CATHERINE M. SALINAS, District Judge.
This matter is before the Court on the Motion for Summary Judgment filed by Defendant IKEA U.S. East, LLC ("IKEA") on January 29, 2018. [Doc. 33]. The first Plaintiff, Stephanie Austin ("Austin"), alleges that IKEA, her former employer, terminated her employment in retaliation for her making a complaint of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
On August 23, 2012, Burke was hired as a Team Lead in the Food Services Department of IKEA's Atlanta store. [Videotaped Deposition of Jean Burke ("Burke Dep.") 29-30, 32, 49; Deposition of James F. Anastos ("Anastos Dep.") 13; Declaration of James F. Anastos
In April 2014, Harold "Hal" Mash was hired as the Food Services Manager, and he directly supervised Austin and Burke, among other employees. [Deposition of Harold Mash ("Mash Dep.") 11-12; Anastos Dep. 21-22; Anastos Decl. ¶ 3; Austin Dep. 35, 57-58, 85; Burke Dep. 32-33, 50-51, 65-66]. On September 23, 2014, Austin received a corrective action and counseling from Mr. Mash for engaging in inappropriate behavior and making disrespectful comments towards a co-worker. [Austin Dep. 99-100, Ex. 15; Mash Dep. 28-32, Ex. 1]. In November 2014, Mr. Mash gave Austin her annual performance evaluation, in which he noted that Austin "angered coworkers with [her] brash and perceived rudeness" and that her "style and demeanor in interacting with coworkers must be improved." [Austin Dep. 105-06, 108-09, 113, Ex. 16; Mash Dep. 34-36, Ex. 4]. Because Austin received a rating of "2" on her performance evaluation, she was told that she would be placed on a performance improvement plan ("PIP"). [Austin Dep. 110].
On January 10, 2015, Austin made a complaint using iSpeak, a telephonic system available to IKEA employees to make work-related complaints.
Shortly after Austin made her iSpeak complaint, Samantha Alfred, another Team Lead in the Food Services Department, called Mr. Mash and Marcia Mott, the Human Resources ("HR") Manager, alleging that Austin was making false accusations of sexual harassment against Mr. Mash in an attempt to get him fired and to avoid the PIP. [Video Deposition of Marcia Mott ("Mott Dep.") 8, 46-48; Mash Dep. 58-59; Anastos Dep. 52; Anastos Decl. ¶ 9].
On January 11, 2015, Austin met with Ms. Mott and informed her of Mr. Mash's "work wife" and "favorite" comments. [Austin Dep. 144-49]. The following day, Austin met with Ms. Mott, Mr. Mash, and another manager to discuss her iSpeak complaint, and Austin was asked to prepare a written statement. [Austin Dep. 149-54, Ex. 18]. In her statement, Austin noted that Bunistie Shockley, another Team Lead in the Food Services Department, had been with Austin when Mr. Mash called Austin his "work wife." [Austin Dep. Ex. 18 at 1]. Austin also noted that Mr. Mash had once asked Ms. Shockley "to sit on his lap[.]" [
In a written statement dated January 12, 2015, Mr. Mash stated that Austin's sexual harassment allegations against him were "baseless accusations[,]" and that it was "unacceptable to sling false accusations . . . in order to exact revenge for disagreeing with a Performance Evaluation." [Mash Dep. 57-60, Ex. 11]. During his deposition, Mr. Mash testified that he did, in fact, call Austin his "work wife" one time at a work function.
Wendy Lester from IKEA's Co-Worker Relations Department took over the investigation and conducted numerous in-person and telephonic interviews. [Mott Dep. 21-22; Anastos Dep. 24; Anastos Decl. ¶ 14]. Ms. Lester conducted separate interviews with Austin and Burke on January 20, 2015 and January 29, 2015, and took verbatim notes of each interview; Ms. Lester also interviewed Mr. Mash and several other employees as part of her investigation. [Austin Dep. 173-78, Ex. 23; Burke Dep. 78-85, 90-93, 136-37, Ex. 13].
Meanwhile, Jim Anastos, the Store Manager, learned about Austin's iSpeak complaint against Mr. Mash. [Anastos Decl. ¶¶ 1, 11]. As the Store Manager, Mr. Anastos often played a role in any iSpeak complaint investigations involving management-level employees. [
According to Mr. Anastos, IKEA was unable to substantiate any of the allegations made by Austin against Mr. Mash, and IKEA elected not to pursue disciplinary action against anyone involved. [Anastos Decl. ¶ 15].
Approximately four months later, in late May 2015, several high-performing employees within the Food Services Department abruptly resigned or sought to transfer to other departments. [Anastos Dep. 32-33; Anastos Decl. ¶ 16]. In his declaration, Mr. Anastos stated that he became concerned with the level of dissatisfaction among employees, and he interviewed several employees to get a sense of the work atmosphere. [Anastos Dep. 32-36; Anastos Decl. ¶¶ 17-20]. From these interviews, Mr. Anastos learned that employees were choosing to resign or transfer because of the "uncomfortable and disrespectful work environment" that Austin and Burke created that made the Food Services Department an unpleasant place to work. [Anastos Dep. 32-36, 38-39; Anastos Decl. ¶¶ 18-19, 21]. Employees accused Austin of using excessive profanity when referring to co-workers and management,
On May 29, 2015, Mr. Anastos separately interviewed Austin and Burke regarding the allegations against them. [Anastos Decl. ¶ 25; Austin Dep. 194-99; Burke Dep. 105-06]. Based on the number of complaints and the nature of the allegations, Mr. Anastos sent Austin and Burke home pending the remainder of the investigation. [Anastos Decl. ¶ 25; Austin Dep. 199-200, Ex. 27; Burke Dep. 106-12, Ex. 15]. According to Mr. Anastos, after he completed his investigation, he concluded that Austin and Burke should be terminated due to their unprofessional behavior. [Anastos Decl. ¶ 26].
On June 4, 2015, Mr. Anastos separately met with Austin and Burke and terminated their employment with IKEA. [Anastos Dep. 20, 34-35, 39-40; Anastos Decl. ¶¶ 29-32, 35; Austin Dep. 203, 206, 210, Exs. 28, 29; Burke Dep. 113, 115-21, Exs. 16, 17; Mash Dep. 37-38]. He told them that the termination was based on their use of excessive and targeted profanity in a way that created a hostile work environment. [
That same day, Austin made another iSpeak complaint, alleging that her termination was in retaliation for her previous iSpeak complaint against Mr. Mash. [Austin Dep. 213-14, Ex. 30; Anastos Decl. ¶ 36]. In response to Austin's second iSpeak complaint, IKEA conducted interviews with the employees in the Food Services Department, which ultimately substantiated Mr. Anastos's conclusion that Plaintiffs' excessive use of profanity and other issues contributed to a hostile work environment. [Anastos Dep. 56, 58-59; Anastos Decl. ¶ 38].
On October 6, 2016, Austin and Burke initiated this two-count lawsuit against IKEA, each alleging a single Title VII retaliation claim. [Compl. ¶¶ 40-59]. Austin contends that IKEA terminated her employment in retaliation for her making the January 10, 2015 iSpeak complaint. [Compl. ¶¶ 43-44; Austin Dep. 218-19]. Burke contends that IKEA terminated his employment in retaliation for his participation in the internal investigation regarding Austin's January 10, 2015 iSpeak complaint. [Compl. ¶¶ 53-54; Burke Dep. 125-26]. After the close of the discovery period, IKEA filed the instant motion for summary judgment. The motion is now fully briefed and ripe for consideration.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
If the burden is met, however, the non-moving party must then "go beyond the pleadings and . . . designate `specific facts showing that there is a genuine issue for trial.'"
Title VII prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder]." 42 U.S.C. § 2000e-3(a);
A plaintiff may establish a claim of retaliation by direct
If the plaintiff makes out a prima facie retaliation case, and the employer articulates a legitimate, non-retaliatory reason for the challenged employment action, the plaintiff must show, by a preponderance of the evidence, that the legitimate reasons offered by the employer for taking the adverse action were not its true reasons.
IKEA argues, among other things, that it is entitled to summary judgment because: (1) Plaintiffs have not made out a prima facie case of retaliation; and (2) Plaintiffs have not come forward with evidence to show that IKEA's stated reasons for terminating Plaintiffs were actually a pretext for retaliation. For the reasons that follow, I agree.
In Count One, Plaintiffs contend that IKEA subjected Austin to unlawful retaliation after she raised an internal complaint of sexual harassment on January 10, 2015. [Compl. ¶¶ 40-49]. In Count Two, Plaintiffs contend that IKEA terminated Burke's employment in retaliation for his participation in the internal investigation that immediately followed Austin's sexual harassment complaint. [
"The causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated."
In this case, the adverse employment action about which Austin complains occurred nearly five months after her protected conduct; she filed her iSpeak complaint on January 10, 2015, and was terminated on June 4, 2015. [Compl. ¶¶ 24, 34; Austin Dep. 116-17, Ex. 17]. Similarly, Burke participated in the internal investigation regarding Austin's iSpeak complaint on January 20, 2015 and January 29, 2015, and was terminated more than four months later on June 4, 2015. [Compl. ¶¶ 26, 35; Burke Dep. 78-85, 90-93, 136-37, Ex. 13].
In an attempt to avoid summary judgment, Plaintiffs argue that temporal proximity should be measured from the date the internal investigation ended (April 2015) rather than from the date Austin made the iSpeak complaint (January 10, 2015) and the dates Burke participated in the investigation (January 20, 2015 and January 29, 2015). [Doc. 36 at 10-14]. This argument fails for two reasons. First, although Plaintiffs state in their opposition brief that the internal investigation ended in April 2015, Plaintiffs have not provided any evidence to support that fact. A party cannot create a fact issue by simply making statements in its brief. Facts must be supported by competent evidence.
In the absence of any evidence of causation, other than that of temporal proximity, Plaintiffs have failed to create a fact issue as to whether their protected conduct and termination were causally related.
There is a second, independent basis for granting summary judgment in this case. Even if Plaintiffs could satisfy their initial burden of establishing a prima facie case of retaliation (which, as discussed above, they cannot), IKEA's motion should still be granted because Plaintiffs have failed to create a fact issue as to pretext. Had Plaintiffs established a prima facie case of retaliation, the burden would shift to IKEA to articulate a legitimate, non-retaliatory reason for terminating Plaintiffs' employment. An employer's burden to articulate such a reason is a burden of production, not of persuasion.
Here, IKEA states that its reason for terminating Plaintiffs' employment was Plaintiffs' use of excessive and targeted profanity around co-workers in a way that created a hostile work environment. [Anastos Decl. ¶¶ 26-28, 30-32]. IKEA has provided undisputed evidence that Mr. Anastos learned that employees in the Food Services Department were choosing to resign or transfer to other departments because of the "uncomfortable and disrespectful work environment" that Plaintiffs created. [Anastos Dep. 32-36, 38-39; Anastos Decl. ¶¶ 18-19, 21]. Employees accused Austin and Burke of using excessive profanity when referring to co-workers and management. [Anastos Decl. ¶¶ 22-24]. Mr. Anastos stated in his declaration that Plaintiffs should be terminated based on this conduct, especially because they were management-level employees who were to be held to a high standard for maintaining a positive, non-hostile work environment. [
Under the
Plaintiffs argue that the following evidence supports an inference of retaliation in this case: (1) Plaintiffs were terminated for using profanity in the workplace while other employees who similarly used profanity were not terminated or otherwise disciplined; (2) Mr. Mash participated in the decision to terminate Plaintiffs' employment despite the fact that he held "animus" toward Austin; and (3) Mr. Anastos "expressed his anger at Austin" for making her January 10, 2015 iSpeak complaint against Mr. Mash. [Doc. 36 at 15-18]. I will address each of these points in turn.
Plaintiffs first attempt to establish pretext by arguing that "despite other co-workers and managers actively engaging in profanity within the workplace, only Plaintiffs were targeted and terminated as a result thereof." [Doc. 36 at 16]. Plaintiffs cite to evidence that other co-workers and managers also used profanity in the workplace but were not similarly terminated or otherwise disciplined for such behavior. [Doc. 36 at 15-17]. Plaintiffs have not, however, disputed the fact that Mr. Anastos—the person who decided to terminate Plaintiffs' employment— received numerous complaints from other employees about Plaintiffs' use of excessive profanity when referring to co-workers and management and how this made the Food Services Department an unpleasant place to work. [Anastos Decl. ¶¶ 17, 22-24]. As noted above, IKEA has come forward with evidence that Plaintiffs' co-workers made numerous complaints against them. [
Plaintiffs also contend that IKEA terminated them for using profanity in the workplace despite the existence of evidence that they did not do so. [Doc. 36 at 17-18]. Again, this argument misses the point. "Whether an employee actually engaged in the misconduct that was reported to the decision-maker is irrelevant to the issue of whether the decision maker believed that the employee had done wrong."
Because Plaintiffs have presented no evidence to dispute that Mr. Anastos believed that Plaintiffs were using excessive profanity in the workplace in a way that created a hostile work environment, Plaintiffs have not created a fact issue of pretext.
Plaintiffs also contend that they have demonstrated pretext because Mr. Mash—the individual against whom Austin raised a sexual harassment complaint—participated in the decision to terminate Plaintiffs' employment. [Doc. 36 at 17]. In making this argument, Plaintiffs again make assertions in their opposition brief without citation to record evidence. Plaintiffs have provided no evidence that Mr. Mash participated in the decision to terminate their employment. Rather, the undisputed evidence is that Mr. Anastos was the final decisionmaker with respect to the termination decision and that he made the decision alone. [Anastos Dep. 34-36, 39-40; Anastos Decl. ¶¶ 26, 30; Mash Dep. 36-38]. Plaintiffs point out that Mr. Mash testified that he was asked whether he agreed with the decision to terminate Plaintiffs' employment, but this is insufficient to create a fact issue as to pretext. [Mash Dep. 36-38]. "[T]he mere fact that a management employee reviewed and evaluated the challenged decision and supplied information (favorable or unfavorable) to the final decisionmaker does not elevate that employee to decisionmaker status absent evidence that the employee had authority to overrule the final decision."
Accordingly, because Plaintiffs have not shown that Mr. Mash participated in the decision to terminate their employment, Plaintiffs have failed to raise a fact issue of pretext on this basis as well.
Finally, Plaintiffs argue that they can show pretext because Mr. Anastos "expressed his anger at Austin" for filing her January 10, 2015 iSpeak complaint. [Doc. 36 at 17]. Specifically, Austin testified that during a meeting on January 23, 2015, Mr. Anastos told Austin that he was disappointed in her, that she should have come to him if she had any concerns about Mr. Mash, and that she left scars on the store. [Austin Dep. 185-87]. Mr. Anastos's comments alone are not sufficient to create a fact issue as to pretext. When an employer's remarks "are submitted as evidence of pretext, but are not direct evidence of discrimination because they are either too remote in time or too attenuated, they may provide circumstantial evidence that, when read in conjunction with the entire record, show a decisionmakers' discriminatory attitude."
Here, the only evidence of pretext that Plaintiffs have are these remarks that occurred during a single conversation on a single day; there is nothing else. Other than Mr. Anastos's one-time comments on January 23, 2015, Plaintiffs have provided no other evidence that Mr. Anastos made similar comments to anyone before he decided to terminate Plaintiffs more than four months later. As such, even when viewed in the light most favorable to Plaintiffs, Mr. Anastos's one-time comments four months before Plaintiffs' termination fall into the category of "stray remarks that are isolated and unrelated to the challenged employment decision."
In sum, Plaintiffs have failed to come forward with any competent evidence to show that IKEA's decision to terminate Plaintiffs' employment was based on retaliatory animus related to Austin's January 10, 2015 iSpeak complaint or the investigation thereof.
For the foregoing reasons, I