Wilkins v. Engineered Plastic Components Inc

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LAKINA HILL WILKINS, }

}

Plaintiff, }

}

v. } Case No.: 2:21-cv-01637-RDP

}

ENGINEERED PLASTIC }

COMPONENTS, INC., }

}

Defendant. }

MEMORANDUM OPINION

This matter is before the court on Defendant Engineered Plastic Components Inc.’s (“EPC”

or “Defendant”) Motion for Summary Judgment. (Doc. # 33). Plaintiff Lakina Hill Wilkins has

responded to the Motion. (Doc. # 43). Defendant did not file a reply brief. For the reasons discussed

below, the Motion is due to be granted.

I. Relevant Undisputed Facts1

Defendant produces plastic products for car manufacturers and has a location in Bessemer,

Alabama where Plaintiff worked. (Doc. # 34-3 at 44).2

As discussed below, Plaintiff previously worked for Defendant’s predecessors. Before that,

she had experience in jobs ranging from restaurant manager to medical billing clerk. (Doc. # 34-1

at 80; Doc. # 34-2 at 47-48). Plaintiff has a two-year associate degree in office management and

medical records from Shelton State Community College. (Doc. # 34-1 at 61-63). She attended

1 The facts set out in this opinion are gleaned from the parties’ submissions and the court’s own examination

of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the non-moving party.

See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for

summary judgment purposes only. They may not be the actual facts that could be established through live testimony

at trial. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

2 The court generally cites to the CM/ECF page number, except in the case of depositions, where it cites to

the deposition transcript page number.

Shelton State from 2010 until 2012. (Doc. # 34-1 at 62). Prior to that, she had drawn disability for

a number of years, and “once I was ready to go back to the workforce, I went back to school.”

(Id.).

Plaintiff worked at the Bessemer facility under Defendant’s predecessor companies

beginning in 2013 and in various roles. (Doc. # 34-1 at 63-66, 80, 90-91; Doc. # 34-2 at 47-48).

She was not a qualified engineer. (Doc. # 34-1 at 80; Doc. # 34-2 at 47-48).

In September 2020, when Defendant EPC purchased the company, Plaintiff was employed

by INOAC. (Doc. # 34-3 at 11, 13). At that time, INOAC was losing millions of dollars per year.

(Doc. # 34-3 at 11, 13). At the time of the acquisition, Defendant initially retained INOAC’s

personnel and structure. (Doc. # 34-1 at 116-17; Doc. # 34-2 at 60; Doc. # 34-4 at 36). Defendant

brought in Steve Martin (Caucasian male) as Operations Manager to facilitate changes and “turn

a losing company profitable.” (Doc. # 34-3 at 11, 13).

Plaintiff was in the position of Production Supervisor at the time Defendant acquired the

facility from INOAC and her pay was $63,000 annually, plus overtime. (Doc. # 34-1 at 93-96,

111). There were several other Production Supervisors, including Tamekia Bray (African

American female) and Kareem Jones (African American male). (Doc. # 34-1 at 30, pp. 113-14).

Johnathon Nix (African American male) later moved into a Production Supervisor role. (Doc. #

34-1 at 128-29). Plaintiff and Bray were the only people employed by Defendant at any of its

locations who received overtime pay. (Doc. # 34-3 at 54, 75).

In early 2021, Plaintiff along with Tamekia Bray and Johnathan Nix requested a pay raise.

(Docs. # 34-1 at 125-27; # 34-2 at 30; # 41-1 ¶ 13). Plaintiff felt she did more than her fellow

production supervisors and therefore deserved a raise. (Doc. # 34-1 at 127-29). Plaintiff admitted

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that a 3/5 or “meets expectations” was an appropriate evaluation of her performance at that time.

(Doc. # 34-1 at 145). When Nix moved into the Production Supervisor role, he was evaluated after

ninety (90) days and received a raise at that time. (Doc. # 34-3 at 66-67). At the time of her annual

review, Bray also “got a substantial pay increase because of her great job.” (Doc. # 34-3 at 66).

In March and April 2021, Defendant received written complaints about Plaintiff from two

employees. (Doc. # 34-1 at 133-40, Doc. # 34-2 at 31-35). Martin testified that on multiple

occasions he intended to write Plaintiff up, but the Plant Manager, Greg Montgomery, stopped

him. (Doc. # 34-3 at 12). Tammy Lauderdale, Defendant’s Human Resources Supervisor, also

testified that Mr. Montgomery stopped her from writing up Plaintiff. (Doc. # 34-4 at 8, 107).

In March 2021, Plaintiff’s co-worker Ray Davis texted her while she “was out with [her]

dental work.” (Doc. # 34-1 at 198). Davis’s text stated: “Steve, Greg, and Priscilla, it ain’t no way

Kina having all these migraines. We have to come up with a solution for this FMLA shit.” (Id. at

199; Doc. # 41-1 at 21). The message also contained five laughing emojis. (Id.). Plaintiff explained

that the text indicated that Davis overheard Montgomery, Hansen, and Wilson talking about her

use of FMLA leave. (Doc. # 34-1 at 199).

In April 2021, Martin responded to Plaintiff’s February request for a pay increase by telling

Plaintiff “[W]e [can] talk about this in the near future.” (Doc. # 34-1 at 126-27).

Martin testified that he told Plaintiff that she was being moved from the Production

Department to the Quality Department, and that Montgomery would discuss the details with her.

(Doc. # 34-3 at 54-56). Martin was instructed by Montgomery that he (Montgomery) would handle

the details with Plaintiff. (Id.).

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In May 2021, Montgomery asked Plaintiff how she felt about transferring to the Quality

Department. (Doc. # 34-1 at 119; Doc. # 35-1 at 2). That was the job Defendant had available for

Plaintiff. (Docs. # 35-1 at 2; # 34-3 at 54-56). Montgomery tried to explain to Plaintiff that she

could increase her earnings with the move to the Quality Department. (Docs. # 35-1 at 2; # 34-3

at 54-56). Nevertheless, Plaintiff refused the position. (Doc. # 34-1 at 119; Doc. # 35-1 at 20).

In June 2021, despite her earlier refusal to voluntarily take the position, Plaintiff was

transferred to the Quality Department as a Quality Engineer at a salary of $63,742, with the

opportunity for a salary increase based on a performance evaluation in ninety (90) days. (Doc. #

34-1 at 122; Doc. # 34-2 at 29; Doc. # 34-4 at 53-57; Doc. # 34-4 at 87).

Plaintiff complains that she was not paid the same amount as Quality Engineers Rene

Zimmerman and Adam Hansen. (Doc. # 34-2 at 41-46; Doc. # 35-1). Zimmerman and Hansen

were both white male Quality Engineers who held engineering degrees and had more extensive

experience and training. (Doc. # 34-2 at 41-46; Doc. # 35-1).

