Williams v. Mercedes Benz US International Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LYNDAIN WILLIAMS, )

)

Plaintiff, )

)

v. )

7:19-cv-00265-LSC

)

MERCEDES BENZ US )

INTERNATIONAL, INC., )

)

Defendant.

)

)

MEMORANDUM OF OPINION

Plaintiff Lyndain Williams (“Plaintiff” or “Williams”) brings suit against his

former employer Mercedes-Benz U.S. International, Inc. (“Defendant” or

“MBUSI”), alleging racial discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq, and 42 U.S.C.

§ 1981. Before the Court is Defendant’s motion for summary judgment. (Doc. 12.)

The motion has been briefed and is ripe for review. For the reasons stated below,

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

I. BACKGROUND1

Plaintiff is a black male who formerly worked for Defendant as a Team

Member in its Assembly Plant 2, Trim 5 Line, B-Shift. (Def’s Ex. A at 34–35, 160.)2

During his employment with Defendant, Plaintiff worked under the supervision of

various Team Leaders. At the time of his termination, Plaintiff’s Team Leader was

James Solomon, a black male. (Id. at 47.) Prior to working under Solomon’s

supervision, Plaintiff worked under the supervision of Team Leader James Sadberry,

a white male. (Id.)

Defendant utilizes a system of progressive discipline referred to as its

Corrective Performance Review (“CPR”) policy. (Def’s Ex. C at ¶ 4.) Under this

progressive disciplinary policy, a Team Member could progress through several

penalties including a Level I CPR, a Level II CPR, a Level III CPR, and finally a

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. Dept. 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 .

. . .” (internal quotations omitted)).

2 Plaintiff’s response fails to controvert any material facts set forth in Defendant’s Statement

of Facts. (See doc. 17.) Under this Court’s Uniform Initial Order, all such facts are therefore

deemed admitted. (Doc. 5 at 16–17 (“All material facts set forth in the statement required of the

moving party will be deemed to be admitted for summary judgment purposes unless controverted

by the response of the party opposing summary judgment.”).)

Termination CPR. (Id. at ¶ 5.)

A. PLAINTIFF’S LEVEL I CPR FOR IMPROPER CELL PHONE USAGE3

In the summer of 2016, Defendant began to place new emphasis on its policy

of not permitting workers to use cell phones while on the production line (“the

Line”). (Def’s Ex. A at 54–55.) The policy made exemptions for Team Leaders, who

might need to use their cell phones to document or report quality defects that

occurred on the Line. (Id.) Plaintiff received training on this new cell phone policy

and understood that non-Team Leaders should not use their cell phones while on

the Line. (Id. at 55, 57.)

On November 18, 2016, Plaintiff received a Level I CPR for using his cell

phone to text while the Line was running. (Def’s Ex. B – DX 5.) James Sadberry,

Plaintiff’s Team Leader at the time claims to have observed Plaintiff leaning against

a rack and texting while the Line was running, prompting him to issue the Level I

CPR. (Def’s Ex. D at ¶¶ 4–5.) Team Relations Manager Zina Cooper, a black female,

authorized the CPR on this occasion. (Def’s Ex. C at ¶¶ 1, 6.)

Plaintiff disputes that he made improper use of his cell phone on this occasion.

Specifically, he claims that (1) he was not texting on the Line, and (2) even if he was

3 Plaintiff previously received a Level II CPR in November 2015 for engaging in a physical

altercation with Jimmie Jones, a black male Team Member. (Def’s Ex. A at 43, 49–50, 52.)

However, that CPR expired on October 30, 2016, and it does not appear to have contributed

towards the termination of Plaintiff’s employment. (See Def’s Ex. B – DX 2.)

using his cell phone, he had a right to do so because he was acting as a Team Leader

on that date. (Def’s Ex. A at 63.) However, Plaintiff did not dispute his cell phone

usage or claim to be acting as a Team Leader in the space of his CPR that is reserved

for Team Member comments. (Def’s Ex. B – DX 5.) Instead, he wrote a comment

alleging that Sadberry should not have issued the CPR because Sadberry allowed

other Team Members to use their cell phones on the Line. (Id.) Moreover, Sadberry

himself denies that Plaintiff had stepped up to cover for a Team Leader on that date.

(Def’s Ex. D at ¶ 6.)

