WILLIAM H. STEELE, Chief Judge.
This matter is before the Court on the defendant's motion for summary judgment. (Doc. 38). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 39-40, 43-47, 52), and the motion is ripe for resolution. After carefully considering the foregoing, the Court concludes that the motion for summary judgment is due to be granted.
The plaintiff was employed by the defendant as a certified nursing assistant
Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir.2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion....").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).
The parties have submitted a number of exhibits, some of which they have not referenced in their briefs or have referenced only in part.
"In order to establish a case under Title VII, a plaintiff may use three different kinds of evidence of discriminatory intent: direct evidence, circumstantial evidence or statistical evidence." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir.1998). The plaintiff relies on the first two of these avenues.
"Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption." Standard, 161 F.3d at 1330.
As her direct evidence, the plaintiff relies on an alleged statement by the white administrator of the Brewton facility, Mark Manning, in 2004 or 2005
In Title VII cases not based on direct evidence, the burden is first on the plaintiff to establish a prima facie case. If she succeeds, the employer must meet its burden of articulating one or more legitimate, nondiscriminatory reasons for the adverse employment action. If it does so, the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for illegal discrimination. E.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). As discussed below, the plaintiff cannot establish a prima facie case and therefore cannot survive summary judgment.
"To establish discrimination in discipline,... a plaintiff must first make out a prima facie case demonstrating: 1) that he belongs to a protected class under Title VII; 2) that he was qualified for the job; and 3) that a similarly situated employee engaged in the same or similar misconduct but did not receive similar discipline." Alexander v. Fulton County, 207 F.3d 1303, 1336 (11th Cir.2000); accord Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). This formulation has been applied when the discipline meted out is termination,
The defendant attacks the third element of the prima facie case. "When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, ... we require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006) (internal quotes omitted); accord McCann v. Tillman, 526 F.3d 1370, 1373-74 (11th Cir.2008).
On or about May 20, 2008, the plaintiff and fellow CNA's Alicia Peavy and Michelle Booker were in the dining room with several residents and at least one guest. According to the plaintiff's contemporaneous statement, Peavy kept talking about how a resident had wet herself, implying the plaintiff was responsible. The plaintiff asked Peavy to leave, but instead Peavy walked over to the plaintiff and hit her on the forehead with her hand, and "before I even knew it, I hit her back with the Avon book." (Doc. 39, Exhibit B to Exhibit 1).
Manning made the decision to terminate the plaintiff. He states that he terminated both the plaintiff and Peavy (who is also black) because they engaged in a physical altercation and did so in front of both residents and a guest, in violation of the defendant's work rule permitting immediate discharge for "[f]ighting, threats, intimidation, or argumentative behavior." (Doc. 39, Exhibit 1 at ¶ 13 and Exhibits C, I thereto).
The plaintiff scrambles to retreat from her statement, now calling the contact between her book and Peavy's head a mere "tap." But Manning considered six statements in determining the plaintiff's conduct and punishment, and five of them describe the plaintiff's strike as a "hit." This includes: (1) the plaintiff's own statement; (2) Peavy's statement; (3) the statement of eyewitness Booker; (4) the statement of Angie Sessions, to whom the plaintiff stated, immediately after the incident, that she had hit Peavy; and (5) the statement of Kim Shell, to whom Peavy stated, immediately after the incident, that the plaintiff had hit her. (Doc. 39, Exhibit B to Exhibit 1). Only the guest had a different version, describing the contact as a slight "pop," and she stated clearly that she sought to avoid saying anything that might cost either participant her job. (Id.). Moreover, Booker stated that it was obvious from the contact between the plaintiff's book and Peavy's head that the plaintiff was serious, (id.), which is inconsistent with a mere tap. The plaintiff's revisionist history is interesting, but what matters when comparing the misconduct of employees in a discrimination suit are the facts of each incident as they appeared to the decision-maker at the time discipline was administered, not those that are asserted years later. For purposes of this inquiry, the plaintiff did not merely tap Peavy but hit her on the head with a book.
