Joyce v. Sewon C&A Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TERRYL K. JOYCE, )

)

Plaintiff, )

)

v. ) CASE NO. 2:21-CV-355-WKW

) [WO]

SEWON C&A INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Before the court is Sewon, C&A, Inc.’s (Sewon) motion for summary

judgment. (Doc. # 23.) Plaintiff Terryl K. Joyce (Joyce) brings two race-

discrimination claims under 42 U.S.C. § 1981. Specifically, Joyce alleges that

Sewon discriminated against him when it failed to promote him, an English-

speaking, Black man, and instead hired a Korean-speaking, ethnically Korean man

for a salaried position that required Korean-language fluency. Joyce also alleges

that Sewon then terminated him because he complained about not being promoted

because of his race. Sewon argues that summary judgment is appropriate for both

claims because (1) Joyce did not attempt to inquire about or apply for the job he

sought, and because (2) Joyce’s complaint did not constitute statutorily protected

conduct nor was it a but-for cause of his termination. Sewon is correct on all

accounts. The court will therefore grant Sewon’s motion.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. §

1343(a)(4). The parties do not contest personal jurisdiction or venue.

II. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must

demonstrate that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

fact. Id. Alternatively, a movant who does not have a trial burden of production

can assert, without citing the record, that the nonmoving party “cannot produce

admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see

also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision (c)(1)(B)

recognizes that a party need not always point to specific record materials . . . . [A]

party who does not have the trial burden of production may rely on a showing that a

party who does have the trial burden cannot produce admissible evidence to carry

its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine

dispute of material fact exists when the nonmoving party produces evidence

allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley

Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

III. BACKGROUND

Sewon, C&A, Inc. is a small, Alabama-based subsidiary of a Korean

company. (Doc. # 25-4 at 3–4.) Sewon’s eleven-person team assembles and

supplies manuals, warranties, and other printed documentation to Korean-based car

manufacturers like Hyundai and Kia. (Doc. # 25-4 at 3.) Sewon primarily

communicates with its customers in Korean, and exclusively communicates with its

parent company in Korean. (Doc. # 25-4 at 4.) Because of these constant

business communications with Korean language entities, every management

position at Sewon requires Korean language proficiency. (Doc. # 25-4 at 4.)

Sewon’s managers primarily communicate amongst each other in Korean.

(Doc. # 25-4 at 4). Despite Korean being the primary language at Sewon, some of

Sewon’s managers are bilingual with both Korean and English language proficiency.

But not all Sewon’s employees can speak Korean. Some of the non-managerial

employees, like the warehouse employees, can only speak English. One such

English-speaking employee was Plaintiff Terryl Joyce.

Joyce, a Black man, began working for Sewon in the spring of 2017. (Doc.

# 17 at 2.) Joyce was an hourly warehouse employee. He was not in a managerial

role and therefore did not have to communicate with Sewon’s customers or parent-

company in Korean. Instead, Joyce’s primary responsibilities at Sewon were that

of a warehouse worker: He loaded and unloaded cargo, compiled documents, and

cleaned the company property. (Doc. # 25-4 at 4; Doc. # 17 at 2.) But, according

to Sewon, Joyce had a history of tardiness, absenteeism, and there were “numerous

occasions” throughout his employment where Joyce was not where he was supposed

to be. (Doc. # 25-2 at 16.) Sewon apparently disciplined Joyce many times

throughout his tenure as a warehouse worker (Doc. # 25-2 at 16), but there is no

written record because Sewon did not keep a written disciplinary history on its

employees. (Doc. # 25-4 at 4.)

Joyce had worked at Sewon for just over two years when Sewon posted an

advertisement for a salaried position in Sewon’s managerial office department.

(Doc. # 25-4 at 5.) The position’s advertisement was published in one place: the

Georgia Tech Korean Student Association (GTSKA) website. (Doc. # 25-4 at 5.)

The ad was written entirely in Korean and explicitly stated that English language

proficiency was one of the position’s requirements. (Doc. # 25-4 at 5, 25–26.)

Sewon did not give the ad, or any other notice of the job opening, to Sewon’s

warehouse employees, including Joyce. And Joyce never inquired about the

advertised position or applied for it.1 (Doc. # 25-1 at 9.) Indeed, Joyce was not

aware of the job “in general” until it was filled. (Doc. # 25-1 at 9.)

