Scales v. TMS International LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

JASON SCALES, )

)

Plaintiff,

)

v. ) 7:18-cv-01652-LSC

)

TMS INTERNATIONAL, LLC,

)

Defendant. )

MEMORANDUM OF OPINION

I. Introduction

Plaintiff Jason Scales (“Scales”), an African-American, brings this action

against his former employer, TMS International, LLC (“TMS”). In Counts I and

II of his Complaint, Scales asserts race discrimination and retaliation claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

In Count III, Scales asserts discriminatory discharge because of his race. In Count

IV, Scales alleges that he was subjected to a hostile work environment in violation

of Title VII.

Presently before the Court is TMS’s Motion for Summary Judgment (doc.

27). The motion has been fully briefed and is ripe for decision. For the reasons

stated below, TMS’s motion for summary judgment (doc. 27) is due to be

GRANTED IN PART and DENIED IN PART.

II. Background1

A. Scales’s Employment at TMS

In July 2011, TMS hired Scales as a Crane Operator for the Nucor steel mill

in Tuscaloosa, Alabama, for which TMS provides on-site, industrial mill services.

In August 2014, Scales was promoted to the position of Operations Leadman/Shift

Supervisor. As a supervisor, Scales’s job duties included supervising daily

operation of his crew and responsibility for safety and maintenance standards on his

shift. TMS site manager Joe Burkey (“Burkey”) was Scales’s supervisor.

TMS had anti-harassment policies in place prohibiting any form of

harassment or discrimination based upon race. The policies were applicable to all

hourly employees, including Scales. In 2011 or 2012, Roger Parish (“Parish”), a

white employee, allegedly called a black employee “Sambo.” Scales testified that

he did not personally hear the comment but heard about it later from another

employee. Additionally, in approximately 2013, an employee named Steven

1 The facts set out in this opinion are gleaned from the parties’ submissions of facts

claimed to be undisputed, their respective responses to those submissions, and the Court’s own

examination of the evidentiary record. These are the “facts” for summary judgment purposes

only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17

F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence

supporting a party’s position. As such, review is limited to exhibits and specific portions of the

exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057,

1061 (11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts

buried in a massive record . . . .”).

allegedly was called “mutt” because of his biracial baby, which Scales also learned

about later but did not personally hear. Scales also testified that many employees

wore T-shirts with rebel flags at work, the most recent occasion being in Scales’s

last month of work at TMS. Finally, there was an incident in which Collette, a

white female, allegedly locked Lametrius, the only black female employee, out of

the bathroom and forced Lametrius to use the port-a-john outside with the workers.

This incident prompted Burkey to call a meeting to discuss race discrimination.

According to Scales, TMS held “many meetings . . . to address the continuing

racial incidents that occurred.” (Doc. 34 at 39.)

In August 2017, Scales approached Burkey and complained that he was not

getting the same help that another white shift supervisor had. According to Billy

Brown (“Brown”), a black supervisor who was present during the conversation,

Burkey became irate, screamed at Scales, and told him he didn’t run the place.

Scales testified that he voluntarily stepped down from his shift supervisor position

because he did not have the help that other shift supervisors had. He explained

that he could not work equipment and run the shift at the same time, so he went

back to working the equipment. After stepping down, Scales operated both

locomotives and cranes, and he sometimes filled in as supervisor if the normal team

lead called off.

B. The Larry Humphries Incident

In June 2017, TMS employee Larry Humphries (“Humphries”),2 a white

truck driver, referred to a piece of equipment as “nigger-rigged” in the presence of

several other employees, two of whom were black. Humphries was an hourly

employee subject to TMS’s anti-harassment policies, and Burkey was his

supervisor. After “a lot of people” complained about it, TMS commenced an

investigation. (See Pl. Dep. at 62–63.) During an investigatory interview,

Humphries told Burkey that he had not realized that the term “nigger-rigged” was

offensive. Humphries’s co-workers who heard the term allegedly confirmed to

Burkey that they did not believe Humphries meant to offend anyone and that

Humphries appeared ignorant as to the term’s meaning. Humphries subsequently

told some other employees about the investigatory interview, and he used the term

“nigger-rigged” again while discussing the incident.