In addition to the Level I CPR issued to Plaintiff, James Sadberry has issued

CPRs to other Team Members, black and white, for using their cell phones in

violation of Defendant’s policy. (Id. at ¶ 7.) Plaintiff has admitted to having no

knowledge of why Sadberry would have falsely accused Plaintiff on this occasion, and

he admits that he got along well with Sadberry. (Def’s Ex A at 52, 62.) He does recall

hearing David Foreman mention in December 2014 or 2015 that Sadberry is a racist.

(Id. at 152–53.) However, Foreman denies ever making such a comment about

Sadberry. (Def’s Ex. F at ¶ 4.)

During the time that Sadberry acted as Plaintiff’s Team Leader, Plaintiff

witnessed David Jones, a white Team Member, using his cell phone multiple times

while working on the Line. (Id. at 79–80.) Jones faced no discipline for his cell phone

use. (Id.) However, it is not clear whether Jones used his cell phone before or after

Defendant began placing greater emphasis on its cell phone policy. (Id. at 80.)4

Moreover, Plaintiff is unaware of whether Sadberry ever witnessed Jones making

improper use of his cell phone. (Id. at 80–81.) Sadberry himself denies ever having

witnessed Jones on his cell phone while on the Line. (Def’s Ex. D at ¶ 8.) Ted

Solomon, the Team Leader who succeeded Sadberry, also denies having ever

witnessed Jones violating the cell phone policy. (Def’s Ex. E at ¶ 7.)

In March 2017, Plaintiff also witnessed Charles Owens, another white Team

Member, using his cell phone during a start-up meeting. (Def’s Ex. A at 81.) Ted

Solomon, the Group Leader at the time, witnessed Owens’s cell phone use. (Id. at

82.) When Solomon looked at Owens, the latter immediately put away his cell phone.

(Id. at 83.) Solomon did not discipline Owens on this occasion because (1) the Line

was not running, (2) the start-up meeting had only just begun, and (3) Owens

immediately put away his cell phone when Solomon noticed him. (Def’s Ex. E at

¶¶ 8–9.) Plaintiff does not recall seeing Owens using his cell phone on the Line when

a Team Leader was present. (Def’s Ex. A at 84–85.)

4 Plaintiff’s response specifies that David Jones improperly used his cell phone while

working on the Line in February 2017, after Defendant began to place greater emphasis on its cell

phone policies. (Doc. 17.) However, the portion of the record to which Plaintiff cites does not

support that assertion. (See Def’s Ex. A at 61.) On the contrary, the record indicates that Plaintiff

is unaware of when David Jones allegedly used his cell phone while working on the Line. (Id. at

80–81.)

That same month, Plaintiff also witnessed Adam Lewis, another white Team

Member, using his cell phone during a start-up meeting. (Id. at 85–86.) Like Charles

Owens, Lewis put away his phone upon catching the attention of Ted Solomon. (Id.

at 86.) Solomon chose not to discipline Lewis because (1) Lewis was new to B-Shift

and therefore unfamiliar with how those on B-Shift conducted themselves, and

(2) Lewis’s wife was pregnant and suffering from complications at the time. (Def’s

Ex. E at ¶ 12.) Instead, Solomon spoke with Lewis after the meeting and explained

to him that he could not have his cell phone out at the beginning of the start-up

meeting. (Id.) When Plaintiff later spoke with Solomon about Lewis’s cell phone use,

Solomon responded that Lewis had put away his phone. (Def’s Ex. A at 89–90.)

B. TED SOLOMON’S INSPECTIONS OF BLACK TEAM MEMBERS

In December 2016, Team Leader Ted Solomon began conducting checks of

whether certain black Team Members, including Plaintiff himself, signed in at their

stations. (Def’s Ex. A at 138–40.) Though he checked the sign-in sheets for several

black employees, he did not check the sign-in sheet for Charles Owens, a white

employee. (Id. at 139.) Plaintiff brought this discrepancy to Solomon’s attention, but

Solomon offered no explanation. (Id. at 140.) However, although Plaintiff claims that

Solomon did not inspect the sign-in sheets with respect to Charles Owens, it is

undisputed that Solomon periodically checks the sign-in sheets to make sure that

various employees, whether white or black, sign in and out of their stations. (Def’s

Ex. E at ¶ 15.)

C. PLAINTIFF’S LEVEL II CPR FOR IMPROPER ABSENCE FROM THE

MANUFACTURING LINE

In February 2017, Plaintiff received a Level II CPR for unauthorized time away

and use of a cell phone during working hours. (Def’s Ex. C at ¶ 7.) As with the prior

Level I CPR, Team Relations Manager Zina Cooper made the decision to issue the

Level II CPR. (Def’s Ex. C at ¶ 8.) Solomon, as Plaintiff’s Team Leader at the time,

approved the decision. (Def’s Ex. E at ¶ 6.) David Foreman, a black male Team

Relations Representative, also was among those who approved the decision. (Def’s

Ex. C at ¶ 8.)

Plaintiff had requested and received permission to go to the restroom while

the Line was operating. (Def’s Ex. A at 65.) Because the restroom near the Line was

full, Plaintiff instead went to the restroom by the Atrium area. (Id. at 65–66.) After

using the Atrium restroom, Plaintiff sat down at a table in the Atrium and began

writing down notes while the Line was still running. (Id. at 71–72.)

Ted Solomon, Plaintiff’s Team Leader at the time, heard reports from Team

Leader James Dial and another employee named Randy Fondren that they had

observed Plaintiff in the Atrium, using his cell phone during working hours. (Def’s

Ex. E at ¶ 5.) Plaintiff admits that he lacked permission to sit in the Atrium and write

notes while the Line was running. (Def’s Ex. A at 76.) He denies only that he was

using his cell phone, despite James Dial’s claim of witnessing Plaintiff making such

use. (Id. at 71.) Though he now denies some of the allegations against him, Plaintiff

wrote no comment on his Level II CPR disputing the fact that he had used his cell

phone. (Def’s Ex. B – DX 6.)

Plaintiff is not aware of anyone else who ever asked to go to the restroom while

the Line was running and then went to the Atrium and sat at a table writing notes.

(Def’s Ex. A at 77.) However, he is aware of a white Team Member named Larry

Roland who left the Line early yet faced no discipline. (Id. at 143–44.) Ted Solomon

did not discipline Roland because he believed that Roland had made an honest

mistake in thinking that it was break time. (Def’s Ex. E at ¶ 17.)

On March 28, 2017, after Plaintiff had already received his Level II CPR, he

met with David Foreman to discuss what he viewed to be disparate treatment by his

supervisors. (Def’s Ex. F at ¶ 2.) He told Foreman that he did not think that it was

fair that he faced discipline for using his cell phone while other white employees

using their cell phones received no discipline. (Def’s Ex. A at 78–79.) Foreman

advised Plaintiff to worry about himself and to make sure that he did not use his cell

phone in violation of Defendant’s policies. (Id. at 78.) Following the meeting,

Foreman did not communicate this discussion with anyone else. (Def’s Ex. F at ¶ 2.)

Nor did he participate in any future proceedings regarding Plaintiff’s disciplinary

issues. (See Def’s Ex. C at 25.)

E. PLAINTIFF’S LEVEL III CPR FOR ATTENDANCE VIOLATIONS

In April 2017, Plaintiff received a Level III CPR for attendance violations.

(Def’s Ex. B – DX 7.) Defendant has an occurrence-based attendance policy. (Def’s

Ex. C at ¶ 3.) Plaintiff received one occurrence for being not more than two hours

late yet failing to call in within the 30-minute window before his shift on December

2, 2016. (Def’s Ex. B – DX 7.) This attendance violation arose because Plaintiff was

pulled over by the police on that occasion. (Def’s Ex. A at 93.) Plaintiff also received

two occurrences because he was more than four hours late and did not call in within

the thirty-minute window before his shift began on April 5, 2017. (Def’s Ex. B – DX

7.) Plaintiff claims that this attendance violation arose from a situation at home.

(Def’s Ex. A at 93.) Because Plaintiff received three occurrences within 180 days,

Defendant’s attendance policy warranted that Plaintiff receive a CPR. (Def’s Ex. C

at ¶ 9.)

Team Relations Manager Zina Cooper made the decision to issue a Level III

CPR to Plaintiff. (Def’s Ex. C at ¶ 11.) As described above, Plaintiff had an existing

Level II CPR based on his improper absence while the Line was running.

Defendant’s progressive disciplinary policy therefore mandated that Plaintiff receive

a Level III CPR based on the existence of that prior Level II CPR. (Id. at ¶ 12.)

However, Plaintiff interpreted Defendant’s progressive disciplinary policy to require

that he receive a Level I CPR because his violation arose from attendance issues,

unlike his prior violations of the cell phone policy. (Def’s Ex. A at 128–31.) It is

unclear what led Plaintiff to interpret the policy in such a way.

Later, on May 15, 2017, Plaintiff filed an EEOC Charge of Discrimination,

alleging race discrimination and retaliation. (Def’s Ex. B – DX 16.) He is not aware

of whether any relevant decisionmakers knew that he had filed this EEOC Charge.

(Id. at 107–08.) Furthermore, several relevant decisionmakers in this case, including

David Olive, James Sadberry, and Ted Solomon, have all affirmatively denied having

had any knowledge of Plaintiff’s EEOC Charge at the times in which they

participated in Plaintiff’s disciplinary proceedings. (Def’s Ex. C at ¶¶ 22–23; Def’s

Ex. D at ¶ 11; Def’s Ex. E at ¶ 14.)

F. PLAINTIFF’S TERMINATION CPR FOR FAILING TO FOLLOW PRODUCTION

PROCEDURES

On May 18, 2017, several supervisors and employees witnessed Plaintiff failing

to perform the process of “rolling the sill plate” while the Line was running. (Def’s

Ex. D at ¶ 10; Def’s Ex. E at ¶ 13.) Defendant has standard methods and procedures

for the processes that must be followed by Team Members. (Id. at 104.) One such

standard procedure involves “rolling the sill plate.” (Id. at 101–02, 105.) The “sill

plate” is a piece of plastic with adhesive that goes in the bottom of a car door where

the door shuts. (Id. at 102.) Under this process, Plaintiff was required to “roll [the

sill plate] with a little roller.” (Id. at 102–03.) Plaintiff admitted that he did not roll

the sill plate on May 18, 2017. (Def’s Ex. A at 103.)

Plaintiff kept his roller on the “limo,” a box that rides along with a vehicle on

the Line and carries tools necessary for Team Members to work on the vehicles. (Id.

at 117–18, 121–22.) To allow movement up and down the Line, the limo has a foot

mechanism. (Id. at 117.) However, the limo used by Plaintiff suffered from technical

issues: its foot pedal often became stuck and caused the limo to ride down the Line

and away from Plaintiff’s station. (Id.) Every Team Member who worked at

Plaintiff’s station on the Line had similar issues with this limo. (Id. at 122.) Plaintiff

reported this issue to his supervisors several months or even a year before the

incident on May 18, 2017. (Id. at 165–66.) Prior to that incident, he had, on ten or

fifteen separate occasions, reacted to problems with the limo by pulling a cord to get

the attention of a Team Leader. (Id. at 166–67.) He had also attempted to mitigate

the problems on his own by keeping the roller in his pocket rather than placing it in

the limo. (Id. 163–64.) However, Ted Solomon prohibited him from keeping the

roller in his pocket, reasoning that it could damage a vehicle if kept there while

Plaintiff was working. (Id. at 164.)

On May 21, 2017, after he was seen failing to roll the sill plate, Plaintiff called

an employee Hot Line regarding potential discrimination. (Def’s Ex. A at 136–37.)

He did not reach anyone when using the Hot Line number, so he sent a follow-up

email regarding his concerns the next day. (Id.) He is not aware of whether any

relevant decisionmakers knew of his Hot Line call. (Id. at 108.) Furthermore, several

relevant decisionmakers, including David Olive, James Sadberry, and Ted Solomon,

have each affirmatively denied knowing of the Hot Line call. (Def’s Ex. C. at ¶¶ 22–

23; Def’s Ex. D at ¶ 11; Def’s Ex. E at ¶ 14.) Finally, Plaintiff filed a second EEOC

Charge of Discrimination on June 2, 2017, alleging only retaliation. (Def’s Ex. B –

DX 17.)

During this same period, William Harden, a black male Team Relations

Representative, investigated Plaintiff’s May 18 violation and supplied his findings to

Team Relations Manager Zina Cooper. (Def’s Ex. C at ¶¶ 11, 14.) Cooper then

recommended Plaintiff’s termination based on his existing Level III CPR. (Id. at

¶¶ 15, 17.) David Olive, Defendant’s HR Senior Manager, approved Cooper’s

recommendation that Plaintiff be terminated. (Id. at ¶ 16.) As a result, on June 2,

2017, Defendant issued a Termination CPR to Plaintiff. (Id. at ¶¶ 17–18; Def’s Ex.

B – DX 11.)

Plaintiff learned of his termination via a letter dated June 2, 2017. (Def’s Ex.

B – DX 11.) He requested peer review regarding his termination. (Def’s Ex. A at 37–

38.) A panel reviewed Plaintiff’s termination on July 27, 2017, upholding his

termination. (Def’s Ex. B – DX 13.) Because his termination arose from misconduct,

Plaintiff did not receive unemployment compensation. (Id. – DX 14.)

In a separate incident, Logan Wright, a white Team Member, also failed to roll

the sill plate, and he received a CPR for his misconduct. (Def’s Ex. C at ¶¶ 19–20.)

Unlike Plaintiff, however, Wright had not previously received a CPR. (Id. at ¶ 21.)

Therefore, Wright received only a Level II CPR, as opposed to the Termination CPR

that Plaintiff received. (Id.)

II. STANDARD

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

genuine dispute as to any material fact and the movant is entitled to 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

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 should 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 non-moving 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, Fla., 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).

III. DISCUSSION

A. RETALIATION

Plaintiff brings a claim for retaliation under Title VII and § 1981.5 Absent

direct evidence of retaliatory motive, the Court analyzes this claim using the burden-

shifting McDonnell Douglas framework. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202

(11th Cir. 2013) (citing McDonnell Douglas v. Green, 411 U.S. 792 (1973)).6 “First,

the plaintiff must establish a prima facie case, which raises a presumption that the

employer’s decision was more likely than not based upon an impermissible factor.”

Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th Cir. 1995). If the plaintiff

meets this burden, the defendant has the opportunity to articulate a legitimate non-

retaliatory justification for its actions, which the plaintiff can then rebut with

evidence of pretext. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181–82 (11th Cir.

2010).

5 Title VII and § 1981 “have the same requirements of proof and use the same analytical

framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly,

this Court’s analysis of Plaintiff’s retaliation and race discrimination claims is equally applicable

under either Title VII or § 1981.

6 “Direct evidence is evidence that establishes the existence of discriminatory intent behind

the employment decision without any inference or presumption.” Standard, 161 F.3d at 1330.

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

engaged in a protected activity, (2) he suffered an adverse employment action, and

(3) there was a causal connection between his protected activity and his injury.

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). There is no dispute regarding

the first two elements of Plaintiff’s prima facie case.

Plaintiff has shown that he engaged in a protected activity. “Title VII protects

not just ‘individuals who have filed formal complaints,’ but also those ‘who

informally voice complaints to their superiors or who use their employers’ internal

grievance procedures.’” Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 n.2

(11th Cir. 2002) (quoting Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400

(11th Cir. 1989) (per curiam)). The record indicates that Plaintiff engaged in

numerous protected activities, such as complaining to a supervisor, David Foreman,

of disparate treatment based on his race, filing two separate EEOC Charges of

Discrimination and Retaliation, and making a Hot Line call regarding the same

disparate treatment and retaliation.

Plaintiff has also satisfied the requirement that he suffered from an adverse

employment action. For a retaliatory act to qualify as an adverse employment action,

it must be materially adverse such that it might have “dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219

(D.C. Cir. 2006)). Following his protected activities, Plaintiff alleges that he faced

disproportionately harsh forms of discipline. Specifically, Plaintiff alleges that (1) he

received a Level III CPR for attendance violations when only a Level I CPR was

appropriate, and (2) Defendant terminated his employment following his failure to

roll the sill plate. A reasonable worker faced with disproportionately harsh forms of

discipline in response to his protected activity may be dissuaded from engaging in

further protected activities. Therefore, Plaintiff has satisfied the first two elements

of his prima facie case.

Nonetheless, Plaintiff has failed to show a causal connection between his

protected activities and the adverse employment actions that he faced. To show a

causal connection, Plaintiff must present “proof that the unlawful retaliation would

not have occurred in the absence of the alleged wrongful action or actions of the

employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). “A

decision maker cannot have been motivated to retaliate by something unknown to

him.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000).

Thus, Plaintiff “must, at a minimum, generally establish that the defendant was

actually aware of the protected expression at the time the defendant took the adverse

employment action.” Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th

Cir. 1997). However, