Green v. The Henry County Commission

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JERRY GREEN, )

)

Plaintiff, )

)

v. ) CIVIL CASE NO.: 1:19-cv-874-ECM

) (WO)

THE HENRY COUNTY )

COMMISSION, )

)

Defendant. )

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

Plaintiff Jerry Green (“Green”) brings this retaliation and race discrimination suit

pursuant to 42 U.S.C. § 1981 against the Defendant, the Henry County Commission (“the

Commission”).1 Green, a former custodian for Henry County buildings, alleges race

discrimination and asserts that the Commission retaliated against him for complaining

about racially discriminatory treatment at the workplace.

Now pending before the Court is the Commission’s motion for summary judgment.

(Doc. 38). Green has filed a response in opposition to the motion, (doc. 41), and the motion

is ripe for review.

For the following reasons, the motion is due to be GRANTED.

1 The Plaintiff brought a four count complaint against the Henry County Commission alleging (1) retaliation

under 42 U.S.C. § 1981 and Title VII; (2) age discrimination under the Age Discrimination in Employment

Act (“ADEA”); (3) race discrimination under Title VII; and (4) race discrimination under 42 U.S.C. § 1981.

The Title VII claim in Count One, the ADEA claim in Count Two, and the Title VII claim in Count III were

previously dismissed by the Court. (Doc. 18). However, Counts One and Four remain to the extent that

they were brought pursuant to 42 U.S.C. § 1981.

II. JURISDICTION

The Court exercises federal subject matter jurisdiction over this dispute pursuant to

28 U.S.C. § 1331.

Personal jurisdiction and venue are uncontested.

III. STANDARD OF REVIEW

A reviewing court shall grant a motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment

“always bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it

believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). The movant can meet this

burden by presenting evidence demonstrating there is no dispute of material fact, or by

showing that the non-moving party has failed to present evidence in support of some

element of his case on which he bears the ultimate burden of proof. Id. at 322–23. Only

disputes about material facts will preclude the granting of summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An issue of fact is ‘genuine’ if the record

as a whole could lead a reasonable trier of fact to find for the nonmoving party. . . . An

issue is ‘material’ if it might affect the outcome of the case under the governing law.”

Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996)

(quoting Anderson, 477 U.S. at 248).

Once the movant has satisfied this burden, the non-moving party “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). The non-

movant must support his assertions “that a fact cannot be or is genuinely disputed” by

“citing to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B).

In determining whether a genuine issue for trial exists, the court must view all the

evidence in the light most favorable to the non-movant. McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must

draw all justifiable inferences from the evidence in the nonmoving party’s favor.

Anderson, 477 U.S. at 255. 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) (per curiam).

A reviewing court is constrained during summary judgment proceedings from

making the sort of determinations ordinarily reserved for the finder of fact at a trial. See

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). After the

nonmoving party has responded to the motion for summary judgment, the court must grant

summary judgment if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

IV. BACKGROUND

The Henry County Commission is the governing body for Henry County, Alabama.

The Commission operates the Henry County Courthouse (“the Courthouse”) and sets a

budget to hire employees to manage the Courthouse and other County buildings. On

November 1, 2005, the Commission hired James Lynn (“Lynn”), an African American

man, as a custodian for the County buildings. (Doc. 39-2 at 2).2 Then, on February 6, 2006,

the Commission hired Green, also an African American man, to work as a custodian for

the County. (Id. at 4).

A. The Plaintiff’s relationship with Jerry Whitehead

In Henry County, the Probate Judge is the Chair of the County Commission and

manages the operations of the Courthouse. In 2012, the Probate Judge was Judge JoAnn

Smith, and the Sanitation Supervisor was Jerry Whitehead, a white man. As Sanitation

Supervisor, Whitehead was the direct supervisor of Green—who, according to Green, in

turn supervised Lynn. (Doc. 41-4 at 2) (“Mr. Whitehead told me I was Mr. Lynn’s

supervisor, but nothing was put in writing.”). Green alleges that Whitehead engaged in

abusive and racially derogatory treatment of him. Green alleges that Whitehead harassed

him, subjected him to unfair attempts to discipline, and directed racially discriminatory

actions towards him. (Id. at 3). A write-up dated April 13, 2012 contains a responsive

statement by Green that Whitehead was “very racial.” (Doc. 39-1 at 6).