Burkey concluded that Humphries had used the term to refer to a repair job

and not an individual; that he did not understand the meaning of the term; and that

he had not intended to offend anyone by his use of the term. Burkey also observed

that Humphries discussed the incident with other employees and used the term

2 It appears to the Court that this employee’s name is spelled multiple ways throughout the

parties’ briefs as well as the deposition transcripts. For consistency, the Court will refer to him

as “Humphries” throughout this Opinion.

“nigger-rigged” again, “which does not show complete remorse and

understanding of the situation.” (Doc. 29-2 at 81.) Burkey suspended Humphries

for three days and told him that he would be terminated if he violated TMS’s anti-

harassment policy again.

C. The Note and Investigation

On October 10, 2017, a handwritten note reading “Niggar get out” was

found posted inside a TMS safety trailer on a supervisor’s door. The note

appeared to be written with a Sharpie marker. Burkey immediately began an

investigation to determine who had written the note. He reviewed security footage

of the area around the building, but the note could not be seen by any of the

cameras. He also held meetings with TMS employees and Nucor personnel to

discuss the incident and reiterate the anti-harassment policy. During one such

meeting the day the note was found, Burkey stated that TMS does not tolerate

“racial slurs or anything racial.” (Pl. Dep. at 99:5–6.) Scales got upset and

complained that Burkey’s statement was not true because of how TMS responded

when Humphries used a racial slur. After expressing how he felt about the note,

Scales left the meeting early.

TMS Vice President of Human Resources John Carroll (“Carroll”) came

from Pennsylvania to assist in the investigation of the note. Carroll held meetings

with all TMS personnel to discuss the incident, reiterate the anti-harassment

policy, and discuss any other complaints of racial discrimination that might exist.

He also met with TMS employees on an individual basis. Brown told Carroll there

were racial issues in the maintenance department in that repair requests were being

completed for white operators before black operators. Carroll investigated the

alleged racial issues, spoke with maintenance department employees, and

addressed the concerns with the maintenance supervisor and operations

supervisor. Carroll’s investigation concluded that repair requests were prioritized

by business necessity with machines needed more urgently by the mill getting

repaired first, and that race played no part in the prioritization. Another TMS

employee, Warren Griffin (“Griffin”), who is black, told Carroll that an

unidentified group of employees wanted “YANKEE Joe” Burkey thrown out of

the mill because he was from the North and was trying to break up the “good-ole-

boys club.” (See doc. 32-30 at 3.) Carroll’s investigation concluded that this was a

rumor with no basis in fact. Carroll’s investigation report also states: “We are

convinced there is a small group of workers who are working together to create and

incite situations that create a hostile atmosphere with an underlining [sic] tone of

racism.” (Doc. 32-30 at 6.) Carroll clarified in his deposition that the “small

group” was the group that wanted Burkey thrown out of the mill.

After its own investigation failed to identify the author of the note, TMS

hired Steven Drexler (“Drexler”), a forensic handwriting examiner, to analyze the

note and compare it to TMS employees’ writing samples. Burkey communicated

and coordinated with Drexler during the investigation. On October 17, 2017,

Burkey provided Drexler with handwriting samples from fifteen initial suspects,

including Scales. The initial suspects were employees who were known to be in the

area of the note before it was found, employees who were seen in security video

near the note, and employees who had used a Sharpie marker on the morning of

October 10. On October 18, 2017, Drexler allegedly called Burkey and told him

that he believed Scales wrote the note. During this phone call, Drexler asked

Burkey for more handwriting samples from Scales to ensure that his initial analysis

was correct, which Drexler claims is normal procedure. On October 18, 2017,

Burkey sent Drexler additional samples of Scales’s handwriting.

On October 19, 2017, Drexler e-mailed Burkey a draft of his report.

Drexler’s e-mail asked Burkey to respond with comments or questions, to which

Burkey responded that he would share with Carroll and be in touch. The draft

report identified employee handwriting samples as Items K1 through K15, Scales’s

sample as Item K12, and the note as Item Q1. One section of the draft report states

that “the Item Q1 writing was probably written by the author of the Jason Scales

handwriting standard.” (Doc. 32-14 at 2.) Another section, however, reads:

“Comparisons of the Item Q1 anonymous writing to the Items K1 thru K15 known

handwriting standards of possible writers revealed that all but writer K12 exhibit

general consistencies with the anonymous writing.” Id. (emphasis added). Drexler

testified that the use of the word “consistencies” was a typo that should have read

“inconsistencies.” However, Drexler also refused to testify that portion of his

report is incorrect.3

On October 20, 2017, Burkey called Scales in for a meeting. Carroll was not

physically present but attended via speakerphone. In the meeting, Carroll

suspended Scales pending the completion of the investigation. He explained that

Scales was suspended because Drexler’s investigation concluded that he wrote the

note. Scales denied writing it and asked if there was anything he could do to prove

his innocence. Carroll responded, “You can’t.”4 The same day, Burkey gave

Scales a disciplinary report explaining that he was suspended for violating the anti-

harassment policy. On October 24, 2017, Drexler received additional handwriting

samples for all employees on shift at the time the note was found to confirm that he

correctly identified Scales as the note’s author.

3 “I’m not going to say it’s incorrect. . . . I’m saying it’s a typo.” (Drexler Dep. at 58:22–

59:2.)

4 Carroll does not dispute that this conversation took place.

On October 27, 2017, Scales was terminated. Burkey administered the

termination, but Carroll claims he made the final decision. Scales’s disciplinary

report, signed by Burkey, stated that he was terminated for violating the company

harassment policy and general safety and work rules. Carroll testified that Scales

violated the harassment policy because of the allegation that he wrote the note.

Carroll further testified that the general safety rule Scales allegedly violated was the

harassment policy by writing the note and that Scales committed no other

violations. It is undisputed that all versions of Drexler’s report used at the time of

Scales’s termination contained the statement that all but Scales’s handwriting

sample was consistent with the note—in other words, that Scales’s handwriting

sample was inconsistent with the note. On November 1, 2017, Drexler issued his

final report, which still contained the statement that Scales’s handwriting sample

was inconsistent with the note.

III. Standard

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact5 and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as

a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson

5 A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v.

Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015).

Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine

dispute as to a material fact exists “if the nonmoving party has produced evidence

such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.

BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.

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

should not weigh the evidence, but determine whether there are any genuine issues

of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the nonmoving party by “view[ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal

Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015)

(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However,

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

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

1987). Conclusory allegations and “mere scintilla of evidence in support of the

nonmoving party will not suffice to overcome a motion for summary judgment.”

Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young

v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for

summary judgment, “the moving party has the burden of either negating an

essential element of the nonmoving party’s case or showing that there is no

evidence to prove a fact necessary to the nonmoving party’s case.” McGee v.

Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the

trial courts must use caution when granting motions for summary judgment,

“[s]ummary judgment procedure is properly regarded not as a disfavored

procedural shortcut, but rather as an integral part of the Federal Rules as a whole.”

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

IV. Discussion

Absent direct evidence of racial discrimination or retaliation, such as specific

statements made by the employer’s representatives, a plaintiff may demonstrate

circumstantial evidence of disparate treatment through the McDonnell Douglas

burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).6 Under

this framework, the aggrieved employee creates a presumption of unlawful

discrimination by first establishing a prima facie case of discrimination. See Lewis v.

City of Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The burden

6 Because Scales has not offered any direct evidence of discrimination, the Court addresses

his claims under the standards applicable to circumstantial evidence of discrimination. See

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).

then shifts to the employer “to articulate a legitimate, nondiscriminatory reason for

its actions.” Id. at 1221 (citing Burdine, 450 U.S. at 253). If the employer proffers a

legitimate, nondiscriminatory reason, the burden returns to the employee to prove

that the employer’s reason is a pretext for unlawful discrimination. Crawford v.

Carroll, 529 F.3d 961, 976 (11th Cir. 2008). Although the McDonnell Douglas

framework is one way of showing discriminatory intent, it is not the only way to

show discriminatory intent in a Title VII discrimination claim. See Smith v.

Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “[T]he plaintiff will

always survive summary judgment if he presents circumstantial evidence that

creates a triable issue concerning the employer’s discriminatory intent.” Id.

A. Race Discrimination

1. Prima Facie Case

Scales argues that he was discriminated against based on his race when TMS

terminated him in October 2017. To establish a prima facie case for wrongful

termination, a plaintiff must show: (1) he is a member of a protected class, (2) he

was qualified for the position from which he was terminated, (3) he was terminated,

and (4) he was treated less favorably than similarly situated individuals outside his

protected class. See Lewis, 918 F.3d at 1221. To satisfy the fourth prong of the

prima facie case, the proffered comparator must be similarly situated to the plaintiff

“in all material respects.” Id. at 1226.

It is undisputed that Scales is a member of a protected class, that he was

qualified for the position from which he was terminated, and that he was

terminated. TMS contends that Scales has failed to satisfy the fourth prong

because his alleged comparator, Humphries, is not similarly situated. Scales argues

that Humphries, a white employee who was suspended for three days for using the

“n” word, is a proper comparator.7 TMS argues that Humphries and Scales are

not similarly situated “in all material respects” because Scales was a supervisor

and because the two employees engaged in materially different conduct. As the

Eleventh Circuit has explained, “a valid comparison will turn not on formal labels,

but rather on substantive likenesses.” Id. at 1228. While the precise “similarity”

is “to be worked out on a case-by-case basis,” a similarly situated comparator “will

have engaged in the same basic conduct (or misconduct) as the plaintiff”; “will

have been subject to the same employment policy”; “will ordinarily (although not

7 Scales also suggested that Parish, who allegedly called a black employee “Sambo,” and

unnamed employees who wore rebel flag T-shirts at work were treated more favorably because

they were not punished at all for their alleged misconduct. TMS argues that Scales cannot

introduce comparators for the first time in opposition to summary judgment. The Court

concludes that none of these individuals are proper comparators because Scales has not produced

evidence that they are similarly situated “in all material respects.” Id. at 1226.

invariably) have been under the jurisdiction of the same supervisor”; and “will

share the plaintiff’s employment or disciplinary history.” Id. at 1227–28.

Here, Scales has shown that he and Humphries are similarly situated “in all

material respects” for purposes of satisfying his prima facie case. First, both Scales

and Humphries were hourly employees subject to the same “zero tolerance” anti-

harassment policy. Further, both Scales and Humphries allegedly used a racial slur

involving the “n” word at the workplace. TMS’s attempts to distinguish the two

uses of the slurs may be relevant at later stages of the burden-shifting framework,

but their misconduct is not so materially different as to prevent Scales from

satisfying his prima facie case. Moreover, according to the record, Burkey was

supervisor to both Scales and Humphries, and Burkey administered and was

involved with the discipline for both employees concerning their respective uses of

the racial slur. Although TMS contends that Scales’s supervisory status makes

him not similarly situated to Humphries, Scales testified that he had stepped down

from his supervisory position in approximately August 2017 to be a locomotive

operator. Scales clarified that after relinquishing the supervisory role, he was doing

two jobs—operating cranes and locomotives—and occasionally still filled in as

supervisor. Therefore, there are issues of material fact as to Scales’s status as a

supervisor when he was terminated. Neither party discussed or cited to any

evidence about Humphries’s employment history aside from his being a truck

driver. Accordingly, viewing the evidence in the light most favorable to Scales, a

reasonable jury could conclude that he and Humphries were similarly situated in all

material respects. That Scales had spent three years as a supervisor and still

occasionally filled in as one does not compel a different conclusion at the prima

facie stage.

For the reasons explained above, Scales has satisfied his prima facie case and

created a presumption that TMS discriminated against him based on his race.

2. Legitimate, Nondiscriminatory Reason

Once the plaintiff makes out a prima facie case, the burden shifts to the

employer “to articulate a legitimate, nondiscriminatory reason for its actions.”

Lewis, 918 F.3d at 1221 (citing Burdine, 450 U.S. at 253). The burden at this stage

“is exceedingly light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th

Cir. 1983). It is merely a burden of production, not a burden of proof. Id.

TMS has articulated a legitimate, nondiscriminatory reason for its decision

to terminate Scales. Specifically, TMS states that it terminated Scales “based on

Drexler’s independent expert opinion” that Scales wrote the note. (See doc. 28 at

26.) Therefore, TMS has satisfied its burden of production.

3. Pretext

Once the employer articulates a legitimate, nondiscriminatory reason for its

decision, “the burden shifts back to the plaintiff to produce evidence that the

employer’s proffered reason [is] a pretext for discrimination.” Alvarez, 610 F.3d at

1264. “The plaintiff can show pretext ‘either directly by persuading the court that

a discriminatory reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of credence,’”

Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting

Burdine, 450 U.S. at 256), such that a rational trier of fact could disbelieve the

employer’s proffered nondiscriminatory reason, Wilson v. B/E Aerospace, Inc., 376

F.3d 1079, 1088 (11th Cir. 2004). “When a plaintiff chooses to attack the veracity

of the employer’s proffered reason, ‘[the] inquiry is limited to whether the

employer gave an honest explanation of its behavior.’” Kragor, 702 F.3d at 1310–11

(quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). A

prima facie case plus sufficient evidence of pretext may permit the factfinder to find

unlawful discrimination, making summary judgment inappropriate. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

Scales has proffered evidence that TMS’s nondiscriminatory reason for

terminating him is unworthy of credence. “[A] plaintiff is entitled to survive

summary judgment[] . . . if there is sufficient evidence to demonstrate the existence

of a genuine issue of fact as to the truth of each of the employer’s proffered reasons

for its challenged action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th

Cir. 1997). First, a reasonable jury could disbelieve TMS’s explanation that it

terminated Scales because of Drexler’s expert opinion because all versions of the

written opinion contained language exonerating Scales, i.e., the statement that

Scales’s handwriting sample was inconsistent with the note.8 Although the report

also contains statements inculpating Scales, the existence of conflicting statements

implies that one of them is incorrect. Additionally, although Drexler testified that

he also verbally told Burkey that Scales wrote the note, neither Burkey nor Carroll

testified that they relied only on Drexler’s verbal report or that they did not read

the written versions in reaching the decision to terminate Scales. Based on

Drexler’s deposition testimony and the e-mails attached as exhibits, it appears that

Burkey read, commented on, and shared drafts with Carroll.9

Moreover, although Drexler testified that the exculpatory statement

contained a typo, he also refused to testify that portion of his report is incorrect.

8 Scales maintains that he did not write the note and extensively argues that another

employee, River Boothe, was the more likely culprit. But the relevant inquiry for the Court is not

whether Scales is actually innocent, but whether TMS’s asserted belief in Drexler’s report is

worthy of credence. See Elrod, 939 F.2d at 1471.

9 For example, Burkey responded to an e-mail from Drexler containing a draft report that

he would share with Carroll and be in touch.

Even if it was “just a typo,” it would not change the Court’s analysis. What

matters is the report’s contents at the time TMS allegedly relied on it to make the

decision to terminate Scales. Because all versions of the report contained a

statement that Scales’s handwriting sample was inconsistent with the note, a

reasonable jury could disbelieve TMS’s claim that they relied on it to terminate

him. Moreover, even assuming that it matters whether it was “just a typo,”

Drexler’s refusal to say that the statement was incorrect despite his claim that it

contained a typo is puzzling. Therefore, viewing the evidence and all reasonable

inferences in the light most favorable to Scales, a reasonable jury could conclude

that TMS’s reliance on Drexler’s opinion is unworthy of credence. See Elrod, 939

F.2d at 1471.

This case is distinguishable from Elrod, where a plaintiff sued his former

employer for age discrimination and the employer claimed that it fired him because

his co-workers had accused him of sexual harassment. Id. at 1468. Before

terminating the plaintiff, the employer conducted a Deficiency Interview and gave

him a memorandum outlining the allegations against him, which he signed without

objection. Id. at 1468–69. Even after the Deficiency Interview, co-workers lodged

new sexual harassment allegations against the plaintiff. Id. at 1469. The employer

interviewed the alleged victims and believed the charges of harassment. Id. at

1468–69. In reversing the jury’s verdict for the plaintiff, the Eleventh Circuit

explained that while the plaintiff “may have convinced the jury that the allegations

against him were untrue, . . . he certainly did not present evidence that [the

employer’s] belief in those allegations was unworthy of credence.” Id. at 1471.

Unlike in Elrod, where there was no evidence that the alleged harassment victims

made statements exonerating the plaintiff, Scales has presented evidence that all

written versions of the expert report TMS allegedly relied upon contained

statements exonerating him. Moreover, unlike the Elrod plaintiff, Scales has always

denied writing the note, including at the meeting in which he was suspended.

Accordingly, Scales has presented evidence that TMS’s belief in the report was

unworthy of credence.

Because Scales has satisfied his prima facie case and proffered sufficient

evidence of pretext, summary judgment is inappropriate on his race discrimination

claim. See Reeves, 530 U.S. at 148.10

B. Retaliation

Next, Scales claims that TMS’s decision to terminate him was unlawful

retaliation for his complaining about TMS’s response to Humphries’s use of a

10 Scales alternatively advanced a mixed motive theory for his race discrimination claim

under Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227 (11th Cir. 2016). Because summary

judgment is due to be denied under the ordinary McDonnell Douglas analysis, this Court need not

address the mixed motive theory.

racial slur. A plaintiff successfully establishes a prima facie case of retaliation if he

demonstrates that (1) he engaged in statutorily protected activity; (2) he suffered

an adverse employment action; and (3) a causal link exists between the protected

activity and the adverse employment action. See Brown v. Ala. Dep’t of Transp., 597

F.3d 1160, 1181 (11th Cir. 2010).

It is undisputed that Scales was terminated, which constitutes an adverse

employment action. TMS argues that Scales cannot meet his prima facie case

because he cannot show that he engaged in statutorily protected activity or a causal

connection between that activity and the adverse employment action. However,

TMS presented this argument for the first time in its reply brief. “Arguments not

properly presented in a party’s initial brief or raised for the first time in a reply brief

are deemed waived.” In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009).

Even if TMS had properly presented its arguments in its initial brief, Scales

has sufficiently shown that he engaged in statutorily protected activity for purposes

of satisfying his prima facie case. Scales testified that he complained to Burkey

about Humphries’s use of a racial slur and the subsequent discipline he received

from TMS. Title VII’s protections plainly extend to individuals who communicate

their belief that their employer’s actions constitute unlawful employment

discrimination. See Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1310–11 (11th

Cir. 2016). Scales has also sufficiently demonstrated a causal link between his

protected activity and the adverse employment action. One way a plaintiff can

establish a causal connection is by showing that the employer knew of his

statutorily protected activity and there was a close temporal proximity between this

awareness and the adverse employment action. Higdon v. Jackson, 393 F.3d 1211,

1220 (11th Cir. 2004) (“We have held that a period as much as one month between

the protected expression and the adverse action is not too protracted.”); see also

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (stating that the temporal

proximity must be “very close” and concluding that a 20-month delay was too

long). Here, Scales testified that he was terminated seventeen days after the

meeting in which he complained about the Humphries incident. Therefore, Scales

has sufficiently shown a prima facie case of retaliation.

Having established a prima facie case of retaliation, the burden of production

shifts to TMS to proffer a legitimate, nondiscriminatory reason for terminating

Scales. See Brown, 597 F.3d at 1181. As stated above in Part IV.A.2, TMS’s

explanation for its termination decision—that Drexler’s expert opinion concluded

that Scales authored the racist note—meets this burden. Accordingly, the burden

shifts back to Scales to demonstrate that TMS’s proffered reason is pretextual,

which Scales may do by showing that the reason is unworthy of credence. See

Furcron, 843 F.3d at 1313. For all the reasons explained in Part IV.A.3, Scales has

met this burden by showing that all versions of the written opinion contained

language exonerating Scales, from which a reasonable jury could find TMS’s

alleged reliance on the opinion unworthy of credence. Accordingly, because Scales

has satisfied his prima facie case and proffered sufficient evidence of pretext,

summary judgment is inappropriate on his retaliation claim. See Reeves, 530 U.S. at

148.

C. Discriminatory Discharge

In addition to the race discrimination claim under Title VII (Count I),

Scales’s complaint also contains a Discriminatory Discharge claim in Count III.

TMS did not independently address Count III in its summary judgment briefing.

Additionally, Scales’s response addresses Race Discrimination and Discriminatory

Discharge under the same heading. Accordingly, it appears to the Court that Count

I and Count III may be duplicative causes of action. Nonetheless, summary

judgment is due to be denied on Scales’s Discriminatory Discharge claim in Count

III because TMS did not make a separate argument aimed at Count III.

D. Hostile Work Environment

Finally, Scales brings a hostile work environment claim based on alleged

racial harassment and disparate treatment. A separate violation of Title VII occurs

when “the workplace is permeated with [racially] discriminatory intimidation,

ridicule, and insult[ ] that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment.” Jones v.

UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). An employer can be

held liable if the employee proves that: (1) he is a member of a protected class; (2)

he was subjected to unwelcome harassment; (3) the harassment was based on the

individual’s membership in the protected class; (4) it was “severe or pervasive”

enough to alter the terms and conditions of employment and create a hostile

environment; and (5) the employer is responsible for this environment either

directly or vicariously. Id. To meet the fourth element, the plaintiff must show

that the conduct is both subjectively and objectively “severe or pervasive.”

Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). In evaluating the

objective severity of the harassment, the court considers: “(1) the frequency of the

conduct; (2) the severity of the conduct; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee’s job performance.” Adams v.

Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250–51 (11th Cir. 2014) (citing Mendoza,

195 F.3d at 1246).

Scales claims that he was subjected to a hostile work environment based on

the following: five incidents involving a racial slur (the note, Humphries’s two uses

of the term “nigger-rigged,” the “Sambo” comment, and the “mutt” comment);

his not getting the same tools and help as another white supervisor; Carroll’s

finding of a “hostile atmosphere with an underlining [sic] tone of racism”;

Carroll’s alleged failure to interview black employees or “dismissing” black

employees’ concerns without asking anyone during his investigations; other

employees wearing T-shirts with rebel flags at work; and an alleged incident where

Collette, a white female, locked Lametrius, the only black female employee, out of

the bathroom and forced Lametrius to use the port-a-john outside with the workers.

Even construing the evidence in the light most favorable to Scales, no

reasonable person in his position would perceive the alleged harassment as

sufficiently severe or pervasive to alter the terms or conditions of their

employment. The Eleventh Circuit requires more from the plaintiff to overcome

summary judgment on a hostile work environment claim. See, e.g., Jones, 683 F.3d

at 1299–1301 (describing a hostile work environment based on ethnic slurs directed

at the plaintiff, banana peels left in the plaintiff’s vehicle, Confederate apparel worn

by co-workers, and a confrontation between the plaintiff and several of these co-

workers). According to Scales’s testimony, the five racially charged comments at

TMS were isolated instances spanning a period of six years and, therefore, not

pervasive. He also testified that he did not personally hear the alleged “Sambo,”

“mutt,” or “nigger-rigged” comments, but instead learned about them later.

Although the term “nigger” and other racial slurs is severe, they were not directed

toward Scales or directly threatening to him. Cf. Adams, 754 F.3d at 1254–55

(reaching similar conclusion regarding plaintiff who overheard two racial slurs).

Further, Scales testified that the most recent time an employee wore a rebel flag T-

shirt was in his last month of work at TMS, suggesting that it was not a daily

occurrence, and he has proffered no evidence that his exposure to the rebel flag was

directly humiliating or threatening. Cf. id. at 1255 (reaching similar conclusion

regarding a plaintiff who frequently saw co-workers wearing Confederate flag

apparel). Scales makes no argument that any of these incidents unreasonably

interfered with his job performance. Even when construed in his favor, none of

Scales’s remaining evidence11 is sufficient to demonstrate that he faced severe or

pervasive harassment that “alter[ed] the conditions of [his] employment and

create[d] an abusive working environment.” See Jones, 683 F.3d at 1292.

11 TMS objected to Scales’s complaint that he did not get the same tools and help as

another white supervisor on the grounds that Sales had testified at this deposition that this

complaint was not related to race. However, even assuming it was related to race, Scales still has

not demonstrated that he was subjected to a racially hostile work environment in violation of

Title VII.

Because Scales has failed to proffer evidence from which a reasonable jury

could conclude that he was subjected to a racially hostile work environment, his

hostile work environment claim (Count IV) is due to be dismissed.

V. Conclusion

For the reasons stated above, TMS’s Motion for Summary Judgment (doc.

27) is due to be GRANTED IN PART AND DENIED IN PART. Scales’s hostile

work environment claim is DISMISSED WITH PREJUDICE. All other claims

remain pending. An Order consistent with this Opinion will be entered

contemporaneously herewith.

DONE and ORDERED on May 13, 2020.

Ct

L. Scott Cooglér

United States DistNct Judge

199335

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