The advertisement netted several applicants. (Doc. # 25-4 at 6.) Over

several months, Honshin Song, Sewon’s CEO and sole hire-fire authority

(Doc. # 25-4 at 1), interviewed the best applicants for the position.

(Doc. # 25-4 at 6.) The interviews were conducted entirely in Korean as Korean

proficiency was necessary for the role. (Doc. # 25-4 at 6.) Ultimately, Song hired

an applicant who had interviewed well, had a college degree, and who was bilingual

with both English and Korean language proficiency. (Doc. # 25-4 at 6.) The new

hire presented as ethnically Korean and started at Sewon in February of 2020.

Joyce saw the new hire shortly after he arrived. Upon seeing that a Korean

person had gotten a better-paying job at Sewon, Joyce orally complained to his direct

1 To the extent that Joyce alleges he inquired about the job opening, such an allegation is

unsupported by the record. Joyce testified that he told Sunny Oh, his supervisor, that he was

interested in Terry Kim’s position. (Doc. # 25-1 at 8.) But Terry Kim never left Sewon; rather,

Kim was working for Sewon from Korea for several months. (Doc. # 25-4 at 5.) The job

opening that resulted in the new hire that Joyce ultimately complained about was unrelated to

Kim’s position and only opened months after Kim went to Korea. (Doc. # 25-4 at 5.) And for

that job opening, Joyce testified that he was “never [] aware of the job in general” before the new

hire came on board, and that he never asked about the job’s requirements, how to apply, or if he

could apply. (Doc. # 25-1 at 9.)

supervisor, Sunny Oh (Oh). (Doc. # 17 at 4.) The existence of that complaint is

disputed. Joyce alleges that he complained to Oh that Sewon hired a person of

Korean descent instead of promoting him because Joyce is Black. (Doc. # 17 at 4.)

Oh contends that Joyce never complained to him about the new hire, let alone that

Joyce believed he was not promoted because of his race. (Doc. # 25-5 at 2.)

However, upon learning about the new hire, Joyce never asked Oh what the office-

job requirements were, what the day-to-day of the job entailed, or how he could

apply for similar positions. (Doc. # 25-1 at 9.) Rather, Joyce just complained that

he was not promoted for the position because of his race. (Doc. # 17 at 4.)

In any event, Oh (who, again, contends that the complaint never happened)

testified that he did not tell his boss, Song, about Joyce’s alleged complaint.

(Doc. # 25-5 at 2.) Further, Song testified that he had no idea about Joyce’s

complaint regarding the failure-to-promote Joyce to an office position.

(Doc. # 25-4 at 8.)

Nonetheless, Song terminated Joyce days after Joyce’s alleged complaint to

Oh. (Doc. # 25-4 at 8.) Song testified that he terminated Joyce based on his own

observation of Joyce’s performance and based on two supervisors’ verbal reports

about Joyce’s on-the-job misconduct: Oh’s report and Minjung Hwang’s (Hwang)

report. (Doc. # 25-4 at 7–8.) Song testified that he terminated Joyce because he

was unprofessional, untruthful, and unreliable as he routinely would be absent or

tardy, and took too many lunch breaks, and ate lunch while handling company

material, amongst other allegations of misconduct brought to Song by Oh and

Hwang, as well as by other employees. (Doc. # 25-4 at 7–8.)

Thereafter, Joyce filed this action under 42 U.S.C. § 1981, alleging race

discrimination and retaliation.

IV. DISCUSSION

A. 42 U.S.C. § 1981 Failure to Promote Claim

Joyce abandoned his failure-to-promote claim in his responsive briefing to

Sewon’s motion for summary judgment. “In the interest of judicial economy,

Plaintiff abandons his failure-to-promote claim.” (Doc. # 26 at 13.) Accordingly,

summary judgment is due to be granted in Sewon’s favor as to this claim. The

court now turns to Joyce’s sole remaining claim: retaliation under 42 U.S.C. § 1981.

B. 42 U.S.C. § 1981 Retaliation Claim

Joyce alleges that Sewon violated 42 U.S.C. § 1981’s anti-discrimination

provisions when it terminated him.2 Specifically, Joyce contends that Sewon

retaliatorily terminated him because Joyce complained that he had been overlooked

for a promotion because he “was Black.” (Doc. 25 at 13–14.)