2 The Court will refer to the page numbers generated by CM/ECF.

Judge Smith was succeeded by Probate Judge David Money, and Green alleges that,

“[p]rior to Judge Money’s election, I complained to him that Mr. Whitehead was treating

me in a racially discriminatory manner. . . . Judge Money assured me he would handle the

situation once he took office.” (Doc. 41-4 at 3). However, Whitehead’s alleged

mistreatment of Green continued after Judge Money took office: Whitehead allegedly

continued to interrupt Green’s work and speak to Green in an inappropriate manner,

repeatedly encouraging Green to leave his job. Green states that “[w]hen I objected to his

treatment, he treated me even worse.” (Id. at 7). In 2013, Whitehead proposed disciplinary

action against Green, and Judge Money subsequently spoke to both Green and Whitehead

about turning over a new leaf in their relationship. (Id.).

According to Green, he again complained to Judge Money that Whitehead was

discriminating against him, but nothing changed. (Id. at 4). Soon after, Green claims that

Judge Money also treated him in a discriminatory manner: “[once] Judge Money [took]

office, he began treating me critically . . . . I did not see him treating white employees this

way.” (Id.).

In 2015, Ronnie Dollar became the Henry County Personnel Director, acting as a

supervisor to both Whitehead and Green. But, even with Dollar now serving as a buffer

between the two, the relationship between Whitehead and Green only deteriorated further

over the next year. Their regular spats finally escalated to an argument in a public area of

the Courthouse in 2016. It is disputed what happened during the argument, but both Parties

agree that Dollar addressed the incident. (Doc. 41-4 at 8). Dollar removed Whitehead as

Green’s supervisor, and Dollar became Green’s supervisor instead. Green alleges that

Whitehead continued to harass him anyway, and, “[s]ometime in March or April 2017 I

complained to Judge Money that Mr. Whithead [sic] was looking for a way to discipline

me, and I felt it was racial.” (Doc. 41-4 at 4). Judge Money claims he did not receive any

complaints from Green regarding racially discriminatory treatment.

B. The upkeep of the County buildings

In the meantime, the Commission claims that the cleanliness of County buildings

deteriorated over the years. According to Judge Money, “maintenance was lacking”

throughout the buildings and grounds, and the Commission “received complaints from the

public and from others occupying those offices. At one point in time, things were so bad

that [Judge Money’s] wife actually cleaned the bathrooms on a Sunday afternoon while

[he] worked.” (Doc. 39-1 at 3–4). The Commission states that the cleanliness got better

for a time, but that Judge Money “saw Green and Lynn just sitting around the Courthouse

taking very long breaks,” which he felt “was a waste of money.” (Id. at 4). Judge Money

then determined “Green and Lynn were both more productive and efficient when they

worked separately. [He] began to suspect that one of them would do a better job by

himself.” (Id. at 5). In turn, Green alleges, “Judge Money did not seem to have any issue

with white employees taking their breaks outside smoking and talking, but he had an issue

with Mr. Lynn and me taking our breaks in the same place. JudgeMoney [sic] and Mr.

Dollar told us we had to take our breaks downstairs and not be seen by the public.” (Doc.

41-4 at 8–9). And he adds, “[w]e wanted to be able to take our breaks in the fresh air like

the white employees.” (Id.).