Zimmerman holds a Mechanical Engineering Degree from UAB, began his relevant work

in Berlin in 2000, and was a Supplier Quality Engineer for Mercedes for two years and served as

a Senior Quality Engineer for multiple companies. (Doc. # 34-2 at 41-44; Doc.# 35-1 at ¶ 12). In

June 2021, Plaintiff worked with Zimmerman after she was transferred to the Quality Department.

(Doc. # 34-1 at 169-70). Plaintiff was “moved back to quality to help with the paper side of life,

the HTRs, things like that.” (Doc. # 34-3 at 59).

Hansen received a bachelor’s degree in Materials Science and Engineering from UAB, and

had been a Quality Engineer for Grede Holdings and AGC Automotive, and a Program Quality

Leader at Faurecia Interior Systems, Inc. for several years. (Doc # 34-2 at 25; Doc. # 35-1 at ¶ 12).

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Hansen “was a much more seasoned advanced engineer [].” (Doc. # 34-3 at 58). Plaintiff admitted

she never worked with Hansen, and that he was quickly elevated to Quality Manager and became

her supervisor. (Doc. # 34-1 at 170).

Plaintiff admits she did not know Zimmerman’s and Hansen’s salaries, but speculated they

made more than her because the position “topped out” at $85,000. (Doc. # 34-1 at 153-60, 210).

Plaintiff testified that she told Montgomery, “[i]n order for me to stay in this position, you must

[sic] going to get my money right.” (Doc. # 34-1 at 171-72).

After Plaintiff’s transfer, Rhonda Hendrix, a Caucasian female, assumed Plaintiff’s

Production Supervisor position on a temporary basis. (Doc. # 34-1 at 147, 150). Although all

Production Supervisors were subject to the same job description, they did not necessarily perform

the same duties that Plaintiff performed when she held that position. (Doc. # 34-4 at 108-09; Doc.

# 34-3 at 24-25). Steve Martin had worked with Hendrix previously. (Doc. # 34-3 at 59-61). He

hired Hendrix for her ability to train and grow a team. (Id.). Hendrix previously worked as a

superintendent and left that job to take a “higher” position with Defendant. (Id.).

Montgomery, who was the Plant Manager for Defendant and its predecessor INOAC,

testified by Declaration that Defendant “made pay decisions based on employees’ experience,

training, and abilities.” (Doc. # 35-1 at ¶ 12). He also noted that the “male comparators [Plaintiff]

pointed to in this lawsuit – Rene Zimmerman and Adam Hansen [] – had greater experience,

training, and abilities than Plaintiff, and each performed different jobs than Plaintiff.” (Id. at ¶ 13).

After Plaintiff was moved to the Quality Department, she was not performing in a Quality

Engineer role. (Doc. # 34-3 at 76-77). Rather, she was doing paperwork to help get ready for an

audit. (Doc. # 34-3 at 76-77). She also made visual boards and walked the floor to provide

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assistance. (Doc. # 34-1 at 166-69). In fact, the entire facility was involved in preparing for the

AITF audit. (Doc. # 34-3 at 36-37).

Between June and August 2021, Plaintiff asked Montgomery when he was “going to get

[her] money right?” (Doc. # 34-1 at 172-73).

Because Defendant had purchased INOAC in September 2020, in August 2021, Plaintiff

had been employed by Defendant for less than twelve months (one year). (Doc. # 34-1 at 116-17).

Nonetheless, Plaintiff was allowed to take intermittent FMLA leave days. (Doc. # 34-1 at 189-96).

For example, on August 9, 2021, Plaintiff asked Hansen, the Quality Department Manager, to take

time off for a medical procedure. (Doc. # 34-1 at 176). Two days later, on August 11, 2021, Hansen

responded by telling Plaintiff “I don’t know if I’m going to be able to let you get off because I

don’t have coverage.” (Doc. # 34-1 at 174). To that message, Plaintiff responded:

“Well, Adam, FMLA you have no control over, and if I have a doctor’s appointment

or a procedure scheduled, you know, that’s just scheduled.” I said, “Now, what I

would do for you” -- because one of the techs was out -- “I’ll call and see if I can

move it, if he could move it back a few days or whatever.”

I called, I reached out to them, and they couldn’t move my procedure – my

procedure. So -- excuse me. So I guess he didn’t know the ramifications of FMLA,

so he went and asked Priscilla. And that’s when Priscilla and Adam called me in

the office[].

(Doc. # 34-1 at 174-75).

As it turned out, August 11, 2021 was Plaintiff’s last day of employment with EPC. (Doc.

# 34-1 at 50-51, pp. 193-94). Plaintiff was called into a meeting that day (which she recorded) with

Hansen, Montgomery, and Priscila Wilson. (Doc. # 34-1 at 221). Plaintiff was shown a document

that listed all of the workdays Plaintiff had missed to that point in 2021. (Doc. # 41-1 at ¶ 14, 27).

Plaintiff was presented with a written warning for “missing work excessively,” requiring others

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“to cover her workload which negatively affect[s] their job performance.” (Doc. # 34-2 at 60). The

document also stated: “Lakina needs to report to work as scheduled except for planned vacation

or absences excused by FMLA. Currently, Lakina has no more unpaid days off.” (Doc. # 34-2 at

60). The document also stated, “She needs to move into quality office by 8/13/21.” (Doc. # 34-2

at 60). As Plaintiff points out, before August 11, 2021, there was no documentation about issues

with Plaintiff’s performance. (Doc. # 34-4 at 51-52).

Much of the August 11 meeting centered on attempting to discern which of Plaintiff’s

absences were submitted as FMLA absences. (Doc. # 34-2 at 61; Doc. # 34-1 at 222-269). There

was discussion that, based on her FMLA paperwork, it was anticipated Plaintiff would be out three

or four times a month. (Doc. # 34-1 at 228-29). However, because Plaintiff was actually out eight

days a month, Wilson told her the only job they had for her was in the Quality Department. (Doc.

# 34-1 at 228-29).3 Plaintiff has operated her own catering business since 2017. (Doc. # 34-1 at

52, 58-59). Perhaps coincidentally, around this period of time, Plaintiff had decided to transform

her catering business to a “brick and mortar” building. (Id. at 52-53). In April 2021, Plaintiff

secured a building for her catering business and began purchasing equipment for the new business.

(Id.).

Hansen clarified with Plaintiff that they were meeting not about FMLA, but about

attendance overall. (Doc. # 34-1 at 232). During the meeting, Wilson asked Plaintiff if she wanted

the Quality Department job. She said no. (Doc. # 34-1 at 229). Plaintiff herself testified that she

made it clear that she was refusing to take the Quality Department job. (Doc. # 34-1 at 230, 271).

3 During this portion of Plaintiff’s deposition, the tape recording of the meeting was being played on the

record.

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Wilson later called Plaintiff and told her that if she refused the Quality Department job she

would be terminated. (Doc. # 34-1 at 278). Plaintiff again refused the position, and her employment

was terminated for insubordination. (Doc. # 34-4 at 75-119; Doc. # 34-2 at 64; Doc. # 34-1 at 231-

32:7; Doc. # 35-5 at ¶¶ 7-11, 14). Montgomery stated in his declaration that Plaintiff’s refusal of

the Quality Department position was “unwarranted” and, “[a]s a result, I participated in, and

approved of, the decision to terminate [] Plaintiff’s employment.” (Doc. # 35-5 at ¶¶ 7-11, 14).

Plaintiff’s employment was terminated effective August 12, 2021. (Doc. # 34-4 at 82). On

August 12, 2021, Plaintiff called the police and had a police officer escort her to Defendant’s

facility to retrieve some of her things. (Doc. # 34-1 at 216).

Plaintiff communicated with an EEOC investigator on October 13, 2021. (Doc. # 41-1 at

32-38). On October 15, 2021, Plaintiff signed her initial EEOC charge against Defendant asserting

that she was discriminated against on the basis of her race and sex. (Doc. # 1-1 at 2). She lists the

dates of discrimination only as August 13, 2021. (Id.). That charge said nothing about pay

discrimination or retaliation. (Id.).

On October 19, 2021, the EEOC investigator recommended dismissal and closure of

Plaintiff’s EEOC charge because “the investigation does not support the allegations of

discrimination.” (Doc. # 41-1 at 29). The investigator reported that he informed Plaintiff “of the

criteria necessary to further a charge of discrimination based on statutes that the EEOC enforces”

and “that her charge did not meet that criteria.” (Id.). The EEOC mailed Plaintiff her Notice of

Right to Sue on October 19, 2021. (Doc. # 34-2).

On November 16, 2021, Plaintiff filed another EEOC charge against Defendant regarding

her pay and asserting that Defendant retaliated against her for complaining about pay disparities

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by terminating her employment. (Doc.# 1-1 at 6). Plaintiff listed the date of discrimination as

August 12, 2021. (Id.). Plaintiff has not included in the Rule 56 record any dismissal and notice of

rights to sue as to this charge.

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); see Fed. R. Civ. P. 56(c). The moving party must show the court that there is a basis for

granting summary judgment, as well as point to the evidence contained in the pleadings that

demonstrates an absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. When

the movant has met its burden, Rule 56 requires the non-moving party to highlight specific facts

beyond the pleadings (such as affidavits, depositions, interrogatory answers, or admissions on file)

that show a genuine issue for trial. See Id. at 324.

The method used by the party moving for summary judgment to discharge its initial burden

depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick v. City

of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (citing U.S. v. Four Parcels of Real Property,

941 F.2d 1428 (11th Cir.1991) (en banc). If the moving party bears the burden of proof at trial,

then it can meet its burden on summary judgment only by presenting positive evidence that

demonstrates the absence of a genuine issue of material fact; i.e., facts that would entitle it to a

directed verdict if not controverted at trial. Fitzpatrick, 2 F.3d at 1115. Once the moving party

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makes such a showing, the burden shifts to the nonmoving party to produce significant, probative

evidence demonstrating a genuine issue for trial.

In making a determination as to which facts are material, a court is guided by substantive

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Any reasonable doubts about the

facts, or any justifiable inferences derived therefrom, are resolved in favor of the non-moving

party. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); Allen v. Bd. of Pub.

Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007). A dispute exists when “the evidence is

such that a reasonable jury could return a verdict for the non[-]moving party.” Anderson, 477 U.S.

at 248.

“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249. Thus, a court’s inquiry in a Rule 56 motion is “whether the evidence

presents a sufficient disagreement to require submission to the jury or whether it is so one-sided

that one party must prevail as a matter of law.” Id. at 251-52; see also LaRoche v. Denny’s, Inc.,

62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) (“The law is clear . . . that suspicion, perception,

opinion, and belief cannot be used to defeat a motion for summary judgment.”).

III. Analysis

Plaintiff’s Complaint asserts seven counts against Defendant. These are categorized as

follows:

1. Count I—Title VII (Race Discrimination);

2. Count II—Title VII (Sex Discrimination);

3. Count III—Title VII (Retaliation);

4. Count IV—42 U.S.C. § 1981 (Race Discrimination);

5. Count V—42 U.S.C. § 1981 (Retaliation);

6. Count VI—Equal Pay Act (Sex Discrimination); and

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7. Count VII— Family and Medical Leave Act (Retaliation).

(Doc. # 1). The court addresses each of her claims below.

A. Plaintiff’s Pay Claims in Counts I, II, and IV

Counts I and IV of Plaintiff’s Complaint assert claims of race discrimination under Title

VII and Section 1981, and Count II asserts a claim of sex discrimination under Title VII. (Doc. #

1 at ¶¶ 34-39, 40-44, 51-56). All three of these claims complain about wage discrimination. (See

Doc. # 43 at 22-30). Generally, claims brought pursuant to Title VII and Section 1981 are analyzed

under the same analytical framework. See Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir.

2009).

In asserting her claims, Plaintiff compares herself to a white employee, Rhonda Hendrix,

and also mentions “two white men were paid over 30% more” than she was. (Doc. # 1 at ¶¶ 35-

37). Plaintiff’s response to Defendant’s Motion confirms she is referring to two Quality Engineers:

Rene Zimmerman and Adam Hansen. (Doc. # 43 at 24).

To state a prima facie case of wage discrimination under Title VII, Plaintiff may show that

(1) she belongs to a protected class, (2) she received low wages, (3) similarly situated comparators

outside the protected class received higher compensation, and (4) she was qualified to receive a

higher wage. Walker v. Fulton Cty. Sch. Dist., 624 F. App’x 683, 686 (11th Cir. 2015). At issue

here is whether Plaintiff is similarly situated to Hendrix, Zimmerman and Hansen.

To establish a prima facie case of wage discrimination, Plaintiff may show that she,

Hendrix, Zimmerman and Hansen are “similarly situated in all material respects.” Lewis v. City of

Union City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019). “If a plaintiff fails to show the existence

of a similarly situated employee, summary judgment is appropriate where no other evidence of

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discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997), abrogated on

other grounds by Lewis, 918 F.3d at 1224-25. Regarding comparators, “a valid comparison will

turn not on formal labels, but rather on substantive likenesses.” Lewis, 918 F.3d at 1228. That is,

“a plaintiff and her comparators must be sufficiently similar, in an objective sense, that they

‘cannot reasonably be distinguished.’” Id. (quoting Young v. United Parcel Serv., Inc., 135 S. Ct.

1338, 1355 (2015)). The Lewis decision also makes clear that “that a meaningful comparator

analysis must remain part of the prima facie case.” Id. at 1221-24.