2 Because retaliation claims employ the same legal framework under Title VII and

§ 1981, the court will occasionally cite cases brought under Title VII. See Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018) (“We examine claims of [] retaliation under the same

legal framework regardless of whether the plaintiff invokes section 1981 or section 2000e.”).

To establish a prima facie case for retaliation, Joyce must show (1) that he

engaged in statutorily protected activity; (2) that he suffered a materially adverse

action; and (3) that the adverse action was causally related to the protected activity.

See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Pennington v.

City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). It goes without saying

that termination is a classic adverse action. Id. at 976. Sewon contends, however,

that Joyce has failed to raise a genuine dispute as to the first and third elements of a

retaliation claim—protected activity and causation. Sewon is right on both

accounts.

1. Joyce Did Not Engage in Statutorily Protected Activity

Sewon first argues that Joyce’s complaint to Oh about being overlooked for a

promotion because he is Black did not constitute “statutorily protected activity” as

required for a retaliation claim. See Crawford, 529 F.3d at 976. Joyce rightly

points out that oral complaints of race discrimination can constitute protected

activity. See Rollins v. State of Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400

(11th Cir. 1989). But for a complaint to constitute protected activity, it must be

brought on a “good faith, reasonable belief” that the subject of the complaint

constituted unlawful discrimination. See Clover v. Total Sys. Servs., Inc., 176 F.3d

1346, 1351 (11th Cir. 1999). It is here that the dispute between the parties lies.

Joyce contends he had a good faith, reasonable belief to complain because “it

was not right to hire a Korean with no experience” instead of a “Black American”

with experience at Sewon. (Doc. # 17 at 4.) Sewon contends that Joyce did not

lodge a reasonable failure-to-promote complaint because Joyce did not inquire into

what the job qualifications and requirements were, he did not inquire into what the

job’s description was, he did not ask to apply for the job, and he did not apply for

the job. Sewon is right; Joyce’s complaint was unreasonable.

To show that he complained with a “good faith, reasonable belief,” Joyce must

show (1) that he subjectively believed that Sewon engaged in unlawful

discrimination and (2) that his subjective belief was objectively reasonable in light

of the facts and law. See Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir.

2010) (citing Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th

Cir. 1997)). Even if Joyce subjectively believed that Sewon discriminated against

him when it failed to promote him to the office position, his belief could not have

been objectively reasonable.

Joyce need not prove that Sewon’s conduct was actually discriminatory, id.,

nor does he need to “consult a lawyer for expert analysis of his complaint.”

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 925 (11th Cir. 2018). He need only

“reasonably” believe that the alleged discrimination existed. Id. (quoting Taylor v.

Runyon, 175 F.3d 861, 869 (11th Cir. 1999)). And the reasonableness of his belief

“must be measured against existing substantive law.” Howard, 605 F.3d at 1244

(citing Clover, 176 F.3d at 1351). Here, Joyce complained about a discriminatory

failure to promote. The substantive law of a failure-to-promote claim based on

circumstantial evidence requires,3 in relevant part, Joyce to show (1) that he was

qualified for and applied for the position the employer was seeking to fill and (2)

that despite his qualifications, he was rejected. Vessels v. Atlanta Indep. Sch. Sys.,

408 F.3d 763, 768 (11th Cir. 2005).4 Joyce fails to establish these two elements,

and a reasonable employee in Joyce’s shoes—even without knowing a lick of

caselaw—knows that an employer did not unlawfully deny him a job opportunity

that the employee never applied for, let alone inquired about.

The evidence, even when viewed in the light most favorable to Joyce, shows

that Joyce was not qualified for the job, that he did not apply for the job, and that he

did not ask what the application requirements were or what the job itself entailed.

3 Joyce contends that he did not have to reasonably believe that he was qualified for the

position or that he needed to attempt to apply for the position to lodge a good-faith reasonable

complaint about Sewon’s allegedly discriminatory failure to promote him. In support, Joyce cites

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 925 (11th Cir. 2018). But Jefferson provides no such

support. Jefferson found a complaint to be reasonable where there was direct evidence of

unlawful hiring practices. Here, there is no such direct evidence, meaning that Joyce must rely

on the circumstantial evidence framework to establish that his complaint was objectively

reasonable. See Howard, 605 F.3d at 1244 (explaining that the reasonability of a complaint is

measured on the substantive law that is the subject of the complaint) (citing Clover, 176 F.3d at

1351).

4 To make a complete prima facie case for a failure to promote claim based on

circumstantial evidence, a plaintiff must show that (i) “he or she belonged to a protected class; (ii)

he or she was qualified for and applied for a position the employer was seeking to fill; (iii) despite

qualifications, he or she was rejected; and (iv) the position was filled with an individual outside

the protected class.” Vessels, 408 F.3d at 768.

In fact, Joyce was not “aware” of the job “in general” until the new hire came on

board. (Doc. # 25-1 at 9.) When he saw the new hire, Joyce did not then ask what

the new-hire’s position entailed, what the application requirements were, or how to

apply for similar positions. Rather, at the time of his complaint, Joyce saw that a

person of a different race was hired, assumed he was unlawfully denied a promotion

on the basis of race, and complained to Oh. That assumption is not reasonable.

Objectively reasonable failure-to-promote complaints require the

complaining employee to at least attempt (1) to understand what the job entails and

what its application requirements are, (2) to ascertain whether he may be qualified

for that type of job, and (3) to apply for that job unless the plaintiff justifiably

believed that the employer’s discriminatory practices made such an application a

futile gesture. See Vessels, 408 F.3d at 768; see also E.E.O.C. v. Joe’s Stone Crabs,

Inc., 296 F.3d 1265, 1274 (11th Cir. 2002). Joyce did none of these things.

Further, Joyce cannot argue that he believed applying was futile due to Sewon’s

discriminatory practices because Joyce does not present any evidence that he

believed Sewon had any discriminatory practices until he learned that someone else

had been hired for the job. Cf. Joe’s Stone Crabs, Inc., 296 F.3d at 1274 (finding

that non-applicants had a justifiable belief that applying would be futile where the

non-applicants were told the company did not hire women). Accordingly, Joyce’s

complaint to Oh about being overlooked for a job because of his race was objectively

unreasonable and therefore cannot constitute “statutorily protected activity” as

required for a retaliation claim under 42 U.S.C. § 1981. See Crawford, 529 F.3d at

970.

Two final points. At bottom, Joyce has two gripes about his treatment at

Sewon that purportedly made his complaint objectively reasonable. The first is that

Joyce was never directly informed by Sewon about the office position posting. But

Sewon was not obligated to inform employees about a new job posting, let alone

obligated to inform employees about a new job posting whom Sewon knew did not

meet the job’s legitimate requirements. In short, Sewon’s failure to preemptively

place a job application in Joyce’s unqualified hands does not make Joyce’s

complaint more reasonable.

Joyce’s second gripe is that Sewon offers jobs that require Korean-language

proficiency, which, according to Joyce, made his failure-to-promote complaint

reasonable. Put differently, Joyce alleges that legitimate language-proficiency

requirements for a job, standing alone, are prima facie discriminatory. (Doc. #26

at 3) (“Without apology, [Sewon] admits that [it] is not an equal opportunity

employer. Defendant engaged in a discriminatory hiring process; wherein it

published a single advertisement for an open salaried position solely in the Korean

language and placed on a single Korean language website.”).) This argument is

misguided. After all, language-proficiency is a neutral, non-discriminatory qualifier

for jobs that legitimately need that specific lingual proficiency—as it was

indisputably needed here. See Church v. Kare Distribution, Inc., 211 F. App’x 278,

280 (5th Cir. 2006) (upholding a bilingual employment requirement that was based

on a legitimate “business need”). It goes without saying, however, that language

requirements can be a proxy or “covert basis” for race discrimination if there is

evidence establishing discriminatory intent or disparate impact.5 Id.; see also

Davis v. Infinity Ins. Co., 2022 WL 1152612, at *3-4 (11th Cir. Apr. 19, 2022)

(indicating that bilingual hire-fire requirements could constitute disparate impact

discrimination). But contrary to Joyce’s arguments, language itself is not a

protected trait under 42 U.S.C. § 1981, and legitimately necessary language

requirements by themselves do not create a prima facie case of discrimination.

In any event, Joyce only learned about the Korean-language proficiency

requirement after he complained. Joyce did not know about the language

requirement when he complained because he did not ask or attempt to apply for the

position. (Doc. #25-1 at 8–9). Accordingly, Joyce’s post-hoc knowledge of the

Korean-language requirement does not weigh on whether Joyce had a good-faith,

reasonable belief that Sewon was discriminating against him at the time of his

5 For example, other evidence establishing discrimination would be if the plaintiff used

comparators to show that a bilingual requirement was being applied discriminately; or if the

plaintiff established that being bilingual was not actually necessary for the job and was therefore

a pretext for discriminatory decisions; or if the plaintiff used statistics to show that the bilingual

requirement disparately impacted protected classes.

complaint. See Clover, 176 F.3d at 1352 (reiterating that the reasonability of a

plaintiff’s complaint about unlawful practices is determined by the facts known to

the plaintiff at the time of the complaint). Nonetheless, as discussed, even if Joyce

knew about the Korean-language requirement before complaining to Oh, that

knowledge would not have made Joyce’s failure-to-promote complaint objectively

reasonable; in fact, it would have put Joyce on notice that he was unqualified for the

position and could not reasonably complain unless he had a reason to believe the

language policy was pretextual or applied differently to protected classes, which he

did not.

In sum, Joyce’s complaint about unlawful discrimination was objectively

unreasonable because he never attempted to ascertain whether he was qualified for

the position, because he never asked to apply for the position, and because he did

not apply for the position even though doing so would not have been futile. See

Vessels, 408 F.3d at 768 (outlining the substantive law of a failure-to-promote

claim); see also Joe’s Stone Crabs, Inc., 296 F.3d at 1274. Therefore, Joyce’s

complaint did not constitute statutorily protected activity as required for a retaliation

claim under 42 U.S.C. § 1981. Summary judgment is due in Sewon’s favor on this

basis.

2. Joyce Has Not Established Causation

Alternatively, even if Joyce’s complaint was statutorily protected activity,

Joyce’s retaliation claim nonetheless fails because he has not presented sufficient

evidence for a juror to conclude that his termination was because of his complaint

about an unlawful failure-to-promote. Sewon argues that Joyce cannot establish

causation because (1) Song, the decisionmaker, was unaware of Joyce’s complaint,

and because (2) Joyce cannot show that Song was a cat’s paw for Oh’s

discriminatory animus. Both points carry the day.

Like in most retaliation contexts, to establish causation under

42 U.S.C. § 1981 a plaintiff must present sufficient evidence to show that his

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

See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019

(2020). Typically, when relying on circumstantial evidence of discriminatory

animus, like here, the “but-for” burden of causation “can be met by showing close

temporal proximity between the statutorily protected activity and the adverse

employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007). However, this rule comes with a threshold requirement: The plaintiff

must first establish that “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).

Here, it is undisputed that the person who made the decision to terminate

Joyce was Sewon’s CEO, Honshin Song. Further, it is unrebutted that Song was

not aware of Joyce’s protected activity, i.e., Joyce’s complaint to Oh.

(Doc. # 26 at 21); Smith v. City of Greensboro, 647 F. App’x 976, 983 (11th Cir.

2016) (holding that “unrebutted” denial of awareness defeats causation arguments

based solely on proximity). Accordingly, lacking the requisite decisionmaker

awareness, Joyce is unable to show but-for causation under the traditional

circumstantial evidence framework.

Nonetheless, Joyce’s claim could potentially be saved under another causation

theory. Joyce argues that he has established causation under the cat’s paw theory.

Joyce asserts that Song, the decisionmaker, was a mere conduit, or cat’s paw, for

Oh’s discriminatory animus. The cat’s paw theory concerns “conditions under

which a lower-level employee’s animus can be imputed to a decisionmaker.”

Ziyadat v. Diamondrock Hospitality Co., 3 F.4th 1291, 1298 (11th Cir. 2021).

Pursuant to a cat’s paw theory, a defendant may be held liable for the racial animus

of its non-decisionmaking employee when “that employee’s discriminatory conduct

causes a decisionmaking employee to” take the adverse action against the plaintiff.

Id. In other words, Joyce must show that Oh’s discriminatory animus was the but-

for cause of Song’s decision to terminate Joyce. Joyce is unable to do so.6 See id.

First, Oh did not recommend that Joyce be fired; rather, Oh reported Joyce’s

misconduct. Viable cat’s paw cases typically involve a subordinate employee

recommending that an adverse action be taken against an individual, and the

decisionmaker following “the biased recommendation without independently

investigating the complaint against the employee.” Stimpson v. City of Tuscaloosa,

186 F.3d 1328, 1332 (11th Cir. 1999). And by following that biased, and

unverified recommendation, the decisionmaker becomes a “mere conduit” or “cat’s

paw” for the recommender’s discriminatory animus. Id. But here, where Oh

never recommended a course of action and rather sent complaints of misconduct up

the chain of command, there is less reason to believe that Joyce would not have been

terminated “but-for” Oh’s discriminatory animus. Id. (finding that a cat’s paw

theory is weakened where there is “no recommendation to [the decisionmaker] about

the course of action to take” against the plaintiff); see also Brooks v. Hyundai Motor

Mfg. Ala., LLC, 2010 WL 3614168, at *10 (M.D. Ala. Sept. 8, 2010) (Watkins, J.),

aff'd sub nom., 444 F. App’x 385 (11th Cir. 2011) (finding that no subordinate

6 Most cat’s paw theory cases deal with instances where there is direct evidence that the

non-decisionmaker employee had a discriminatory animus. However, circumstantial evidence

can also establish a non-decisionmaker’s discriminatory animus. And here, because Oh reported

Joyce’s misconduct days after Joyce complained to him, temporal proximity establishes that there

is a genuine dispute of fact as to whether Oh acted with discriminatory animus. See Thomas, 506

F.3d at 1364. The following cat’s paw analysis presumes that the factfinder has made the

threshold determination that Oh himself acted with discriminatory animus.

recommendation weighs against a determination that the decisionmaker was a cat’s

paw for discrimination).

Second, Song relied on many reports of misconduct when he decided to fire

Joyce. Of course, Oh reported Joyce’s misconduct. But so did Minjung Hwang,

another Sewon manager. And there is nothing in the record to establish that Hwang

acted with discriminatory animus when she reported Joyce’s misconduct, nor is there

evidence suggesting that Song gave greater weight to Oh’s report. Rather, the

evidence suggests that Hwang’s independent report of misconduct played a larger

role in Song’s decision because Hwang reported the misconduct that was the “final-

straw” leading to Joyce’s termination. (Doc. # 25-2 at 14.) See Martinez v. Gulf

Coast Orthopedic Ctr. Corp., No. 8:17-CV-77-T-AEP, 2019 WL 3577214, at *12

(M.D. Fla. Aug. 6, 2019) (holding that cat’s paw liability was unavailable where the

decisionmaker relied on statements from two employees—one of whom did not have

discriminatory animus). Additionally, Song himself observed Joyce’s misconduct,

and Song also received complaints about Joyce from other employees, which further

precludes a finding that Song was a “mere conduit for any discriminatory animus

harbored” by Oh. Id.; (Doc. # 25-2 at 16.)

Third, and finally, Joyce has not pointed to any evidence challenging the

veracity of much of the alleged underlying misconduct that Oh (or Hwang) reported.

In fact, Joyce admits that he “had a history of less than stellar attendance” at Sewon.

(Doc. # 26 at 26.) See Stimpson, 186 F.3d at 1332 (holding that the

“discriminatory animus behind the recommendation, and not the underlying

employee misconduct identified in the recommendation, [must be] an actual cause

of the other party’s decision to terminate the employee” to establish a cat’s paw

claim); see also Brooks, 2010 WL 3614168 at *10 (finding that cat’s paw liability

did not apply where there was no evidence that the reported misconduct was untrue).

All said, Joyce fails to establish that Oh’s report to Song was a but-for cause

of Song’s decision to terminate Joyce. Therefore, a reasonable jury could not

conclude that Song was a “cat’s paw” for Oh’s discriminatory animus.

Consequently, Joyce has failed to establish genuine disputes of material fact as to

causation and therefore has failed to establish his 42 U.S.C. § 1981 retaliation claim.

Sewon’s motion for summary judgment is due to be granted.

V. CONCLUSION

Accordingly, it is ORDERED that Sewon, C&A, Inc.’s motion for summary

judgment (Doc. # 23) is GRANTED. A final judgment will be entered separately.

DONE this 11th day of October, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE