Fitzpatrick v. Koch Foods of Alabama, LLC (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MONOLESA FITZPATRICK, )

)

Plaintiff, )

) CASE NO. 2:19-cv-553-JTA

v. )

) (WO)

KOCH FOODS OF ALABAMA, LLC )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On August 1, 2019, Plaintiff Monolesa Fitzpatrick filed this action against her

former employer, Defendant Koch Foods of Alabama, LLC. (Doc. No. 1.) Plaintiff alleges

that, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e, et seq. (“Title VII”), Defendant retaliated against her for complaining of

race discrimination.

The parties have consented to the exercise of dispositive jurisdiction by a magistrate

judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 19, 20.) Before the Court is Defendant’s

motion for summary judgment. (Doc. No. 50.) For the reasons stated below, Defendant’s

motion for summary judgment is due to be GRANTED IN PART as to Plaintiff’s § 1981

claim and DENIED IN PART as to Plaintiff’s Title VII claim.

II. JURISDICTION AND VENUE

This Court exercises subject matter jurisdiction over Plaintiff’s Title VII and § 1981

claims pursuant to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or

venue, and the Court finds sufficient allegations to support both in the Middle District of

Alabama.

III. STANDARD OF REVIEW

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

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

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

moving party is entitled to a judgment as a matter of law.” Palm v. U.S., 904 F. Supp. 1312,

1314 (M.D. Ala. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The

party asking for 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 of file, together with the affidavits,

if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing

there is no dispute of material fact, or by showing, or pointing out to, the district court that

the nonmoving party has failed to present evidence in support of some element of its case

on which it bears the ultimate burden of proof. Id. at 322-324. A factual dispute is genuine

if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson

v. Liberty Lobby, 477 U.S. 242, 248 (1986).

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party

to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’” Celotex, 477 U.S. at 324. To avoid summary judgment, the

nonmoving party “must do more than show that there is some metaphysical doubt as to the

material facts.” Matsushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106

(1986). On the other hand, the evidence of the nonmovant must be believed and all

justifiable inferences must be drawn in its favor. See Anderson, 477 U.S. at 255. 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. Fed. R. Civ. P. 56(e). As stated by the Court in

Celotex, if the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to [his] case, and on which [he] will bear the burden of

proof at trial,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 322.

IV. FACTS1

In Montgomery, Alabama, Defendant has two plants at the same facility: a

processing plant for slaughtering chickens, and a debone plant where the bones are

removed from the slaughtered chickens’ carcasses and the carcasses are separated and

packaged for consumers. (Doc. No. 52-1 at 5.)

Defendant has a written policy prohibiting race or national origin discrimination,

and it has procedures for reporting discrimination. (Doc. No. 52-2.) Plaintiff received a

copy of Defendant’s antidiscrimination policy around the time she began work at

1 Where evidence conflicts, the facts are set forth here in the light most favorable to the nonmoving

party. Sears v. Roberts, 922 F.3d 1199, 1209 (11th Cir. 2019).

Defendant’s debone plant on January 24, 2017, when she began work as a tender puller

(also known as a “tender clipper”). (Doc. No. 52-3 at 7-8; Doc. No. 52-4; Doc. No. 52-5.)

Plaintiff began work on the night shift. (Doc. No. 52-3 at 8, 10.) About three weeks

after Plaintiff began work as a tender puller, her co-workers learned that she was Jamaican,

and they began to treat her differently. (Id. at 8.) When Plaintiff asked for permission to

sharpen her knife or to use the restroom, the line lead would tell Plaintiff not to talk because

she “hated the sound of her voice.” (Id. at 8-9.) The line lead also accused Plaintiff of being

a “voodoo lady” and of “being a witch” who “work[ed] voodoo.” (Id. at 9.) This left

Plaintiff in tears. (Id. at 9-10.) This treatment occurred “over and over,” and other

employees began to think that Plaintiff “was a voodoo lady for real.” (Id. at 10.) Employees

began to ask Plaintiff if she practiced voodoo, and, at one point, a line lead told another

employee not to look in Plaintiff’s face lest she die, so the employee held her head down.

(Id. at 13.) Plaintiff complained repeatedly to Defendant’s Human Resources (“HR”)

Department, which informed her that Defendant did not condone bullying and eventually

reassigned her to the day shift at her request. (Id. at 10, 12.)

On Plaintiff’s new shift, her new supervisors were Shainta Little and Davis Vernon.

(Id. at 15.) Little would deny Plaintiff restroom breaks, but would allow others restroom

breaks when they requested them. (Id. at 15, 19.) Vernon told Plaintiff that Little had

accused Plaintiff of putting a voodoo curse on her. (Id. at 15-16.) Eventually, because of

rumors, the majority of people on Plaintiff’s shift assumed Plaintiff was a voodoo worker

who made people sick. (Id. at 16-17.) Plaintiff understood that, because she was from

Jamaica, people were accusing her of being a witch and a voodoo worker who made other

employees sick. (Id.)

Occasionally, Plaintiff would work as a tender scorer, which has a higher pay than

tender puller, until, on November 14, 2017, she was permanently promoted to tender

scorer. (Doc. No. 52-8.) Even as a tender scorer, however, Plaintiff was still required to

rotate positions on the chicken processing line as part of Defendant’s Occupational Safety

and Health Administration practices to prevent wear and tear on employees from

performing repetitive motions. (Little Statement, Doc. No. 52-4 at ¶ 6.)

Line leaders were allowed to give employees permission to stand in for each other

so that one could use the restroom. (Doc. No. 52-4 at ¶ 3.) On December 7, 2017, someone2

asked Plaintiff to stand in for another employee on the line so that the other employee could

use the restroom. (Doc. No. 52-4 at ¶ 5; Doc. No. 52-11.) Plaintiff refused because she had

previously been written up for getting another employee to stand in for her so that she could

use the restroom without supervisor permission, so instead Plaintiff told the employee to

get the supervisor’s permission. (Doc. No. 52-3 at 24.) The employee who needed to use

the restroom could not leave the line without someone to take their place, and they

eventually used the restroom on themself. (Doc. No. 52-4 at ¶ 5.) Therefore, the line

supervisor, Little, escorted Plaintiff to the HR office, after which Defendant decided to

suspend Plaintiff. (Id.) However, because it was later determined that Plaintiff was not

2 The parties cite no evidence that a line leader or other supervisor asked Plaintiff to stand in for

the employee who needed to use the restroom.

required to relieve her coworker, Defendant voided the suspension and paid Plaintiff for

the days during which she had been suspended. (Id.)

On December 21, 2017, Plaintiff submitted a Charge of Discrimination to the Equal

Employment Opportunity Commission (“EEOC”), stating:

I am a person of Jamaican descent. I was hired as a Production Worker in

January 2017. A co[-]worker informed management that I practiced voodoo

and since then the terms and condition of my employment changed. I was

suspended on December 7, 2017, after I was asked to relieve a co[-]worker

who needed to use the restroom. I advised the co[-]worker to get permission

from a Team Leader as I had been advised. As a result of this incident I was

suspended for three days. Prior to this incident and upon return, when I ask

for relief I am ignored. I was even assaulted by my team lead without any

action being taken. I have asked for assistance from managerial personnel

but my requests have gone unanswered.

I believe that I am being discriminated against because of my national origin,

Jamaican, in violation of Title VII of the Civil Rights Act of 1964, as

amended.

(Doc. No. 52-11.)

On February 14, 2018, a little over one year after beginning work for Defendant,

Plaintiff signed Defendant’s conduct policy, indicating that she had read and understood

the policy. (Doc. No. 52-6.) The conduct policy stated as follows:

RULES OF CONDUCT-TYPE I

VIOLATIONS OF THE FOLLOWING RULES WILL BE

GROUNDS FOR IMMEDIATE TERMINATION (EVEN ON THE

FIRST OFFENSE)

….

8. Creating a hostile work environment or otherwise violating

[Defendant’s] anti-harassment and anti-discrimination policy.

9. Willful refusal to follow reasonable instructions or directions of a

supervisor or manager.

10. Intentional or reckless acts, including horseplay or practical jokes,

which endanger employees.

….

14. Job abandonment: unauthorized departure from a work shift; leaving

the Company premises without notifying the supervisor or without

permission; or leaving an assigned work area or work station during

working hours without supervisory permission (employees must

notify [their] supervisor and get permission to leave a shift).

15. Fighting or provoking a fight (DO NOT PLACE HANDS ON

OTHER PEOPLE OR USE PROVOKING LANGUAGE).

…

21. Cursing co-workers, supervisors, management, visitors, vendors, or

customers.

22. Threats of violence or terrorism toward anyone.

RULES OF CONDUCT – TYPE II

VIOLATION OF TYPE II RULES GENERALLY WILL FOLLOW

PROGRESSIVE DISCIPLINARY STEPS UP TO AND INCLUDING

TERMINATION. In certain cases depending on the severity of the

infraction, the Company may not follow the steps as outlined and may

proceed to the termination step.

…

3. Taking more time than allowed for breaks, lunches, restroom breaks,

late to the line.

4. Displaying harassing or discriminating behavior.

…

10. Uncivil attitudes and loud or offensive language and/or behavior.

(Doc. No. 52-6 at 2-3 (emphasis in original)).

According to the line leader of Plaintiff’s shift, Tiekya Needham, on February 8,

2018, Needham asked Plaintiff to work as a tender puller and she refused, saying that

pulling tenders was not in her job description. (Doc. No. 52-12.) Needham submitted a

statement regarding the incident to Defendant’s HR Department in which she alleged that

she “ask[ed] [Plaintiff] to pull tenders,” but Plaintiff threatened to “walk off the line” and

“go home.” (Doc. No. 52-12 at 5.)

On February 9, 2018, Plaintiff submitted to Defendant a statement of the incident

stating that, when Needham “told [her] to pull tender[s],” she told Needham that she was a

tender scorer and would score tenders. (Doc. No. 52-14 at 2.) Needham then went and

reported the incident to the supervisor, Shainta Little, who told Plaintiff to tender score and

also to spit out her gum, which was not allowed on the line for sanitary reasons. (Id.)

Plaintiff spat out her gum. (Id.) According to Plaintiff, she then went to go pull tenders.

(Id.) However, Little submitted a February 9, 2018 Employee Warning Report to

Defendant in which she stated that Plaintiff continued to say that she was not going to work

as a tender puller. (Doc. No. 52-15.) Little told Plaintiff to go to HR, where she was

informed she would be suspended. (Id.; Doc. No. 52-14 at 2.)

On May 7, 2018, Plaintiff filed a second EEOC charge in which she alleged that

Little ignored her requests to use the restroom in retaliation for her earlier EEOC charge

and that, as a result of being denied a bathroom break for an hour, she used the restroom

on herself. (Doc. No. 52-16.)

On July 24, 2018, Vernon, Plaintiff’s supervisor at that time, while inspecting for

earrings, pulled Plaintiff’s hair net away from her head, removed her hearing protector

plugs, and touched her ears. (Doc. No. 52-3 at 27.) Plaintiff submitted a written complaint

to Defendant’s Human Resources Department, claiming that she felt “very violated” by

being touched in the process of having her ears checked. (Doc. No. 52-17.) She also filed

a police report about the incident. (Doc. No. 52-18.)

On August 16, 2018, Vernon signed an Employee Warning Report stating that

Plaintiff had “bec[o]me very unruly with the team lead in regards to working on the line”

that had been assigned to her, and that Plaintiff’s behavior was “causing mass disruption.”

(Doc. No. 52-19.) Vernon stated that “when [he] approached the area, [Plaintiff] was

arguing with the team lead and not performing her work.” (Id.) On the same day, Plaintiff

also submitted a statement to Defendant, in which she stated the following:

On August 16, 2018 at 8:25 when I told my … supervisor Davis Vernon

come to me and I told him that my hand hurt and I can[’]t pull the breast

done. [H]e told me to go to line six and pull tender of he came and got me

and sent me on line four[] (4) there was someone already there pulling breast.

The line lead take her down and put me there as I was there I could not pull

the breast down as I told the line lead and my hands hurt and he should let

me do the table whic[h] would be less pressure on my [w]ris[t]. [H]e said do

breast I said it unfair my hands hurt. I have refuse medical atten[t]ion over

and over on several occasion…. My supervisor did not let me see the nurse.

[A]ll he did was stand behind me and I felt streaten and intimidated by him

because he always be picking on me.

(Doc. No. 52-20 at 2-3 (sic).)

Plaintiff was suspended pending the investigation of the alleged August 16, 2018,

disruption of the line. (Id.)

On August 17, 2018, Plaintiff filed a third Charge of Discrimination with the EEOC,

this time alleging the following:

I am a former employee of the above-named employer, who engaged in a

protected activity (EEOC Charge No. 420-2018-00733) in December 2017.

After I filed my charge of discrimination, my supervisor began to start

harassing me by standing behind me and whistling. I complained to human

resources, but nothing was done.

On another occasion, my supervisor accused me of wearing earrings on the

line. The supervisor then physically touched my head and ears to inspect if I

was wearing earrings. I filed a police report about the incident. On August

16, 2018, I told supervisor my hand hurt and he moved me to another line to

work. I told him my hand still hurt and that I needed medical attention. He

told me I was being argumentative, and had security escort me off the

premises.

I believe that I was harassed and discharged because of my national origin

and in retaliation for filing an EEOC charge of discrimination, in violation

of Title VII of the Civil Rights Ct of 1964, as amended.

(Doc. No. 52-21 (sic).)

In her deposition, when asked about when she was first subjected to discriminatory

comments, Plaintiff stated: “When [Wanda, the line lead] found out I was Jamaican. To be

honest, when she found out I was Jamaican, then that’s when everything starts.” (Doc. No.

52-3 at 8.) Plaintiff testified that “[Wanda] said I’m a witch and I work voodoo …. She

said it whenever I’m at work…. I don’t know why she would say that. Maybe because I’m

from Jamaica. She said that I’m a voodoo lady.” (Id. at 9.)

In Plaintiff’s deposition, when asked about comments from the other employees

accusing her of voodoo and of injuring her fellow employees by witchcraft, Plaintiff

testified that “[t]hey [certain other employees] said that people from Jamaica are voodoo

workers, they work voodoo…. [Wanda] said I’m a voodoo worker. And then other people

go on to say that people from Jamaica work voodoo.” (Id. at 16.) When asked if “it [was

her] belief that they were making comments about the voodoo to [her] and calling [her]

voodoo lady because [she was] from Jamaica,” Plaintiff responded, “From Jamaica, yes,

ma’am.” (Id.) Plaintiff explained that such comments were “offensive to me because I’m

Jamaican and I’m from a different culture. So I think they do that because I’m from a

different culture and a different country, why they do that.” (Id. at 17.)

When asked at her deposition why Little was allegedly trying to get Plaintiff fired,

Plaintiff stated: “I don’t know. Maybe because the whole --- that I’m from a different

country and I’m Jamaican.” (Id. at 23.) When asked whether she contended that Vernon

checked her for earrings because she was from Jamaica, Plaintiff responded, “[y]es.” When

asked whether she thought there were any other reasons why Vernon checked her ears for

earrings, Plaintiff responded, “[n]o, Ma’am.” (Id. at 27.)

In January 2019, Constance Wyckoff Morgan was Plaintiff’s line supervisor. (Doc.

No. 52-22.) On January 28, 2019, Plaintiff was working at her station, and another

employee, Ms. Henry, accused Plaintiff of being a witch, told her she should go back to

Jamaica, and suggested that “Donald Trump should send your ass back.” (Doc. No. 52-3

at 45.) Henry informed Plaintiff that “‘[t]hey should send you back to Jamaica where you’re

from with your voodoo.” (Id.) She further elaborated: “I will whoop your ass. And when

I’m done with you, you can go put your little voodoo on me.” (Id.) Then, an employee

named Tanya McCaskey deliberately sprayed Plaintiff with a hose by pointing the hose at

Plaintiff’s face and then spraying her, and “everyone” laughed at Plaintiff.3 (Id. at 44-45.)

The line stopped, and Morgan went to investigate the cause. (Id.) She discovered

that a dispute had arisen because, according to Plaintiff, McCaskey had sprayed Plaintiff

with the water hose. (Id.) McCaskey denied spraying Plaintiff, and, according to Morgan,

Plaintiff then called McCaskey a “‘f—ing whore’” who was “selling her body ‘like a

prostitute.’” (Id.)

Morgan took the feuding employees to HR for investigation and resolution of the

issue, where Plaintiff gave two written statements about the incident. (Id.) One of

Plaintiff’s statements was as follows:

Tania [k]eep threaten me. I don[’]t know what and why. Jan 28, 19 I was

scoring tender on line when she use the hose and wet me[.] I told my

supervisor and that I am going to make a complaint to HR and I went back

to the line where she said she wet me and what can I do about it. She keep

threatening [m]e and I am fair for my life. I am been threaten too many time.

(Doc. No. 52-24 at 2-3 (sic).)

3 During the investigation into the incident McCaskey denied spraying Plaintiff with a hose. On

summary judgment, factual disputes are resolved in favor of the nonmoving party, and the court

does not make credibility determinations. Anderson, 477 U.S. at 255; Sears, 922 F.3d at 1209

(“The district court erred by weighing the evidence and making its own credibility determinations

at the summary judgment stage.”); Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006).

Therefore, for purposes of ruling on the motion summary judgment, where witness’s accounts

differ or evidence conflicts, the court takes Plaintiff’s account as true. Anderson, 477 U.S. at 255

(holding that, on summary judgment, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor”). Conflicting accounts are set out here to the

extent that they are relevant to the issues on summary judgment, such to establish the fact that

Defendant investigated and obtained witness statements.

Plaintiff’s other statement, also made on January 28, 2019, and submitted to

Defendant, was as follows:

I am been threaten and bullied everyday, I came to work by Nicole Henry

and Tania for no reason.

I believe that my job and my life is at risk and danger, I keep[]coming to HR

on several occasion and you all not doing Anything to fix the problem or the

situation.

I am scared because I do not have anyone to talk because when I tr[i]ed

telling HR about the constan[t] bullying and threat[s] you don’t do anything

about it.

(Doc. No. 52-24 at 4-5 (sic).)

Likewise, on January 28, 2019, McCaskey also submitted a written statement to

Defendant’s HR Department. McCaskey stated:

Today this lady Monalisa said I wet her up and I didn’t do it. I have two

witness saying I didn’t spray her. She came back on line 5 point her finger in

my face call me all kind of bitches, whore old dog. [A]nd I put my foot down

and said that we to old for this I not going to do this I have 4 witness prove

that she was goin to beat my ass and call me all kind of bitches and whore,

Kalmetrice, Jenifer, Emma, Courtnay.

I talk to Steve and we going to have a meeting about this because she thinks

in good to call me bitches and whore she said that H[R] will not do anything

to her because of he law suit.

(Doc. No. 52-23 (sic).)

Plaintiff, however, denies cursing or threatening McCaskey, and denies that the

other witness’s statements were true. (Doc. No. 52-3 at 45.) Plaintiff stated in her

deposition:

None of these statements is true. Because I am the one who got hosed down.

And if she’s cleaning the floor, why would the water wet my face? Why

would I have been wet from my head to my feet if she was cleaning the floor?

You have to be on a ladder like this high.

(Id. at 46.)

Shawnta Bibb (also known as “Nikki Bibb”), the HR Manager at the site,

investigated the incident, including obtaining statements from the witnesses. (Doc. No. 52-

25.) One witness, Kalmetrice Kemp, provided the following written statement on January

28, 2019:

“I was On line 5 when I saw [Plaintiff] and Tanya. [Plaintiff] stated “she

sprayed me with water.” [Plaintiff] called Tanya a “Freaky bitch.” She said

“You[’]re a whore!” She also stated that “if she catch her in Walmart again

she’s going to beat her ass!!”

(Doc. No. 52-26 (sic).)

On the same day, January 28, 2019, Courtney Brown provided the following written

witness statement:

I was on the line working and [Plaintiff] got off the line and said Toya had

splashed water on her. So [Plaintiff] stopped the line and said she was going

to [H]R about what had happened. So when [Plaintiff] came back on the line

she was cussing Toya out saying when she see her outside of work she was

going to beat her and drag her. [Plaintiff] was the only one cussing cause

[T]oya was quiet the whole time. So by that time that[’]s when they both was

called to [H]R to see what had happened.

(Doc. No. 52-57 (sic).)

Jenifer Howard’s January 28, 2019 written witness statement was as follows:

While on the line [Plaintiff] said Tanya sprayed water on her. I didn’t see her

spray her with water because Tanya was spraying under the machine. After

[Plaintiff] walk off the line and came back Tanya was standing there talking

to [C]onstance and [Plaintiff] addressed Tanya and told her that if she catch

her outside the job what she was gonna do. After that they both were going

back and forth.

(Doc. No. 52-28.)

The following day, Plaintiff asked Morgan if she could leave her place on the line

to go to HR, but Morgan denied the request. (Doc. No. 52-22.) Sometime thereafter, Bibb

asked Morgan to send Plaintiff to her office in the HR Department. (Doc. No. 52-22, Doc.

No. Doc. No. 52-1 at 3.) Morgan could not find Plaintiff because Plaintiff had already left

the line to go to the HR office. (Doc. No. 52-22.) At some point later that day, Bibb met

with Plaintiff and others about the incident, after which Plaintiff was suspended pending

the HR investigation for violating company policy. (Doc. No. 52-25.) Bibb concluded that

the violations at issue were the following Type I violations: job abandonment, making false

or malicious statements to harm the reputation of Defendant or an employee, cursing

coworkers, and threats of violence toward another. (Doc. No. 52-25 at 3-4.)

Plaintiff was subsequently terminated.4 McCaskey was not disciplined for her role

in the incident. (Doc. No. 51-1 at 25.)

4 Defendant asserts in its brief that Bibb terminated Plaintiff’s employment after finding that she

had violated the following Type I rules: making threats of violence, fighting or provoking a fight,

cursing coworkers, and job abandonment. (Doc. No. 51 at 11.) Defendant does not cite the record

to support this assertion. (Id.) Bibb’s investigation notes, which Defendant did not cite in support

of its assertion regarding the reasons for the termination, do not indicate that Plaintiff was under

investigation for fighting or provoking a fight. (Doc. No. 52-25 at 3-4.) Defendant bears the burden

of presenting and citing evidence to support its motion for summary judgment. Fed. R. Civ. P.

56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by … citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

materials.”)); Fed. R. Civ. P. 56(c)(3) (“Materials Not Cited. The court need consider only the

cited materials, but it may consider other materials in the record.”).

In her deposition, Plaintiff testified as follows regarding Bibb’s stated reasons for

terminating5 her employment:

• “[Bibb’s] statement was, ‘Since you filed a lawsuit or EEO charges against

[Defendant], you have been complaining a lot. Hand over your badge. You’re

fired.’” (Doc. No. 52-3 at 26.)

• “So they point me to [Bibb’s] office. And me and the union rep, Mr. Steve, went to

the HR office to speak with [Bibb]. And that’s what she told me that ever since I

filed a lawsuit or an EEOC charge against [Defendant], I’ve been complaining a lot,

so I’m terminated.” (Id. at 47.)

• “[Bibb’s] exact words was because I filed a lawsuit, an EEOC charge against

[Defendant]. I don’t know of any other reasons. That’s what she said to me.” (Id. at

52.)

• “Mr. Steve was mostly doing the talking, trying to get [Bibb] to let me keep the job.

But she said I complained too much ever since I filed a lawsuit. And I told her I

didn’t – I never filed a lawsuit against [Defendant]. And she said she have to let me

go because I’m complaining a lot since then.” (Id.)

• “Bibb told me I was fired. The first meeting, she said – her exact words, ‘Ever since

you filed a lawsuit with the EEOC against [Defendant], you’ve been complaining a

5 From the materials submitted to the Court on summary judgment, it appears that the statements

Bibb allegedly made regarding the reason for Plaintiff’s termination were likely made at the time

Plaintiff was suspended pending investigation. However, Defendant does not raise this point in a

substantive argument in its brief; nor does Defendant argue that the timing of Bibb’s alleged

statement injects ambiguity into the statement.

lot. So hand over your badge.’” And she got the security to escort me. And she said,

‘You’re fired.’ And she took my badge, and they escort me out the door.” (Id. at

53.)

On February 11, 2019, Plaintiff filed a fourth Charge of Discrimination with the

EEOC, stating:

I believe that I have been discriminated because I filed a previous charge

(420-2018-01539).

Around September 25, 2018[,] I needed to use the restroom so I asked my

line supervisor (Mimi) and she ignored me. I tried to ask another supervisor

that I saw walking by (Shante Little) and she waved me off. I saw the head

supervisor (Franco) so I asked him and he told me to wait until they stopped

running the birds. Twenty minutes after the birds stop running I asked Franco

again and he ignored me. I went to the restroom and when I returned the line

was shutdown. Everyone was working on another line, so I went to join them.

Then Franco tapped me on my shoulder and told me to leave. I went to HR

and told them that Franco sent me home so that they wouldn’t get me for job

abandonment or point infraction and they said ok.

On January 28, 2019, one of my coworkers (Tanya Gibbs) hosed me down

with a water hose. I complained to HR and nothing was done. I want back to

HR and they gave me a complaint form to fill out. Tanya Gibbs threaten to

beat me up and I went to back to report it to HR and they told me that I cannot

make a complaint on the same person twice.

On January 29, 2019, Tanya Gibbs and Teresa LNU was talking about

beating me up while standing right behind me. I reported it to HR and they

did not do anything about it. I went to HR in the kill department and they told

me they could not do anything, because it was not their department, so they

recommended me to the HR Manager. I went to the HR Manager (Nikki

Bibb) along with the union rep (Steve) and my supervisor (Constance

Morgan). Nikki told me that ever since I filed a lawsuit with the EEOC I have

been complaining a lot. I told her I don't know who else to complain to and

she told me she was going to let me go and took my badge.

I believe that I have been retaliated against for filing a charge with the EEOC

in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Doc. No. 56-2 at 6-7 (sic).)

V. PROCEDURAL HISTORY

On December 14, 2018, the EEOC issued Plaintiff a Notice of Right to Sue with

respect to the EEOC charge she filed on August 17, 2018. (Doc. No. 52-30.) On May 1,

2019, the EEOC issued Plaintiff a Notice of Right to Sue with respect to her May 7, 2018

EEOC charge. (Doc. No. 52-16.) On May 2, 2019, the EEOC issued Plaintiff a Notice of

Right to Sue with respect to her December 21, 2017 EEOC charge. (Doc. No. 52-32.)

On August 9, 2019, Plaintiff filed her Complaint in this action, asserting claims of

national origin discrimination in violation of Title VII, retaliation in violation of Title VII,

and retaliation in violation of 42 U.S.C. § 1981. (Doc. No. 1.) On November 5, 2019,

Plaintiff filed a First Amended Complaint. (Doc. No. 17.) On July 20, 2021, Plaintiff filed

a Second Amended Complaint, asserting one count of violation of Title VII by retaliation

for opposing national origin discrimination, and one count of violation of § 1981 by

retaliation for opposing race discrimination. (Doc. No. 34.)

On August 6, 2021, Defendant filed a Motion to Dismiss the § 1981 claim in the

Second Amended Complaint. (Doc. No 35.) Defendant argued that voodoo is a religion

and that Plaintiff was attempting to disguise a religious or national origin discrimination

claim as one for race under § 1981. (Id.) After the motion came under submission, on

February 14, 2002, the Court entered an Order denying the motion. (Doc. No. 39.)

Specifically, the Court found that, though “the line between ethnicity and national origin

is ‘not a bright one,’” Plaintiff had sufficiently alleged a § 1981 retaliation claim pertaining

her African race. (Id. at 9.)

On February 22, 2023, Defendant filed a Motion for Summary Judgment. (Doc. No.

50.) Plaintiff filed a response in opposition to the motion, and Defendant filed a brief in

reply. (Docs. No. 55, 57.) The motion is now under submission and ripe for resolution.

VI. DISCUSSION

A. Plaintiff’s § 1981 Claim – Retaliation for Opposing Race Discrimination

Section 1981 prohibits racial discrimination in “the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges,

terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(a), (b). “Although

§ 1981 does not itself use the word ‘race,’ the [Supreme] Court has construed the section

to forbid all ‘racial’ discrimination in the making of private as well as public contracts.”

Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987) (citation omitted). Section

1981 thus creates a substantive statutory remedy for employment discrimination. See

Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975) (Ҥ 1981 affords a

federal remedy against discrimination in private employment on the basis of race”); Ferrill

v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999) (“Section 1981 prohibits

intentional race discrimination in the making and enforcement of public and private

contracts, including employment contracts.”). Though there is no mention of retaliation in

the text of § 1981, the Supreme Court has held that § 1981 “encompasses claims of

retaliation.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008). See also Gogel

v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (“Retaliation

claims are also cognizable under 42 U.S.C. § 1981.”).

Generally, § 1981 is similar to, though independent from, Title VII. So much so

that “[t]he analytical framework and rules about employer liability under Title VII and §

1981 are the same.” See Ash v. Tyson Foods, Inc., 664 F.3d 883, 904 (11th Cir. 2011).

Yet, unlike Title VII, § 1981 claims are limited to race discrimination. See Little v. United

Technologies, Carrier Transicold Div., 103 F.3d 956, 961 (11th Cir. 1997) (“It is well-

established that § 1981 is concerned with racial discrimination in the making and

enforcement of contracts.” (emphasis in original)). A claim for discrimination based solely

on the plaintiff’s place or nation of origin6 is not actionable under § 1981. See Saint

Francis Coll., 481 U.S. at 613; Tippie v. Spacelabs Med., Inc., 180 F. App’x 51, 56 (11th

Cir. 2006) (“By its very terms, § 1981 applies to claims of discrimination based on race,

not national origin.”). However, the line between national origin and race discrimination

is not always easily distinguishable. Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th

Cir. 1981).7 The Supreme Court has held that, so long as a plaintiff can prove that she was

subjected to intentional discrimination based on her race, ethnic characteristics, or ancestry,

“rather than solely on the place or nation of [her] origin,” she has an actionable claim under

§ 1981. Saint Francis Coll., 481 U.S. at 613.

6 Plaintiff has not attempted to state or pursue a claim on grounds that Defendant violated § 1981

by retaliating against her for protesting discrimination based on lawful alien status, which is not

the same as national origin discrimination.

7 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (adopting as binding precedent

all of the decisions of the former Fifth Circuit handed down prior to the close of business on

September 30, 1981).

Accordingly, in the Court’s February 14, 2022 Memorandum Opinion and Order,

the Court denied Defendant’s motion to dismiss Plaintiff’s § 1981 claims, finding that

Plaintiff had sufficiently stated a race discrimination claim by alleging in her Complaint

that she was “ridiculed as a voodoo practitioner because she is African.” (Doc. No. 39 at

9.) The question now, at this stage of the proceedings, is not whether such an allegation

can state a cause of action for race discrimination under § 1981, but whether the evidence

on summary judgment (or inferences reasonably drawn therefrom) supports Plaintiff’s

allegation that she was ridiculed as a voodoo practitioner or otherwise subjected to

discrimination because she is of African ancestral descent or ethnicity. Unfortunately for

Plaintiff, the evidence on summary judgment does not support that allegation in this case.

In her brief, Plaintiff contends that her coworkers’ accusations that she practiced

voodoo were inherently based on her race because voodoo was brought to Jamaica from

Africa. However, the evidence Plaintiff presents in this particular case does not bear out

that contention.8 According to Plaintiff’s testimony, workplace discrimination began not

upon her co-worker’s discovery that she was of African descent or ethnicity, but upon their

discovery that she was from Jamaica.9 At every turn during Plaintiff’s deposition, when

asked why she was subjected to discrimination, including being ridiculed for and accused

8 The Court expresses no opinion on whether accusations of practicing voodoo, without more,

could ever constitute evidence of race discrimination. In this case, however, the record on summary

judgment, including Plaintiff’s testimony, exclusively indicates that the accusations of voodoo

stemmed from national origin discrimination.

9 In response to a question regarding when the discrimination began, Plaintiff responded: “When

[Wanda, the line lead] found out I was Jamaican. To be honest, when she found out I was Jamaican,

then that’s when everything starts.” (Doc. No. 52-3 at 8.)

of practicing voodoo, she stated her belief that the motivation for the discrimination was

that she was from Jamaica and because of perceived cultural traits associated with her

national origin as a Jamaican; she made no mention whatsoever of her African ethnic

heritage/ancestry or her race/ethnicity as even a contributing factor to the alleged

discrimination.10 If evidence exists that Plaintiff was accused of practicing voodoo or

otherwise subjected to discrimination due to anything other than her Jamaican national

origin, Plaintiff has not presented it in her brief. Thus, in this case, Plaintiff has established

only that she was accused of practicing voodoo “solely” because of “the place or nation of

[her] origin,” which is not enough to state a § 1981 claim. Saint Francis Coll., 481 U.S. at

613.

In sum, because of the complete lack of evidence that accusations of voodoo (or any

other discriminatory acts) were attributable to anything other than Plaintiff’s national origin

10 See Doc. No. 52-3 at 9 (“[Wanda] said I’m a witch and I work voodoo …. She said it whenever

I’m at work…. I don’t know why she would say that. Maybe because I’m from Jamaica. She said

that I’m a voodoo lady.”); id. at 16 (“They [certain other employees] said that people from Jamaica

are voodoo workers, they work voodoo…. [Wanda] said I’m a voodoo worker. And then other

people go on to say that people from Jamaica work voodoo.”); id. (When asked if “it [was] your

belief that they were making comments about the voodoo to you and calling you voodoo lady

because you were from Jamaica,” Plaintiff responded, “From Jamaica, yes, ma’am.”); id. at 17

(“It’s offensive to me because I’m Jamaican and I’m from a different culture. So I think they do

that because I’m from a different culture and a different country, why they do that.”); id. at 23

(Plaintiff’s statement, in response to a question as to why Little was allegedly trying to get Plaintiff

fired: “I don’t know. Maybe because the whole --- that I’m from a different country and I’m

Jamaican.”); id. at 27 (when asked whether she contended that Vernon checked her for earrings

because she was from Jamaica, Plaintiff stated: “Yes.” When asked whether she thought there were

any other reasons why Vernon checked her ears for earrings, she stated: “No, Ma’am.”); id. at 45

(Plaintiff’s testimony that an employee deliberately sprayed her with a hose immediately after

another employee told Plaintiff that “‘Donald Trump should send your ass back’” and “‘[t]hey

should send you back to Jamaica where you’re from with your voodoo. I will whoop your ass. And

then you can put your little voodoo on me.”).

as a Jamaican, Plaintiff’s § 1981 claim cannot survive summary judgment in this case. See

Tippie, 180 F. App’x at 56 (“The district court did not err in dismissing Tippie’s § 1981

race discrimination claim because her only alleged evidence of discrimination was based

on the fact that she is not a native of Latin America. This is a claim based on her national

origin, not her race.”). See Saint Francis Coll., 481 U.S. at 613 (“If [the plaintiff] … can

prove that he was subjected to intentional discrimination based on the fact that he was born

an Arab, rather than solely on the place or nation of his origin, or his religion, he will have

made out a case under § 1981.” (emphasis added)); Nnadozie v. Genesis HealthCare Corp.,

730 F. App’x 151, 159 (4th Cir. 2018) (“Ezeh’s evidence, if found credible by a factfinder,

shows that Zimmerman stereotyped her African employees as voodoo practitioners, which,

in conjunction with her other evidence, provides a basis for finding discrimination based

on ethnicity or ancestry, and, therefore, on race.” (emphasis added)); Vill. of Freeport v.

Barrella, 814 F.3d 594, 606 (2d Cir. 2016) (“[C]laims based on race and national origin

may substantially overlap or even be indistinguishable depending on the specific facts of a

case.” (emphasis added; citation and internal quotation marks omitted)); Reed v. Dep’t of

Veterans Affs., No. 1:16-CV-142-MW-GRJ, 2018 WL 3018206, at *5 (N.D. Fla. May 18,

2018) (finding that the plaintiff stated a § 1981 claim based on allegations of “conduct that

spanned a three-year period and that included referring to her as a ‘monkey,’ mocking her

for her ethnic dialect, white coworkers treating her as though she were ‘unclean’” because

she was Black, “stereotyping Plaintiff as a practitioner of voodoo, and taunting Plaintiff

because of her race and ethnicity with verbiage about hexes and voodoo dolls”), report and

recommendation adopted, No. 1:16CV142-MW/GRJ, 2018 WL 3017322 (N.D. Fla. June

15, 2018); Mandengue v. ADT Sec. Sys., Inc., No. CIV.A. ELH-09-3103, 2012 WL 892621,

at *28 (D. Md. Mar. 14, 2012) (finding sufficient evidence to support a § 1981 claim where

a plaintiff from Cameroon presented evidence that she was subjected to discrimination on

the basis of race, such as comments that a black woman could not succeed in the business,

that she was “from the jungle,” and accusations that she practiced voodoo).

Plaintiff argues that, even if she was not actually subjected to race-based

discrimination, she can nevertheless prevail on summary judgment if she presents evidence

that she was subjected to retaliation because she protested discrimination that she

reasonably and in good faith believed was directed at her because of her race. (Doc. No. 55

at 17-18.) Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994) (“To

recover for retaliation, the plaintiff ‘need not prove the underlying claim of discrimination

which led to her protest,’ so long as she had a reasonable good faith belief that the

discrimination existed.” (quoting Tipton v. Canadian Imperial Bank of Commerce, 872

F.2d 1491, 1494 (11th Cir. 1989)).

Again, the problem for Plaintiff is that she cites no evidence in support of her

argument that she believed she was protesting race discrimination. As previously noted, in

Plaintiff’s deposition testimony, she stated clearly and repeatedly that she believed she was

subjected to discrimination and accused of practicing voodoo because she was from

Jamaica, without reference to her race or her African ancestry/ethnicity. As Defendant

points out, Plaintiff likewise made no mention of her race or ethnicity in any complaint to

her employer or to the EEOC prior to filing this lawsuit. If any evidence exists that Plaintiff

believed she was protesting race-based discrimination against herself11 when she lodged

her complaints about discrimination and mistreatment with her employer and the EEOC,

Plaintiff did not cite it in her brief. (Doc. No. 55 at 17-18.) Fed. R. Civ. P. 56(c)(1)(A) (“A

party asserting that a fact cannot be or is genuinely disputed must support the assertion by

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

electronically stored information, affidavits or declarations, stipulations (including those

made for purposes of the motion only), admissions, interrogatory answers, or other

materials.”).

Accordingly, Plaintiff’s § 1981 claim is due to be dismissed because it is not

supported by substantial evidence that Plaintiff was subjected to retaliation for protesting

race discrimination.

B. Title VII – Retaliation for Opposing National Origin Discrimination

Plaintiff contends that Defendant retaliated against her in violation of Title VII by

terminating her employment for opposing discrimination that was directed at her based on

her national origin. (Doc. No. 34 at ¶ 38.) Title VII prohibits employers from discriminating

11 Plaintiff cites evidence that, on December 12, 2018, she submitted a sworn statement to the

EEOC stating that unnamed employees of Defendant subjected an unnamed Jamaican management

employee to racist insults. (Doc. No. 55 at 15; Doc. No. 56-3.) However, Plaintiff submits no

evidence that Defendant knew about that statement or that there was any causal connection

between that statement and the alleged retaliation against her, nor is Plaintiff’s § 1981 claim

predicated on a theory that she was subjected to retaliation for protesting race discrimination

against the Jamaican management employee.

against employees “because of such [employee’s] race,[12] color, religion,[13] sex, or

national origin.” 42 U.S.C.A. § 2000e-2(a). Title VII’s anti-retaliation provision provides

that “[i]t shall be an unlawful employment practice for an employer to discriminate against

any of [its] employees … because [s]he has opposed any practice made an unlawful

employment practice by this subchapter, or because [s]he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under

this subchapter.” 42 U.S.C. § 2000e-3(a).

“To prevail on a Title VII retaliation claim, an employee must prove that (1) [s]he

engaged in conduct protected by the retaliation provision, (2) [s]he suffered a materially

adverse employment action, and (3) there was a causal relationship between the two.” Long

v. Alabama Dep’t of Hum. Res., 650 F. App’x 957, 967 (11th Cir. 2016). “The relationship

required by the third prong is ‘but-for’ causation” – that is, but for the plaintiff’s

engagement in the protected conduct, the employer would not have taken the adverse

employment action. Id. “A violation of [Title VII’s] anti-retaliation provision can be

established by direct or circumstantial evidence.” Furcron v. Mail Centers Plus, LLC, 843

F.3d 1295, 1310 (11th Cir. 2016). On summary judgment, “[w]here … the plaintiff’s

evidence of retaliation is entirely circumstantial, the burden of proof shifts between the

12 Plaintiff does not premise her Title VII claim on race discrimination or on retaliation for

complaining of race discrimination. (Doc. No. 34 at ¶¶ 38-44.)

13 Though Plaintiff was allegedly retaliated against for protesting her coworkers’ accusations that

she engaged in voodoo and witchcraft religious practices, her Title VII retaliation claim is not

premised on alleged retaliation for opposing religious discrimination, nor does Plaintiff allege that

she was subjected to discrimination in violation of Title VII based on her perceived religion. (Doc.

No. 34 at ¶¶ 38-44.)

parties in accordance with the framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).”14 Furcron, 853 F.3d at 1310. However, “[w]here the

[plaintiff] presents direct evidence that, if believed by the jury, would be sufficient to win

at trial, summary judgment is not appropriate even where the movant presents conflicting

evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997). Direct

evidence is evidence that, “‘if believed, proves … a fact without inference or

presumption.’” Id. (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir.

1987)). “Evidence that only suggests discrimination… or that is subject to more than one

interpretation … does not constitute direct evidence.” Id. Whether by direct or indirect

evidence, a plaintiff in a Title VII retaliation case must establish that retaliation was the

14 The McDonnell Douglas burden-shifting framework is as follows:

Initially, the employee must establish a prima facie case by demonstrating the

following essential elements: (1) the employee was engaged in statutorily protected

activity; (2) the employee suffered an adverse employment action; and (3) a causal

link exists between the protected activity and the adverse employment action.

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)). “Once a prima facie case has

been established, the [employer] may come forward with legitimate reasons for the

employment action to negate the inference of retaliation.” Goldsmith v. City of

Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (citing Weaver v. Casa Gallardo,

Inc., 922 F.2d 1515, 1525–26 (11th Cir. 1991)[, superseded by statute on other

grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071]). If the

employer is able to advance legitimate reasons for the adverse employment action,

the burden shifts back to the employee to demonstrate, by a preponderance of the

evidence, that the employer’s reasons are pretextual. Id.; Bryant [v. Jones, 575 F.3d

1281, 1308 (11th Cir. 2009)]. “[A]t this stage ... the plaintiff’s burden ... merges

with the ultimate burden of persuading the court that [the plaintiff] has been the

victim of intentional discrimination.” Smith v. Lockheed–Martin Corp., 644 F.3d

1321, 1326 (11th Cir. 2011) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981)) (internal quotation marks omitted).

Furcron, 853 F.3d at 1310-11.

“but-for” cause of an adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 362 (2013).

Plaintiff contends that she has presented direct evidence of but-for causation.15

Specifically, Plaintiff testified that Bibb informed her that she was being fired because,

“ever since she filed a lawsuit or EEOC Charge, [she] had been complaining a lot.”16 (Doc.

No. 55 at 10-11.) For purposes of summary judgment, despite Defendant’s characterization

of the conversation otherwise,17 it is clear that Bibb’s statement (as related by Plaintiff’s

testimony) indicated a but-for causal relationship between Plaintiff’s termination and

Plaintiff allegedly “complaining a lot” “ever since she filed” an EEOC charge. Though

Plaintiff recalled Bibb’s exact words with some variation throughout her testimony, she

15 The parties do not dispute that, by filing an EEOC charge, Plaintiff engaged in protected conduct.

16 Defendant disputes that Bibb made such a remark. (Doc. No. 51 at 2.) However, Plaintiff has

presented sworn testimony that the remark was made; the credibility of that testimony (and of other

witness’s countervailing testimony) is a matter for the factfinder at trial, not for the court to decide

on summary judgment. Sears, 922 F.3d at 1209 (holding that conflicts in competing testimony

must be resolved in favor of the nonmovant on summary judgment); Miller, 458 F.3d 1256 (“Even

if the district court believes that the evidence presented by one side is of doubtful veracity, it is not

proper to grant summary judgment on the basis of credibility choices.”).