It would seem obvious that such conduct is inappropriate, but the plaintiff insists she was merely defending herself against Peavy. No such position appears in her contemporaneous statement or in any of the other statements on which Manning relied, and nothing therein supports the proposition. The plaintiff may have had no thought of hitting Peavy before Peavy hit her, but nothing in the statements or even in the recent depositions suggests that Peavy posed a continuing threat to her. The plaintiff may have acted "reflexively," as she asserts, but the reflex was retaliation, not self-defense. Because no claim or evidence of self-defense was presented to Manning, for purposes of comparing the plaintiff's misconduct with that of other employees she did not act in self-defense.
To the average person, a deliberate exchange of blows to the head would seem to fit comfortably within the contemplation of the term "fighting." In the plaintiff's estimation, however, the term requires "struggling and tussling," such that she and Peavy are innocent of fighting. This is another engaging but pointless sideshow.
Finally, the plaintiff asserts that Manning never said she was being terminated for fighting. But she was certainly terminated for the May 20 dining room incident, as the termination report Manning signed (and the plaintiff refused to sign) makes explicit. (Doc. 39, Exhibit C to Exhibit 1). It is thus that conduct to which the comparators' conduct must be compared. To those incidents the Court now turns.
In February 2008, white CNA Machelle White was cursed and yelled at by her visiting sister, Donna Tullis, regarding the biracial nature of White's child. The defendant obtained seven statements, five of which reported no knowledge of the incident. The statements of an LPN supervisor and a disinterested guest placed the blame for the incident squarely on Tullis, not on White, and they indicated no misbehavior by White. (Doc. 39, Exhibit D to Exhibit 1; id., Exhibit 2 to Exhibit 9). Tullis reported to Manning that White had verbally assaulted her and made threats of bodily harm, and that co-workers had restrained White from a physical altercation. (Doc. 44, Exhibit 7). Manning credited the accounts of the supervisor and the guest over the self-interested account of Tullis, and White was not disciplined. (Doc. 39, Exhibit 1, ¶¶ 15-20).
On motion for summary judgment, the plaintiff asserts she has evidence from three witnesses that White screamed threats and profanities at Tullis and that she had to be physically restrained by other employees to prevent her from physically attacking Tullis. The Court assumes for present purposes that this version of the episode is accurate.
The problem for the plaintiff is that, under even her version of events, White did not strike Tullis, and yelling, cursing and wanting to hit another is not conduct "nearly identical" to actually hitting the other. In Floyd v. Federal Express Corp., 423 Fed.Appx. 924 (11th Cir.2011), the plaintiff was fired because he took a swing at his comparator, who may or may have not been dealt a glancing blow. The comparator cursed the plaintiff and pointed his finger in the plaintiff's face without intending to hit him. The Eleventh Circuit ruled that the comparator's conduct was not nearly identical to the plaintiff's. Id. at 930-31. In light of Floyd, White's non-physical conduct cannot be considered nearly identical to the plaintiff's battery.
Undeterred, the plaintiff notes that, while being detained by co-employees, White slung an employee across the bed in her effort to leave the room and approach Tullis. (Doc. 44 at 26). The employee, however, admits that she never told Manning about this, (Nettles Deposition at 20-21),
In May 2005, white CNA Myah Gillis was accosted by two black CNA's in a resident's room over a work dispute. The defendant interviewed the resident and obtained statements from the three CNA's and the LPN supervisor. The resident stated that one CNA, swearing loudly, cornered Gillis and pushed on her but that Gillis climbed over the resident's bed in an effort to escape. The resident stated that the second CNA, also swearing loudly, blocked the door and would not allow Gillis to leave the room. In the course of exiting the room, Gillis fell and was injured enough to require treatment at a hospital. Gillis's statement paralleled that of the resident, and the statements of the black CNA's confirmed that they yelled at Gillis and blocked her exit. (Doc. 39, Exhibits E-G to Exhibit 1). In reliance on these statements, Manning terminated the black CNA's but did not discipline Gillis. (Id., Exhibit 1, ¶¶ 21-26 and Exhibit H thereto).