C. The Commission’s decision to eliminate a custodial position

Judge Money ultimately decided to recommend that the Commission eliminate one

of the custodian positions. While Green’s salary was included in the budget the

Commission passed in September 2016, the Commission held a meeting on April 11, 2017

in which it voted to eliminate one custodial position from the Courthouse. Specifically,

Judge Money told the Commission that there was not enough work for two custodians.3

After the discussion, “Commissioner Beasley made a motion, seconded by Commissioner

Grimsley, to add the issue to the Agenda. . . . [Judge Money] then requested that the

Commission eliminate one of the custodian positions, with the decision based on

seniority.” (Doc. 39-1 at 5). The Commission unanimously voted for Judge Money’s

proposal to eliminate one position: the less senior custodian on the team. The Commission

drafted a notice to Green, signed by Judge Money on the same day—April 11, 2017—, that

the Commission “voted unanimously to eliminate one position in the court house, annex

and grounds custodial department.” (Doc. 39-9 at 7). The notice reads, “[t]his decision

was based on the fact that there is not enough work to be done to warrant two full time

employees.” (Id.).

Importantly, the Commission states that Judge Money believed at the time he made

this proposal to the Commission that it would be Lynn, not Green who would lose his job.

Judge Money’s affidavit reads, “[w]hen I first began thinking that we should probably

3 The meeting minutes read, “[a]fter discussion of janitorial/grounds maintenance and the lack of work to

keep two people busy, Benton Beasley made a motion seconded by Henry Grimsley and a unanimous vote

of the Commission for this item to be added to the agenda.” (Doc. 39-9 at 3).

eliminate the position, I had actually assumed that Jerry Green had more seniority because

he was the older of the two custodians, which meant that Lynn would be the one let go.”

(Doc. 39-1 at 5). Dollar similarly provides that he assumed Green was the senior employee.

(Doc. 39-3 at 3). However, Green was hired three months after Lynn, and thus, because

Green was hired after Lynn, Green’s job was eliminated, and he was placed on layoff status

effective May 2, 2017. Green does not dispute that Judge Money and Dollar thought he

was the senior employee leading up to and during the April 11, 2017 meeting. (Doc. 41-4

at 9).4

Green’s dealings with the Commission did not end there. On April 22, 2017, Dollar

approached Green to tell him that Dollar could help Green get his job back if he “would do

what [he] was told.” (Doc. 41-4 at 5). And, on May 9, 2017, Green attended a Commission

meeting to ask about why his job had been eliminated without due process in accordance

with the employee policies and procedures. Green also had at least eight former co-workers

sign a document saying that “lack of work” and Green’s job performance were not the real

reasons for Green’s losing his job.5 (Doc. 39-10 at 2–10). Neither Green nor the co-workers

4 Green’s affidavit reads,

I have reviewed the Defendant’s Brief in Support of its Motion for

Summary Judgment. In factual paragraph 18 where the Henry County

Commission alleged that they thought I had more seniority over Mr. Lynn

because I was older. He was my subordinate in that I did work on the

grounds and in the courthouse and annex where he did not do grounds

work. I supervised him. Nothing was said to me about seniority, and the

fact that Mr. Dollar told me my job could be saved showed that seniority

was not a factor.

(Doc. 41-4 at 9).

5 Each signature is beneath the statement:

asserted that race discrimination was the real reason for the employment action. Green

offers that he did not mention race discrimination at the time of his termination “because

it was clear I had been fired for complaining of dsicrimination [sic]” and “because [the

Commissioners] were the ones who made the decision—there was not a point in

complaining to them that they were acting unlawfully and it would only inflame the

situation.” (Doc. 41-4 at 10).

V. DISCUSSION

Green brings two counts pursuant to 42 U.S.C. § 1981, alleging retaliation and

discrimination. Before the Court addresses each in turn, it will review the Parties’

objections to several exhibits.

A. Evidentiary Objections

Both Parties object to exhibits submitted with or in response to the motion for

summary judgment: they object to declarations, a job offer document, and a newspaper

article.

I believe that Mr. Green was given false statements as to why he was

terminated.

I know Mr. Green and worked with him here in the Henry County

Courthouse, and do not believe it had anything to do with a ‘lack of work’

issue or his job performance.

It was solely a personal vendetta against Mr. Green by Judge David Money

who got Mr. Ronnie Dollar, Personnel Director, and the Henry County

Commission to go along with.

(Doc. 39-10 at 2).

Specifically, Green objects to portions of Judge Money’s declaration, (doc. 39-1),

as inadmissible hearsay and speculation, to portions of Ronnie Dollar’s declaration, (doc.

39-3), as hearsay and improper speculation, and to the documents relating to Green’s 2021

job offer from the Commission, (doc. 39-12), as irrelevant. (Doc. 41 at 17–20).

Declarations or “affidavits offered in support of or in opposition to a motion for summary

judgment ‘shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein.’” Moore v. Beneficial Nat. Bank USA, 876 F.Supp. 1247, 1254

(M.D. Ala. 1995) (quoting Fed. R. Civ. P. 56(c)(4)) (emphasis removed). “[A] district

court may consider a hearsay statement in passing on a motion for summary judgment if

the statement could be reduced to admissible evidence at trial or reduced to admissible

form.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (internal quotations

omitted). Here, Judge Money and Dollar’s testimony could be reduced to admissible form

at trial. Accordingly, the Court declines to strike any portion of their respective affidavits.

Green asserts that evidence regarding the 2021 job offer to Green is irrelevant and

objects to thereto. A piece of evidence is relevant if “it has any tendency to make a fact

more or less probable than it would be without the evidence.” FED. R. EVID. 401(a). The

Henry County Commission responds with examples of ways in which this evidence is

relevant. The Court finds that this evidence may be relevant and overrules Green’s

objection.

The Commission objects to a newspaper article submitted by Green, (doc. 41-3), as

inadmissible hearsay. (Doc. 42 at 1–2). The Commission further asks the Court to strike

the article from the record. While the Court does not consider the newspaper accounts to

be of substantial evidentiary value, the Court will not strike the article at this time because

information within the article could be reduced to admissible evidence at trial. See Woods

v. Dunn, 2020 WL 1015763, at *9 (M.D. Ala. Mar. 2, 2020) (citing Macuba, 193 F.3d at

1323). Accordingly, the Commission’s objection is overruled.

B. Count I – Retaliation

The Court now turns to Green’s 42 U.S.C. § 1981 retaliation claim. Retaliation

claims brought under § 1981 are analyzed under the same framework as their Title VII

counterparts, Gogel v. Kia Motors Manufacturing of Ga., Inc., 967 F.3d 1121, 1134 (11th

Cir. 2020) (en banc), and they therefore are subject to the McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) burden-shifting analysis.

1. Green has established a prima facie case of retaliation.

A prima facie case of retaliation under § 1981 requires a plaintiff to show “(1) that

‘[he] engaged in statutorily protected activity,’ (2) that ‘[he] suffered an adverse action,’

and (3) ‘that the adverse action was causally related to the protected activity.’” Id. (quoting

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018)). When the plaintiff

establishes a prima facie case of retaliation, there is a “presumption that the adverse action

was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d 911, 924 (11th Cir.

2009). Next, the burden shifts to the employer to rebut this presumption by “articulating a

legitimate, non-[retaliatory] reason for the employment action.” Gogel, 967 F.3d at 1135.

If the employer successfully does so, then the burden shifts back to the plaintiff to

demonstrate that the “proffered reason was merely a pretext to mask [retaliatory] actions.”

Bryant, 575 F.3d at 1308. It is at this crucial stage that the plaintiff must establish but-for

causation: he must demonstrate that his “protected activity was a but-for cause of the

alleged adverse action by the employer,” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 362 (2013), or, in other words, he must show that he would not have been fired if he

had not engaged in the protected activity. Gogel, 967 F.3d at 1135. The burden of

persuasion remains on the employee throughout. Id.

Green presents a prima facie case of retaliation here. First, both Parties agree that

Green suffered an adverse employment action when he lost his job in April 2017. Second,

viewing the facts in the light most favorable to Green, he engaged in a statutorily protected

activity. Green claims that complained to the previous Probate Judge and to Judge Money

about racially discriminatory treatment directed by Whitehead towards Green.

Specifically, Green made a written complaint about “racial” behavior in 2012, (doc. 39-11

at 2), Green says he complained to Judge Money about racially discriminatory treatment

before and after Judge Money took office, and Green claims that he made a similar verbal

complaint to Judge Money within a short window of time before he was fired—“either in

the month he was terminated or the preceding month.” (Doc. 41 at 24). “[A]n employee

has engaged in protected activity if she has: (1) opposed an unlawful employment practice,

or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing’ under [§ 1981].” Smith v. City of Fort Pierce, Fla., 565 F. App’x

774, 777 (11th Cir. 2014) (quoting E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174

(11th Cir. 2000)). Both formal and informal complaints about discriminatory treatment are

considered protected activities. See Rollins v. State of Fla. Dept. of Law Enforcement, 868

F.2d 397, 400 (11th Cir. 1989). Therefore, Green’s alleged complaints, both in writing and

verbally to Judge Money, sufficiently establish that Green engaged in a statutorily

protected activity.

Regarding the third prong of the prima facie case, the close temporal proximity

between Green’s alleged complaints and the adverse employment action is sufficient to

establish a causal link between the two. But-for causation is addressed later in the

McDonnell Douglas burden-shifting analysis. Gogel, 967 F.3d at 1136 (en banc). Thus, it

is sufficient at this stage for Green to show “the decisionmaker was aware of the protected

conduct at the time of the adverse employment action,” Brungart v. BellSouth Telecomms.,

Inc., 231 F.3d 791, 799 (11th Cir. 2000), and that “the adverse actions were not wholly

unrelated.” Smith, 565 F. App’x at 778 (cleaned up). This can be shown through “close

temporal proximity between the employer’s awareness of the protected conduct and the

adverse employment action.” Hill v. Manning, 236 F. Supp. 2d 1292, 1300 (M.D. Ala.

2002) (citing Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999)).

Although “[a] three to four month disparity between the statutorily protected expression

and the adverse employment action” is insufficient to establish causation, Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007), one month probably is

enough. Here, Green asserts that he complained to Money about Whitehead’s racially

discriminatory conduct either in March or April 2017, and the Commission, on Money’s

recommendation, voted to remove his job on April 11, 2017. This close temporal proximity

establishes a causal relationship sufficient for the purposes of a prima facie case of

retaliation.

2. The Commission has proferred a legitimate, non-discriminatory reason

for its action.

Having established a prima facie case, the burden shifts from Green to the

Commission to proffer a “legitimate, non-discriminatory reason for the employment

action.” Gogel, 967 F.3d at 1135. The Commission asserts that neither of the two

custodians was fully productive, and “the Commission simply could not justify continuing

to pay two people to do what amounted to a half of a job each . . . .” (Doc. 39 at 10–11).

The Commission voted to eliminate one custodian position based on seniority. Because

the Defendant has articulated a non-discriminatory reason for its action, the burden shifts

back to Green to show that the reason is pretext for retaliation.

3. Green cannot establish but-for causation.

To establish pretext, Green must demonstrate that the Commission would not have

fired him, but for his complaint of race discrimination. Gogel, 967 F.3d at 1136. Green

presents no evidence that the Commissioners had retaliatory motives or even knew about

his alleged protected activity. Instead, he relies on a cat’s paw theory of liability—that the

Commission’s decision to eliminate his position was determinatively influenced by the

recommendations of Judge Money, who Green claims did have an impermissibly

retaliatory motive.6

“‘Cat's paw’ theory of liability, also referred to as ‘subordinate bias theory,’ is

liability seeking to hold an employer liable for the animus of a supervisor who was not

