Williams v. Lesaffre Yeast Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RANDY WILLIAMS, )

)

Plaintiff, )

)

v. ) CIVIL CASE NO. 1:21-cv-324-ECM

) (WO)

LESAFFRE YEAST CORP., )

)

Defendant. )

MEMORANDUM OPINION and ORDER

I. INTRODUCTION

Now pending before the Court is a motion for summary judgment filed by

Defendant Lesaffre Yeast Corp. (“Lesaffre”). (Doc. 23). Plaintiff Randy Williams

(“Williams”) brings two claims pursuant to Title VII of the Civil Rights Act of 1964 against

Lesaffre for religious discrimination (Count I) and retaliation (Count III).1 His claims arise

out of his employment at Lesaffre’s yeast manufacturing plant in Headland, Alabama, from

May 2019 until February 2021. Based on a thorough review of the record, the briefs, and

the applicable law, for the reasons to be discussed, the motion for summary judgment is

due to be GRANTED.

1 Williams concedes that summary judgment is due to be granted as to his age discrimination claim (Count

II). (Doc. 28 at 1).

II. JURISDICTION

The Court has subject-matter jurisdiction over this action pursuant to

28 U.S.C. §§ 1331, 1343(a)(4). The parties do not contest personal jurisdiction or venue,

and the Court concludes that venue properly lies in the Middle District of Alabama.

See 28 U.S.C. § 1391.

III. STANDARD OF REVIEW

Summary judgment is appropriate “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). A “genuine” dispute of fact exists “if the record as a whole could

lead a reasonable trier of fact to find for the nonmoving party.” Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996). An issue of fact is “material”

if it could “affect the outcome of the case under the governing law.” Id. The movant bears

the initial burden to identify evidence showing no genuine dispute of material fact remains,

or 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. Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). If the movant satisfies this burden, then the non-moving party “must

do more than simply show that there is some metaphysical doubt as to the material facts,”

and they do so by citing to particular parts of the record or by showing the cited materials

do not establish the presence or absence of a genuine dispute. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); FED. R. CIV. P. 56(c)(1). If the non-

movant fails to support their version of the facts or to properly address the movant’s version

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of the facts as required by Rule 56(c), then the court may “consider the fact undisputed for

purposes of the motion.” FED. R. CIV. P. 56(e)(2).

At the summary judgment stage, the Court must view all evidence in the light most

favorable to the non-movant and draw all justifiable inferences from the evidence in the

non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However,

“unsubstantiated assertions alone are not enough to withstand a motion for summary

judgment.” Sprowl v. Mercedes-Benz U.S. Int’l, Inc., 815 F. App’x 473, 478 (11th Cir.

2020) (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987)).

IV. FACTS AND PROCEDURAL HISTORY

Lesaffre manufactures yeast at a plant in Headland, Alabama. Its facility

encompasses three broad functions: a filter, a dryer, and packaging. Williams began

working at Lesaffre’s plant as a packaging operator in 2019. In the Summer of 2020, when

the circumstances relevant to this litigation began to occur, Williams’ immediate

supervisor was Jeff Tyson (“Tyson”). During Williams’ employment, Dennis Barry

(“Barry”) served as the plant’s manager, Garvin Hoffman (“Hoffman”) served as its

superintendent, and Laura Collins (“Collins”) was its head of human resources. Among

other duties, Williams was tasked with stacking, wrapping, and sealing boxes, doing

quality control, running and cleaning the sifter, running the stand-up and sit-down forklift,

and testing metal.

Williams became concerned that certain co-workers were not performing a required

lockout-tagout safety procedure on the plant’s sifter machine. On July 21, 2020, Williams

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video-recorded co-workers Caleb Cobb (“Cobb”), Thyron Foster (“Foster”), and Tyson

failing to perform the lockout-tagout procedure. Williams warned Cobb about the safety

violation, causing Cobb to grow upset. Williams did not report this incident to his superiors

because Tyson, the supervisor to whom he reported safety violations, partook in the breach

of procedure. In the following days, Williams saw Cobb and the others involved in the

safety breach enter Hoffman’s office to meet with “high HR.”

On July 31, 2020, Williams was called into a meeting with Barry, Hoffman, and

Collins. Williams’ supervisors informed him that Foster had filed a religious harassment

complaint against Williams. According to Foster’s allegations made on July 23, 2020,

Williams, a Christian, continually antagonized Foster, a Muslim, over their religious

differences. Foster claimed that Williams continued to discuss his Christian faith, knowing

that Foster was not Christian and such conversations made Foster feel uncomfortable.

Foster acknowledged he never asked Williams to stop these conversations.

The plant supervisors investigated these allegations, meeting with Foster and two

co-workers as witnesses—Cobb and Shaun Swain (“Swain”)—to corroborate the charges.

The supervisors interviewed Williams on July 31, 2020, regarding the religious harassment

allegations. Williams denied the allegations, saying that he only discussed his Christian

faith a few times because he thought it was a normal part of the workplace, given that when

he began working at the plant, one employee put bible verses on the board in the

breakroom. Williams admitted that at one point he gave Swain a few bible verses as

encouragement for a family issue Swain shared with him. Williams was never asked by

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his co-workers to cease discussing his faith in the workplace, nor did he think these

conversations were uninvited or harassment. Williams had no recollection of discussing

his faith with Foster, or even knowing to which faith Foster ascribed.

Williams instead offered his own explanation for why Foster filed the religious

harassment complaint: as retaliation for Williams calling him and his co-workers out for

failing to perform the lockout-tagout procedure. After hearing this speculation, Barry told

Williams that in the future, if Williams had any safety concerns, then he should report them

directly to Barry.

Williams was never disciplined, docked pay, demoted, suspended, or fired on

account of Foster’s complaint. The plant supervisors told Williams that he should not

engage in offensive religious harassment, which included unwelcomed religious

conversations, and that if he engaged in such behavior, then he would be terminated with

no second chances. The supervisors decided not to take disciplinary action against

Williams because they could not conclude that he harassed Foster specifically on religious

grounds. The supervisors shared this conclusion with Foster after the July 31, 2020,

meeting. Foster said he had no interest in getting anybody in trouble and just wanted to do

a good job for the plant.

In September 2020, Williams suffered a workplace injury to his hip. At the request

of Workers’ Compensation, Lesaffre put Williams on light duty at a desk in the plant’s

warehouse. While at the desk, Williams grew concerned that his co-workers were driving

forklifts dangerously close to his desk. Cobb and Swain, in particular, broke protocol by

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driving the forklifts fast while carrying thousands of pounds and being distracted by music

on their headphones. Williams reported his safety concerns at a meeting with Barry and

Collins on January 13, 2021.

On January 28, 2021, Cobb and Swain reached out to Lesaffre’s Human Resources

(“HR”) Director, Kim Hall (“Hall”), to discuss concerns they had with Williams’

growingly erratic behavior. Their concerns were memorialized in written statements

provided to Hall. The statements specified that Cobb met with Hall on January 28, 2021,

to complain that Williams constantly talked to himself, banged on his desk, pointed his

fingers to the wall and ceiling, argued with himself out loud, and stared uncomfortably at

his co-workers.

Swain also came to Hall on January 28, 2021, on his way out of work, “and asked

if [Hall] would be [t]here in the morning so he could talk to [her] (he was in a rush to go

pick up his spouse).” (Doc. 23-8 at 2). The next day, on January 29, 2021, Swain met with

Hall and reiterated much of what Cobb reported. Specifically, Swain noted that Williams

engaged in unsolicited religious conversations dating back to September and November of

2020, telling Swain at those times: “God has my back”; “God want[s] [me] to tell [you]

something through [me]”; “God told me to tell you that if you’re doing anything illegal in

your car that it will come to light.” (Id. at 3). Swain reported to Hall that Williams’

behavior had “been getting slowly worse, and after yesterday [January 28, 2021], [Swain]

wanted to bring it to [Lesaffre’s] attention before something happens.” (Doc. 23-8 at 2).

On January 28, 2021, in particular, Swain claimed that Williams stared at him for about

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fifteen minutes, which prompted Swain asked Williams “if everything was good.” (Id.).

Williams allegedly gave no response and “just sat there silent staring at [Swain].” (Id.).

Swain complained that Williams then began laughing “while randomly pointing towards

the ceiling.” (Id.).

The co-workers noted that they and others had grown increasingly uncomfortable

with Williams’ erratic behavior. Another anonymous co-worker from the plant’s dryer

department approached Hall on January 29, 2021, confirming the two other co-workers’

accounts of Williams’ behavior. Based on these reports, Barry and Collins decided to

terminate Williams.

On January 28, 2021, Williams filed a Formal Charge with the U.S. Equal

Employment and Opportunity Commission (“EEOC”). The Charge alleged that, spanning

from July 31, 2020, until August 3, 2020, Lesaffre discriminated against him based on his

religion and his age and retaliated against him. He did not indicate that he alleged a

continuing action. As grounds for the Charge, he stated:

On or about July 31, 2020, I was accused of religious harassment by

coworkers. I believe my peers made this accusation because I witnessed

them conducting an unsafe action by failing to perform a lock out/tag out. I

made management and Human Resources aware of the safety violation and

in retaliation, I was not promoted on August 3, 2020.

(Doc. 23-9 at 3). The EEOC called Lesaffre on January 29, 2021, to inform it about

Williams’ Charge. The EEOC issued Williams a notice of his right to sue Lesaffre just

over a week after he filed the Charge, on February 5, 2021.

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On the morning of February 2, 2021, Williams met with Garvin and Lesaffre’s

human resource representatives, who informed him that his employment was terminated

and that he had to leave the property. The supervisors gave no reason to Williams for why

he was fired. Their reasons for the termination, as explained a few days later to an EEOC

investigator, was due to the complaints from co-workers and because Williams was

attempting to discuss religious topics with them, which made them uncomfortable.

On April 20, 2021, Williams filed this action in federal court against Lesaffre for

religious discrimination (Count I), age discrimination (Count II), and retaliation

(Count III). Lesaffre moved for summary judgment. In his response to summary

judgment, Williams argued for the first time that he was religiously discriminated against

based on the creation of a hostile work environment and harassment. Williams claimed

that his superiors’ attitude toward him “changed dramatically after” the “investigation” into

the religious harassment complaint against him. (Doc. 28 at 5). He stated, “The plant

became more and more hostile. Plaintiff was treated in a negative manner because he was

a Christian.” (Id.). Williams further alleged he was placed at a desk in a “very cold” area

of the plant, “in a place very close to where forklifts” recklessly moved materials. (Id. at

6). Williams also claimed, in his response, that he “asked his supervisors numerous times

to be moved to a safer location, but these requests were refused.” (Id.). After Williams

allegedly told his supervisors about the unsafe conditions, he claimed “[n]othing change,”

and that he was ignored. (Doc. 28 at 7). Additionally, Williams argues in his summary

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judgment brief that his retaliation claim is based on his termination immediately after he

filed an EEOC Charge.2

V. DISCUSSION

Williams contends that Lesaffre discriminated against him based on his religion and

retaliated against him. Absent direct evidence of religious discrimination or retaliation, a

plaintiff may demonstrate circumstantial evidence of discrimination or retaliation through

the McDonnell Douglas burden-shifting framework. See Tex. Dep’t of Cmty. Affs. v.

Burdine, 450 U.S. 248, 252–53 (1981) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973)). Because Williams has not offered any direct evidence, the Court

addresses his claims under the McDonnell Douglas framework. See Alvarez v. Royal Atl.

Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Under this framework, an employee

creates a presumption of unlawful discrimination or retaliation by first establishing a prima

facie case. See Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en

banc). If the plaintiff establishes a prima facie case, then the burden shifts to the defendant

“to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at 1221 (citing

Burdine, 450 U.S. at 253). If the employer does so, then the burden returns to the employee

to prove that the employer’s proffered reason is pretext for unlawful discrimination or

2 By failing to address most of his theories for religious discrimination and retaliation that he initially

alleged in his complaint, Williams has abandoned any claim based on a failure to receive a promotion, an

excuse requirement, or denial of a ten-hour workday. See McMaster v. United States, 177 F.3d 936, 940–

41 (11th Cir. 1999) (noting a claim may be considered abandoned when the allegation is included in the

plaintiff’s complaint, but he fails to present any argument concerning this claim to the district court); Coal.

for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“The

appellants’ failure to brief and argue this issue during the proceedings before the district court is grounds

for finding that the issue has been abandoned.”).

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retaliation. Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008). At all times, the

ultimate burden of persuasion remains with the plaintiff to show that the defendant

intentionally discriminated or retaliated against him. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 508 (1993). In the summary judgment context, a plaintiff need only present

evidence from which a reasonable trier of fact could conclude an employer intentionally

discriminated or retaliated against him.

A. Sham Declaration

As an initial matter, the Court disposes of Williams’ attempt to offer additional

evidence in opposition to Lesaffre’s motion for summary judgment through a signed

declaration. Lesaffre argues that this declaration made by Williams is a sham because most

of its statements are conclusory or directly in conflict with his deposition testimony. (Doc.

29 at 3). Williams argues, in reply, that his self-serving statements are admissible to defeat

summary judgment because sworn testimony based on first-hand knowledge is admissible,

particularly because no facts contained in the declaration conflict with his deposition

testimony taken as a whole. (Doc. 28 at 2 n.1). This, Williams argues, is enough to

overcome Lesaffre’s allegation that the declaration is a sham.

A party cannot create a genuine issue of material fact with an affidavit that simply

contradicts past testimony. Van T. Junkins and Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d

656, 657 (11th Cir. 1984). A court “may only disregard an affidavit that ‘contradicts,

without explanation, previously given clear testimony’” in response to unambiguous

questions. Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (emphasis in

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original) (quoting Van T. Junkins, 736 F.2d at 657). The Court recognizes that it would be

inappropriate to disregard an affidavit as a sham based on “every failure of memory or

variation in a witness’s testimony.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.

1986). So, the sham affidavit rule should be applied “sparingly because of the harsh effects

it may have on a party’s case.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306,

1316 (11th Cir. 2007) (alteration adopted) (quoting Rollins, 833 F.2d at 1530).

The Court, therefore, disregards Williams’ declaration as a sham when there is a

direct inconsistency between testimony offered in his declaration and that at his deposition,

Tippens, 805 F.2d at 954, and when there is no explanation for the inconsistency, Allen,

495 F.3d at 1316.3 The clearest inconsistency between the deposition and the declaration

is Williams’ claim in his declaration that he was forced to work in an unsafe location, that

his superiors refused to move him as requested, and that his requests for a face-to-face

meeting with the plant superintendent and manager were ignored. These facts were not

mentioned at Williams’ deposition when he was clearly asked to identify any other factual

basis of his discrimination claim. (See Doc. 29 at 3). Indeed, the only evidentiary support

for these assertions is Williams’ declaration. In his deposition, in contrast to the

declaration, Williams makes it clear that his religious discrimination claim is based entirely

on the July 31, 2020, meeting and investigation into the religious harassment complaint

lodged against him by Foster. (See Doc. 23-2 at 158, 170–71).

3 The Court further notes that, in violation of this Court’s instructions in the Uniform Scheduling Order

(doc. 14 at 2, Section 2), Williams’ summary judgment brief fails to cite to the evidence with appropriate

specificity. Despite this failure, the Court undertook a thorough examination of the evidence in evaluating

his claims on summary judgment.

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Moreover, in his declaration, Williams claims that, after a workplace injury, he was

moved to a desk to do paperwork in a “very cold” area of the plant, where he was “exposed

to forklifts carrying as much as 2,000 pounds being driven recklessly.” (Doc. 28-1 at 4).

He claims he “requested numerous times of [his] supervisors to be put in the Computer

Room or the Break Room which would have been much safer, but these requests were

refused.” (Doc. 28-1 at 4–5). In his deposition, however, Williams never mentions

requesting his desk be moved and did not indicate that he was forced to remain at the desk,

even when asked what factual basis he had for his religious discrimination claim. In fact,

in contrast to his declaration, Williams said at his deposition that he made only one request

for a meeting, and the plant superintendent and manager met with him face-to-face on

January 13, 2021, about his workplace safety concerns. (Doc. 23-2 at 106–05). His

deposition further indicated that Williams’ supervisors took his concerns seriously, telling

Williams that he “should have told him earlier” about the safety concerns. (Id. at 106).

Ultimately, Williams clarified at his deposition that his only problem with Lesaffre’s

management was the July 31, 2020, meeting and religious harassment investigation, and

his account of his meetings with management gave no indication that his supervisors

treated him harshly or disregarded requests to move his desk. (Id. at 112).

Because the facts alleged in Williams’ declaration about his hostile work

environment directly contradict, without explanation, his deposition testimony, the Court

looks only to Williams’ deposition or the non-contradictory parts of his declaration for

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evidence pertaining to this theory. See Tippens, 805 F.2d at 954; see also Allen, 495 F.3d

at 1316.

B. Religious Discrimination

The Court first turns to Williams’ religious discrimination claim. Title VII prohibits

employers from discriminating against their employees on the basis of religion.

42 U.S.C. § 2000e-2(a)(1). Employers must reasonably accommodate an employee’s

religious observances or practices, unless to do so would impose an undue hardship on the

employer’s business. See § 2000e(j). Employees may thus utilize two theories in asserting

religious discrimination claims: disparate treatment and failure to accommodate. See

Harris v. Acosta, 2018 WL 7080617, at *5 (N.D. Ga. Jan. 9, 2018). The disparate treatment

theory mirrors the McDonnell Douglas burden-shifting analysis. See Hellinger v. Eckerd

Corp., 67 F. Supp. 2d 1359, 1362 (S.D. Fla. 1999). Williams contends that he provides

sufficient circumstantial evidence to demonstrate Lesaffre discriminated against him based

on his Christian religion under the disparate treatment theory.

1. Prima face case

To establish a prima facie case of disparate treatment based on his religion, a

plaintiff must show (1) he “belongs to a protected class,” (2) he “was subjected to an

adverse employment action,” (3) he “was qualified to perform the job in question,” and

(4) his “employer treated ‘similarly situated’ employees outside” his class (comparators)

more favorably. Lewis, 918 F.3d at 1220–21. Lesaffre argues that Williams cannot

establish a prima facie case of religious discrimination because he cannot show that he was

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subject to an adverse employment action or that similarly situated employees outside of his

protected class were treated more favorably.

a. Adverse employment action

Williams contends that he suffered an adverse employment action when he was

subjected to a hostile work environment after the July 31, 2020, investigation into Foster’s

religious harassment complaint and his supervisors’ subsequent antagonism towards him.

(Doc. 28 at 11). To constitute an “adverse employment action,” a plaintiff must establish

that an employer’s decision made a “serious and material change in the terms, conditions,

or privileges of employment” in a “real and demonstrable way.” Jefferson v. Sewon Am.,

Inc., 891 F.3d 911, 920–21 (11th Cir. 2018) (emphasis in original) (quoting Davis v. Town

of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)). This “impact cannot be speculative

and must at least have a tangible adverse effect on the plaintiff’s employment.” Id. at 921

(citation omitted). “A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis added).

Although he presents no evidence that his job title, pay, or benefits were altered,

Williams argues that, after the July 31, 2020, meeting regarding the religious harassment

complaint made against him, there was a hostile change to his work environment.

Specifically, he asserts that he was forced to work in an unsafe location, that his superiors

refused to move him as requested, and that his requests for a face-to-face meeting with the

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plant superintendent and manager were repeatedly ignored. The primary problem with

Williams’ argument regarding a hostile work environment, however, is that he raises it for

the first time in response to Lesaffre’s motion for summary judgment. And the only

evidence Williams submits to support this new claim is his declaration, which directly

contradicts his deposition testimony on this point. See supra Part IV.B.

A plaintiff generally cannot change the basis of his claims at the summary judgment

stage. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.

2006) (“[A]t the summary judgment stage, the proper procedure for plaintiffs to assert a

new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).” (quoting

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004))). In Hurlbert,

the plaintiff’s complaint alleged an FMLA violation arising out of the plaintiff’s serious

health condition. Id. In response to the defendant’s motion for summary judgment, the

plaintiff changed the factual basis of his claims and argued that he was entitled to FMLA

leave to care for his mother, who was recovering from surgery. Id. The plaintiff argued

that “his allegations about his mother do not raise a new ‘claim,’ [but were] merely

additional facts asserted in support of the interference claim already pled in his

complaint.” Id.

The Eleventh Circuit held that the district court properly rejected this argument and

did not consider the new factual predicate in ruling on summary judgment. Id. The sole

basis for the plaintiff’s FMLA claim was “his alleged serious health condition. Thus, the

subsequent assertion of an additional, separate statutory basis for entitlement to leave

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(caring for a parent’s serious health condition) effects a fundamental change in the nature

of [plaintiff’s] claim.” Id. (emphasis in original) (citation omitted). “Having proceeded

through discovery without amending (or seeking to amend) his complaint to reflect that

fundamental change, [the plaintiff] was not entitled to raise it in the midst of summary

judgment.” Id.

Similarly, in Banks v. Marketsource, Inc., 2019 WL 8277274, at *6 (N.D. Ga. Dec.

5, 2019), report and recommendation adopted, 2020 WL 6291422 (N.D. Ga. Mar. 20,

2020), the plaintiff brought claims for interference and retaliation against the defendant.

The complaint alleged the defendant harassed the plaintiff while she was on full-time leave

and terminated her when she returned. Id. at *7. In her opposition to summary judgment,

however, the plaintiff presented a different theory and factual basis for her claims, alleging

the defendant failed to advise her of her rights, retaliated against her for taking thirty-

minute breaks at work, and denied her intermittent leave before she took the full-time leave

referenced in the complaint. Banks, 2019 WL 8277274, at *6–7. The plaintiff thus alleged

the defendant violated her rights in a manner altogether different than what was described

in the complaint. Id.

The court in Banks ruled that it would “only consider the claims and theories of

liability that Plaintiff actually pled in her complaint.” Id. at *6 (quoting Wilcox v. Green

Tree Servicing, LLC, 2015 WL 2092671, at *1 (M.D. Fla. May 5, 2015)). The plaintiff

could not “recast the scope of her claims beyond the extent to which the pleadings give

notice of what actions the plaintiff contends to be unlawful.” Id. Because the plaintiff

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“substitute[d] an entirely new factual predicate for a claim at the summary judgment stage

without amending her pleadings,” the court found that the summary judgment response did

not “merely expound[] upon an otherwise properly noticed claim.” Id. at *6–7. In line with

the holding in Hurlbert, the plaintiff in Banks could not “fundamentally change the basic

factual theory upon which the claims were pleaded and upon which discovery progressed”

at the summary judgment stage without first amending her complaint. Id. at *8; see also

Mena v. McArthur Dairy, LLC, 352 F. App’x 303, 307–09 (11th Cir. 2009) (affirming

summary judgment when plaintiff sought unpaid overtime in the complaint but argued for

minimum wage and straight-time pay for first time on summary judgment because plaintiff

had never previously “articulated an argument that should have put [the defendant] on

notice of this theory of liability”); Tindol v. Ala. Dep’t of Revenue, 2015 WL 350623, at

*24–25 (M.D. Ala. Jan. 23, 2015) (rejecting plaintiff’s attempt at summary judgment to

rely on alleged oral statements as creating the contract where complaint pleaded that a

contract was based on the defendant’s policies, procedures, and handbooks, stating

“[plaintiff] is bound to the complaint that he pleaded and which he chose not to amend, and

he may not change the theories upon which he seeks relief through summary judgment

briefing”).

The Court is convinced that this case falls under the holding in Hurlbert. In his

complaint, Williams predicated his religious discrimination claim on the following facts:

(1) Lesaffre did not promote him to a position for which he was qualified and for which he

had applied; (2) Lesaffre required him to provide a written excuse for missing work, while

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not requiring the same for other employees; and (3) Lesaffre did not allow him to work

ten-hour days, while permitting other employees to do so. (See Doc. 1 at 4). Williams

altogether abandoned these theories by wholly failing to address them in his response to

Lesaffre’s motion for summary judgment. Instead, Williams argued for the first time that

there was a hostile change in his workplace environment when his superiors became

antagonist towards him and moved him to a dangerous location. (Doc. 28 at 11).

Consistent with Hurlbert, this Court will not consider Williams’ new theory for his

religious discrimination claim in ruling on Lesaffre’s motion for summary judgment.

439 F.3d at 1297. The grounds for his religious discrimination claim articulated in his

complaint are abandoned. Notably absent from the complaint was any mention of a hostile

work environment. The Court finds that Williams’ “subsequent assertion of” a hostile

work environment “effects a fundamental change in the nature of [his] claim.” Id. The

parties have “proceeded through discovery without [Williams] amending (or seeking to

amend) his complaint to reflect that fundamental change,” and thus Williams is “not

entitled to raise [this new factual predicate] in the midst of summary judgment.” Id. This

is particularly true where, as here, the factual predicate for the new claim is presented in

the form of a sham affidavit.

The Court therefore turns to whether the July 31, 2020, meeting and investigation

into the allegations against Williams for religious harassment were adverse employment

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actions.4 The Court finds that they were not. A superior’s investigation into a matter,

without any evidence that it was motivated by animus or that it led to any corrective action

by the superior, does not constitute an adverse employment action. See Entrekin v. City of

Panama City, 376 F. App’x 987, 995 (11th Cir. 2010) (“The investigation of the . . .

complaint did not constitute an adverse action, because the complaint ultimately was not

sustained and [plaintiff], therefore, suffered no harm from the filing of the complaint.”);

Humphrey v. Napolitano, 847 F. Supp. 2d 1349, 1354–55 (S.D. Fla. 2012) (collecting cases

from the “[m]any courts [that] hold that an investigation that does not lead to any action

taken against the employee is not an adverse employment action sufficient to state a claim

for disparate treatment”). Investigations by a supervisor, while unpleasant, routinely fall

short of the “serious and material” threshold necessary to be considered adverse

employment actions. See Davis v. Legal Servs. Ala., Inc., 19 F.4th 1261, 1267 (11th Cir.

2021) (“[A] simple paid suspension is not an adverse employment action. A paid

suspension can be a useful tool for an employer to hit ‘pause’ and investigate when an

employee has been accused of wrongdoing.”); Harbuck v. Teets, 152 F. App’x 846, 848

(11th Cir. 2005) (holding that heightened scrutiny of a plaintiff is not “an adverse

employment action or a hostile working environment”); cf. Summerlin v. M&H Valve Co.,

167 F. App’x 93, 97 (11th Cir. 2006) (“The reprimand of an employee does not constitute

an adverse employment action when the employee suffers no tangible harm as a result.”).

4 As discussed above, the Court does not consider any evidence pertaining to Williams being passed over

for a promotion, being required to turn in excuses for missed work, or being restricted to an eight-hour

workday because he has abandoned those theories by failing to address them in his response to summary

judgment. See supra Part IV.A.

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Williams has not presented sufficient evidence to show that Lesaffre’s investigation

into complaints lodged against him, especially when no disciplinary action followed, rose

to the level of being “serious and material.” Jefferson, 891 F.3d at 921. A tangible adverse

employment action must seriously “affect continued employment or pay—things like . . .

demotions, suspensions without pay, and pay raises or cuts—as well as other things that

are similarly significant standing alone.” Monaghan v. Worldpay US, Inc., 955 F.3d 855,

860 (11th Cir. 2020). In contrast, disciplinary actions “are not sufficiently adverse if they

did not cause the plaintiff any present or foreseeable future economic injury. Similarly, an

internal investigation—like any alleged adverse employment action—is not sufficient to

state a discrimination claim if it did not cause him . . . negative job consequences.”

Henderson v. City of Birmingham, 826 F. App’x 736, 741 (11th Cir. 2020) (quotations and

citation omitted).5

Williams was not disciplined as a result of Lesaffre’s investigation, and he presents

no evidence that his pay or other material aspects of his employment were negatively

affected. The investigation into the allegations against Williams and the subsequent

meeting, therefore, did not constitute adverse employment actions. Even taking the facts

in the light most favorable to Williams, the Court finds he has not presented sufficient

evidence to support this element of his prima facie case of religious discrimination.

5 While the Court recognizes that Henderson is an unpublished opinion, the Court finds its analysis to be

persuasive.

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b. Comparators

Williams likewise cannot establish a prima facie case because he cannot identify a

“similarly situated” employee outside of his protected class who received more favorable

treatment. See Lewis, 918 F.3d at 1221. To make out a prima facie case for religious

discrimination based on disparate treatment, Williams must also show that he was treated

less favorably than other similarly situated employees who were outside of his protected

class. Lesaffre argues that Williams cannot show any similarly situated comparators were

treated more favorably. In response, Williams identifies all other “co-workers who were

not professed Christians” and all other employees at the plant as comparators. (Doc. 28 at

12). Specifically, Williams points to his declaration as evidence that “he was treated less

favorably than his co-workers who were not professed Christians”; that “[n]o one but

Plaintiff was made to work in extremely hazardous conditions”; that “[n]o one was accused

by his superiors of religious harassment”; and that the employees that “accused Plaintiff of

harassment were treated much more favorably than Plaintiff.” (Doc. 28 at 12). Notably,

Williams fails to point the Court to evidence in the record to support these conclusions.

The Eleventh Circuit emphasizes that the comparator analysis is central to

establishing a prima facie case because “it is only by demonstrating that [an] employer has

treated ‘like’ employees ‘differently’—i.e., through an assessment of comparators—that a

plaintiff can supply the missing link and provide a valid basis for inferring unlawful

discrimination.” Lewis, 918 F.3d at 1223 (emphasis in original). A plaintiff and

comparator must be “similarly situated in all material respects.” Id. at 1226. To determine

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if a plaintiff and potential comparator were “similarly situated in all material respects,”

courts consider whether they both (1) engaged in the same basic conduct (or misconduct)

as the plaintiff; (2) were subject to the same employment policies, guidelines, or rules as

the plaintiff; (3) were under the same supervisor; and (4) shared the same employment and

disciplinary history. Lewis, 918 F.3d at 1227–28.

To the extent Williams asserts that “all employees” at the plant may qualify as

comparators, this is insufficient and not worthy of further analysis. To the extent Williams

specifies that all non-Christian employees at the plant were valid comparators, it appears

from the evidence in the record that Foster was the only non-Christian employee at the

plant. (See Doc. 23-3 at 2).

The Court finds that Foster is not a valid comparator to Williams because he was

not “similarly situated in all material respects.” Williams points to no evidence that Foster

was engaged in the same alleged misconduct as Williams or shared similar employment or

disciplinary history. Foster was “a temporary employee from Personnel Resources in the

packaging room at the dryer” and had been at the plant for only two weeks, while Williams

was a “packaging operator” that had been at the plant for over fourteen months. (Id.). There

is no indication that any complaints or warnings had ever been made against Foster.

However, Williams had a complaint against him for religious harassment, a verbal warning

not to engage in unwelcomed religious discussions, and two behavior complaints made by

co-workers during his employment at the plant. (See Docs. 23-3, 23-8). Williams also fails

to point to evidence that Foster was treated differently, beyond the conclusory allegation

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that he was “treated much [more] favorably than Plaintiff.” (Doc. 28 at 12). Given that

Foster is not an appropriate comparator, and Williams fails to identify any other, Williams

cannot make out a prima facie case under the McDonnell Douglas burden shifting

framework.

2. Legitimate non-discriminatory reasons

Notwithstanding Williams’ failure to establish a prima facie case of intentional

religious discrimination, Lesaffre has asserted legitimate, non-discriminatory reasons for

its employment decisions. At this stage of the McDonnell Douglas analysis, a defendant

has a burden of production, not persuasion. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160,

1174 (11th Cir. 2010). A defendant “need not persuade the court that it was actually

motivated by the proffered reasons.” Id. (quoting Burdine, 450 U.S. at 254). Rather, a

defendant can rebut the presumption of discrimination by articulating a non-discriminatory

reason for the employment action. Id. Thereafter, the burden shifts back to the plaintiff to

show that the articulated reasons are simply pretext for discrimination. Id.

Lesaffre conducted an investigation into a religious harassment complaint against

Williams based on a credible accusation. (See Doc. 23-3). Such an investigation was

reasonable under the circumstances. Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d

1287, 1303 (11th Cir. 2007) (“A threshold step in correcting harassment is to determine if

any occurred, and that requires an investigation that is reasonable given the

circumstances.”). Lesaffre, therefore, has satisfied its burden of production.

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3. Pretext

With evidence of legitimate, nondiscriminatory reasons for the actions of which he

complains, Williams fails to offer sufficient evidence that Lesaffre’s proffered reasons

were pretext for intentional discrimination. Upon a defendant’s production of a legitimate,

nondiscriminatory reason for the adverse employment actions, the presumption in favor of

a plaintiff is rebutted and falls away. Burdine, 450 U.S. at 255. The burden shifts back to

the plaintiff to show that the defendant’s explanation is pretextual, and that discrimination

motivated it. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

A plaintiff can show pretext “directly by persuading the court that a discriminatory

reason more likely motivated the employer” or indirectly by showing the employer’s

explanation is not believable. Burdine, 450 U.S. at 256. The plaintiff must show that the

defendant’s “proffered reason was not its true reason, which merges with the plaintiff’s

ultimate burden of persuading the court that the employer intentionally discriminated

against [him].” Alvarez, 610 F.3d at 1265. Williams’ religious discrimination claim also

fails here.

To show pretext, the plaintiff must demonstrate “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could find them unworthy of credence.”

Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). In some

cases, proof that an employer’s asserted justification is false, when coupled with the

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evidence establishing the plaintiff’s prima facie case, is sufficient to permit an inference of

discrimination. See Reeves, 530 U.S. at 148.

However, Williams’ evidence of pretext is entirely rooted in his own beliefs and

inferences and relies on unsubstantiated allegations and conclusory statements that are

insufficient to meet his burden. Rollins, 833 F.2d at 1529 (“[U]nsubstantiated assertions

alone are not enough to withstand a motion for summary judgment.”). Williams tells the

Court that “[t]here is abundant evidence of pretext here. Foster was motivated to get back

at Plaintiff for calling him out for not following company policy.” (Doc. 28 at 13).

However, Foster’s motivation to “get back at” Williams for reporting Foster’s failure to

follow safety protocols is not evidence of religious discrimination against Williams by

Lesaffre. In any event, Williams’ conclusory allegation about “abundant evidence”

without a citation to the record fails to rebut Lesaffre’s nondiscriminatory reasons for

meeting with him on July 31, 2020, and investigating allegations against him. Carter v.

Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998) (holding

conclusory allegations without specific supporting facts have no probative value); EEOC

v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992) (“Title VII does not make

unexplained differences in treatment per se illegal nor does it make inconsistent or

irrational employment practices illegal. It prohibits only intentional discrimination based

upon an employee’s protected class characteristics.”).

To the extent Williams argues that Foster’s complaint itself shows pretext sufficient

to maintain a religious discrimination claim, such an argument also fails because Foster

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was a co-worker—not the decision-making employer. See 42 U.S.C. § 2000e-2 (making it

unlawful for “an employer” to discriminate on the basis of race); cf. Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002) (“Where the perpetrator of the

harassment is merely a co-employee of the victim, the employer will be held directly liable

if it knew or should have known of the harassing conduct.”); Evans v. McClain of Ga., Inc.,

131 F.3d 957, 962 (11th Cir. 1997) (holding that, because a certain co-worker was not a

decisionmaker with respect to the employer’s allegedly-discriminatory decisions, the co-

worker’s racially-discriminatory remarks did not provide direct evidence that the employer

discriminated on the basis of race). Moreover, as the Court discussed above, the mere

investigation into Foster’s complaint by Lesaffre was a reasonable response to an employee

complaint and did not constitute an adverse employment action. Accordingly, Williams

cannot demonstrate a genuine dispute of material fact sufficient to submit his claim to a

jury, and therefore Lesaffre is entitled to summary judgment on Williams’ religious

discrimination claim.

C. Retaliation

Next, Williams argues that Lesaffre unlawfully retaliated against him when it

terminated his employment after he filed a Charge of discrimination against it with the

EEOC. A Title VII retaliation claim based on circumstantial evidence is ordinarily

analyzed under the McDonnell Douglas framework. Tolar v. Bradley Arant Boult

Commings, LLP, 997 F.3d 1280, 1289 (11th Cir. 2021). To establish a prima facie case of

retaliation, a plaintiff must demonstrate that (1) he engaged in statutorily protected activity;

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(2) he suffered an adverse employment action; and (3) a causal connection exists between

the protected activity and the adverse action. Tolar, 997 F.3d at 1289. A plaintiff often

satisfies the “causal connection” element of his prima facie retaliation case by pointing to

“[c]lose temporal proximity between protected conduct and an adverse employment

action.” Hurlbert, 439 F.3d at 1298. If the plaintiff establishes a prima facie case, the

burden then shifts to the employer to articulate a legitimate, nonretaliatory reason for its

decision. Tolar, 997 F.3d at 1289.

If the employer articulates a legitimate, nonretaliatory reason, then the burden shifts

back to the employee to establish that the employer’s proffered reason “was not the real

basis for the decision, but a pretext for retaliation.” Id. (quotations and citation omitted).

In doing so, the plaintiff “must meet that reason head on and rebut it.” Gogel v. Kia Motors

Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (citation omitted). A plaintiff

meets the reason “head on” by presenting evidence that demonstrates “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.” Gogel, 967 F.3d at 1136 (citation omitted). To demonstrate the

employer’s reason was indeed pretext for retaliation, the plaintiff must produce evidence

sufficient to permit an inference that, “but for” his protected activity, the employer would

not have taken the alleged adverse action. Tolar, 997 F.3d at 1294.

Lesaffre does not contest that Williams’ EEOC Charge constituted a protected

activity nor that his termination was an adverse employment action. (Doc. 23 at 20). They

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argue that there was no causal connection between the Charge and his termination, and that

even if there was, Williams cannot rebut Lesaffre’s proffered legitimate, nonretaliatory

reason for firing him.

The Court finds that the temporal proximity of Williams’ EEOC Charge and his

termination is sufficient to satisfy the causal element of his prima facie retaliation case.

Williams presents evidence that he filed his EEOC Charge on January 28, 2021, and that

the EEOC informed Lesaffre of the Charge on January 29, 2021. Just a few days later, on

February 2, 2021, Williams was terminated by Lesaffre. Such “close temporal proximity

between” Williams’ protected activity (his EEOC Charge) and an adverse employment

action (his termination) satisfies the “causal connection” element of his prima facie

retaliation case. See Hurlbert, 439 F.3d at 1298 (holding termination two weeks after

plaintiff’s protected activity satisfied the “causal connection” element of the prima facie

retaliation case).

Nevertheless, Williams fails to rebut Lesaffre’s proffered legitimate and

nonretaliatory reason for terminating his employment. Lesaffre has articulated a

legitimate, nonretaliatory reason for terminating Williams: it received complaints from his

co-workers alleging continued erratic and uncomfortable behavior, including uninvited

religious conversations after Williams had been warned that such conversations would

result in termination “with no second chances.” (Docs. 23-3 at 7, 23-8). The Eleventh

Circuit has “repeatedly and emphatically held that a defendant may terminate an employee

for a good or bad reason without violating federal law. [Federal courts] are not in the

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business of adjudging whether employment decisions are prudent or fair.” Damon, 196

F.3d at 1361 (citation omitted). Lesaffre, therefore, has satisfied its burden.

With the burden shifting back to Williams to rebut Lesaffre’s nonretaliatory reasons,

Williams has failed to produce sufficient evidence that “but for” his EEOC Charge, he

would not have been terminated. See Tolar, 997 F.3d at 1294. Cobb made his complaint

of Williams’ troubling activity to Hall on January 28, 2021, before Lesaffre learned about

Williams’ EEOC Charge. Moreover, also on January 28, 2021, Swain reported to Hall that

he would come see her the next day regarding Williams’ erratic behavior, setting in motion

the complaint and investigation process prior to knowledge of a protected activity. In

Swain’s complaint memorialized on January 29, 2021, he claimed that dating back to

September and November of 2020, Williams had been engaging in unwelcomed religious

conversations that made him uncomfortable. These conversations occurred despite

Williams’ supervisors having told him that any continued unwelcomed religious

conversations would result in immediate termination. Cobb’s and Swain’s complaints to

Lesaffre predated Lesaffre’s notice of Williams’ EEOC Charge. The complaints were

regarding continuous, troubling workplace conduct by Williams after a warning. The

Court will not question the wisdom of the employer’s decision to terminate an employee

who engaged in workplace misconduct. See Damon, 196 F.3d at 1361.

Although the co-workers’ complaints against Williams predated Lesaffre’s notice

of the EEOC Charge, the decision to terminate him occurred shortly thereafter. However,

Williams has not shown “weaknesses, implausibilities, inconsistencies, incoherencies, or

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contradictions” in Lesaffre’s stated reason for discharging him—complaints from co-

workers alleging continued erratic and uncomfortable behavior, including uninvited

religious conversations—“sufficient to provide a legitimate ground for a reasonable

factfinder to find that explanation to be unworthy of credence.” Gogel, 967 F.3d at 1137.

Irrespective of the close temporal proximity of Williams’ Charge and his termination,

Williams has not presented any evidence from which “one could reasonably infer that” had

he not filed a Charge with the EEOC, Lesaffre “would not have” terminated him based on

the complaints made by his coworkers on January 28 and 29, 2021, about activity spanning

back four months. See Tolar, 997 F.3d at 1294; see also Gogel, 967 F.3d at 1137 n.15

(“While close temporal proximity between the protected conduct and the adverse

employment action can establish pretext when coupled with other evidence, temporal

proximity alone is insufficient.”). Therefore, Lesaffre is entitled to summary judgment on

Williams’ retaliation claim.

VI. CONCLUSION

Accordingly, for the reasons stated and for good cause, it is

ORDERED that Lesaffre’s motion for summary judgment (Doc. 23) is GRANTED.

A separate Final Judgment will enter.

Done this 1st day of March, 2023.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE

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