17 Defendant characterizes Bibb as simply having said, “[E]ver since [you] filed a lawsuit with the

EEOC, you have been complaining a lot,” and that this statement, standing alone, “is not a

definitive statement that [Defendant] terminated [Plaintiff’s employment] because she filed EEOC

charges.” (Doc. No. 57 at 6 (emphasis in original).) Defendant’s characterization of Bibb’s

statement overlooks the fact that, where evidence conflicts on summary judgment, the court must

resolve the conflict in the light most favorable to Plaintiff (the nonmovant), and Plaintiff certainly

did testify that Bibb stated her employment was being terminated “because” she had been

complaining a lot ever since she filed a lawsuit or an EEOC charge, or that Plaintiff had been

complaining a lot since filing an EEOC charge, “so” she was fired. See infra, note 16. The

conjunctions “because” and “so” are causal conjunctions, and they obviate any causal ambiguity

Defendant is attempting to inject into Bibb’s statement by ignoring them. See Merritt v. Dillard

Paper Co., 120 F.3d 1181, 1190 (11th Cir. 1997) (pointing out that a conjunction linking two

thoughts in an employer’s statement regarding the plaintiff’s termination can be sufficient to

“communicate cause and effect” between protected activity and the employer’s motivation for

firing the employee).

did reiterate that Bibb told her she was fired “because” of the complaints, or that she had

been complaining “so” she was fired.18 This is enough to show a direct causal relationship

between the complaints Plaintiff had been making ever since she filed her EEOC charges

and the termination. See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1190 (11th Cir. 1997)

(“It is immediately obvious that the second clause ‘you no longer have a place at Dillard

Paper Company’ is linked by the conjunction ‘and’ to the first clause ‘You are black’ in

such a way as to communicate cause and effect.”).

Defendant argues that Bibb’s statement is nevertheless open to interpretation, and

therefore not direct evidence of discrimination, because the reference to Plaintiff

complaining could be interpreted as (1) a “mere observation about the deterioration in

[Plaintiff’s] attitude after she filed EEOC charges” (Doc. No. 57 at 6) or (2) “as a factual

reference to [Plaintiff’s] problems with her coworkers since the filing of her EEOC

charges” (Doc. No. 51 at 17 n.2).19

18 Doc. No. 52-3 at 26 (Plaintiff’s testimony that “[Bibb’s] statement was, ‘Since you filed a

lawsuit or EEO charges against [Defendant], you have been complaining a lot. Hand over your

badge. You’re fired.’”); id. at 47 (“So they point me to [Bibb’s] office. And me and the union rep,

Mr. Steve, went to the HR office to speak with [Bibb]. And that’s what she told me that ever since

I filed a lawsuit or an EEOC charge against [Defendant], I’ve been complaining a lot, so I’m

terminated.” (emphasis added)); id. at 52 (“[Bibb’s] exact words was because I filed a lawsuit, an

EEOC charge against [Defendant]. I don’t know of any other reasons. That’s what she said to me.”

(emphasis added)); id. (“Mr. Steve was mostly doing the talking, trying to get [Bibb] to let me

keep the job. But she said I complained too much ever since I filed a lawsuit. And I told her I didn’t

– I never filed a lawsuit against [Defendant]. And she said she have to let me go because I’m

complaining a lot since then.” (emphasis added)); id. at 53 (“Bibb told me I was fired. The first

meeting, she said – her exact words, ‘Ever since you filed a lawsuit with the EEOC against

[Defendant], you’ve been complaining a lot. So hand over your badge.’ And she got the security

to escort me. And she said, ‘You’re fired.’ And she took my badge, and they escort me out the

door.” (emphasis added)).

19 Defendant also argues that Bibb’s statement could have been a reference to a statement Plaintiff

allegedly made to a coworker that HR would not do anything to Plaintiff because she had filed a

Neither of Defendant’s arguments is sufficient (or sufficiently presented) to

introduce material ambiguity into Bibb’s alleged statement for purposes of summary

judgment. According to Plaintiff, Bibb stated that Plaintiff was being fired20 because she

was “complaining a lot” since she filed her EEOC charge, not because of the attitude with

lawsuit. (Doc. No. 51 at 17 n.2.) Defendant is overreaching. Any such statement by Plaintiff is not

reasonably open to interpretation as a “complaint” (or at least Defendant has not explained how

interpreting that statement as a complaint is justified by the facts of this case). Moreover,

Defendant raises this argument in a footnote, and the Court is not required to consider it. Doe v.

Embry-Riddle Aeronautical Univ., Inc., No. 6:20-CV-1220-WWB-LRH, 2021 WL 2814905, at *2

(M.D. Fla. May 28, 2021); see Pinson v. JPMorgan Chase Bank, Nat’l Ass'n, 942 F.3d 1200, 1209

n.5 (11th Cir. 2019) (“We do not ordinarily consider arguments raised in passing in one footnote

rather than the body of the brief.”); see also Chavous v. City of Saint Petersburg, 576 F. Supp. 3d

1040, 1051 (M.D. Fla. 2021) (holding that a summary judgment brief’s “oblique reference” to

certain evidence, without more, “d[id] not suffice to establish a prima facie case of [FMLA]

interference”). However, in the interest of considering an argument that has the surficial

appearance of being worth discussion, the court has considered Defendant’s argument that Bibb

was making “a factual reference to [Plaintiff’s] problems with her coworkers since the filing of

her EEOC charges,” which Defendant raised in the same footnote with no elaboration or

elucidation. (Doc. No. 51 at 17 n.2.) For the reasons stated in this Memorandum Opinion and

Order, that argument also fails.

20 From the materials presented on summary judgment, it appears that Bibb made her statement

regarding the cause of Plaintiff’s firing or termination at the time Plaintiff was suspended pending

investigation. Further, Plaintiff’s deposition testimony suggests that, with respect to other

suspensions, she considered suspension to be the same as termination. Plaintiff’s retaliation case

arises out of her termination, not her suspension. Defendant does not argue that the timing of

Bibb’s statement, alone or combined with Plaintiff’s apparent conflation of suspension and firing,

injects any ambiguity into Bibb’s statement regarding the reason for Plaintiff’s “terminat[ion]” or

being “fired.” Therefore, as with other potential arguments Defendant did not raise or adequately

develop in its summary judgment brief, the Court will not consider whether the statement is

ambiguous because of the timing of the statement, alone or in combination with Plaintiff’s

deposition testimony conflating being suspended on other occasions with being terminated. “There

is no burden upon the district court to distill every potential argument that could be made based

upon the materials before it on summary judgment.” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d

587, 599 (11th Cir. 1995). Instead, the “onus is on the parties to formulate” their arguments on

summary judgment. Id.; see Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st

Cir. 1999) (holding that, on summary judgment, “[t]he district court is free to disregard arguments

that are not adequately developed”); Robinson-Miller v. Montgomery Cnty. Bd. of Educ., No. 2:18-

CV-512-JTA, 2022 WL 13701300, at *15 n.15 (M.D. Ala. Oct. 21, 2022) (declining to consider

arguments not raised in a brief in opposition to summary judgment).

which any such complaints were delivered. The statement is not reasonably open to an

interpretation that Plaintiff was fired for her attitude rather than for her complaints.

Furthermore, while the court agrees with Defendant’s contention that Bibb’s

statement is reasonably interpreted as a reference to Plaintiff’s complaints about problems

with her co-workers since she filed her EEOC charge,21 Defendant did not go on to explain

which complaints, if any, Bibb’s statement could be referencing other than the complaints

Plaintiff referenced in her brief that were related to problems caused by alleged

discriminatory treatment by coworkers. According to Plaintiff’s evidence, Plaintiff’s

“problems with her coworkers” were problems arising from their mistreatment of her

because she was Jamaican. For example, the dispute between Plaintiff and her coworkers

that immediately preceded her termination arose out of an incident that allegedly began

when another employee told Plaintiff that “Donald Trump should send your ass back” and

that “‘[t]hey should send you back to Jamaica where you’re from with your voodoo,” after

which another coworker sprayed her down with a hose and Plaintiff’s coworkers laughed

at her. (Doc. No. 52-3 at 45.)

Defendant failed to specify in its argument how Bibb could have been referring to

complaints about problems with coworkers that were unrelated to alleged discriminatory

conduct.22 In Defendant’s cursory footnote argument that Bibb was referring to Plaintiff’s

21 In fact, there appears to be no genuine dispute that the “complaints” referenced in Bibb’s

statement were Plaintiff’s complaints about her problems with her coworkers.

22 Again, “[t]here is no burden upon the district court to distill every potential argument that could

be made based upon the materials before it on summary judgment.” Resol. Tr. Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995). Rather, the “onus is on the parties to formulate” their

arguments on summary judgment, and “grounds alleged in the complaint but not relied upon in

complaints about coworkers, Defendant did not contend that Bibb’s reference to

complaints could have been made in ignorance of the fact that Plaintiff’s complaints arose

out of problems due to discriminatory conduct by her coworkers.23 (Doc. No. 51 at 17 n.2.)

Accordingly, Bibb’s alleged statement is not reasonably open to interpretation for the

reasons offered by Defendant on summary judgment. Therefore, the statement stands at

this stage of the proceedings as direct evidence of retaliatory intent. Thus, summary

judgment is inappropriate on Plaintiff’s Title VII claim.24 Celotex, 477 U.S. at 323

(holding that “a party seeking summary judgment always bears the initial responsibility of

summary judgment are deemed abandoned.” Id; see also Higgins v. New Balance Athletic Shoe,

Inc., 194 F.3d 252, 260 (1st Cir. 1999) (holding that, on summary judgment, “[t]he district court

is free to disregard arguments that are not adequately developed”); Chavous v. City of Saint

Petersburg, 576 F. Supp. 3d 1040, 1051 (M.D. Fla. 2021) (holding that a summary judgment

brief’s “oblique reference” to certain evidence, without more, “d[id] not suffice to establish a prima

facie case of [FMLA] interference”).

23 Elsewhere in its brief, Defendant contends that Bibb “had no knowledge of Plaintiff’s purported

internal complaints to human resources.” (Doc. No. 51 at 16.) This contention (1) is diametrically

opposed to Defendant’s argument that Bibb’s statement was referring to Plaintiff’s complaints

about her coworkers since filing her EEOC charge, (2) is not the same as an argument that Bibb

knew about Plaintiff’s complaints but not about their relationship to national origin discrimination,

and (3) was not presented as part of Defendant’s cursory argument in a footnote that Bibb’s

statement cannot be taken as direct evidence because she was referring to Plaintiff’s complaints

about problems with her coworker. Further, while Defendant contended elsewhere in its brief that

Bibb may not have been aware of Plaintiff’s EEOC charge when she informed Plaintiff of the

termination (Doc. No. 51 at 16), that is an issue of disputed fact and runs contrary to Bibb’s

purported statement to Plaintiff (and contrary to other evidence, including Bibb’s own deposition

testimony (Doc. No. 52-1 at 22)); it cannot be taken as true for purposes of summary judgment.

24 “‘In the face of direct evidence, an employer must prove that the same employment decision

would have been made absent any discriminatory intent.’” Van Voorhis v. Hillsborough Cnty. Bd.

of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (quoting Carter v. City of Miami, 870

F.2d 578, 582 (11th Cir. 1989)). On summary judgment, Defendant does not argue that it can

overcome direct evidence of discrimination by showing that it would have terminated Plaintiff

anyway; instead, it argues that Plaintiff has not presented direct evidence of discrimination and

that Plaintiff cannot satisfy the McDonnell Douglas burden shifting standard with indirect

evidence. Hence, Defendant has filed to satisfy its burden of overcoming direct evidence of

discrimination.

informing the district court of the basis for its motion, and identifying those portions of the

‘pleadings, depositions, answers to interrogatories, and admissions of file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact”); Merritt, 120 F.3d at 1189 (“Where the [plaintiff] presents direct evidence

that, if believed by the jury, would be sufficient to win at trial, summary judgment is not

appropriate even where the movant presents conflicting evidence.”).

Alternatively, even if Bibb’s alleged statement regarding the reason for Plaintiff’s

termination is not direct evidence of discrimination, it is enough to create a question of fact

as to Defendant’s true motive for terminating Plaintiff under the McDonnell Douglas

burden shifting scheme for circumstantial evidence. The statement is sufficient to establish

(or create a reasonable inference) that Defendant terminated Plaintiff’s employment

because of her complaints pertaining to incidents involving national origin discrimination

her coworkers allegedly directed toward her, thus satisfying the prima facie case

requirement of McDonnell Douglas. Defendant certainly has presented evidence of

nondiscriminatory reasons for Plaintiff’s termination. However, Bibb’s alleged statement25

of Defendant’s actual motive for the termination is substantial evidence sufficient to

support a reasonable inference that Defendant’s proffered legitimate reasons were

pretextual,26 that Defendant fired Plaintiff because of her complaints about incidents of

25 The Court pretermits consideration of whether Plaintiff has presented other evidence of

Defendant’s retaliatory motive, either as a part of the prima facie case or in rebuttal to Defendant’s

proffered nondiscriminatory reasons for the termination.

26 In its summary judgment reply brief, Defendant argues that Plaintiff waived any argument that

Defendant’s proffered nondiscriminatory reasons for the termination were pretextual. (Doc. No.

57 at 9.) However, Plaintiff did sufficiently argue in its brief that, even if it were to be considered

discriminatory mistreatment by her coworkers and supervisors, and that those complaints

were the but-for cause of her termination. See Carter v. City of Miami, 870 F.2d 578, 584

(11th Cir. 1989) (“Once a legitimate, nondiscriminatory reason for dismissal is put forward

by the employer, the burden returns to the plaintiff to prove by significantly probative

evidence that the proffered reason is a pretext for discrimination.”’).

Vil. CONCLUSION

For the reasons stated in this Memorandum Opinion and Order, it is ORDERED as

follows:

1. Defendant’s motion for summary judgment (Doc. No. 50) is GRANTED IN

PART and DENIED IN PART. The motion is GRANTED as to Plaintiff's § 1981 claims

and DENIED as to Plaintiff's Title VII claim.

2. Plaintiffs § 1981 claim is dismissed with prejudice.

3. This case will proceed on Plaintiffs Title VII claim.

DONE this 9th day of June, 2023.

JEKUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE

indirect evidence of Defendant’s motivation, Bibb’s statement, which was a statement of the true

reason for Plaintiff's termination, was sufficient to survive summary judgment. (See Doc. No. 55

at 12 (argument and citation to Yarbrough v. YKK U.S.A., Inc., No. 1:20-CV-419-AT, 2021 WL

4901903 (N.D. Ga. June 29, 2021).) Therefore, the Court does not agree that Plaintiff waived any

argument that Defendant’s proffered reasons for the termination were not the true reasons for the

termination, or that retaliation was the true reason for the termination.

34