6 Green makes much of the fact that a budgetary line item had already been created for his salary, which

the Commission voted to remove on April 11, 2017 when it removed his position. But the Commission is

correct in arguing that it legally can make changes to its budget throughout the year. See ALA. CODE

§ 11-8-3.

charged with making the ultimate employment decision.” Sims v. MVM, Inc., 704 F.3d

1327, 1335 n.6 (11th Cir. 2013) (quoting Staub v. Proctor Hosp., 562 U.S. 411, 415

(2011)). The cat’s paw theory is applied regularly to retaliation claims. See, e.g., Crayton

v. Pharmedium Servs., LLC, 213 F. Supp. 3d 963, 984–85 (W.D. Tenn. 2016) (applying

the cat’s paw theory to a § 1981 retaliation claim); Russaw v. Barbour Cnty. Bd. Of Educ.,

891 F. Supp. 2d 1281, 1285 (M.D. Ala. 2012) (applying the cat’s paw doctrine to a Title

VII retaliation claim). See also E.E.O.C. v. EmCare, Inc., 857 F.3d 678, 684 n.3 (5th Cir.

2017) (noting that retaliation plaintiffs “may use a cat's paw theory to prove causation when

they cannot show the official decisionmaker had a retaliatory motive, but can show that

another individual influenced that decisionmaker”).

“Under the cat's paw doctrine, a plaintiff may establish but-for causation if she

shows that the unbiased decision-maker (here [the Commission]) followed a ‘biased

recommendation without independently investigating the complaint against the

employee.’” Godwin, 615 F. App’x at 528 (quoting Stimpson v. City of Tuscaloosa, 186

F.3d 1328, 1332 (11th Cir. 1999) (per curiam)). In such a situation, “the recommender is

using the decisionmaker as a mere conduit, or cat's paw[,] to give effect to the

recommender's discriminatory animus.” Stimpson, 186 F.3d at 1332. Essentially, the

decision-maker acts as a “rubber stamp.” Id. But, if an employer undertakes its own

independent investigation to consider the recommendation, the investigation will be a

factor supporting the employer’s argument that it should not be liable. Russaw, 891 F.

Supp. 2d at 1283 (quoting Staub, 562 U.S. at 421). Regarding the extent to which an

independent investigation is required, the Supreme Court reviewed the application of cat’s

paw liability to the Uniformed Services Employment and Reemployment Rights Act of

1994 (“USERRA”) in Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011). The Court

analyzed the USERRA claims similarly to those under Title VII and determined whether

an independent investigation could prevent an employer from being held liable under a

cat’s paw theory, holding,

the requirement that the biased supervisor's action be a causal

factor of the ultimate employment action incorporates the

traditional tort-law concept of proximate cause. . . . Thus, if the

employer's investigation results in an adverse action for

reasons unrelated to the supervisor's original biased action . . . ,

then the employer will not be liable. But the supervisor's biased

report may remain a causal factor if the independent

investigation takes it into account without determining that the

adverse action was, apart from the supervisor's

recommendation, entirely justified. We are aware of no

principle in tort or agency law under which an employer's mere

conduct of an independent investigation has a claim-preclusive

effect. Nor do we think the independent investigation somehow

relieves the employer of “fault.”

Staub, 562 U.S. at 420–21 (internal citations omitted). From Staub, it can be taken that

conducting an independent investigation may mitigate liability under a cat’s paw theory,

but it will not automatically prevent an employer from being held liable. Essentially, the

cat’s paw theory provides that “[t]he employer is at fault because one of its agents

committed an action based on discriminatory animus that was intended to cause, and did

in fact cause, an adverse employment decision,” even if some level of independent

investigation occurred. Id. at 421.

Here, the Commission voted unanimously to eliminate one of the custodial positions

from the budget based on the recommendation of Judge Money at the April 11, 2017 board

meeting. The meeting minutes show that there was a public discussion regarding the

budget and upkeep. (Doc. 39-9 at 3). Further, Dollar testified that he spoke to the

Commission at the April 11, 2017 meeting on the issue. (Doc. 39-3 at 3). Thus, some form

of independent investigation appears to have been conducted, although not one that would

have a “claim preclusive effect.” Staub, 562 U.S. at 421.

Accordingly, the issue is whether Judge Money harbored retaliatory animus when

he made his recommendations to the Commission, causing the adverse action. See Hinton

v. Ala. State Univ., 2020 WL 6946449, at *7 (M.D. Ala. 2020) (denying summary judgment

based on the application of the cat’s paw theory to a race discrimination claim pursuant to

Title VII). Moreover, Judge Money’s alleged retaliatory animus must be the but-for cause

of Green’s termination. Gogel, 967 F.3d at 1136 (“[I]n determining whether the plaintiff

has met [his] burden to show pretext, we remain mindful that it is the plaintiff's burden to

provide evidence from which one could reasonably conclude that but for [his] alleged

protected act, [his] employer would not have fired [him].”).

This is where Green fails to meet his evidentiary burden—he does not present

evidence to establish but-for causation. Green does not present evidence that Judge

Money’s recommendation to the Commission was motivated by Green’s alleged protected

activities—his complaints. Notably, Green does not dispute that Judge Money (and Dollar)

thought he, not Lynn, was the senior employee when Judge Money recommended that the

Commission eliminate the most subordinate custodian position. (Doc. 41-4 at 9). In fact,

according to Judge Money and Dollar—and undisputed by Green—they assumed at all

times until the meeting was over that Green was the senior employee. Green himself

understood that he was the senior custodian. (Doc. 41-4 at 2) (“Mr. Whitehead told me I

was Mr. Lynn’s supervisor, but nothing was put in writing.”). Green’s retaliation claim

falls short because he presents insufficient evidence to show that he was targeted for

termination or that Money’s recommendation was motivated by retaliatory animus.

Indeed, Green does not present evidence to demonstrate that Judge Money would not have

recommended to terminate one custodial position but for his alleged retaliatory animus

against Green. And without that evidence, there is an insufficient causal connection

between any protected activity and the adverse employment action.

In sum, there is not a genuine dispute of material fact as to whether Judge Money—

and therefore the Commission—was motivated to act in a retaliatory manner. Accordingly,

the motion for summary judgment will be granted as to Count I.

C. Count IV – Discrimination

Green also brings a race discrimination claim pursuant to 42 U.S.C. § 1981. There

is no direct evidence of discrimination, so Green’s § 1981 race discrimination claim is

analyzed under the McDonnell Douglas burden-shifting framework. Pursuant to § 1981,

“[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be

parties, [and] give evidence . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. The

Supreme Court, in its recent decision in Comcast Corp. v. National Association of African

American-Owned Media, 140 S.Ct. 1009 (2020), held that in order to prevail on claims

under § 1981, plaintiffs must establish but-for causation. Id. at 1014 (holding, “a plaintiff

must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would

not have occurred”). Accordingly, the § 1981 plaintiff bears the burden of demonstrating

that “race was a but-for cause of its injury,” or that “the defendant would have responded

differently but for the plaintiff’s race . . . .” Id. at 1014–15.

As an initial matter, the Parties dispute whether the Court should look for a

“reduction in force” prima facie case (the Commission’s argument) or a termination prima

facie case (Green’s argument). The Court is aware that “[m]ore than one formulation of

the elements of a prima facie case exist.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269,

1275 (11th Cir. 2008). Here, in the Complaint, the Plaintiff identifies Count IV as a

termination claim, (doc. 1 at 8), and Green is the only employee who lost his job at the

April 11, 2017 meeting, suggesting the meeting resulted in a termination, not a reduction

in force. But the Commission claims that it voted on April 11, 2017 to reduce the number

of custodians without considering who would be terminated—Green or Lynn—and,

therefore, the decision was a reduction in force. The Court need not resolve this dispute,

however, because it finds that, under either analysis, Green does not establish a prima facie

case of race discrimination.7

To establish a prima facie case for the more particularized reduction in force claim,

the plaintiff must prove that “(1) [he] is a member of a protected class and was adversely

affected by an employment action; (2) [he] was qualified to assume another position at the

time of the discharge; and (3) the employer intended to discriminate in reaching the

employment decision at issue.” Felder v. Bradford Health Servs., 493 F. App’x 17, 19

(11th Cir. 2012) (citing Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.

