifically,
(Doc. 69-17 at 8; see doc. 69-9 at 28, 38 (104:17-105:13, 143:21-144:3)).
Stone testified that, when Officer Glanze and O'Hara came to her, "[t]hat's how [she] initially realized that [they] needed to look into that further, to make sure one of [their] employees was not being harassed, discriminated against, bothered . . . ." (Doc 69-9 at 38 (145:15-21)). Stone talked to Park Grimmer about what appeared to be Maddox inquiring with others about a discrimination lawsuit, but Park Grimmer told Stone there was nothing they could do about that. (Doc. 69-9 at 24-25 (89:21-90:6)).
Maddox testified that either the day after the incident "or a couple of days later [] Allgood called [her] into his office and asked [her if she] ha[d] any problems with anybody. [She] told him, [she] did, but [she] took care of it. And that's all [she] said to him and [she walked off." (Docs. 69-2 at 3 (192:13-20) & 69-5 at 15-17). Allgood told Maddox to come see him if she had any problems and she said she would. (Docs. 69-2 at 4 (194:14-195:8) & 69-5 at 15-17). Ford and Boozer were also present at this meeting. (Docs. 69-5 at 15-17 & 69-16 at 8 (22:18-23:8)).
Ford's notes on the meeting state:
(Doc. 69-5 at 17).
Maddox does not dispute this is an accurate reflection of the meeting, but clarified her response when she further testified she didn't "have problems anymore, [she] took care of it [her]self," (doc. 69-2 at 4 (195:22-23)), and explained "[b]ecause I had tried to tell [] Allgood what was going on before I went to the police department, and he wouldn't listen to me. He just refused to listen to me." (Id. at (196:4-7)).
Maddox filed an EEOC charge against "Grimmer Realty" on December 29, 2008, and supplemented her charge on January 30, 2009, after she was terminated on January 23, 2009. (Docs. 69-5 at 41 & 69-19 at 2). Defendants' stated reason for terminating Maddox's employment is that she's threatened to blow up the mall. (Doc. 69-19 at 2). Maddox denies making this threat. (Id.).
Maddox worked on Saturday, January 17, 2009, and Sunday, January 18, 2009, and was off Monday through Thursday, January 19-22, 2009, of the following week. (Docs. 69-9 at 21 (76:4-10) & 69-20 at 2). On Tuesday, January 20, 2009,
Stone and Allgood called the employees, Linda Longwell ("Longwell") and Elizabeth Doss ("Doss"), in separately and asked each to write down what happened. (Doc. 69-9 at 12 (39:10-40:8)). Both Longwell and Doss independently confirmed Maddox made a threat against the mall. (Doc. 69-15 at 4, ¶8). Longwell wrote: "[Maddox] didn't get her W2 forms and said thretning [sic] remarks tords [sic] the office people and supervisor at the mall. I can't remember if she said, blow up the mall, shute [sic] people in the mall, or higher [sic] someone to take care of it for her." (Doc. 69-14 at 61). Doss wrote that on January 17, 2009, she
(Doc. 16-14 at 52)).
At this point, Stone called Park Grimmer to make him aware of what was going on because, according to Stone, it was a safety issue. (Doc. 69-9 at 12 (40:9-12)). Stone told Park Grimmer what Allgood had reported and what Longwell and Doss said when called in individually. (Id. at 12-13 (40:13-42:8)). Stone let Park Grimmer know they were going to terminate Maddox and ban her from the mall. (Id.). Stone testified:
(Id.).
Maddox agrees she would "consider it serious if someone threatened to do harm to the mall or anybody at the mall," (doc. 69-2 at 7 (207:11-14)), and the Quintard Mall Company Rules and Regulations, updated July 19, 2008, explicitly state threatening conduct is a terminable offense, (doc. 69-4 at 9). Despite two employees independently confirming otherwise, Maddox denied threatening to blow up the mall. (Doc. 69-9 at 13 (44:9-14)).