The plaintiff argues that Gillis's conduct was nearly identical to her own because the first CNA stated that Gillis "pushed past" the CNA blocking the door "and almost knocked her down." This, if it occurred,
The plaintiff argues that the conduct of White and Gillis must be nearly identical to her own because: (1) all three engaged in "fighting" in violation of the defendant's work rule; (2) Manning described all three incidents as "altercations"; (3) none of the three was the aggressor; (4) none did anything to escalate the altercation; and (5) residents and guests witnessed all three incidents. (Doc. 44 at 25-26).
In order to accuse White and Gillis of fighting, the plaintiff asserts that any physical contact between two human beings constitutes fighting. (Doc. 44 at 24).
But, the plaintiff insists, Manning himself admits that hers is the correct definition of fighting. (Doc. 44 at 24). He has done no such thing. While Manning interpreted fighting as entailing physical contact between individuals, his examples of such contact are hitting, biting, scratching and slapping. (Manning Deposition at 122). White and Gillis did not engage in such activity.
Manning also testified that fighting depends on the person's intent, (Manning
Even if some odd definition of "fighting" could be constructed that would capture the conduct of White and Gillis, once again it must be stated that the relevant inquiry is not whether the conduct of the comparators and the plaintiff fall within some common semantic umbrella but whether the conduct is nearly identical in its quality and quantity.
That none of the three was the aggressor provides a point of similarity, as does the identity of the witnesses, but "[m]isconduct merely `similar' to the misconduct of the disciplined plaintiff is insufficient." Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir.2008). The plaintiff's suggestion that she did nothing to escalate the situation works only if one ignores the rather critical fact that she hit Peavy on the head with a book. At that point — as any parent of squabbling children will attest — she became as guilty as Peavy.
In short, the conduct engaged in by the plaintiff's comparators is not nearly identical to her own (or even close). She therefore cannot avoid summary judgment under the standard formulation of the prima facie case governing a claim of discriminatory discipline.
The plaintiff argues that, even if White and Gillis are not legitimate comparators, she has presented other evidence sufficient to ward off summary judgment. (Doc. 44 at 21-23, 33, 40). In particular, she cites to the EEOC's finding of cause to believe that a Title VII violation occurred, to one perceived instance of race discrimination (and one of retaliation) against her, and to numerous perceived instances of race discrimination against other black employees. (Id. at 27, 33-36).
The plaintiff quotes, without attribution, from Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir.2011). "[E]stablishing the elements of the McDonnell Douglas framework is not, and was never intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case.... Rather, the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent." Id. at 1328.
The Schoenfeld Court cited as an example of this flexibility Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir.1991), which listed three alternative statements of the fourth element in a discharge case. Id. at 1525 (replacement by one outside the protected category, retention of comparably qualified employees, or retention of employees with similar disciplinary histories). Similarly, the Court in Rioux v. City of Atlanta allowed the plaintiff, who could not produce a nearly identical comparator after he was demoted as a disciplinary measure, to establish a prima facie case by showing that his replacement was of a different race. Id. at 1275-77. These were measured tweakings of classic formulations of the prima facie case, substituting one reasonably precise element with another, similarly precise element. But they do not aid the plaintiff, who makes no claim that she was replaced by a non-black CNA.
The Eleventh Circuit has, however, opened the door to less structured alterations of the prima facie case. According to Schoenfeld, "`[a] prima facie case of disparate treatment can be established by any proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations.'" 168 F.3d at 1268 (quoting Hill v. Metropolitan Atlanta Rapid Transit Authority, 841 F.2d 1533, 1540 (11th Cir. 1988)). According to Smith, "[a] triable of 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 by the decisionmaker.'" 644 F.3d at 1328 (quoting Silverman v. Board of Education, 637 F.3d 729, 734 (7th Cir.2011)). The plaintiff believes that these pronouncements and others allow her to establish a prima facie case with whatever marginal evidence she finds available.
It cannot easily be concluded that the Eleventh Circuit has carefully constructed a strict, "nearly identical" standard for satisfying the third element of the prima
It must therefore be assumed that any evidence offered under Schoenfeld and Smith in lieu of a nearly identical comparator must suggest discrimination with force similar to that implied by treating nearly identical offenders differently. This is consistent with Smith's requirement of a "convincing mosaic" of evidence and with Schoenfeld's requirement that the prima facie case be grounded on evidence making it more likely than not that the adverse employment action was based on illegal discrimination. The plaintiff's proffered evidence does not come close to meeting this standard.
The EEOC determination, (Doc. 46, Exhibit 23), is based exclusively on the agency's assessment of White's conduct as compared with the plaintiff's. It is therefore not different evidence at all but only a spin on the comparator evidence and thus not relevant to an "other evidence" evaluation.
None of the remainder of the plaintiff's proffered evidence has anything to do with her termination. Instead, she asserts that a written warning she received eight months before her termination was the product of race discrimination and retaliation. She asserts in addition that she and other black employees perceive discriminatory conduct and attitudes in various aspects of employment at the defendant's Brewton facility. That is, the plaintiff asks the Court to accept that, although she has no evidence that her termination was based on her race, she can nevertheless establish a prima facie case under McDonnell Douglas with adequate evidence that other employment decisions — most not even involving her — were based on race. Assuming without deciding that a plaintiff may theoretically establish a prima facie case in such a manner, the plaintiff has not done so here.
The plaintiff received a written warning in September 2007 for not responding to a call light signifying a resident's request to be fed and for then engaging in rude and discourteous behavior by arguing with the resident about who turned off the call light without responding. (Doc. 46, Exhibit 5 at WES-B000388). The plaintiff says she did not respond because she was dealing with another resident who had soiled himself, and she says she was not arguing but merely
In resolving disputes, employers routinely must credit one version of events over another. The mere fact that an employer credits the customer's version over that of the employee is not of itself evidence that the employer harbored a discriminatory intent. In substance, the plaintiff has nothing but her subjective belief that she has been discriminated against, and "[h]er opinion, without more, is not enough to establish a prima facie case of race discrimination." Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.1997).
The plaintiff says she has evidence that whites were not disciplined under similar circumstances, but the only incident she describes did not involve rudeness to a resident but a failure to change a dressing. (Riley Deposition at 100-01). The plaintiff, prudently, does not assert that the white employee engaged in conduct nearly identical to her own, but this lack of similarity prevents the plaintiff from inferring discrimination from the difference in treatment. Moreover, neither Manning nor the nurses who signed off on her written warning were involved in the dressing incident, (id.), and "[d]ifferences in treatment by different supervisors or decision makers can seldom be the basis for a viable claim of discrimination." Silvera v. Orange County School Board, 244 F.3d 1253, 1261 n. 5 (11th Cir.2001).
The plaintiff also believes that her written warning was issued in retaliation for her refusal to falsely accuse a fellow black employee of fault in connection with a resident's broken hip. Retaliation is not discrimination, so it is difficult to see how this allegation could support the plaintiff's case even if it were valid. Moreover, the plaintiff has no evidence of a causal connection between her refusal and her written warning; she offers no evidence of how much time passed between her refusal and the warning she received, and she offers no alternative evidence that her refusal prompted the warning.
In summary, the plaintiff's feeble effort to show that she has been the victim of race discrimination and/or retaliation on other occasions has no pulse. Since she cannot show that she experienced discrimination or retaliation on other occasions, she cannot use such non-existent discrimination
This leaves for consideration the opinions of the plaintiff and a number of her co-employees that race discrimination has infected various aspects of employment at the defendant's Brewton facility. The plaintiff cites no case approving the use of such "me, too" evidence as an alternate means of establishing a prima facie case under McDonnell Douglas. On the contrary, the plaintiff in Holifield attempted to satisfy his prima facie case by "rel[ying] on the perception of other employees ... that racism is present at the institution," but "[n]one of these employees spoke of incidents of discrimination concerning" the plaintiff. 115 F.3d at 1563. The Court ruled that, although this evidence "supports the conclusion that incidents of discrimination on the basis of race have occurred at FCI Marianna," it "does not support an inference that Holifield was discriminated against on the basis of his race when he was reassigned ... or when he was terminated." Id. at 1564.
Even when offered to show pretext rather than a prima facie case, "me, too" evidence is suspect. To be probative, the other incidents must implicate a common decisionmaker. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir.2008). "More generally, courts are reluctant to consider `prior bad acts' in this [employment discrimination] context where those acts do not relate directly to the plaintiffs." Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir.2001). When the evidence involves a kind of alleged discrimination different from that alleged by the plaintiff, "the evidence [may be] likely to confuse the issues for the jury and unfairly prejudice the defendants." Lewis v. Department of Transportation, 187 Fed.Appx. 961, 961-62 (11th Cir.2006) (upholding the exclusion of prior instances of discrimination against others, in part because the plaintiff claimed failure to promote, not retaliation or hostile work environment); accord Chavis v. Clayton County School District, 147 Fed.Appx. 865, 866-68 (11th Cir.2005) (upholding the exclusion of other instances of discrimination against others, because the plaintiff claimed retaliation and the other instances involved failure to promote). For these and other reasons discussed below, the "me, too" evidence offered by the plaintiff and her witnesses is woefully inadequate to compensate for her failure to identify a proper comparator.
The plaintiff's best shot is her evidence that two black CNA's engaged in a "verbal altercation" in 2005 or 2006 and were terminated by Manning. (Riley Deposition at 109-11). Although the plaintiff does not connect the dots, she could argue that White and Gillis should likewise have been terminated for arguing. However, the plaintiff provides no specifics concerning this incident, so it is impossible to conclude that the conduct of the black CNA's was nearly identical to, or even substantially similar to, that of White and Gillis, and without such evidence the difference in their treatment does not imply the presence of racial discrimination.
Similarly, the plaintiff notes that, while two black CNA's were suspended pending investigation into abuse of a resident, a white CNA whom a resident accused of slapping her was not suspended pending the ensuing investigation. (Riley Deposition at 115-16). Again, however, the plaintiff offers no details regarding the allegations against the three, so it cannot be concluded that the allegations were substantially similar in seriousness or in likely merit.
From there, the plaintiff's case goes swiftly downhill. She returns to the white LPN who escaped discipline for not changing a dressing, and she asserts that a black LPN was disciplined for the same infraction. (Riley Deposition at 100-02). Once again, the plaintiff provides no details concerning the incidents, so it cannot be said they were nearly identical, only that they involved the same general issue. Moreover, Manning was not involved in the decisions to discipline the black and not to discipline the white. (Id.).
The plaintiff also revisits the black employee suspected of fault in connection with a resident's broken hip. As noted, however, the plaintiff admits she has no basis to believe Manning suspected her because she was black. (Bell Deposition at 375).
The plaintiff cites to evidence that Wanda Riley was not made director of nursing after several white nurses protested, (Riley Deposition at 93), but not to evidence that her rejection stemmed from discriminatory intent by Manning.
The plaintiff says that blacks, but not whites, are required to make up sick days, but both her witnesses admit they have no personal knowledge of this and are relying only on inadmissible hearsay. (Bell Deposition at 152; Hubbard Deposition at 43-44). Nor does the plaintiff offer evidence that Manning, as the administrator of a 129-bed skilled nursing facility, (Doc. 44 at 3), is involved in the minutiae of making up sick days. She says that a black was fired for sleeping on the job while a white was not, but again she admits she has nothing but hearsay to go on. (Bell Deposition at 152, 154).
In 2009, the defendant instituted a new policy prohibiting LPN's and CNA's from taking vacation around the Thanksgiving and year-end holidays. The policy applies without distinction to whites as well as blacks, but Jacqueline Hubbard nevertheless "feel[s]" it is discriminatory because RN's, who are mostly white, are not subject to the policy. (Hubbard Deposition at 50-51). On its face, the policy treats similarly situated employees similarly, not dissimilarly. Moreover, the plaintiff identifies no evidence that Manning was involved in the development or approval of the policy.
Riley testified that, in March 2009, she uncovered evidence that five white nurses did not give a particular resident his medication for a contagious condition and that, when she informed Manning, he elected to treat it as a quality assurance matter while
On or about March 20, shortly after Riley raised her concerns, Manning held a meeting with the five white nurses. On or about June 9 — four days after Riley reported the medication error to the Alabama Board of Nursing and just before Manning announced that the Board had opened an investigation — Manning held another meeting with the five white nurses. Riley thinks her exclusion from these meetings was racist but cannot articulate how, (Riley Deposition at 78-84); neither can the Court.