“If the plaintiff makes this [initial] showing, [s]he raises a presumption that h[er] race [or

gender] motivated h[er] employer to treat h[er] unfavorably.” Smith v. Lockheed-Martin Corp.,

644 F.3d 1321, 1325-26 (11th Cir. 2011). Thereafter, “the burden then shifts to the employer to

rebut this presumption by producing evidence that [the employer’s] action was taken for some

legitimate, non-discriminatory reason.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272

(11th Cir. 2002). “If the employer meets its burden of production, the presumption of

discrimination raised by the plaintiff’s prima facie case is rebutted and thus disappears.” Smith,

644 F.3d at 1325-26. Finally, if the presumption is rebutted, “the inquiry proceeds to a new level

of specificity, whereby the plaintiff must show the employer’s proffered reason to be a pretext for

unlawful discrimination.” Id. (quotations omitted).

The Eleventh Circuit has noted that “‘establishing the elements of the McDonnell Douglas

framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a

summary judgment motion in an employment discrimination case.’ Even without similarly situated

comparators, ‘the plaintiff will always survive summary judgment if he … presents circumstantial

evidence that creates a triable issue concerning the employer’s discriminatory intent.’” Lewis v.

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City of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (“Lewis II”) (quoting Smith,

644 F.3d at 1328). With this legal framework in mind, the court turns to assessing Plaintiff’s pay

claims.

Plaintiff has an associate degree in office management and medical records from Shelton

State Community College. (Doc. # 34-1 at 61-63). Prior to working for Defendant’s predecessors,

Plaintiff had experience in jobs ranging from restaurant manager to medical billing clerk. (Doc. #

34-1 at 80; Doc. # 34-2 at 47-48). Plaintiff had worked in various roles at the Bessemer facility for

predecessor companies since 2013. (Doc. # 34-1 at 63-66, 80, 90-91; Doc. # 34-2 at 47-48).

Defendant retained Plaintiff after it purchased INOAC, which had been losing millions of dollars

per year. (Id.). Plaintiff was not a qualified engineer. (Doc. # 34-1 at 80; Doc. # 34-2 at 47-48).

Zimmerman holds a Mechanical Engineering Degree from UAB, began his relevant work

in Berlin in 2000, and was a Supplier Quality Engineer for Mercedes for two years and a Senior

Quality Engineer for multiple companies. (Doc. # 34-2 at 41-44; Doc.# 35-1 at ¶ 12). Zimmerman

performed “data control, park data, PPAP submission, regulatory -- safety and regulatory

requirements, pull force testing, things like that[.]” (Doc. # 34-3 at 59, 64).

Hansen received a bachelor’s degree in Materials Science and Engineering from UAB, and

he had been a Quality Engineer for Grede Holdings and AGC Automotive, and the Program

Quality Leader at Faurecia Interior Systems, Inc. for several years. (Doc # 34-2 at 25; Doc. # 35-

1 at ¶ 12). Hansen “was a much more seasoned advanced engineer that could do SPC data, could

do problem solving, could chart pin dots for issues[.]” (Doc. # 34-3 at 58). After he was hired,

Hansen was quickly elevated to Quality Manager and became her supervisor. (Doc. # 34-1 at 170).

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Martin, who was brought in to make the Bessemer facility profitable, had worked with

Hendrix previously. (Doc. # 34-3 at 59-61). Martin hired Hendrix because of her ability to train

and grow a team. (Id.). Hendrix had been a superintendent previously and left a higher level

position to work for Defendant. (Id.).

The undisputed facts in the Rule 56 record simply do not support any conclusion (or even

suggestion) that Plaintiff, Hendrix, Zimmerman, and Hansen are “sufficiently similar, in an

objective sense, that they ‘cannot reasonably be distinguished.’” Lewis, 918 F.3d at 1228 (quoting

Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015)). On the one hand, Plaintiff had

an associate degree from a community college in subjects not directly relevant to manufacturing.

She had been hired as a temporary employee in 2012 and worked her way up within Defendant’s

predecessor companies.

On the other hand, Zimmerman and Hansen both had engineering degrees from a reputable

four-year university and, after their respective graduations, they gained much more extensive,

relevant, and advanced work experience. Plaintiff admits Hansen was her supervisor. Hendrix had

previously been a superintendent and was hired because Martin had a prior working relationship

with her. Hendrix actually took a step down in accepting the job with Defendant. Her work

experience and management background far surpass that of Plaintiff.

Under these facts, Plaintiff has failed to satisfy the McDonnell-Douglas framework

because she has not identified a proper comparator. But, the court’s analysis does not end there

because McDonnell-Douglas is not the sole method for a plaintiff to establish a triable issue of fact

regarding her discrimination claim. A plaintiff may alternatively present the sort of circumstantial

evidence that otherwise creates a triable issue concerning the employer’s discriminatory intent

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Lewis II, 934 F.3d at 1185. But here, Plaintiff has not done that either. The disparity in the

qualifications between Plaintiff and the alleged comparators is stark. Further, Plaintiff has not

presented sufficient facts to create a genuine issue of fact as to whether the proffered reasons the

comparators were paid more than her were the real reasons for the pay differential.

The evidence also fails to support any inference that Defendant treated black employees

less favorably. Plaintiff and Tamekia Bray, another black female employee, were the only people

employed by Defendant at any of its locations who received overtime pay. (Doc. # 34-3 at 54, 75).

Although Plaintiff argues that white employees received raises when black employees did not, the

evidence shows that Bray and Johnathan Nix (a black male) requested a pay raise around the same

time as Plaintiff. (Docs. # 34-1 at 125-27; # 34-2 at 30; # 41-1 ¶ 13). Martin told Plaintiff “we

[can] talk about this in the near future.” (Doc. # 34-1 at 126-27). In contrast, when Nix moved into

the Production Supervisor role, he was evaluated after ninety (90) days and received a raise. (Doc.

# 34-3 at 66-67). And, Bray “got a substantial pay increase because of her great job” at her annual

review. (Doc. # 34-3 at 66).

Plaintiff has presented no other circumstantial evidence that Defendant had any

discriminatory intent. Because Plaintiff has not presented evidence sufficient to create a genuine

issue of material fact as to whether Defendant engaged in pay discrimination against her because

of either her race or sex, Defendant is entitled to summary judgment on Plaintiff’s wage

discrimination claims in Counts I, II, and IV.

B. Plaintiff’s Retaliation Claims in Counts III and V

Counts III and V of Plaintiff’s Complaint assert claims of retaliation under Title VII and

Section 1981. (Doc. # 1 at ¶¶ 45-50, 57-62). There are some differences in how those two statues

15

address retaliation. But, because retaliation claims under Title VII and Section 1981 are generally

evaluated under the same framework, the court discusses these claims together, see Goldsmith v.

Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (explaining that the same elements

apply to retaliation claims under Title VII and § 1981), and notes any differences in the analyses,

as appropriate.

1. Failure to Exhaust Administrative Remedies

As to Count III, Plaintiff’s retaliation claim under Title VII,4 Defendant argues that Plaintiff

failed to exhaust her administrative remedies on her retaliation claim by failing to check the

retaliation box when she filed her first EEOC Charge. (Doc. # 36 at 21). She alleged retaliation in

her second charge, but the record does not contain evidence that a dismissal and notice of rights

was ever issued on that charge. Plaintiff responds that in addition to the specific allegations

contained in the original charge of discrimination, a judicial complaint may also be based upon the

scope of the administrative investigation which could reasonably be expected to grow out of the

charge of discrimination. (Doc. #43 at 22).

A “plaintiff’s judicial complaint is limited by the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge of discrimination.” Gregory v. Ga. Dep’t of

Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (quoting Alexander v. Fulton Cnty., 207 F.3d

1303, 1332 (11th Cir. 2000)). “[J]udicial claims are allowed if they amplify, clarify, or more clearly

focus the allegations in the EEOC complaint, but ... allegations of new acts of discrimination are

inappropriate.” Batson v. Salvation Army, 897 F.3d 1320, 1327 (11th Cir. 2018) (quoting Gregory,

355 F.3d at 1279-80).

4 This argument is inapplicable to Plaintiff’s Section 1981 retaliation claim in Count Five.

16

In her initial EEOC Charge, Plaintiff did not check the retaliation box, but she described

the circumstances leading to the termination of her employment. (Doc. # 1-1 at 2-3). So, the

question before the court is whether Plaintiff’s retaliation claim could “reasonably be expected to

grow out of” the allegations of discrimination made in the initial EEOC Charge. Although it

appears that the EEOC did not do much of an investigation of Plaintiff’s charge (Doc. # 34-2 at

62), the EEOC should reasonably have been expected to investigate the reasons Defendant

terminated Plaintiff’s employment. It is likely that a reasonable investigation would (or should)

have included a review of (and uncovered facts related to) alleged retaliation. Because the factual

allegations of the initial charge indicate that a lateral move was discussed, the court is giving

Plaintiff the benefit of the doubt here: Plaintiff, in her papers, said that her discharge was unfair,

and shortly thereafter her employment was terminated. (Doc. # 1-1; Doc. # 34-2 at 62).

There is good reason to give Plaintiff this benefit. “Courts are [] ‘extremely reluctant to

allow procedural technicalities to bar claims brought under [Title VII].’” Gregory, 355 F.3d at

1280 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir.1970)). And as the

Eleventh Circuit has noted, “‘the scope of an EEOC complaint should not be strictly interpreted.’”

Id. (quoting Sanchez, 431 F.2d at 465). Viewing the Rule 56 record in the light most favorable to

Plaintiff, the court concludes that Plaintiff’s retaliation claim could “reasonably be expected to

grow out of” her initial EEOC charge’s allegations. Therefore, the court concludes, at least for

purposes of this motion, that Plaintiff exhausted her administrative remedies with respect to her

Title VII retaliation claim. See Gregory, 355 F.3d at 1279-80. The court notes that Plaintiff’s

retaliation claim under Section 1981 may proceed in any event, because Title VII exhaustion does

not apply to such a claim. Having said that, “[i]t also goes without saying that the courts can and

17

should preclude double recovery by an individual.” Gen. Tel. Co. of the Nw. v. E.E.O.C., 446 U.S.

318, 333 (1980) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, n.14 (1974)). A § 1981

retaliation claim only is available when a plaintiff claims retaliation for opposing race

discrimination. Section 1981 cannot be used to pursue a claim that a plaintiff was retaliated against

for complaining about sex discrimination. Bonham v. Wal-Mart, Inc., No. 2:18-cv-01201-AKK,

2018 WL 4912633, at *2 (N.D. Ala. Oct. 10, 2018) (citing Little v. United Techs., Carrier

Transicold Div., 103 F.3d 956, 960-61 (11th Cir. 1997)).

2. Plaintiff’s Prima Facie Case

Under the modified McDonell Douglas framework, to succeed on a retaliation claim,

Plaintiff “must first make out a prima facie case of retaliation, showing (1) that she engaged in

statutorily protected activity, (2) that she suffered an adverse action, and (3) that the adverse action

was causally related to the protected activity.” Patterson v. Ga. Pacific, LLC, 38 F.4th 1336, 1344-

45 (11th Cir 2022) (citing Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir.

2020)). If the plaintiff can make that showing, “the burden shifts to the employer to articulate a

legitimate, non-discriminatory reason or reasons for the [alleged] retaliation.” Patterson, 38 F.4th

at 1345. “If the employer does, the plaintiff must show that each reason is merely a pretext and

that the real reason was retaliation.” Id.

“An employee’s complaint about discrimination constitutes protected activity if the

employee could ‘reasonably form a good faith belief that the alleged discrimination existed.’”

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018) (quoting Taylor v. Runyon, 175

F.3d 861, 869 (11th Cir. 1999)). A materially adverse action is one that “could well dissuade a

reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa

18

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861

(11th Cir. 2020). As the Supreme Court recently explained, a plaintiff “need show only some injury

respecting her employment terms or conditions. [A] transfer must have left [the plaintiff] worse

off, but need not have left her significantly so.” Muldrow v. City of St. Louis, Missouri, 144 S. Ct.

967, 977 (2024)

Usually, the key summary judgment question a court faces in assessing a retaliation claim

under Rule 56 is whether there was a causal relation between protected activity and an adverse

action. The Eleventh Circuit recently examined Supreme Court precedent and explained Plaintiff’s

burden this way: “In University of Texas Southwestern Medical Center v. Nassar, the Supreme

Court held that a plaintiff making a retaliation claim under [Title VII] must establish that his or

her protected activity was a but-for cause of the alleged adverse action by the employer.” Knox v.

Roper Pump Co., 957 F.3d 1237, 1245 (11th Cir. 2020) (citing Nassar, 570 U.S. 338, 362 (2013))

(internal quotes omitted).

However, “the McDonnell Douglas framework is not the only way to prove retaliation.”

Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1310 (11th Cir. 2023). A plaintiff may also use

circumstantial evidence to prove retaliation “so long as the evidence raises a reasonable inference

of retaliatory intent.” Id. The Eleventh Circuit has identified three, non-exclusive categories of

circumstantial evidence that can raise a reasonable inference: “[1] evidence of suspicious timing,

ambiguous statements, or other information from which unlawful intent may be inferred; [2]

evidence of systemically better treatment of similarly situated employees; or [3] evidence that the

employer’s justification for its action is pretextual.” Id. at 1311.

19

a. Protected Conduct

Defendant argues that Plaintiff did not engage in protected conduct because she merely

sought to be paid for what she claimed to be worth and did not have a good faith belief that any

pay disparities were discriminatory. (Doc. # 36 at 21). In particular, Defendant points out that she

had no idea what her comparators actually earned. Plaintiff responds that she “expressed her

opposition to” transferring to the Quality Department “without an increase in pay [and] specifically

pointed out that the white male employees who were currently occupying (or who recently

occupied) the position made more money than her.” (Doc. # 43 at 30). Although the court has

doubts about the reasonableness of Plaintiff’s belief that she should have been paid the same as

Zimmerman, Hansen, and Hendrix, viewing the record in the light most favorable to Plaintiff, that

arguably may be an issue for a trier of fact to determine. Thus, for purposes of this motion only,

the court assumes there is at least a question of fact regarding whether Plaintiff engaged in

protected conduct.

b. Adverse Action

Plaintiff asserts that she suffered two adverse actions: being transferred to the Quality

Department without a pay increase on June 14, 2021, and having her employment terminated on

August 11, 2021. (Doc. # 43).

Plaintiff was transferred to the Quality Department despite saying she did not want the

position without a pay raise. The new job was not one she necessarily wanted. So, at least arguably,

under new Supreme Court precedent, it would be for a jury to decide whether that transfer

constituted an “injury respecting her employment terms or conditions” regardless of whether it left

her significantly less well off. Muldrow, 144 S. Ct. at 977. Certainly, an unwanted transfer is

20

something that “could well dissuade a reasonable worker from making or supporting a charge of

discrimination.” Burlington Northern, 548 U.S. at 67. Termination of one’s employment is clearly

an actionable adverse action. Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018).

Thus, Plaintiff has established the second element of her prima facie case of retaliation.

c. Causal Link

To establish this final element of her prima facie case, Plaintiff must establish that her

protected activity was a but-for cause of the adverse action by the employer. Knox, 957 F.3d at

1245; Nassar, 570 U.S. at 362. Plaintiff asserts that “‘temporal proximity’ alone is sufficient to

establish causation when that proximity is ‘very close.’” (Doc. # 43 at 32 (citing Brown v. Alabama

Department of Transportation, 597 F.3d 1160, 1182 (11th Cir. 2010); accord Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007); Farley v. Nationwide Mutual, 197 F.3d 1322, 1337

(11th Cir. 1999)). Plaintiff argues that there was (1) forty-four days (approximately 1-1/2 months)

between Plaintiff’s meeting with Montgomery in May 2021, where she says she complained of

being denied the same pay as white male employees, and her transfer on June 14, 2021; and (2)

about eight weeks (approximately 2 months) between her assuming the Quality Department job

under protest and her termination on August 11, 2021. (Doc. # 43 at 32). She contends this is

sufficient to establish a causal connection based on timing alone. (Id.). The court disagrees.

A temporal connection of approximately one month may satisfy the causal connection

element. See Summers v. City of Dothan, 444 F. App’x 346, 351 (11th Cir. 2011) (“Showing that

an adverse employment action happens within one month of the protected activity satisfies the

causation requirement for summary judgment purposes.”) (citation omitted). But, a two month gap

may not. See Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229-30 (11th Cir. Jan. 25, 2011)

21

(holding that a two-month gap between two events is enough of a delay to preclude an inference

of causation). Plaintiff’s termination was right at the two-month mark after she assumed the

Quality Department job under protest. This timing, alone, is insufficient to satisfy the causation

element of Plaintiff’s prima facie case of retaliation based on her termination.

The question becomes whether the one and one-half month interval is sufficient to raise an

inference of causation as to her transfer. At least one former member of this court, the Honorable

William M. Acker, Jr. questioned whether any temporal proximity alone meets the “but for”

causation standard under Nassar. Montgomery v. Bd. of Trustees of the Univ. of Alabama, 2015

WL 1893471, at *4 (N.D. Ala. Apr. 27, 2015). As grounds for this position, Judge Acker

referenced this explanation of the Eleventh Circuit:

The post hoc ergo propter hoc fallacy assumes causality from temporal sequence.

It literally means “after this, because of this.” Black’s Law Dictionary 1186 (7th

ed. 1999). It is called a fallacy because it makes an assumption based on the false

inference that a temporal relationship proves a causal relationship.

Montgomery, 2015 WL 1893471, at *4 (quoting McClain v. Metabolife Int’l, Inc., 401 F.3d 1233,

1243 (11th Cir. 2005) and citing Abbott v. Fed. Forge, Inc., 912 F.2d 867, 875 (6th Cir. 1990)

(“[b]ut post hoc, ergo propter hoc is not a rule of legal causation”)). In Montgomery, Judge Acker

concluded that “[m]erely showing that she was terminated shortly after she complained does not

meet the prima facie standard for proof [under Nassar] that she was terminated only because she

complained.” (Id. (citing Nassar, 570 U.S. at 362).

The one and one half month time gap between Plaintiff allegedly complaining about not

being paid the same as the male comparator and her involuntary transfer falls in between what has

been found to be sufficient to establish causation (one month in Summers) and what was not (two

months in Williams). But, both of those cases were decided before Nassar established that a

22

Plaintiff asserting a retaliation claim must show that the retaliation was the “but-for” cause of her

termination. Summers, 444 F. App’x at 351; Williams, 411 F. App’x at 229-30. This court is

persuaded by Judge Acker’s reasoning based on the post hoc ergo propter hoc fallacy. The idea

that timing alone can establish but-for causation, unless much closer than the timing presented in

this case, is just that – a fallacy. And, even if Nassar had not put into substantial question “timing

alone,” here, on this record,5 the court easily concludes that a one and one-half month gap is

insufficient to suggest a causal connection. Therefore, the question is whether Plaintiff has

presented sufficient evidence that retaliation was the “but-for” cause of her termination to satisfy

her prima facie burden on her retaliation claim. She has not. There is literally nothing else in the

record suggesting retaliatory motive. Plaintiff was offered a transfer. She flatly refused it. She was

then let go.

d. Legitimate, Non-Retaliatory Reason and Pretext

Even in a case where a plaintiff has failed to establish a prima facie case on her retaliation

claim, the belts and suspenders approach this court usually takes involves (alternatively) evaluating

a defendant’s proffered legitimate, non-retaliatory reason for the challenged actions, and whether

there is Rule 56 evidence suggesting that reason is pretextual. But, here, neither party has presented

any argument on this issue. (See Doc. # 36 at 21; Doc. # 43 at 32-33). That is, in the one page each

side devoted to Plaintiffs’ retaliation claims, they each only presented argument about whether

Plaintiff had presented a prima facie claim of retaliation. Therefore, the court – like the parties –

concludes its analysis of Plaintiff’s retaliation claims at the prima facie case stage.

5 “Other cases presenting different allegations and different records may lead to different conclusions.” See

Twitter, Inc. v. Taamneh, 598 U.S. 471, S. Ct. 1206, 1231 (2023) (Jackson, J. concurring).

23

C. Equal Pay Act Claim in Count VI

“The EPA prohibits wage discrimination on the basis of sex and ‘forbids the specific

practice of paying unequal wages for equal work to employees of the opposite sex.’” Baker v.

Upson Reg’l Med. Ctr., 94 F.4th 1312, 1317 (11th Cir. 2024) (quoting Miranda v. B & B Cash

Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992) and citing 29 U.S.C. § 206(d)(1)). In

Baker, the Eleventh Circuit recently clarified the parties’ respective burdens in an EPA case:

The analysis of an EPA claim follows a two-step framework. First, to establish a

prima facie case a plaintiff must show “that an employer pays different wages to

employees of opposite sexes ‘for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and which are performed under

similar working conditions.’” Corning Glass Works v. Brennan, 417 U.S. 188, 196,

[] (1974) (quoting 29 U.S.C. § 206(d)(1)); Brock v. Ga. Sw. Coll., 765 F.2d 1026,

1032 (11th Cir. 1985), overruled on other grounds by McLaughlin v. Richland Shoe

Co., 486 U.S. 128 [] (1988). Second, if an EPA plaintiff establishes a prima facie

case, “the burden shifts to the employer to prove that the difference in pay is

justified by one of the four exceptions in the Equal Pay Act:” (1) “a seniority

system;” (2) “a merit system;” (3) “a system which measures earnings by quantity

or quality of production;” or (4) “a differential based on any factor other than sex.”

Brock, 765 F.2d at 1036 (first citing 29 U.S.C. § 206(d)(1); and then citing Corning,

417 U.S. at 196[]). The application of an exception under the Act is an affirmative

defense on which the employer bears the burden of proof. Corning, 417 U.S. at

196-97 []; Gosa v. Bryce Hosp., 780 F.2d 917, 918 (11th Cir. 1986) (per curiam).

Baker, 94 F.4th at 1317. “The proper EPA analysis consists of two parts only; there is no third

step.” Id. at 1318 (citing Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d 539, 547 (11th Cir.

1991)).

Here, there is a question of fact as to the first step: whether Defendant pays different wages

to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal

skill, effort, and responsibility, and which are performed under similar working conditions.”

Corning, 417 U.S. at 196. The dispute of fact relates to the central issue of whether they performed

the same jobs.

24

Plaintiff complains that when she was transferred to the Quality Department she was not

paid the same amount as Quality Engineers Rene Zimmerman and Adam Hansen. (Doc. # 34-2 at

41-46; Doc. # 35-1). Although she admits that Hansen was later promoted to a supervisory role,

she testified that at some point they were all Quality Engineers, that Hansen and Zimmerman were

incompetent, and that was why she was transferred to the Quality Department. Defendant has

presented evidence that after her transfer to the Quality Department, Plaintiff was not performing

in a Quality Engineer role. Rather, she was doing paperwork to help get ready for the AITF audit.

(Doc. # 34-3 at 76-77). But these differing versions of what happened present questions of fact

about whether they were performing equal work, which a trier of fact (i.e., a jury) would need to

resolve.

At the second step of the EPA analysis however, Defendant presented Rule 56 evidence

that it paid Zimmerman and Hansen more under one of the four exceptions in the Equal Pay Act,

specifically “a differential based on any factor other than sex.” Baker, 94 F.4th at 1317. As

discussed above, Defendant “made pay decisions based on employees’ experience, training, and

abilities.” (Doc. # 35-1 at ¶ 12). “Rene Zimmerman and Adam Hansen [] – had greater experience,

training, and abilities than Plaintiff.” (Id. at ¶ 13). As noted above, Zimmerman and Hansen held

four-year engineering degrees and had more extensive experience and training in the

manufacturing context than Plaintiff. (Doc. # 34-2 at 41-46; Doc. # 35-1). These facts regarding

the qualifications of Plaintiff, Zimmerman, and Hansen are simply not disputed in any way, shape,

or form. Although Plaintiff argues she had additional experience working for Defendant’s

predecessors, she had not worked for those companies (or for any company) as a qualified

engineer. The disparity in the qualifications and experience between Plaintiff and the alleged

25

comparators is stark, and not subject to any dispute. That is, Defendant has met its burden of

proving it affirmative defense on undisputed facts. There are no genuine disputes of material fact

for a trier of fact to decide about whether the difference in compensation was based on factors

other than sex. No reasonable jury could find in Plaintiff’s favor on the question of whether her

sex was the reason she was paid less than Zimmerman and Hansen. See Baker, 94 F.4th at 1321 &

n.2 (“On this record[,]” “a reasonable jury could not disagree” about Defendant’s affirmative

defense). Therefore, Defendant is entitled to summary judgment on Plaintiff’s EPA claim.

D. FMLA Retaliation Claim in Count VII

Defendant has moved for summary judgment on Plaintiff’s FMLA retaliation claim on the

basis that Plaintiff was not an eligible employee under the FMLA because she had not worked for

Defendant for twelve months. Defendant also argues that Plaintiff cannot show that Defendant’s

reason for her termination was pretextual. (Doc. # 36 at 23). Plaintiff argues that she should be

able to rely on the fact that Defendant treated her as if she was entitled to FMLA leave and be

protected against retaliation for exercising those rights. (Doc. # 43 at 35). Plaintiff has not cited

any law in support of this argument. (Doc. # 43).

1. Eligibility

An employee is eligible for protection under the FMLA if she has been employed for at

least twelve months and worked at least 1,250 hours of service with the employer. 29 U.S.C. §

2611 (2)(A)(i)- (ii). Clearly, Plaintiff had not worked for Defendant for twelve months before her

employment ended. However, “‘Employer’ is defined by the FMLA to include ‘any successor in

interest of an employer,’ as well as ‘any person who acts, directly or indirectly, in the interest of

an employer to any of the employees of such employer.’” Henderson v. Koller Enterprises, 2017

26

WL 951722, at *3 (N.D. Ala. Mar. 10, 2017) (quoting 29 U.S.C. § 2611(4)(A)(ii)). In Henderson,

the court noted that “[t]he FMLA itself does not define the term ‘successor in interest,’ and the

Eleventh Circuit has not yet provided guidance on the term.” 2017 WL 951722, at *3 (citing Wright

v. Sandestin Investments, LLC, 914 F. Supp. 2d 1273, 1279 (N.D. Fla. December 12, 2012)). The

court has not found a case in which the Eleventh Circuit has addressed that issue. Like Judge

Cornelius, the court looks to applicable labor regulations, which set forth factors for determining

whether an entity is a “successor in interest.” Id. (citing 29 C.F.R § 825.107). That regulation (29

C.F.R § 825.107) provides:

For purposes of FMLA, in determining whether an employer is covered because it

is a “successor in interest” to a covered employer, the factors ... to be considered

include:

1. Substantial continuity of the same business operations;

2. Use of the same plant;

3. Continuity of the work force;

4. Similarity of jobs and working conditions;

5. Similarity of supervisory personnel;

6. Similarity in machinery, equipment, and production methods;

7. Similarity of products or services; and

8. The ability of the predecessor to provide relief.

29 C.F.R. § 825.107(a). Although the parties do not address this issue, the Rule 56 record appears

to establish these elements. Defendant purchased INOAC’s Bessemer plant and continued

operations in much the same manner as INOAC. Indeed, Defendant operated as if Plaintiff, who

was FMLA eligible with INOAC, continued to be eligible for FMLA leave. Thus, there is at least

27

a question of fact regarding whether Defendant is ONOAC’s successor in interest under the

FMLA. So, the court proceeds to evaluate this claim on its Rule 56 merits.

2. Prima Facie Case

To succeed on an FMLA retaliation claim, a plaintiff may establish a prima facie case by

showing that “(1) she is entitled to the claimed benefit, (2) she suffered an adverse employment

action, and (3) the adverse action was ‘intentional’ and ‘motivated’ by her participation in the

protected activity, establishing a causal connection.” Bentley v. Orange Cty., 445 F. App’x 306,

309 (11th Cir. 2011) (quoting Strickland v. Water Works & Sewer Bd. of the City of Birmingham,

239 F.3d 1199, 1207 (11th Cir. 2001)).

Even if Plaintiff is eligible for FMLA leave, showing that one is “suffering from a serious

health condition [itself] is not sufficient for an employee to [take] FMLA leave.” Finch v. Morgan

Stanley & Co. LLC, 2016 WL 4248248, at *4 (S.D. Fla. Aug. 11, 2016). The FMLA’s notice

requirement has two criteria, “timing and content.” Finch, 2016 WL 4248248 at *4. When giving

notice of foreseeable FMLA leave, an employee must inform the employer of “the anticipated

timing and duration of the leave” and where, as here, a plaintiff seeks intermittent leave to receive

planned medical treatments, “the employee must consult with the employer and make a reasonable

effort to schedule the treatment so as not to disrupt unduly the employer’s operations.” 29 C.F.R.

825.302(c), (e); see also Hill v. Miami-Dade Cnty. Sch. Bd., 2021 WL 3173460, at *3 (S.D. Fla.

July 26, 2021). “The regulations promulgated by the Department of Labor [] indicate that

[e]mployees are ordinarily expected to consult with their employers prior to the scheduling of

treatment in order to work out a treatment schedule which best suits the needs of both the employer

and the employee.” Franks v. Indian Rivers Mental Health Ctr., 2012 WL 4736444, at *15 (N.D.

28

Ala. Sept. 30, 2012) (quoting 29 C.F.R. § 825.302(e) and citing Kaylor v. Fannin Reg’l Hosp.,

Inc., 946 F.Supp. 988, 998 (M.D. Ga. 1996) (“The FMLA and subsequent regulations promulgated

by the Department of Labor require the employee to consult with the employer when planning

medical treatment.”)) (internal quotes omitted) (emphasis added).

On August 9, 2021, Plaintiff requested time off from Hansen for an already-scheduled

medical procedure. (Doc. # 34-1 at 176). There is no evidence that Plaintiff consulted with

Defendant before scheduling the procedure in order to have it done at a time that would

accommodate both her needs and Defendant’s coverage needs. Plaintiff presented the leave request

for the scheduled surgery as a fait accompli. Hansen responded that he did not have coverage for

Plaintiff on that day. Although Plaintiff testified that she tried to see if she could move the

procedure, the point is that the FMLA regulations required Plaintiff to engage in that interactive

process for foreseeable FMLA leave before the procedure was scheduled. During the discussion

with Hansen, Plaintiff stated: “Well, Adam, FMLA you have no control over, and if I have a

doctor’s appointment or a procedure scheduled, you know, that’s just scheduled.” (Doc. # 34-1 at

174-75). This statement seems to characterize Plaintiff’s approach to dealing with her new

employer. Furthermore, there are other key undisputed facts that matter here. Plaintiff was offered

a new position, which she flatly refused. At a meeting to discuss her attendance, the Quality

Department job came up and Plaintiff said she would not accept that job. (Doc. # 34-1 at 230, 271).

Wilson later called Plaintiff and told her that if she refused the Quality Department job she would

be terminated. (Doc. # 34-1 at 278). Plaintiff refused the position again and her employment was

terminated for insubordination. (Doc. # 34-4 at 75-119; Doc. # 34-2 at 64; Doc. # 34-1 at 231-

32:7; Doc. # 35-5 at ¶¶ 7-11, 14). Some might call this quitting. Indeed, Plaintiff testified that “I

29

was at the point where I was already thinking about leaving the manufacturing world” when all

this occurred. (Doc. # 34-1 at 35). In April 2021, she had secured the building and started

purchasing equipment for her catering business. (Id. at 53).

Plaintiff argues that her co-worker Davis’s text to her, in March 2021, evidences that

Defendant had a retaliatory intent some five months before in August 2021. She maintains that the

text is evidence that the real reason for Plaintiff’s termination was her use of FMLA leave. But,

Plaintiff has not adequately explained how a text sent five months before an employment decision,

by someone not involved in the decision, is probative of intent. And this is particularly so where,

as here, the articulated reason for Plaintiff’s termination is undisputed. Plaintiff herself testified

that she made clear that she refused the position in the Quality Department that was available for

her. She was informed that if she refused that position, her employment would be terminated. Yet,

she continued to refuse to accept the position.

The the court concludes that Plaintiff’s insistence on leave for a foreseeable procedure

about which she did not confer with her employer before scheduling does not constitute protected

conduct under the FMLA. But, even if it did, Plaintiff admits the conduct for which she was

terminated. The non-retaliatory reason for the decision is undisputed, and a five- month-old text is

insufficient to create a genuine issue of material fact about the reasons for that decision. Therefore,

Defendant is also entitled to summary judgment on Plaintiff’s FMLA retaliation claim.6

6 Plaintiff’s argument that Davis’s text message “is arguably direct evidence” of a retaliatory intent (Doc. #

43 at 36) evinces a gross misunderstanding of what constitutes direct evidence. “Direct evidence is evidence that, if

believed, proves the existence of discriminatory intent without inference or presumption.” Jefferson v. Sewon Am.,

Inc., 891 F.3d 911, 921 (11th Cir. 2018) (cleaned up). “Only the most blatant remarks, whose intent could mean

nothing other than to discriminate on the basis of some impermissible factor[,] constitute direct evidence of

discrimination.” Todd v. Fayette Cty. Sch. Dist., 998 F.3d 1203, 1215 (11th Cir. 2021) (citing Fernandez v. Trees,

Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)). What would be direct evidence of retaliatory intent is a decision-maker’s

statement that he planned to terminate an employee because the employee’s deposition was the “most damning to the

30

IV. Conclusion

For all of the reasons discussed above, Defendant’s Motion for Summary Judgment. (Doc.

# 33) is due to be granted. An order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this June 12, 2024.

R. DAVID 24 -

CHIEF U.S. DISTRICT JUDGE

company.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1182 (11th Cir. 1997). Because the text at issue was sent five

months before the termination decision and had nothing to do with that decision, it simply cannot be direct evidence

of retaliation. See, e.g., Ritchie v. Industrial Steel, Inc., 426 F. App’x. 867, 871-72 (11th Cir. 2011) (decision maker’s

references to plaintiff as an “old man” were not direct evidence because they were unrelated to the termination

decision).

31