Stone and Allgood met with and terminated Maddox on January 23, 2009, when she returned to work, and informed her she was banned from mall property. (Doc. 69-5 at 18 & 69-14 at 59). They told Maddox she was being terminated for making threats against the mall or people in the mall. (Doc. 69-2 at 7 (205:9-20, 207:15-208:4)). Maddox's termination paperwork stated the reason for her discharge as "threats on mall" and stated "two employees overheard [Maddox] make threats of damaging mall property. Both employees were called in separatly [sic] to verify threat." (Doc. 69-5 at 18). Stone also sent Maddox a letter regarding her ban from the mall, which stated, inter alia, "[o]n January 17, 2009 you were overheard making threats that would result in the harm of mall property as well as mall patrons and employees. This action was brought to mall management's attention and verified with more than one person." (Doc. 69-5 at 19). Stone, Allgood, and Park Grimmer all participated in the decision to terminate Maddox. (Doc. 69-9 at 11 (37:9-14)).
A previous employee, Shamieka (or Shemieka) Patterson,
Stone and Allgood selected Tim Sneed, a white male, to perform Maddox's duties after her termination. (Docs. 47 at 5, ¶30 & 69-2 at 10-11 (219:23-221:1)). Sneed worked at the mall at the same time as Maddox and knew how to run the tenant machine. (Id. at 10 at (220:5-13)). The next person hired after Maddox's termination was a white male, David Brown. (Doc. 69-9 at 23 (82:6-8)).
Maddox filed for unemployment compensation benefits against GRC Management with the Alabama Department of Labor ("AL DOL") (formerly the Alabama Department of Industrial Relations), but the AL DOL denied her claim after a telephonic hearing in which Maddox was represented by counsel. (Docs. 69-2 at 9 (216:2-22) & 69-5 at 21-22). The AL DOL determined Maddox was "discharged or removed from work . . . for threatening to blow up the Quintard Mall . . . ." (Doc. 69-22 at 2). It concluded "[t]he preponderance of the evidence in this case shows that [Maddox] was discharged for making a threat to blow up the mall where she was employed. This would be considered a threat to endanger the safety of others." (Doc. 69-22 at 2). This action followed.
Maddox initially asserted claims under Title VII and § 1981
As an initial matter, Grimmer Realty is a non-existent entity. There is no evidence otherwise, and Maddox offers no reason it is subject to suit. Accordingly, all claims against Grimmer Realty will be
Defendants next argue Grimmer Realty Co., Inc. and Quintard Mall are not subject to suit under Title VII because they do not have "employees." (Doc. 68 at 27); see 42 U.S.C. § 2000e(b). They further argue Grimmer Realty Co., Inc. and Quintard Mall are not subject to suit under § 1981 because Maddox did not have a contractual relationship with these entities. (Id.); see Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006) ("[A] plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes `to make and enforce.'").
Although Grimmer Realty Co., Inc. and Quintard Mall do not have employees and did not contract directly with Maddox, they may be considered Maddox's employer and subject to suit under Title VII and § 1981 under an "integrated enterprise" theory. See Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1341 (11th Cir. 1999) ("We accord a liberal construction to the term `employer' under Title VII."); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 932-33 (11th Cir. 1987); Hegre v. Alberto-Culver USA, Inc., 508 F.Supp.2d 1320, 1333 (S.D. Ga. 2007) (applying this theory to a § 1981 claim). Under this theory, courts consider several factors to determine if two or more business entities should be treated as a single or joint employer. Id. at 933. These factors include: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id.
While it would be premature based on the record to conclude that Grimmer Realty Co., Inc., Quintard Mall, and GRC Management are "a single employer," the evidence clearly raises a genuine issue of material fact. Defendants appear to have interrelated operations in managing the Quintard Mall, centralized control over labor relations out of their common home office in Birmingham, Alabama, and common management and ownership. Park Grimmer, partial owner of GRC Management is also president of Grimmer Realty Co., Inc. Park Grimmer was also involved in the management of Quintard Mall, as Stone, the mall's general manager, reported to Park Grimmer. Additionally, many of the documents Maddox received appear to be provided by Quintard Mall, (see e.g., doc. 69-4), although it was not her employer. Accordingly, summary judgment on this ground is inappropriate.
Defendants also argue Maddox cannot assert a Title VII claim against GRC Management or Quintard Mall because she did not name them in her EEOC Charge. (Doc. 68 at 27; see doc. 69-19). Ordinarily a party not named in an EEOC charge cannot be sued in a subsequent civil action. Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1358 (11th Cir. 1994). This requirement serves to notify the charged party of the allegations and allows the party an opportunity to participate in the conciliation and voluntarily comply with the requirements of Title VII. Id. Courts, however, liberally construe this requirement. Id. Where the purposes of Title VII are fulfilled, an unnamed party in the EEOC charge may be subject to the jurisdiction of the federal court. Id.
To determine whether the purposes of Title VII are met, courts do not apply a rigid test but instead look to several factors including: (1) the similarity of interest between the named party and the unnamed party; (2) whether the plaintiff could have ascertained the identity of the unnamed party at the time the EEOC charge was filed; (3) whether the unnamed parties received adequate notice of the charges; (4) whether the unnamed parties had an adequate opportunity to participate in the reconciliation process; and (5) whether the unnamed party actually was prejudiced by its exclusion from the EEOC proceedings. Virgo, 30 F.3d at 1359. Defendants do not address any of these factors. Maddox, however, argues these factors weigh in favor of allowing this action to proceed against GRC Management and Quintard Mall. (Doc. 72 at 38-40). Reviewing the available evidence, the notice and conciliation purposes of Title VII are satisfied. Although Maddox knew (or could have easily ascertained) the identity of these entities when she filed her EEOC charge naming "Grimmer Realty,"
Federal employment laws do not operate as a "general civility code." Lockett v. Choice Hotels, Int'l, Inc., 315 Fed. Appx. 862, 865 (11th Cir. 2009). Instead, only the type of severe and pervasive harassment that "alter[s] the `conditions' of the victim's employment" is prohibited. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). To establish a hostile work environment claim, Maddox must demonstrate:
McCann v. Tillman, 526 F.38, 1370, 1378 (11th Cir. 2008) (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Defendants contend Maddox cannot establish elements three and four of this claim.
Citing Fourth circuit case law, Defendants argue the court should not consider harassment by anyone other than Allgood when evaluating Maddox's hostile work environment claim because he is the only person Maddox mentions in her EEOC charges as subjecting her to harassment.
In her EEOC Charge, Maddox checked the boxes for discrimination based on race and retaliation and also indicated the discrimination took place on December 18, 2008, and marked the box for "continuing action." (Doc. 71-5 at 2). Maddox also provided a narrative statement, including the specific allegation that Allgood harassed and discriminated against her based on her Native American ancestry and because she was dating an African American. (Id). She further noted "management" told her if she complained to (other) management or the owner, she would be fired. (Id.). Although Maddox only made specific allegations of harassment against Allgood and generally referred to "management" threatening to fire her if she complained in her EEOC Charge, her current allegations regarding other supervisors and co-workers harassing her based on her Native American ancestry and dating relationship with an African-American man merely serve to amplify her claim and are not offered as the essential basis of the claim. See Wu, 863 F.2d at 1547. Furthermore, a reasonable investigation of Maddox's EEOC charge would reveal that Maddox had complained about harassment by people other than Allgood, including going to the police about the November 2008 Van Vleck incident (which was reported to Stone). Defendants' argument based on case law from outside of this Circuit is unpersuasive. Whether the omissions of these allegations from her EEOC charge affects Maddox's credibility is a question for the jury. See e.g., Sears v. PHP of Alabama, Inc., No. 2:05CV304-ID, 2006 WL 932044, *12 (M.D. Ala. April 10, 2006).
There is no dispute the various comments about Maddox's Native American ancestry are based on one of Maddox's protected characteristics. Defendants argue, however, Maddox cannot base her hostile work environment claim on harassing comments about African-Americans, including derogatory comments about interracial-couples, because they are not based on one of Maddox's protected characteristics. (Doc. 68 at 42-43). To state an associational hostile work environment claim in this context, a reasonable jury must be able to conclude that the comments were attributable to the plaintiff — that they were about Maddox's interracial relationship. See Tomczyk v. Jocks & Jills Rests., LLC, 198 Fed. Appx. 804, 808-09 (11th Cir. 2006). Defendants do not dispute Maddox's supervisors and co-workers were aware of her romantic relationship with an African-American man. (Doc. 68 at ¶2, n.1 (citing doc. 69-1 at 37 (141:12-142:22)). Therefore, based on the nature of the comments, a reasonable juror could conclude the comments about interracial couples and biracial children directed at Maddox were alluding to her interracial relationship. However, comments about President Obama and other general comments (such as the use of the word nigger) about African-Americans lack this requisite connection.
Maddox must also establish "the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive work environment."
Defendants argue Maddox did not perceive the alleged harassment to be sufficiently hostile or abusive. (Doc. 68 at 44-45). In support of this argument, Defendants point to Maddox's testimony regarding Van Vleck's "own kind" comment, admitting she didn't understand the comment because the only person on floor crew at the time was a black male. (Doc. 69-1 at 47 (184:16-17)). Defendants also contend Maddox did not perceive the November 2008 Van Vleck incident as sufficiently hostile or abusive because she did not report it to management and, when asked if she was having problems, said she had taken care of it. (See doc. 69-2 at 2-3 (186:4-6; 190:14-191:4) (regarding the incident) & docs. 69-2 at 3 (192:13-20) & 69-5 at 15-17) (regarding Maddox's comment). Neither of these arguments is persuasive.
There is sufficient evidence from which a reasonable juror could conclude Maddox perceived her work environment has hostile and abusive. After telling Ford, Allgood, and Stone about issues she was having, (doc. 69-1 at 35-36 (136:19-137:14), Maddox went to Stone in June or July 2008 about the harassment. (Id. at 36 (139:6-20)). Thereafter, she contends, Allgood threatened her, telling her that if she complained to Stone again she'd be fired. (Id. at 139:20-140:8). Maddox testified she didn't complain to Stone again because the other supervisors and managers were always around. (Doc. 69-2 at 2 (187:11-18)). Maddox also testified that, on one occasion, she had the opportunity to talk to Park Grimmer, but Allgood was there and non-verbally threatened her, indicating with a horizontal hand motion across his neck that she better not complain to Park Grimmer. (Id. at 44 (169:10-17)). Finally, in November 2008, after the incident with Van Vleck, Maddox complained directly to the police about workplace harassment. (Doc. 69-2 at 2-3 (186:4-191:7)). Defendants' argument that Maddox did not subjectively perceive her workplace as abusive and hostile is without merit and there is sufficient evidence on this component to create a genuine issue of material fact.
Harassing conduct is severe and pervasive when it causes the employee's workplace to become "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21. "In determining the objective element, a court looks to all the circumstances, including the frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." McCann, 526 F.3d at 1378. "There is `not simply some magic number of racial or ethnic insults' that preclude summary judgment, but rather `it is repeated incidents of . . . harassment that continue despite the employee's objections [that] are indicative of a hostile work environment.'" Mack v. ST Mobile Aerospace Eng'g, Inc., No. 05-14695, 2006 WL 2129661, at *7 (11th Cir. July 31, 2006) (quoting Miller, 277 F.3d at 1276).
Maddox presents evidence that Gore, Ford, Allgood, Van Vleck, Cobb, Rogers, and Michael (last name unknown) made harassing comments about her Native American ancestry. She does not allege this happened a handful of times, but alleges these supervisors and co-workers repeatedly made harassing comments, some of them every time he or she was around Maddox. (See e.g., docs. 69-1 at 38 (147:14-148:13) (stating Van Vleck called her "a Cherokee squaw every time he got around" her) & 71-20 at 2 (stating Allgood called her a savage, squaw, and Cherokee squaw on a daily basis). Furthermore, much of the harassment went beyond name calling. Several of the harassers repeatedly asked Maddox if she lived in a teepee, (docs. 69-1 at 37-39 (143:2-144:8, 147:14-148:13-14) & doc. 71-20 at 2-3), asked if her teepee flooded when it rained, (doc. 69-1 at 41 (157:22-158:22) & doc. 71-20 at 2-3), asked her to do rain dances, (doc. 69-1 at 41 (157:22-158:22 & doc. 71-20 at 2-3), inquired about the reservation she was from, (doc. 69-1 at 37-39 (143:2-144:8, 147:14-148:13-14)), asked if she had papooses at home or how many papooses she had, (docs. 69-1 at 37-39 (143:2-144:8, 147:14-148:13-14 & doc. 71-20 at 2-3), asked her if she made her own weapons or used a bow and arrow, (docs. 69-1 at 38-39, 41, (147:14-148:13-14, (157:22-158:22) & doc. 71-20 at 2-3), asked if she chopped firewood with her tomahawk when the weather was cold, (doc. 71-20 at 2-3), asked if she scalped people, (doc. 69-1 at 38-39 (147:14-148:13-14), and asked if she wanted dead bird feathers for her hair, (doc. 71-20 at 2-3). Maddox also testified that, when she reported Michael's vulgar comments to Allgood, Allgood just laughed. (Doc. 69-1 at 44 (171:17-18)).
In addition to comments about Maddox's Native American ancestry, Van Vleck, Allgood, and others made offensive comments about mixed-race couples, knowing Maddox was in a relationship with an African-American. Van Vleck called Maddox a "nigger lover," (doc. 69-1 at 42 (162:5)), and Allgood made comments to Maddox about mixed-race couples walking through the mall, (doc. 69-2 at 16-17 (244:17-245:4)). Maddox overheard Allgood calling other mixed-race couples "nigger lovers" and making fun of bi-racial children, stating something like "that poor little bastard, he don't realize he's half nigger." (Doc. 69-1 at 43 (166:9-167:5)).
The harassment culminated in November 2008, when Van Vleck called Maddox a "stupid Cherokee freak" and hit her in the back with a water jug. (Doc. 69-2 at 2-3 (186:4-6; 190:14-191:4)). Because management never did anything about her previous complaints, Maddox reported this incident directly to the police. (Doc. 69-2 at 2-3 (185:14-191:7).
These allegations are hardly "sporadic and isolated" as Defendants argue. See McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008). They occurred on a daily basis and a reasonable jury could conclude they "permeated [Maddox's work environment] with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21. Although these comments were not always physically threatening, they were certainly intimidating and full of ridicule. See id. at 23. The severity of the harassment is easily demonstrated by its culmination in two threatening acts, the November 2008 Van Vleck incident and Allgood's threatening gesture to Maddox when she had the opportunity to report the harassment to Park Grimmer. Having presented sufficient evidence of the frequency, severity, and humiliating nature of the harassment, Maddox is not required to establish how the harassment interfered with her ability to perform her job. Myers v. Central Fla. Invests., Inc., 237 Fed. App'x 452, 456-57 (11th Cir. 2007) (citing Miller, 277 F.3d at 1277).
As Defendants do not challenge any other aspect of Maddox's hostile work environment claim, their motion for summary judgment will be
Title VII prohibits an employer from discriminating against an employee because of the employee's race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e-2(a). When there is no direct evidence of discrimination, as here, a plaintiff may rely on circumstantial evidence to establish his claim, often employing the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). To establish a prima facie case for discriminatory discharge under this framework, a plaintiff must establish (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside her protected class (or was treated less favorably than a similarly-situated individual outside of her protected class). Reeves v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004).
Under this framework, once a plaintiff establishes a prima facie case, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its employment action, here, the decision to terminate Maddox's employment. EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). Once the defendant articulates a "legitimate, nondiscriminatory reason" for its action, any presumption of discrimination arising out of the prima facie case "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At this point, the burden shifts back to the plaintiff to offer evidence and establish the employer's stated reason is a pretext for discrimination. Joe's Stone Crabs, Inc., 296 F.3d at 1272-73. To establish pretext, a plaintiff must show both "the reason was false, and that discrimination was the real reason" for the adverse employment action. Cyprian v. Auburn Univ. Montgomery, 799 F.Supp.2d 1262, 1284 (M.D. Ala. 2011) (quoting St. Mary's Honor Ctr., 509 U.S. at 515).
Defendants contend Maddox cannot state a prima facie cases because she has no valid comparator. (Doc. 68 at 30). This argument lacks merit. Maddox can establish the fourth element of a prima facie case by presenting evidence she was replaced by someone outside of her protected class. See Reeves, 381 F.3d at 1235. Defendants' reliance on an unpublished case to argue otherwise, is contrary to binding Eleventh Circuit precedent. See Cuddleback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 (11th Cir. 2004). Maddox offers evidence Tim Sneed, a white male, performed her duties after her termination, and the next person hired was David Brown, a white male. (Docs. 47 at 5, ¶30; 69-2 at 10-11 (219:23-221:1); & 69-9 at 23 (82:6-8)). The burden now shifts to Defendants to articulate a legitimate, non-discriminatory reason for Maddox's discharge.
Defendants present evidence of a legitimate, nondiscriminatory reason for Maddox's termination, specifically that two employees reported Maddox threatened to blow up the mall. (Doc. 69-19 at 2). Although Maddox disputes threatening to blow up the mall, whether Maddox actually made this threat is immaterial. The material issue is whether Defendants reasonably believed, based on the independent accounts of two employees in the face of Maddox's denial, that Maddox made this threat. See Alvarez v. Royal Atl. Develps., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (the proper inquiry is "the employer's beliefs, not the employee's belief and, to be blunt about it, not on reality as it exists outside of the decision maker's head"). Defendants have met this burden of production.
Maddox must now establish that Defendants' legitimate, nondiscriminatory reason for her termination was a pretext for discrimination. Maddox may do so by presenting evidence sufficient to permit a reasonable fact-finder to conclude the reason given by the employer were not the real reason for the adverse employment decision. See Combs v. Planation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). When making this determination, the court does not act as a "super-personnel department that reexamines an entity's business decisions." Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (citation omitted). Instead, the pretext inquiry is limited to "whether the employer gave an honest explanation for its behavior." Id. (citation omitted). An employer may terminate an employee for a good or bad reason, so long as the reason is not motivated by a prohibited purpose, such as discrimination based on race. See Damon v. Fleming Supermarkets of Fla., Inc.,
Maddox argues three main points in support of her pretext argument: (1) Van Vleck was not disciplined for striking Maddox in the back; (2) the timing of Maddox's termination, and (3) "shifting, exaggerated" testimony/evidence no one feared Maddox would blow up the mall. (Doc. 72 at 58-61). This evidence does not demonstrate Defendants' proffered reason for Maddox's termination was a pretext for discrimination.
Maddox first argues Defendants' failure to discipline Van Vleck for hitting Maddox in the back with a water jug demonstrates pretext. (Doc. 72 at 59). To establish pretext, a comparator must be "similarly situated to the plaintiff in all relevant respects," and the "misconduct must be nearly identical" to that of the plaintiff. Rawls v. Ala. Dept. of Human Resources, 507 Fed. App'x 895, 898 (11th Cir. 2013) (citing Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1276-77 (11th Cir. 2008). Here, "`[t]he quantity and quality of [Van Vleck's] misconduct' is not `nearly identical'" to Maddox's alleged conduct. Turner v. Fla. Prepaid College Bd., 522 Fed. App'x 829, 832 (11th Cir. 2013) (quoting Stone & Webster Constr., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012)). Two employees reported that Maddox, upset about not receiving her W-2, threatened to blow up the mall. Based on those reports, Defendants conducted an investigation, independently confirming the threat with each employee who reported it. Based on the results of this investigation and the serious nature of the threat to the safety of mall patrons and employees, Stone terminated Maddox's employment, after Allgood's input and Park Grimmer's approval.
Unquestionably, a threat to blow up a mall is different in quality and quantity than the act of striking a fellow employee. Because these transgressions are not "nearly identical," and the court is not permitted to second-guess the judgment of the employer, Van Vleck is not a proper comparator. However, even looking at the two situations more closely, Defendants investigated both complaints, and when Maddox did not present or confirm the Van Vleck incident to her employer, the investigation stalled.
Specifically, as she did when she was informed of Maddox's alleged threats, upon learning of the November 2008 incident between Van Vleck and Maddox, Stone initiated an investigation. Allgood met with Maddox and asked her how she was doing and if anyone had been bothering her. (Doc. 69-5 at 17). Maddox initially replied "no," but upon further questioning, she said she took care of it herself. (Doc. 69-2 at 4 (195:22-23)). Allgood told Maddox to come see him if she had any problems, and she said she would. (Id. (194:14-195:8) & doc. 69-5 at 15-17). Unlike the situation involving Maddox's threats, there was no independent confirmation of the incident.
Maddox's arguments regarding the timing
Based on these arguments, Maddox "fail[s] to point to `weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions' sufficient to rebut the legitimate reason[] given by [Defendants] for her termination." See Sampath v. Immucor, Inc., 271 Fed. App'x 955, 962 (11th Cir. 2008) (citations omitted). Accordingly, Defendants' motion for summary judgment is due to be granted on this claim, unless Maddox demonstrates a triable issue of fact by presenting a "convincing mosaic of circumstantial evidence." Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2001).
The McDonnell-Douglas framework is not the exclusive means of creating a triable issue of fact in an employment-discrimination case. Lockheed-Martin Corp., 644 F.3d at 1328. A plaintiff may do so by presenting a "convincing mosaic of circumstantial evidence" and various forms of evidence sufficient to allow a reasonable inference that the employer fired the employee based on impermissible discrimination. Id.
In support of this argument, Maddox points to Allgood's numerous racial comments and slurs as evidence of his discriminatory animus.
The cases Maddox cites in support of this argument, Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1998) and EEOC v. Alton Packaing Corp., 901 F.2d 920 (11th Cir. 1990), (doc. 72 at 57-58), are distinguishable and do not dictate a different result. In examining Ross, the Eleventh Circuit explained:
Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002). Here, there is nothing to link Allgood's comments to Maddox's termination and no "additional evidence" to support a finding of pretext. Furthermore, Atlon involved direct (not circumstantial) evidence of discrimination and is therefore clearly distinguishable. 901 F.3d at 923-24. Maddox does not present a triable issue of fact, and summary judgment will be
To establish a retaliation claim, Maddox must prove (1) she engaged in statutorily protected activity, (2) she suffered a materially adverse employment action, and (3) there was some casual relation between the two events. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
There is no dispute Maddox engaged in a protected activity when she filed an EEOC charge on December 18, 2008, or that she suffered an adverse employment action when she was terminated on January 23, 2009. (Doc. 68 at 33-37). Instead, the parties' arguments focus on the causal connection element. To establish a causal connection, a plaintiff must show: (1) the decisionmaker(s) was aware of his protected conduct and (2) the protected activity and the adverse employment action were not wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). If the decisionmaker was aware of the protected conduct, close temporal proximity between the protected activity and the adverse action may be sufficient to show the requisite causal connection. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). If there is a delay of more than three months between the two events, the temporal proximity is not close enough, and the plaintiff must offer some other evidence tending to show causation. Id. However, intervening acts of misconduct can diminish any inference of causation that arises from temporal proximity. Henderson v. FedEx Express, 422 Fed. App'x 502, 506 (11th Cir. 2011) (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc)).
Here, although only one month separates the Maddox's filing of an EEOC Charge and her termination, there is also an intervening act of misconduct — her threats to blow up the mall. Maddox's threats diminish the inference of causation that arose from the temporal proximity between her EEOC Charge and termination. See Henderson, 422 Fed. App'x at 506.
Even if Maddox were to establish causation and a prima facie case of retaliatory discharge, Defendants have articulated a legitimate, non-retaliatory reason for her discharge, that two employees reported Maddox threatened to blow up the mall. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The burden would then shift back to Maddox, who would be required to offer evidence this proffered reason is a pretext for unlawful retaliation. See Alvarex v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Maddox's opposition to summary judgment on this claim relies heavily on statements Allgood made to Scott in late 2008 that Scott reported in his EEOC Charge. (Doc. 72 at 66). Viewing this evidence in Maddox's favor, these statements show that Allgood wanted to get rid of anyone who was a threat to his livelihood, Grimmer Realty. (See doc. 69-10 at 18). However, reliance on these statements to establish pretext requires a jury to ignore Allgood's limited role in the decision to terminate Maddox. A juror would have to believe that someone in Allgood's position would not have relayed the threat Longwell and Doss reported or would in some way dissuaded Stone from terminating Maddox's employment. The undisputed evidence surrounding Maddox's termination does not support those assumptions. To the contrary, Defendants offer evidence that other employees, who had not complained of discrimination or filed an EEOC Charge, had been fired for similar or less severe offenses. This includes Patterson who was terminated for threatening to kill her supervisor. Mall security was instructed not to allow her to return. Two other employees, Bohl and O'Hara, were terminated in 2008 and 2009 respectively, for physical altercations with another employee. (Doc. 69-17 at 20).
In determining whether summary judgment on Maddox's retaliation claim is proper, the ultimate question is whether she has presented evidence allowing a reasonable jury to conclude that she would not have been terminated if she had not filed her EEOC Charge. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517 (2013). She has not.
Defendants' motion for summary judgment, (doc. 68), will be
Hearsay evidence may be considered on a motion for summary judgment if the statement could be reduced to an admissible form at trial and the statement would be admissible at trial for some purpose. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). "For example, the statement might be admissible because it falls within an exception to the hearsay rule, or does not constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or is used solely for impeachment purposes (and not as substantive evidence). Id. at 1323-24. To the extent Maddox's testimony regarding what Van Vleck told her about the motivation for her move to floor crew is offered to prove the truth of the matter asserted, it is thus inadmissible and will not be considered in ruling on the motion for summary judgment. See e.g., Jernigan v. Dollar General Corp., No. 2:11-cv-01448-WMA, 2013 WL 452820, *8 (N.D. Ala. Jan. 31, 2013); Bridges v. City of Americus, No. 1:09-cv-56, 2014 WL 1315339, *3 n.1 (M.D. Ga. March 31, 2014). Maddox offers no argument to the contrary.
Tippens v. Celotex, Corp., 805 F.2d 949, 953-54 (11th Cir.1986) (quoting Van T. Junkins and Assocs., 736 F.2d at 657) (alterations in Tippens). Here, Maddox did not clearly answer an unambiguous question at her deposition, as a reasonable person in Maddox's position could have interpreted the question regarding whether she stated everything she recalled Allgood saying to only relate to comments regarding African-Americans or her association with African-Americans. Therefore, the possibly inconsistent later filed declaration only creates a question of credibility, which will not be evaluated at summary judgment. See Tippens, 805 F.2d at 953. Defendants have not demonstrated the applicability of the sham affidavit doctrine to Maddox's declaration.
Furthermore, Allgood's role in the decision to terminate Maddox was limited, and Maddox's "cat's paw" argument is unpersuasive. (Doc. 72 at 57 n.25). This theory applies "if a supervisor performs an act motived by [a discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is the proximate cause of the ultimate employment action, then the employer is liable." Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011). Here, although Allgood told Stone about the two reports he received regarding Maddox threatening to blow up the mall, Stone made the recommendation to terminate Maddox and Park Grimmer approved it. (Doc. 72 at ¶ 91). Stone made this decision after an investigation, and there is no proximate cause since Allgood is not the person who claimed Maddox threatened to blow up the mall but merely relayed what two other employees reported. There is no argument Allgood wouldn't have relayed a report of such threats if made by another employee.