Hubbard takes offense that she has been required to reduce to writing critical comments she has made on the job about other employees. (Hubbard Deposition at 70-75). She offers no evidence that whites have been treated differently, and she has no reason for believing the practice is racially motivated except that she is black and the ones she has criticized, and the ones who require the written statements, are white. She does not implicate Manning in this practice in any way.
The plaintiff says that Manning disciplines blacks based on what white employees tell him and without independent investigation. Neither of her witnesses (each of whom identifies only a single instance) offers any evidence that whites are treated any differently. (Hubbard Deposition at 65-68; Riley Deposition at 103-04).
The plaintiff complains that white RN's are placed in supervisory roles while equally qualified black RN's are not. Hubbard testified that two black employees became RN's but left employment when the defendant failed to offer them RN positions, while a white RN was later offered such a position. However, she does not know if any RN positions were available between the time the black employees became RN's and when they quit. She suspects the defendant would have created new RN positions had they been white, but as far as she knows the defendant has never created a position in order to retain or hire a white. (Hubbard Deposition at 54-59, 62-63). In short, she has no evidence of discriminatory placement of RN's. April Stanton had no problem with continuing to work as an LPN after becoming an RN, since no RN positions were available, but she resented being assigned as a medication nurse while a succession of white LPN's acted as shift supervisor. She provides no indication that being shift supervisor would be a promotion (such that not being one could be an adverse employment action), she admits she never complained about it or asked to be made shift supervisor, she identifies no similarly situated white treated better, and she offers no evidence that Manning was involved in making such assignments. (Stanton Deposition at 12-17, 44, 49).
Stanton is unhappy that she has more trouble getting overtime hours than white employees, and she thinks this is true of other blacks. But it is the scheduling nurse that sets the schedules, and she does not know if Manning is even aware of the overtime distribution. (Stanton Deposition at 21-23, 52-58).
The plaintiff asserts race discrimination in the early distribution of paychecks, but her witness attributes the only example of a white receiving a paycheck early to "favoritism," not race. (Booker Deposition at 36-38).
Finally, Riley complains that Manning gave her a verbal warning for speaking her mind at a meeting of RN's, announcing that "the on-call pay sucks." She identifies only one white employee who spoke her mind, but even this employee did not say that anything "sucks," and Riley does not know whether the employee was reprimanded for whatever it was that she did say. (Riley Deposition at 87-91).
In summary, the plaintiff submits almost no colorable evidence of race discrimination at the defendant's facility, and even that pittance cannot be laid at the feet of Manning, the decision-maker behind her termination. Assuming without deciding that a prima facie case of discriminatory discipline can ever be grounded on "me, too" evidence, the crumbs presented by the plaintiff could not possibly form a satisfactory substitute for her failure to identify an appropriate comparator.
The plaintiff's inability to establish a prima facie case of discrimination is fatal to her claims. For the reasons set forth above, the defendant's motion for summary judgment is
None of the witnesses on whom the plaintiff relies heard Manning make the alleged statement. Most heard it as rumor circulating around the workplace, while the plaintiff and one other witness state they heard employee Wayne Higdon say he heard Manning make the statement at Manning's home. Higdon denies ever hearing such a statement by Manning. (Higdon Deposition at 22). Thus, the plaintiff offers her testimony and that of another witness to show what Higdon (the declarant) said (that Manning used the "N" word), for the purpose of proving the truth of what Higdon said (that Manning in fact used the "N" word). This is classic hearsay, Fed. R.Evid. 801(c), and it is inadmissible. Id. Rule 802. The defendant pointed all this out, (Doc. 39 at 24), yet the plaintiff ignored the hearsay issue in her response. She therefore failed to shoulder the burden that Rule 56(c)(2) places on her, and Manning's alleged statement consequently cannot be considered on motion for summary judgment, either as direct or as circumstantial evidence.
