# Bailey v. DAS North America, Inc.

> District Court, M.D. Alabama · July 17, 2020

URL: https://www.frixlaw.com/law-library/cases/9987117

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** July 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANICE BAILEY, )
)
Plaintiff, )
)
v. ) Case No. 2:17-cv-732-RAH-WC
) (WO)
DAS NORTH AMERICA, INC., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Janice Bailey (“Bailey” or “Plaintiff”) claims she suffered race and
national origin discrimination and retaliation during her short, three-week
employment with Defendant DAS North America, Inc. (“DAS”), an automotive
parts supplier located in Montgomery, Alabama. Bailey brings federal claims
against DAS under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq., and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and a
separate state law claim for negligent and wanton hiring, training and supervision.
On September 7, 2018, DAS moved for summary judgment, (Doc. 30), on all
counts in the Complaint, (Doc. 1), claiming that Bailey, an African American
female, was not the victim of racial or national origin discrimination or retaliation.
DAS also argued that Bailey had failed to exhaust her administrative remedies for
her race discrimination claim, that she did not suffer any adverse employment
actions with respect to her race and national origin, and that she was not retaliated

against when she was terminated by her supervisor, also an African American
female.
Bailey has filed a response, (Doc. 36), and DAS has filed a reply, (Doc. 37).

For the reasons discussed below, the Court finds that summary judgment is due to
be granted in favor of DAS on all claims in the Complaint.
II. JURISDICTION AND VENUE

Subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1343 as to
Bailey’s federal causes of action. This Court has supplemental jurisdiction as to
Bailey’s state law claim pursuant to 28 U.S.C. § 1367. The parties do not contest
personal jurisdiction or venue, and there are adequate allegations to support both.

See 28 U.S.C. § 1391.
III. STANDARD OF REVIEW

Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). Under Rule 56, the Court must award summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential

to that party’s case and upon which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation
and internal quotation marks omitted).

At the summary judgment stage, the Court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Factual disputes are resolved in the non-

moving party’s favor when there is sufficient competent evidence supporting the
non-moving party’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d
1275, 1276, 1278 (11th Cir. 2002). However, “mere conclusions and unsupported

factual allegations are legally insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mountain Park,
Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Further, “[a] mere ‘scintilla’
of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
A dispute about a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. The non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must present
“affirmative evidence” of material factual conflicts to defeat a properly supported
motion for summary judgment. Anderson, 477 U.S. at 257. If the non-movant's

response consists of nothing more than conclusory allegations, the court must enter
summary judgment for the party seeking it. See Holifield v. Reno, 115 F.3d 1555,
1565, n. 6 (11th Cir. 1997); Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995).
On the other hand, if there is a conflict in the evidence, “the [plaintiff's]

evidence is to be believed and all justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255; Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351,
1356 (11th Cir. 2000). Once the nonmoving party has responded to the motion for

summary judgment, the Court must grant summary judgment if there remains no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c).
IV. BACKGROUND

DAS is an automobile parts manufacturer located in Montgomery, Alabama.
(Doc. 32-1, pp. 11-12.) In January 2017, Bailey, an African American female, was
contacted by Tyiesha Wooten, the head of the Human Resources Division (HR) at
DAS, about an open position in HR. (Doc. 32-1, pp. 10-11.) Like Bailey, Wooten
is African American. (Doc. 32-1, p. 12.)

Bailey participated in two interviews in late January for the job, the first with
Wooten and LaBrittany Hill (the employee she was replacing) on January 24, 2017.
(Doc. 32-1, p. 9.) During the interview process, Bailey was told that the position’s

(HR Specialist) job duties included clerical tasks and “catering” to the Korean
employees of DAS. (Doc. 32-1, pp. 9-11.) Specifically, Wooten allegedly stated that
“we are here to cater to the Koreans only; to include running to Walmart, the Korean
store, and for whatever they need.” (Doc. 32-12, p. 4.)

Bailey later discovered that “catering” also entailed purchasing food items for
a separate breakroom that Korean employees utilized, (Doc. 32-1, pp. 11, 13-14),
and assisting newly-arrived employees from South Korea with securing their

accommodations, (Doc. 32-1, p. 14).
Bailey also learned from Hill that “Koreans are number one” at DAS and that
since Bailey was not Korean, Bailey should not “expect to get any good treatment
or any special treatment or anything.” (Doc. 32-1, pp. 28-29.) Hill also warned

Bailey that, among other things, Wooten was “not so kind” to human resources
employees. (Doc. 32-1, p. 28.)
Three days later on January 27, 2017, Bailey interviewed with Wooten again

and then was hired into the HR Specialist position. (Doc. 32-1, p. 14.)
Not long into her employment, Bailey observed several things of concern to
her. For example, Bailey was a smoker and, to access the designated smoking area

at the DAS facility, she like other employees used a door in the main breakroom to
enter the outside smoking area. (Doc. 32-1, p. 15.) While a key card was not required
to exit the building, a key card was required to re-enter. (Docs. 32-1, p. 15; 32-2, p.

19.) To re-enter the building, employees without key cards had to enter through the
front entrance. (Doc. 32-1, p. 15.) Most employees, including Bailey, did not have
a key card, but most managers and maintenance workers did. (Doc. 32-2, p. 19.)
Bailey claims that two non-manager Korean employees had cards. (Doc. 32-1, pp.

16, 50.) Bailey requested a key card for herself, but Wooten told her that such key
cards were reserved for managers. (Doc 32-1, p. 16.)
Also, under the terms of the DAS dress code policy, employees were

prohibited from wearing jeans at work. (Doc. 32-6, p. 2.) While Bailey never wore
jeans to work, she observed a Korean employee wearing jeans almost daily. (Doc.
32-1, pp. 18-19.) Bailey never alerted any of her supervisors to the dress code
violation. (Doc. 32-1, p. 19.)

But this lawsuit is not about perceived unfairness; instead, it is about Bailey’s
relationship with Wooten, which was problematic at the outset. For example, at an
off-site lunch during Bailey’s first week on the job, Wooten remarked that “plenty

of b—s want my job but they know not to f--- with me ‘cause I am crazy.’” (Docs.
32-1, p. 19; 32-12, p. 4.) Bailey thought the statement was unprofessional and
concerning because she did not know to whom the statement was directed, whether

to her or anyone else. (Docs. 32-1, p. 20; 32-12, p. 4.)
Wooten also required Bailey to perform menial tasks that Bailey thought
Wooten could have performed herself. This included for example a demand by

Wooten that Bailey come into Wooten’s office, open the file cabinet, look for a
folder, and read aloud a social security number contained in the folder. (Docs. 32-1,
p. 24; 32-9, p. 7.) On another occasion, Wooten told Bailey to come into her office
to shred a document. (Doc. 32-9, p. 7.)

Bailey and Wooten’s relationship turned sour when, during week two,
Wooten tasked Bailey with making flyers for a company meeting. (Docs. 32-1, p.
20; 32-3, p. 15.) Wooten made Bailey revise the flyers on at least two occasions

because the flyers were not completed to Wooten’s satisfaction. (Docs. 32-1, pp.
20-21; 32-3, pp. 13, 15.)
Bailey’s next assignment—to put together display boards for a client visit—
faired no better. Bailey asked Wooten the purpose of the display boards, to which

Wooten replied, “you don’t need to know all that; you just need to do what I tell
you.” (Doc. 32-12, p. 4.) Wooten instructed the HR staff to complete the boards by
2:00 PM that day in time for the client’s visit that afternoon. (Doc. 32-3, p. 16.) The

boards were to display photographs of the employees who worked on the production
lines. HR was tasked with this assignment because HR kept the employee
photographs on file. (Doc. 32-3, p. 16.)

Wooten told the HR staff they would need to work through lunch, if necessary,
to complete the project. (Doc. 32-3, p. 17.) Bailey left for lunch anyway despite
Wooten’s instructions. (Id.) According to Wooten, when she saw Bailey’s display

boards, the boards were completed incorrectly, contained poorly cut out
photographs, omitted other photographs, and contained improperly affixed reference
numbers. (Doc. 32-3, p. 18.) Staff had to correct Bailey’s errors while Bailey was
out to lunch. (Docs. 32-2, pp. 18-19; 32-3, p. 18.)

Wooten texted photos of the deficient work product to Bailey and also called
Bailey on the phone saying, “this is trash, you didn’t put any effort into this,” which
to Bailey felt like she was being berated. (Doc. 32-12, p. 5.)

That Friday afternoon, following a 4:00 PM employee meeting, Wooten
called Bailey into her office to discuss Bailey’s work performance. (Doc. 32-1, p.
24.) Wooten criticized Bailey’s work on the flyers, calling them “trashy” and
“unprofessional.” (Id.) Wooten also told Bailey that she had “no sense of urgency,”

and that “any time I, Tyiesha Wooten, tell you to do something, you need to jump.”
(Doc. 32-12, p. 5.) In response, Bailey said the two of them should start fresh and
try to get to know each other better. (Id.) Wooten replied that “I don’t need to get to

know you. You need to get to know me. You’re here to do what I tell you.” (Id.)
Wooten then told Bailey to go home for the weekend and decide if she wanted to
keep her job. (Docs. 32-12, p. 6; 32-1, p. 24.)

After the meeting, Bailey emailed Wooten’s supervisor, James Uhm. In the
email, Bailey requested a meeting because she believed Wooten intended to
terminate her. (Doc. 32-10, p. 2). Uhm did not reply. (Doc. 32-1, p. 31.)

That same afternoon, after speaking with plant manager, Patrick Kurdziel,
Wooten decided to terminate Bailey when she returned to work the following
Monday. (Doc. 32-3, pp. 31, 32.)
The following Monday morning, Bailey texted Uhm again in an effort to

schedule a meeting. (Docs. 32-1, p. 31; 32-11, p. 2.) This time, Uhm replied and
instructed Bailey to come see him at 8:30 AM. (Doc. 32-11, p. 3.)
When Bailey sat down at her desk that morning, Wooten entered Bailey’s

office and kicked a box containing a Pitney Bowes postage machine. (Id.) Wooten
then asked why the Pitney Bowes machine had not been put together. Bailey replied
that Wooten herself had told Bailey to hold off putting the machine together but that
she would be happy to complete the task after her meeting with Mr. Uhm. (Doc. 32-

3, p. 34.) Wooten asked Bailey what she had been doing that morning, and Bailey
explained that she had been putting together employee files. (Doc. 32-1, p 32.)
According to Bailey, Wooten then snatched the files out of Bailey’s hand and asked

what Bailey had done to prepare the files, to which Bailey explained she was
checking online to make sure the files were complete. (Id.) Bailey also claims that
Wooten made aggressive gestures and yelled during this interaction. (Doc. 32-12, p.

7.) Eventually, Wooten “stormed” out of Bailey’s office. (Id.)
Bailey then met with Uhm. At the meeting, Bailey explained that she felt
threatened by Wooten’s behavior, including that morning’s recent incident. (Doc.

32-1, p. 34.) Bailey also stated that Wooten’s behavior had been an ongoing
problem. (Id.) Bailey said she felt “singled out” by Wooten and that Wooten was
creating a “hostile work environment.” (Id.) Bailey explained that she felt physically
threatened by Wooten because of Wooten’s yelling, body language (leaning over

Bailey’s desk while yelling at her), and kicking of the Pitney Bowes box. (Id.)
During the meeting, Uhm said that Wooten had been with the company since
its Montgomery facility had opened and that if Bailey wanted to make accusations

about Wooten, she needed to present proof such as a recording or a picture. (Doc.
32-1, p. 45.) Uhm also said that DAS has “demanding clients” and that “sometimes
we respond in an aggressive manner” because of the pressure. (Doc. 32-12, p. 8.)
Bailey asked Uhm if it would be permissible to go home to give Wooten time to cool

off. (Doc. 32-1, p. 34.) Uhm replied that Bailey could do whatever she wanted. (Id.)
Bailey returned to her office from the meeting, and five minutes later, Wooten
entered with a box in her hand, telling Bailey that her services were no longer needed

and that she needed to pack her things. (Doc. 32-1, p. 35.) Bailey asked if she could
speak to Uhm about this, and Wooten replied “you are not going anywhere to tell
nobody nothing. You are going out the door!” (Doc. 32-12, p. 8.)

Alesia Simmons, a co-worker, overheard the commotion and “ran out of the
office for fear of what might have happened.” (Id.) Wooten continued her tirade,
stating “you haven’t done nothing all morning but you want to have a meeting,”

leading Bailey to believe that Wooten was angry about Bailey’s meeting with Uhm.
(Id.) Bailey then was escorted off the property by DAS security, with Wooten
yelling “thanks for three weeks of nothing.” (Doc. 32-12, p. 9.)
After leaving the premises, Bailey sent a text message to Uhm, telling him

that she had been terminated and that she felt this was retaliation by Wooten. (Doc.
35-5, p. 3.) Uhm sent a reply text message stating that he did not discuss their
morning meeting with Wooten. (Doc. 35-5, pp. 3-4.)

Bailey filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (EEOC) on July 13, 2017. (Docs. 1-1, p. 2; 32-1, p. 9.) On
the charge, Bailey checked the boxes for “retaliation” and “national origin”, but she
did not check the box for “race.” (Id.) Bailey subsequently received a right to sue

letter from the EEOC, (Doc. 1-2, p. 9), and filed suit on October 25, 2017.
IV. ANALYSIS

Bailey asserts that she suffered discrimination based on her race and national
origin in violation of Title VII, race discrimination in violation of Section 1981, and
retaliation in violation of Title VII and Section 1981. Finally, Bailey asserts a state
law claim for negligent hiring and retention of Wooten. DAS argues that it is due

summary judgment on all claims.
A. Bailey Exhausted Her Administrative Remedies with the EEOC
DAS first argues that Bailey failed to exhaust her administrative remedies

concerning her race discrimination claims because she failed to check the “race” box
on her EEOC charge and never used the word “race” in her summary narrative.
(Docs. 1-1, p. 2; 1-2.) DAS also points out that when it raised this issue in its
summary judgment motion, Bailey failed to address the issue in her response,

thereby implicitly acknowledging that summary judgment is due to be granted.
As the Eleventh Circuit has held, “the scope of a judicial complaint is defined
by the scope of the EEOC investigation that ‘can reasonably be expected to grow

out of the charge of discrimination.’” Baker v. Buckeye Cellulose Corp., 856 F.2d
167, 169 (11th Cir. 1988) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (5th Cir. 1970)). The purpose of the exhaustion requirement under Title VII is
to notify the defendant of the allegations and to give the EEOC “the first opportunity

to investigate the alleged discriminatory practices to permit it to perform its role in
obtaining voluntary compliance and promoting conciliation efforts.” Green v. Elixir
Ind., Inc., 407 F.3d 1163, 1167 (11th Cir. 2005). Thus, “[n]o action alleging a

violation of Title VII may be brought unless the alleged discrimination has been
made the subject of a timely-filed EEOC charge.” Thomas v. Miami Dade Public
Health Trust, 369 F. App’x 19, 22 (11th Cir. 2010) (quoting A.M. Alexander v.

Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir. 2000) (overruled on other
grounds by Manders v. Lee, 338 F.3d 1304, 1328 n. 52 (11th Cir. 2003)). While the
scope of an EEOC charge should be liberally construed, the proper inquiry is

whether the claims in a judicial complaint are like, related to, or grow out of the
allegations contained in the EEOC charge. Gregory v. Georgia Dep’t of Corrections,
355 F.3d 1277, 1280 (11th Cir. 2004)(finding that a claim of retaliation based on
race and sex discrimination is inextricably intertwined with the EEOC charge

alleging race and sex discrimination).
True enough, a plaintiff cannot raise “[a]llegations of new acts of
discrimination” in her judicial complaint. Wu v. Thomas, 863 F.2d 1543, 1547 (11th

Cir. 1989). However, “a charging party's failure to check the appropriate box on the
EEOC charge of discrimination form indicating what [s]he believes to be the basis
for the discrimination (i.e. race, color, sex, disability, retaliation, national origin,
age, or religion) does not bar the plaintiff from litigating a claim so long as the factual

allegations in the EEOC charge are sufficient.” Houston v. Army Fleet Services LLC,
509 F.Supp.2d 1033, 1042 (M.D. Ala. 2007) (citing Sanchez, 431 F.2d at 462-63)
(“we decline to hold that the failure to place a check mark in the correct box is a fatal

error.”).
After due consideration, the Court declines to dismiss the race discrimination
claim on this basis. In particular, the Court finds that Bailey’s race and national

origin claims are inextricably intertwined, largely identical, and primarily based on
Bailey’s status as an African American. See Bullard v. OMI Ga., Inc., 640 F.2d 632,
634 (5th Cir. 1981) (“[W]hen dealing with employment discrimination related to

racial discrimination as to be indiscernible ... The line between national origin
discrimination and racial discrimination is an extremely difficult one to trace”).1
In short, while Bailey carries the burden of satisfying the exhaustion of
remedies requirement and fails to address this issue in her responsive brief, the Court

cannot find as a matter of law that DAS is entitled to summary judgment on
exhaustion grounds.
B. Bailey’s Title VII and § 1981 Discrimination Claims

1. Differentiating Between Bailey’s National Origin and Race
Discrimination Claims

In Counts I, II, III, IV and V of her Complaint, Bailey claims that she suffered
discrimination and retaliation based on her race and national origin. Bailey states
that her national origin claim emanates from her “African descent”, although Bailey
was born in the United States and has resided in the United States her entire life.

1 In Bonner v. City of Prichard, Alabama, the Eleventh Circuit adopted as binding all Fifth Circuit
decisions prior to the close of business on September 30, 1981. 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
(Doc. 32-1, p. 13.) It is impossible to discern from the record before the Court
whether Bailey claims her termination solely was the result of discrimination based

on national origin, race, or both.
“[T]he line between discrimination based on ancestry or ethnic
characteristics, and discrimination based on place or nation of origin, is not a bright

one.” Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J.,
concurring) (internal citations and quotations omitted). In some contexts, “national
origin’ discrimination is so closely related to racial discrimination as to be
indistinguishable.” Bullard, 640 F.2d at 634 (citations and quotations omitted). That

is the case here, and therefore the Court will proceed to analyze Bailey’s race and
national origin discrimination claims together.
2. Bailey Did Not Suffer Discrimination Based Upon Her Race or
National Origin

a. Bailey’s Single Motive Discrimination Claims Fail

The Court examines Bailey’s Title VII and § 1981 claims in tandem2 because
they have the same requirements of proof and use the same analytical framework.

2 The Court will treat the race and national origin claims as a single claim for race. However, the
Court recognizes that discrimination on the basis of national origin is not actionable under § 1981
See Tippie v. Spacelabs Med., Inc., 180 F. App'x 51, 56 (11th Cir. 2006) (“by its very terms, §
1981 applies to claims of discrimination based on race, not national origin”); Bullard, 640 F.2d at
634 (“The Supreme Court has stated in dicta that section 1981 relates primarily to racial claims ...
and this circuit has also stated that section 1981 does not encompass discrimination based solely
on national origin”) (citing Olivares v. Martin, 555 F.2d 1192, 1196 (5th Cir. 1977)).
See Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256-57 (11th Cir.
2012).

Establishing a prima facie case for race discrimination under Title VII requires
showing that the employer acted with discriminatory intent. Hill v. MARTA, 841
F.2d 1533, 1538 (11th Cir. 1988). A plaintiff shows discrimination by presenting

direct evidence of discriminatory intent in the form of actions or remarks of the
employer reflecting a discriminatory attitude, or if she offers no direct evidence, the
plaintiff may rely on the combination of factors set forth in McDonnell Douglas
Corp. v. Green. Id. at 1539 (citing 411 U.S. 792, 802 (1973)).3

Direct evidence is that which reflects “a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by the employee.”
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999).

Due to the “powerful” nature of direct evidence, the Eleventh Circuit has marked
severe limits for the kind of language that may be treated as direct evidence of
discrimination. Jones v. Bessemer Carraway Medical Center, 151 F.3d 1321, 1323
n.11 (11th Cir. 1998). Only the most blatant remarks, whose intent could be nothing

other than to discriminate based on a protected classification, consittute direct
evidence of discrimination. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d

3 A plaintiff can also show discriminatory intent through statistical evidence. Carter v. City of
Miami, 870 F.2d 578, 581 (11th Cir. 1989). Bailey has offered no such evidence.
1223, 1227 (11th Cir. 2002). Evidence that is subject to more than one interpretation
does not constitute direct evidence. Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir.

1999).
Here, Bailey has not offered direct evidence of any race or national origin
discrimination. At best, the statements by Wooten and Hill regarding the better

treatment received by Koreans at DAS constitute circumstantial evidence of
discrimination because they are not discriminatory against Bailey’s own protected
characteristics. See Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356, 1364
(M.D. Fla. 2001). These statements would require the factfinder to infer that Wooten

eventually terminated Bailey’s employment because Bailey is not Korean, and that
is a far cry from the types of statements that qualify as direct evidence in this Circuit.
E.g., Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (a

company management memorandum stating “Fire Earley [the plaintiff]—he is too
old” is direct evidence of age discrimination).
The Court next examines whether Bailey has offered circumstantial evidence
of discrimination. These types of claims are analyzed under the familiar McDonnell

Douglas burden shifting framework whereby “the plaintiff must first create an
inference of discrimination through [her] prima facie case.” Vessels v. Atlanta Indep.
Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973)).
To establish a prima facie case of discrimination with circumstantial evidence,
Bailey must show: (1) she is a member of a protected class; (2) she was subjected to

an adverse employment action; (3) either she was replaced by a person outside her
protected class or a similarly situated employee outside her class was treated more
favorably; and (4) she was qualified to perform her job. Holifield v. Reno, 115 F.3d

1555, 1562 (11th Cir. 1997).
DAS concedes that Bailey was a member of a protected class and that Bailey
was qualified. Thus, the Court will examine the other two prongs of the McDonnell
Douglas framework.

As to the second prong, other than her termination, Bailey fails to point to any
other actionable adverse employment actions. Instead, she makes vague reference
to differential treatment between herself and unnamed Korean employees in general,

such as the denial of an access key card, Korean employees’ ability to wear jeans
despite an express dress code prohibition, and menial task assignments from
Wooten. But those are not actionable.
A qualifying adverse employment action in the Title VII context “must in

some substantial way alter the employee’s compensation, terms, conditions, or
privileges of employment, deprive him or her of employment opportunities, or
adversely affect his or her status as an employee.” Crawford v. Carroll, 529 F.3d

961, 970 (11th Cir. 2008).
The favoritism shown toward Korean employees such as access key cards and
blue jeans do not alter Bailey’s compensation or terms, conditions or privileges of

employment and therefore are not actionable. See Cornell v. Brennan, 775 F. App'x
630, 632 (11th Cir. 2019) (uniforms); Embry v. Callahan Eye Found. Hosp., 147 F.
App'x 819, 828 (11th Cir. 2005) (eating at office, clocking in and out).

The same is true to the extent Bailey finds fault with having to run errands for
Korean employees or completing menial tasks at the instruction of her supervisor,
Wooten. See McCone v. Pitney Bowes, Inc., 582 F. App'x 798, 799 (11th Cir. 2014)
(removal of amenities such as air conditioning, restrooms, microwave oven, and a

refrigerator not adverse employment actions); White v. Hall, 389 F. App'x 956, 960
(11th Cir. 2010) (assignment of more difficult work tasks was not adverse
employment action). These aspects of employment do not constitute actionable

employment actions either, especially under the undeveloped and specious facts
presented by Bailey.
Moreover, it is axiomatic that Title VII “is not designed to make federal courts
sit as a super-personnel department that reexamines an entity's business decisions.”

Davis, 245 F.3d at 1244. Bailey’s complaints about key card access, the dress code,
errand running and completion of menial tasks ask the Court to do just that. See
Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).
This leaves Bailey’s termination for discussion, which appears to be, based on
her summary judgment response, the primary focus of her lawsuit. (See Doc. 36, pp.

17-18.) Of course, job termination is an adverse employment action. Crawford v.
Carroll, 529 F.3d at 970 (adverse employment actions include “ultimate
employment decisions ... such as termination, failure to hire, or demotion”).

Here, Bailey does not offer any evidence that she was replaced by a person of
a different protected class. See Maynard v. Bd. of Regents of Div. of Univs. of Fla.
Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003). Bailey
also does not offer evidence of another employee (comparator) who was treated

more favorably than her.
As the Eleventh Circuit has noted, “(i)f a plaintiff fails to show the existence
of a similarly situated employee, summary judgment is appropriate where no other

evidence of discrimination is present.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1092 (11th Cir. 2004) (citing Holifield, 115 F.3d at 1562).
While Bailey vaguely references several unidentified Korean employees that
she claims were treated better than her, she does not offer any analysis of how they

were similarly situated to her, or even who they are, in the context of her termination.
Without more and without adequate argument, Bailey cannot raise a genuine issue
of material fact that these unidentified Korean employees are similarly situated “in

all material respects” to her. Lewis v. Union City, GA, 918 F.3d 1213, 1218 (11th
Cir. 2019)(en banc); Wood v. Berryhill, No. 4:18-CV-558-RDP, 2019 WL 3413785,
at *6, n. 3 (N.D. Ala. July 29, 2019) (“Because Plaintiff’s briefs do not present

adequate argument on this issue, the court is under no obligation to consider it.”).
Accordingly, Bailey has failed to meet her burden of proof under McDonnell
Douglas as it concerns her termination.

Nevertheless, 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.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Rather, the plaintiff

will survive summary judgment if she presents circumstantial evidence that creates
a triable issue concerning the employer's discriminatory intent. Id. A triable issue of
fact exists if the record, viewed in a light most favorable to the plaintiff, presents a

“convincing mosaic” of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker. Id.
Bailey’s case also fails under this form of analysis, especially as it concerns
her termination. Aside from the remarks she attributes to Wooten (an African

American also), Bailey offers no evidence that any other employee at DAS made
discriminatory statements or engaged in discriminatory actions regarding Bailey’s
protected class.
Bailey states that in her meeting with James Uhm, he repeatedly mentioned
that Bailey would need to provide better evidence of her mistreatment by Wooten.

Bailey also offers Wooten’s profane quip at an off-site lunch and Wooten’s repeated
criticisms of Bailey’s work, often done in a loud and threatening manner. While
Wooten’s actions would certainly make her a nightmare of a boss, they do not make

Wooten a discriminatory boss and certainly not in the context of Bailey’s termination
under the facts in this case.
The Eleventh Circuit has rejected similarly tenuous evidence of
discrimination. See, e.g., Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d

1358, 1364–65 (11th Cir. 2014) (only evidence plaintiff presented that was “even
remotely race-related” were three incidents in which supervisor called herself “a
mean black b---h” and testimony that supervisor socialized with other black

employees, which together were insufficient to create a reasonable inference of
racial discrimination.); Moultrie v. Georgia Dep't of Corr., 703 F. App'x 900, 907
(11th Cir. 2017) (plaintiff’s generalized and nonspecific complaints that white
employees received better treatment were insufficient to show convincing mosaic);

see also Wood v. Bailey-Harris Const. Co., No. 2:11-CV-136-WHA, 2012 WL
3069949, at *5 (M.D. Ala. July 27, 2012).
Bailey’s evidence is similarly weak here, and thus Bailey has failed to
demonstrate that DAS terminated Bailey’s employment based on a prohibited

discriminatory basis under the McDonnell Douglas analysis.
b. Bailey’s Mixed Motive Discrimination Claim Also Fails

Bailey also advocates for application of the mixed motive standard for proving
discrimination based on circumstantial evidence, it appears that Bailey somewhat
mixes the single motive and mixed motive analysis. (Doc. 36, p. 17.) But to be fair,
Bailey’s Complaint takes no position as to whether she is advancing a single-motive
or mixed-motive discrimination claim either. Therefore, the Court will assume that

Bailey has asserted both and will examine the merits in turn. See Williams v. Fla.
Atl. Univ., 728 F. App'x 996, 999 (11th Cir. 2018).
The Court first notes that the Supreme Court recently held that a mixed-motive

or motivating factor theory does not apply to § 1981 claims. Comcast Corp. v. Nat'l
Ass'n of African Am.-Owned Media, 140 S. Ct. 1009 (2020). In Comcast Corp., the
Supreme Court concluded that “(t)o prevail [on a Section 1981 claim], a plaintiff
must initially plead and ultimately prove that, but for race, it would not have suffered

the loss of a legally protected right.” Id. (emphasis added). Therefore, this Court
conducts its mixed-motive analysis solely in regard to Bailey’s Title VII claim.
“[A]n adverse employment action motivated by both legal and illegal reasons

constitutes actionable discrimination under Title VII.” Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1236 (11th Cir. 2016) (citing Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)). A plaintiff “can succeed on a mixed-motive claim by showing

that illegal bias,” such as bias based on race or national origin, “was a motivating
factor for an adverse employment action, ‘even though other factors also motivated’
the action.” Quigg, 814 F.3d at 1235 (quoting 42 U.S.C. § 2000e–2(m)). A plaintiff

“can prove a mixed-motive case with direct or circumstantial evidence.” Id. at 1237
(citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003)).
Courts do not apply the McDonnell Douglas framework to evaluate a mixed-
motive claim at the summary judgment stage. Quigg, 814 F.3d at 1238. Rather, “[t]o

avoid summary judgment, a plaintiff raising a mixed-motive claim must offer
evidence sufficient to convince a jury that: (1) the [employer] took an adverse
employment action against [her]; and (2) a protected characteristic was a motivating

factor for the [employer]’s adverse employment action.” Bowen v. Manheim
Remarketing, Inc., 882 F.3d 1358, 1364 (11th Cir. 2018) (quoting Quigg, 814 F.3d
at 1239) (internal quotation marks omitted). “In other words, the court must
determine whether the plaintiff has presented sufficient evidence for a reasonable

jury to conclude, by a preponderance of the evidence, that [her protected
characteristic] was a motivating factor for [an] adverse employment decision.”
Quigg, 814 F.3d at 1239 (internal quotation marks omitted) (bracketed text in

original).
To begin, as previously stated, job termination is obviously an adverse
employment action. The Court therefore must examine whether race or national

origin were motivating factors for Bailey’s termination.
Based on the record, Bailey’s proffered evidence fails to create a genuine issue
of material fact that DAS actually relied on Bailey’s race or national origin

terminating Bailey. See Quigg, 814 F.3d at 1241. Bailey has alleged that Wooten
(the decisionmaker) made statements suggestive of impermissible bias. According
to Bailey, Wooten told her that the job of the HR employees was to “cater” to Korean
employees. (Doc. 32-12, p. 4.) Bailey does not otherwise assert that Wooten made

any statement that her termination occurred because she was not Korean, let alone
that she was being terminated because of one of Bailey’s protected characteristics.
The question is whether the Korean favoritism comment during her interview

process several weeks before her termination provides enough circumstantial
evidence to get Bailey past summary judgment. See Quigg, 814 F.3d at 1239. It does
not.
As the Court already explained, none of the circumstantial evidence Bailey

has presented shows that Wooten’s decision to terminate Bailey was due to
discriminatory bias. See Martin v. Shelby Cty. Bd. of Educ., 756 F. App'x 920, 924
(11th Cir. 2018); Quigg, 814 F.3d at 1239. This is especially true when Wooten was

an African American female, like Bailey. Bailey simply did not present any facts or
evidence to indicate that her race or national origin impacted Wooten’s decision to
terminate her employment. Wooten’s comments about catering to the Koreans are

much more akin to “stray remarks at the workplace.” See Price Waterhouse, 490
U.S. at 251; Quigg, 814 F.3d at 1242.
Wooten may have been uncivil, unpleasant, unprofessional and a horrible

boss, but that does not make her a discriminatory one. E.g., Barnette v. Fed. Exp.
Corp., 491 F.App'x 176, 183 (11th Cir. 2012) (“Although the record may
demonstrate that [the plaintiff’s supervisor] was offensive and had conducted
himself inappropriately, or could be an unpleasant supervisor, there is little to show

that gender discrimination motivated the termination of [the plaintiff]”); Hudson v.
Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1316 n.19 (N.D. Ga. 2001) (“Title VII,
however, certainly does not prohibit all behavior an employee may find to be

unpleasant or annoying.”).
As a result, Bailey has failed to provide sufficient evidence for a reasonable
jury to find that her race or national origin were a factor in her termination. See
Quigg, at 1239.

3. Bailey Was Not Subject to a Discriminatory Hostile Work
Environment

Because Bailey used the words “hostile work environment” in her meeting
with Uhm and alleges in her Complaint that she was “harassed” based upon her race
and national origin, (Docs. 1, pp. 6-7; 32-1, p. 34), Bailey apparently asserts that she
has raised a hostile work environment claim.

DAS claims that, under Fed. R. Civ. P. 8(a)(2), Bailey has failed to give DAS
fair notice that she was making such a claim in her Complaint. (Doc. 31, p. 29.) See
Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996) (the pleader must

present his claims “discretely and succinctly, so that his adversary can discern what
he is claiming and frame a responsive pleading, the court can determine which facts
support which claims and whether the plaintiff has stated any claims upon which
relief can be granted, and, at trial, the court can determine that evidence which is

relevant and that which is not.”) (citing T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d
1520, 1543 n. 14 (11th Cir. 1985) (Tjoflat, J., dissenting); cf. Nurse v. City of
Alpharetta, 775 F. App'x 603, 607 (11th Cir. 2019)).

To be sure, Bailey’s Complaint contains six counts, none of which assert a
claim for a hostile work environment. Bailey could have asserted such a claim and
done so in a separate count so that DAS could discern what she is claiming, and
thereby frame a responsive pleading. E.g., Palmer v. Albertson's LLC, 418 F. App'x

885, 889 (11th Cir. 2011). She did not, and accordingly DAS is entitled to summary
judgment to the extent Bailey is attempting to advance a hostile work environment
claim in this case. See Palmer, 418 F. App'x at 889; Cheney v. Fulton Cty., Georgia,

No. 1:14-cv-02009-ELR, 2016 WL 8315429, at *1 (N.D. Ga. Sept. 6, 2016).
Nevertheless, even if Bailey had properly asserted such a claim in her
Complaint, DAS is still due summary judgment. To plead a hostile work

environment claim, a plaintiff must allege that (1) she belongs to a protected class,
(2) she has been subjected to unwelcomed harassment, (3) the harassment was based
on a protected characteristic of the employee, (4) the harassment was sufficiently

severe or pervasive to alter the terms and conditions of her employment, and (5) the
employer is liable for the harassment. Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002). “A hostile work environment claim under Title VII is
established upon proof that ‘the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment.’” Miller, 277 F.3d at 1275 (citing Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993)).
“Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII's purview.” Harris, 510 U.S. at

21. A court must consider the following factors in evaluating whether conduct is
severe or pervasive enough to create an objectively hostile or abusive work
environment: “(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.” Miller, 277 F.3d at 1276. Courts must employ common sense and

carefully consider social context when determining whether a plaintiff has alleged
facts that a jury could reasonably find created an objectively hostile or abusive work
environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

The conduct that Bailey complains of here does not trigger Title VII’s scrutiny
by a long shot. The Eleventh Circuit has examined and rejected hostile environment
claims with far worse allegations. See McCann v. Tillman, 526 F.3d 1370 (11th
Cir. 2008) (white supervisor using racist language about employee did not create

hostile work environment); Barrow v. Ga. Pac. Corp., 144 F. App'x 54, 57–58 (11th
Cir. 2005) (presence of racist symbols and use of racial slur by supervisor did not
constitute hostile work environment); Murphy v. City of Aventura, 383 F. App'x 915,

918 (11th Cir. 2010) (supervisor’s remarks that plaintiff was a “dumb s--t,” “stupid
f--k,” and “dumb f--k,” fell “under the rubric of general vulgarity that Title VII does
not regulate.”); McCann v. Tillman, 526 F.3d 1370, 1378-79 (11th Cir. 2008) (three
racially demeaning comments, two made in plaintiff’s presence and one she heard

about, insufficient to show hostile work environment); compare Miller, 277 F.3d at
1276 (supervisor’s ethnic slurs about employee were so frequent so as to permeate
the workplace, thus demonstrating hostile work environment).
Indeed, Bailey does not cite to a single slur or derogatory comment that, in
the most liberal of inferences, suggests that Wooten created a hostile work

environment based on Bailey’s race or national origin. Wooten’s comment
regarding how Koreans were favored at DAS was not a derogatory statement about
Bailey’s race or national origin. The conduct Bailey complains about – Wooten’s

frequent criticisms of Bailey’s work, Wooten’s threatening manner, or use of curse
words at an off-site lunch – fall far short of creating an environment that “permeates”
the workplace with bigotry about Bailey’s race or national origin. See Miller, 277
F.3d at 1276. In fact, the work environment at issue largely involved only two

individuals – Wooten and Bailey – both of whom were African American females.
Simply put, Bailey has presented virtually no evidence of a work environment
permeated with racism or discriminatory animus to support a hostile work

environment.
Therefore, the Court will GRANT summary judgment to DAS on Counts I,
III and IV of Bailey’s Complaint.
C. Bailey’s Title VII and § 1981 Retaliation Claims

Retaliation against an employee who engages in statutorily protected activity
is prohibited under both Title VII and § 1981. See 42 U.S.C. § 2000e–3(a); CBOCS
W., Inc. v. Humphries, 553 U.S. 442, 457 (2008) (concluding that § 1981

encompasses retaliation claims); Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d
1249, 1257–58 (11th Cir. 2012). Claims for retaliation under both of these statutes,
as in substantive discrimination cases, proceed under the same prima facie

framework. E.g., Chapter 7 Tr., 683 F.3d at 1258; Brown v. Ala. Dep't of Transp.,
597 F.3d 1160, 1181, n. 6 (11th Cir. 2010); Bryant v. Jones, 575 F.3d 1281, 1307
(11th Cir. 2009). A plaintiff demonstrates a prima facie case of retaliation by

showing that (1) she engaged in protected conduct; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected
conduct and the adverse employment action. Crawford v. Carroll, 529 F.3d at 970.
Once the plaintiff meets this burden, the employer has an opportunity to articulate a

legitimate non-retaliatory reason for its employment action, which the plaintiff can
rebut with evidence of pretext. Brown, 597 F.3d at 1181–82.
DAS does not dispute that Bailey was subject to an adverse employment

action (her termination). DAS instead argues that Bailey has failed to establish that
she engaged in protected conduct, and even if she did, that she has failed to make
any causal connection between her termination and her engaging in protected
conduct. The Court will examine DAS’s arguments in that order.

1. Bailey Did Not Engage in Protected Conduct

DAS first argues that Bailey did not engage in protected conduct when Bailey
met with Mr. Uhm shortly before her termination. In particular, DAS notes that
Bailey did not tell Uhm that Wooten was discriminating against her due to her race
or national origin, but rather, they only discussed generalized management-style
grievances about Wooten. The record proves this to be the case.

Informal complaints to an employee’s superiors and the use of an employer’s
internal grievance procedures can qualify as protected conduct. See Rollins v. State
of Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989). “A complaint

about an employment practice constitutes protected opposition only if the individual
explicitly or implicitly communicates a belief that the practice constitutes unlawful
employment discrimination.” EEOC Compl. Man. (CCH) §§ 8–II–B(2) (2006); see
Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276

(2009) (using the EEOC manual in interpreting the opposition clause of the
antiretaliation statute); see also Murphy v. City of Aventura, 383 F. App'x 915, 918
(11th Cir. 2010).

While Bailey made complaints regarding Wooten’s behavior, there is no
evidence in the record that during Bailey’s meeting with Uhm she accused Wooten
of unlawful employment discrimination. See Brandon v. GlaxoSmithKline, LLC, No.
7:15-CV-01804-RDP, 2017 WL 2876184, at *17 (N.D. Ala. July 6, 2017) (citing

Murphy, 383 F. App’x at 918). The evidence presented by Bailey simply shows that
Bailey approached Uhm the Friday and Monday morning before her termination on
the belief that she was about to be fired by Wooten because of their confrontation.
To be classified as a statutorily protected activity, “the employee must still, at
the very least, communicate her belief that discrimination is occurring to the

employer, and cannot rely on the employer to infer that discrimination has occurred.”
Demers v. Adams Homes, Inc., 321 F. App’x 847, 852 (11th Cir. 2009) (internal
quotes omitted); see Jeronimus v. Polk County Opportunity Council, Inc., 145 F.

App’x 319, 326 (11th Cir. 2005) (a complaint “of being ‘singled out,’ being
subjected to ‘a campaign of harassment,’ and working in a ‘hostile environment’ ...
did not amount to protected conduct” where it “never suggested that this treatment
was in any way related to [the plaintiff's] race or sex”). Most plainly, “[a] complaint

about an employment practice constitutes protected opposition only if the individual
explicitly or implicitly communicates a belief that the practice constitutes unlawful
employment discrimination.” Murphy, 383 F. Appx 915, 918 (11th Cir. 2010)

(internal quotes omitted). Simply complaining that one feels “picked on” will not
suffice. Gosa v. Wal-Mart Stores E., LP, No. CV 16-0055-CG-B, 2017 WL 457198,
at *12 (S.D. Ala. Feb. 2, 2017) (citing Sitar v. Ind. Dep't of Tranps., 344 F.3d 720,
727 (7th Cir. 2003)). Yet, that is essentially what Bailey did here.

Bailey’s arguments to the contrary are unavailing. Just because Bailey
invoked the phrase “hostile work environment” during her meeting with Uhm, did
not put Uhm on notice that Bailey was complaining about unlawful discrimination.

Bailey admits as much in her discovery responses when she stated that her
complaints about Wooten were merely about Wooten’s management style and
unprofessional conduct. (Doc. 32-9, pp. 8-9.) These complaints to Uhm were

insufficient to trigger Title VII’s protections against retaliation.
But even assuming that Bailey’s use of the phrase “hostile work environment”
in her discussion with Uhm is sufficient, Bailey must still show that her complaint

to Uhm about Wooten’s conduct was based on a “good faith reasonable belief” that
Wooten was engaged in unlawful discrimination. See Clover v. Total Sys. Servs.,
Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). Bailey must show that she subjectively
believed that DAS engaged in unlawful discrimination and that her belief was

objectively reasonable in light of the facts and record present. See Howard v.
Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010); Binion v. PNC Bank, Nat'l
Ass'n, No. 7:14-CV-1140-TMP, 2017 WL 992179, at *13 (N.D. Ala. Mar. 15, 2017).

“The objective reasonableness of an employee's belief that her employer has
engaged in an unlawful employment practice must be measured against existing
substantive law.” Clover, 176 F.3d at 1351 (citing Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1388 n. 2 (11th Cir. 1998) (failure to charge

the employee who opposes an employment practice with substantive knowledge of
the law “would eviscerate the objective component of our reasonableness inquiry”)).
Even if Bailey had a subjective belief that Wooten, as an African American,

was harassing and discriminating against her on the basis of Bailey’s race or national
origin as an individual of African decent, this belief was not objectively reasonable
in light of the facts presented in the record. See Brown v. City of Opelika, 211 F.

App'x 862, 864 (11th Cir. 2006). Granted, an employer’s “intent may be difficult to
discern,” Reeves, 594 F.3d at 813, but “it is not objectively reasonable to presume
that, simply because an employee has been subjected to seemingly inexplicable

negative treatment, the true reason for the treatment must be unlawful
discrimination. In other words, it is not objectively reasonable to infer race or gender
discrimination merely from the lack of a clear reason for an employer’s mistreatment
of its employee,” Herron-Williams v. Alabama State Univ., No. 18-10875, 2020 WL

599301, at *8 (11th Cir. Feb. 7, 2020). As discussed supra, the allegations described
in Bailey’s communications to Uhm about Wooten are not nearly close enough to
unlawful discrimination to permit Bailey to draw such an inference as an objective

matter. See Herron-Williams, 2020 WL 599301, at *8.
2. Bailey Has Failed to Show a Causal Connection Regarding
Her Meeting with Uhm and Her Termination

Even if the Court was to assume that Bailey engaged in protected conduct, she
still has failed to demonstrate a causal connection between her meeting with Uhm
and her termination minutes later by Wooten.
A plaintiff making a retaliation claim under § 2000e-3(a) and § 1981 must
establish that her protected activity was a “but-for” cause of the alleged adverse
action by the employer. E.g., Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
362 (2013); Brown v. CRST Malone, Inc., No. CV-12-BE-3954-S, 2014 WL
4681363, at *18-19 (N.D. Ala. Sept. 17, 2014). In other words, to survive summary

judgment here, there must be a genuine dispute that, but for Bailey’s meeting with
Uhm, Wooten would not have terminated Bailey. Herron-Williams, 2020 WL
599301, at *9.

To establish a causal connection, a plaintiff must show that the decision-
makers were aware of the protected conduct and that the protected activity and the
adverse act were at least somewhat related and in close temporal proximity. See
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Where, as here, the

plaintiff is attempting to prove retaliation through circumstantial evidence, close
temporal proximity between the protected activity and the adverse employment
action may be sufficient to prove the two events were not “wholly unrelated.” See

Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000). Temporal
proximity must be “very close.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007) (internal quotation marks omitted).
Here, Bailey’s meeting with Uhm and her subsequent termination occurred

within a matter of minutes, so ostensibly there is no question that these events are
“very close” in temporal proximity. However, as the Eleventh Circuit has explained,
“temporal proximity alone is insufficient to create a genuine issue of fact as to causal

connection where there is unrebutted evidence that the decision maker did not have
knowledge that the employee engaged in protected conduct.” Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000) (citing Clover, 176

F.3d at 1355-56). As the Brungart court explained,
In Clover the plaintiff, who brought a Title VII retaliation claim, had
been informed the day after she engaged in protected conduct that she
was going to be terminated, and later she was terminated.
Notwithstanding the close temporal proximity between the protected
conduct and the initial decision to terminate the plaintiff, we reversed
the district court's denial of the defendant's motion for judgment as a
matter of law on the retaliation claim. We did so because the plaintiff
“failed to present sufficient evidence to establish that [the decision
maker] was aware of her protected conduct.” Exactly the same situation
is before us in this case, and the Clover decision compels the same
result.

Id.
Indeed, the same situation is before this Court as well. Even if, construing the
facts in favor of Bailey, Wooten was aware that Bailey was having a meeting with
Uhm, there is no evidence that shows Wooten was aware that Bailey was having a
meeting to complain about Wooten’s allegedly discriminatory behavior. See Clover,
176 F.3d at 1354-1355. Moreover, the discussion with Uhm came the Monday after
Wooten already had made the decision to terminate Bailey and after Bailey herself
believed her termination was imminent. “A jury finding that [Wooten] was aware
of [Bailey’s] protected conduct must be supported by reasonable inferences from the
evidence, not mere speculation.” Id. The Court will not engage in such speculation
either.
Therefore, because Bailey has failed to demonstrate a causal connection
between her meeting with Uhm and her termination, summary judgment is due to be

GRANTED as to Counts II and V of Bailey’s Complaint.
D. Bailey’s State Law Claim Also Fails

Finally, in Count VI, Bailey asserts a state law claim of negligent and wanton
hiring, training, retention and supervision.
Under Alabama law, the tort of negligent or wanton hiring, training,
supervision, and retention requires a plaintiff to show an employer knew or should
have known its employee was incompetent. See Buckentin v. SunTrust Mortg.

Corp., 928 F. Supp. 2d 1273, 1288 (N.D. Ala. 2013) (discussing negligent and
wanton hiring, supervision, and retention); Armstrong Bus. Servs. v. AmSouth Bank,
817 So. 2d 665, 682 (Ala. 2001) (discussing negligent supervision); Brown v. Vanity

Fair Mills, Inc., 277 So. 2d 893, 895 (1973) (discussing negligent hiring, retention,
and entrustment).
The tort also is predicated on “underlying tortious conduct of an employee.”
Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999) (“That cause

of action, however, [is] predicated on the underlying tortious conduct of an
employee.”). But Alabama does not recognize a common-law tort for race
discrimination or retaliation. See Thomas v. Util. Trailer Mfg. Co., No. 1:05-CV-

914-MEF, 2006 WL 2480057, at *3 (M.D. Ala. Aug. 28, 2006). There also is no
reported Alabama case recognizing a common-law tort for national origin
discrimination or retaliation.

And to the point, federal courts do not graft federal causes of action onto a
state law claim. See Guy v. Alabama Power Co., No. 2:13-CV-8-MHT, 2013 WL
3929858, at *3 (M.D. Ala. July 29, 2013); Thrasher v. Ivan Leonard Chevrolet, Inc.,

195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002) (finding that because Alabama does
not recognize a gender discrimination tort claim, plaintiff cannot maintain an action
for negligent supervision, training, and/or retention based upon conduct that is
employment discrimination).

Because Bailey has not shown an underlying Alabama common-law tort as a
part of her negligent and wanton hiring, training and supervision claim, DAS is due
summary judgment on Count VI.

V. CONCLUSION

For the foregoing reasons, it be and is hereby
ORDERED that the Defendant’s Motion for Summary Judgment, (Doc. 30),
is GRANTED this case is DISMISSED with prejudice.
A separate judgment shall issue.
DONE, this 17th day of July, 2020.

/s/ R. Austin Huffaker, Jr.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987117. Public record. Not legal advice.