7 Nowhere does the Plaintiff assert a cat’s paw theory of liability for his race discrimination claim. Even if

he did, his race discrimination claim would fail for the reasons set forth herein.

1987)). It is undisputed that Green meets the first prong. Regarding the second prong, the

Commission argues that Green could not have taken another position at the time of

discharge because none were available at that time. But the Commission subsequently

offered Green another position in January 2021, which suggests that he would have been

qualified to assume another position, had one been open.

Even assuming Green could establish the second prong, his claim certainly fails at

the third prong: he has presented no evidence to show that the Commission intended to

discriminate in reaching the employment decision of eliminating his position. As evidence

of intent to discriminate, Green offers:

Mr. Green points to the difference in the way Judge Money and

Mr. Dollar treated him compared to white employees. Judge

Money was critical of Mr. Green, questioning him about how

he did his job but did not direct the same scrutiny toward white

employees. Judge Money and Mr. Dollar tried to hide Mr.

Lynn and Mr. Green from the public during their breaks while

permitting white employees to take breaks in public areas.

(Doc. 44 at 4, para. 17, and 8–9, para. 44). Viewed in favor of the non-moving party, this

evidence does not establish that the Commission acted with a racially discriminatory

motive when it made the employment decision at issue. In fact, Green presents no evidence

to establish racially discriminatory motives by the Commissioners when it made the April

11, 2017 decision. “[U]nsubstantiated assertions alone are not enough to withstand a

motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.

1987). Green’s claim of race discrimination during a reduction in force fails at the prima

facie stage.

Nor does Green establish a prima facie claim of race discrimination based upon

termination. Regarding a termination claim, “a plaintiff may establish a prima facie case

of discrimination by demonstrating that: (1) he is a member of a protected class; (2) he was

subjected to an adverse employment action; (3) his employer treated similarly-situated

employees outside of his class more favorably; and (4) he was qualified for the job.”

Connor v. Bell Microproducts-Future Tech, Inc., 492 F. App’x 963, 965 (11th 2012) (per

curiam) (citing Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006)

(addressing Title VII race discrimination)). As previously discussed, Green is a member

of a protected class who was subjected to an adverse employment action. Additionally, he

can establish that he was qualified for the job.

However, Green fails to establish a prima facie case of discrimination because he

has presented no evidence that his “employer treated similarly-situated employees outside

of his class more favorably.” Id. To successfully establish this prong, a race discrimination

plaintiff must produce evidence of a comparator who is “similarly situated in all material

respects” but received more favorable treatment. Lewis v. City of Union City, 918 F.3d

1213, 1218 (11th Cir. 2019) (listing examples of how plaintiffs can establish a comparator).

Green produces no evidence of valid comparators to show he was treated less favorably

due to his race. Beyond his general statement that white employees were treated better,

(doc. 41 at 29–30), Green offers no evidence to show who these employees were or how

they were similar to him in any respect, let alone all material respects. In the absence of

evidence that Green was treated less favorably than employees outside his protected class,

his discrimination claim fails at the prima facie stage.

The absence of evidence establishing that race was the but-for cause of the

Commission’s decision to terminate Green is fatal to his discrimination claim. The motion

for summary judgment, therefore, is due to be granted as to Count IV.

VI. CONCLUSION

Based upon the foregoing, Green fails to present a genuine dispute of material fact

as to any of his claims. Accordingly, it is

ORDERED that the motion for summary judgment, (doc. 38), is GRANTED.

A separate final judgment will be entered.

DONE this 29th day of July, 2021.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE