HUGH LAWSON, Senior District Judge.
Plaintiff Olivia Ponder-Wallace, a former employee of Defendant Sanderson Farms, Inc., filed this lawsuit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), alleging that Defendant discriminated against her as to her pay and discipline based on her race. Plaintiff further claims that Defendant subjected her to a hostile work environment based on her religion in violation of Title VII.
As a part of her response to Defendant's Motion for Summary Judgment, Plaintiff attached the affidavits of three individuals: Shanice Roseborough (Doc. 42-4); Ronald Alford (Doc. 42-5); and Greg Ward (Doc. 42-6). Defendant objects to the admissibility of the proffered affidavits and moves the Court to strike them from the record. (Doc. 48). For the following reasons, the Court
At the hearing held on this matter, Plaintiff conceded that the affidavit of Greg Ward does not comply with the disclosure requirements of Federal Rule of Civil Procedure 26(a) and (e) because Plaintiff never identified Ward as a potential witness during discovery. When a "party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). Because Plaintiff did not previously disclose Greg Ward as a potential witness, and because Plaintiff has not offered any justification for the omission, the affidavit of Greg Ward is properly stricken from the record. Ward's affidavit is otherwise properly stricken because it is apparent that he was last employed by Defendant in 2010, three years prior to Plaintiff's employment. He, therefore, has no personal knowledge of the circumstances preceding Plaintiff's termination, and his affidavit is consequently irrelevant.
Defendant moves the Court to strike the affidavits of Shanice Roseborough and Ronald Alford because the documents were not properly notarized and do not satisfy the requirements for unsworn declarations set forth at 28 U.S.C. § 1746. Under Georgia law, "[a] notary shall be disqualified from performing a notarial act in the following situations which impugn and compromise the notary's impartiality: . . . [w]hen the notary is a party to the document or transaction for which the notarial act is required." O.C.G.A. § 45-17-8(c)(2). Here, Plaintiff impermissibly served as the notary for the two affidavits in question. Because Georgia law does not permit her to perform that function, the affidavits are effectively unsworn declarations. While unsworn declarations may be given the same force and effect as an affidavit, the declaration must be signed, dated, and include language in substantially the following form: "I declare (or certify, verify, state) under penalty of perjury . . . that the foregoing is true and correct." 28 U.S.C. § 1746(2). The affidavits submitted by Plaintiff do not meet these qualifications and, accordingly, will not be taken into consideration in evaluating the pending motion for summary judgment.
Following the hearing, Plaintiff filed amended versions of the Roseborough and Alford affidavits containing the notary seal of a disinterested notary. (Doc. 50). The local rules of this Court provide that "[b]riefing of any motion or issue concludes when the movant files a reply brief." M.D.Ga. L.R. 7.3.1(A). Any party desiring to be heard further on an issue must obtain permission from the Court before filing additional documents. M.D.Ga. L.R. 7.3.1(C). Even though the amended affidavits technically are not briefs, the Court is of the opinion that they fall squarely within the Local Rule. Plaintiff did not properly request permission to file the amended documents and, subsequently, they shall be stricken from the record. The Court further notes the untimeliness of Plaintiff's attempt to correct the error. Defendant filed its motion to strike on May 10, 2018, alerting Plaintiff to the notarization issue. Plaintiff failed to file any sort of response to Defendant's motion. When questioned at the July 11, 2018 hearing about why Plaintiff had not simply responded to the motion and refiled the affidavits, Plaintiff offered no explanation. The Court is not now inclined to permit the supplementation.
Summary judgment may be granted only "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." Fed.R.Civ.P. 56(a). "The moving party bears `the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'"
In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party.
Plaintiff failed to comply with these requirements. Even though Plaintiff responded to each of Defendant's enumerated statements of fact, Plaintiff neglected to support any dispute with Defendant's version of the facts with a single citation to the record, instead providing conclusory remarks and blanket denials. Defendant's Statement of Undisputed Material Facts (Doc. 38-4) is accordingly deemed admitted in its entirety.
Plaintiff's statement of additional facts is similarly deficient. (Doc. 42-1, p. 16-18). In her supplemental statement of disputed material facts, Plaintiff cites only two times to an evidentiary source: the deposition of Keisly Exum. She provides one citation to Defendant's Memorandum of Law in Support of Summary Judgment and otherwise cites exclusively to her Amended Complaint, neither of which constitute evidence sufficient to withstand a properly supported motion for summary judgment.
As the Eleventh Circuit explained in
Defendant Sanderson Farms, Inc. ("Sanderson Farms") hired Plaintiff Olivia Ponder-Wallace ("Wallace"), a black woman, as a second shift personnel supervisor in the Human Resources ("HR") department in April 2013. (Doc. 31-1, p. 40; Doc. 42-2, p. 10). Prior to her employment with Sanderson Farms, Wallace earned her degree in Business Management with a concentration in Human Resources from Albany State. (Doc. 38-1, p. 18). She was working on her Master's Degree in Public Administration with a double concentration in Human Resources and Health Care Management when she started the job with Sanderson Farms. (
The HR department at Sanderson Farms is comprised of a number of positions: receptionist, processing secretary, employee records clerk, three nurses, and three personnel supervisors. (Doc. 42-2, p. 16-17). These individuals are overseen by the Field Employee Relations Manager ("FERM"). (
Shortly after Wallace began working at Sanderson Farms, around May 2013, Wallace applied for the open FERM position. Exum was awarded the promotion over Wallace. (Doc. 42-2, p. 13). Exum has been employed by Sanderson Farms since 2006. (Doc. 38-2, ¶ 1). Prior to becoming the FERM, Exum held the position of personnel supervisor for three or four years. (Doc. 42-2, p. 11). Once the decision was made to promote Exum, upper level management met with Wallace to explain that while she "did have a degree in human resources and things of that nature, that [Exum] has already been there for a period of time, but they were letting me know that they weren't necessarily just placing her there because of her seniority and just overruling my degree. They just felt that that would be a better fit." (Doc. 38-1, p. 133). Based on this conversation, Wallace was left with the impression that experience within the company alone was not enough to justify a promotion or compensation for a particular position because the employee still had to be trained in the new position regardless of her level of experience. (
According to Exum, Wallace's "work performance fluctuated throughout her time" at Sanderson Farms. (Doc. 42-2, p. 20). Exum verbally coached Wallace when necessary and prepared written warnings when she noticed a pattern of noncompliance. (Doc. 38-2, ¶ 22). Exum testified that Wallace's "performance was not all bad. She would, you know, get better and perform her duties, and then at times, we would have to have discussions again, and at times, we would have to put it on paper." (Doc. 42-2, p. 21; Doc. 38-1, p. 69).
Wallace received her first written warning on July 18, 2013. (Doc. 38-1, p. 69-73, 300-301). The Memorandum of Understanding issued to Wallace states that on July 10, 2013, Exum verbally warned Wallace about properly documenting all birthday and vacation leave and entering absences in a timely fashion. (
Wallace does not specifically recall making any of the alleged errors. (
Despite this written warning, Wallace still received a satisfactory end of year performance review in December 2013. (Doc. 38-1, p. 323; Doc. 42-2, p. 24). Sanderson Farms conducts performance reviews once a year. (Doc. 42-2, p. 18). The review takes into consideration the employee's job performance, goals met, whether the employee had been written up, and whether the employee had any attendance issues. (
Wallace was issued a second Memorandum of Understanding one year later on July 28, 2014. (Doc. 38-1, p. 77-83, 302). This writeup again addressed Wallace's "poor job performance for not properly completing absentees." (
Wallace received her third Memorandum of Understanding on January 16, 2015. (Doc. 38-1, p. 92, Doc. 38-4, ¶ 59). The third writeup highlighted misunderstandings Wallace had about Sanderson Farms' FMLA policies and procedures. (Doc. 38-1, p. 92-95; Doc. 38-4, ¶¶ 60-62). Specifically, Wallace had not counted FMLA absences correctly and had neglected to send letters in a timely fashion to employees who were absent and not covered by any leave policy. (Doc. 38-1, p. 92-93; Doc. 38-4, ¶¶ 60, 62). Wallace defended her actions, saying that she "didn't know that it was that much of a pressing issue because they didn't abide by the rules for everyone." (Doc. 38-1, p. 93). She also testified that she did not think she had been adequately trained on FMLA prior to being held accountable for any errors she might have made. (
In the following weeks, Exum continued to identify errors in Wallace's work. There were discrepancies in entering birthday leave and funeral leave. (
Sanderson Farms establishes salary based on a quartile system. (Doc. 38-2 ¶ 10). For each position, there are four quartiles for determining pay. (
Wallace received two raises during her tenure with Sanderson Farms. Her first merit raise of 4.5 percent was issued in December 2013 and went into effect in 2014. (Doc. 38-1, p. 126; Doc. 38-2, ¶ 12). Although Wallace was eligible for a merit raise of up to 6 percent, she only qualified to receive 4.5 percent because her employment did not commence until April 2013. (Doc. 38-1, p. 126, 129; Doc.38-2, ¶ 12). Wallace received a second merit increase of 5.5 percent at the end of 2014. (Doc. 38-1, p. 139).
Wallace contends that Sanderson Farms discriminated against her in the terms of her pay based on her race. Wallace points to Yoaska Crumpton, a Hispanic female, as an individual who had inferior qualifications to Wallace but who earned a higher salary. Crumpton first began working for Sanderson Farms as a receptionist in 2008. (Doc. 38-2, ¶ 14). She worked her way through each position in the HR department. (Doc. 42-2, p. 13-14). At the time of Wallace's hire in April 2013, Crumpton was working as an employee records clerk and fell within the fourth quartile for that position. (Doc. 38-2, ¶ 14). When Crumpton was promoted to personnel supervisor in June 2013, even though she started the position two months after Wallace, Crumpton's salary was set in the third quartile. (
Wallace was known to many employee's at Sanderson Farms as the "church lady" or "church girl." (Doc. 38-1, p. 158). This moniker had its origins in part from the fact that on Wednesday evenings Sanderson Farms permitted Wallace to leave for a period of two hours to attend her weekly Bible study. (
What did bother Wallace was snide commentary from Chad Goff. Goff often made sarcastic remarks about Wallace's faith and church attendance. (
Wallace complained to Exum about Goff's remarks. (
Plaintiff alleges that Defendant discriminated against her in both her termination and in her wages based on her race. Upon closer examination of the evidence, though, it is apparent that Plaintiff actually felt that Defendant's decision making stemmed from her superior educational qualifications and the fact that Plaintiff's direct supervisor, Keisly Exum, was intimidated by Plaintiff's level of education. Title VII does not provide relief for an employee who believes she was treated differently from other employees based on her education.
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a prima facie case of discrimination through either direct or circumstantial evidence.
To establish a prima face case of discriminatory discharge, Plaintiff must produce evidence that (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she was terminated from that position; and (4) either she was treated less favorably than a similarly situated individual outside her protected class or she was replaced by a person outside of her protected class.
It is undisputed that Plaintiff, a black woman, is a member of a protected class, that she was qualified for the position of personnel supervisor, and that she was terminated from her position. It is further undisputed that following Plaintiff's separation, Defendant replaced her with another black female. (Doc. 38-2, ¶¶ 26-27). Therefore, in order to establish her prima facie case, Plaintiff must demonstrate that she was treated less favorably than a similarly situated individual outside her protected class. "[T]o determine whether employees are similarly situated, [the Court] evaluate[s] `whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.'"
Plaintiff identifies her fellow personnel supervisors as valid comparators: Yoaska Crumpton, a Hispanic female, and Eve Thompson, a white female. According to Plaintiff, both Crumpton and Thompson committed similar errors entering data for birthdays, absences, vacations, and FMLA leave, yet neither of them was subject either to writeups or termination. According to Plaintiff, Keisly Exum once told her that Defendant created the safety position for Thompson "because [Thompson] didn't do so well in HR in the position that we were in." (Doc. 38-1, p. 63). Additionally, when Thompson filled in for Plaintiff while Plaintiff was out of town, Thompson made errors about which Exum later approached Plaintiff. (
Plaintiff and Crumpton worked opposing shifts and shared a desk. (
As the record reveals, none of the alleged comparators suggested by Plaintiff are similarly situated to her. The evidence demonstrates that on more than one occasion, Plaintiff was verbally instructed on performance related issues. When those issues did not resolve, she received a written Memorandum of Understanding outlining the deficiencies in her work and warning her that repeated violations would result in her termination. Over time, she received three writeups. Defendant terminated her after the fourth. In contrast, despite the one time Plaintiff alleges Thompson improperly entered leave information, Plaintiff can point to no other instances where Thompson committed infractions similar to Plaintiff. Plaintiff also has no personal knowledge regarding whether Thompson was disciplined in any way. As to Crumpton, Plaintiff, again, can point to no specific errors committed by Crumpton for which Crumpton was not reprimanded in some way. Even if Plaintiff and Crumpton were similar in some respects, they still are not similarly situated because Plaintiff had continued and repeated errors and, as a result, a far worse performance record. Plaintiff therefore has failed to show a genuine issue of material fact as to whether similarly situated employees outside of her protected class engaged in similar conduct and were treated more favorably than Defendant treated her.
Even if the Court were to assume that Plaintiff established a prima facie case of discrimination, Defendant has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff that Plaintiff has not rebutted. Namely, Defendant has demonstrated that Plaintiff after being verbally reprimanded continued to document leave and absences incorrectly, leading to a series of written warnings and eventually termination. Having articulated these reasons, the burden shifts to Plaintiff to show that the reasons given by Defendant were pretextual. She may carry that burden by "cast[ing] doubt on [Defendant's] proffered nondiscriminatory reasons sufficient to allow a reasonable factfinder to determine that [they] were not what actually motivated [Defendant's] conduct."
Plaintiff does not dispute that she made errors when she was working as a personnel supervisor for Defendant. She additionally has not put forth sufficient evidence from which a jury could conclude that she was treated differently from similarly situated individuals outside of her protected class. In short, she has done nothing more than question the business judgment of Defendant in terminating her, which is not sufficient to establish pretext.
The
Here, Plaintiff has not produced "sufficient evidence to allow a jury to infer" that Defendant fired her because she is black.
Plaintiff next alleges that Defendant discriminated against her in her pay. Disparate pay claims under Title VII are governed by the familiar burden-shifting framework of
Plaintiff identified Yoaska Crumpton as a comparator in support of her wage claim. As already established, Crumpton is Hispanic and, therefore, falls outside of Plaintiff's protected class. The parties additionally do not dispute that Crumpton was compensated at a slightly higher rate than Plaintiff. However, even though the two women held the same title of personnel supervisor, they were not otherwise similarly situated. Crumpton began working in Defendant's HR department in July 2008, a little less than five years before Plaintiff started in April 2013. During her time within the department, Crumpton worked her way through the various HR positions. She therefore was intimately familiar with Defendant's policies and procedures prior to being promoted to personnel supervisor. Plaintiff, in contrast, while well educated in the field of Human Resources, had never previously worked for Defendant or any other processing plant and had no prior experience working in a substantively similar HR position. Plaintiff and Crumpton therefore are not similarly situated in all relevant respects, and Crumpton is not a valid comparator for the purpose of establishing a prima facie case of wage discrimination.
Even if Crumpton was a proper comparator, Plaintiff has not established that Defendant's non-discriminatory reason for paying Crumpton more than Plaintiff is a mere pretext for racial discrimination. Defendant has explained that it sets employee salaries based on a quartile system and that there are four quartiles assigned to any position within the company. (Doc. 38-2, ¶ 10). New employees typically do not receive a starting salary above the midpoint of the wage range for the position. (
Because Defendant demonstrated a legitimate, non-discriminatory reason for the pay disparity between Plaintiff and Crumpton, the burden now shifts to Plaintiff "to establish by a preponderance of the evidence that the proffered justifications are a pretext" for racial discrimination.
Plaintiff here has failed to carry her burden of proving pretext. Plaintiff has not come forward with any evidence to place Defendant's veracity in question beyond her own belief that she should have been compensated at a higher rate because she had advanced degrees and because she held the personnel supervisor position for two months longer than Crumpton. (Doc. 38-1, p. 144, 149). Plaintiff's generalized belief that she earned a lower wage because of her race and "white privilege" is not enough to establish discriminatory animus. (
Plaintiff contends that Defendant discriminated against her on the basis of her religion by permitting the existence of a hostile work environment. Title VII's prohibition against discrimination in respect to an employee's "terms, conditions, or privileges of employment" extends to include harassment resulting in a discriminatorily hostile or abusive work environment.
An employee claiming that harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment must satisfy both a subject and an objective component.
In making the objective determination, the following factors should be considered: "(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance."
Plaintiff contends that throughout the course of her employment at Defendant's processing plant she was subjected to harassment because of her religious beliefs. Specifically, she notes that other employees regularly referred to her as the "church lady" or "church girl." (Doc. 38-1, p. 158). Another employee, Chad Goff, also frequently made offensive jabs and sarcastic remarks about Plaintiff's faith and church-going activities, such as "don't nobody give an `F' if you're a Christian"; "I ain't got to watch my mouth because you in the room"; "I guess I need to get me a f_____ing church so I can take long breaks when I want to"; or "I hope you ain't got church tonight." (
As to Plaintiff's subjective perception of her work environment, Plaintiff undermined her own claims when she testified that she was not particularly bothered when other employees called her "church lady," largely because she recognized that "it's probably because they don't remember my name." (
For the foregoing reasons, the Court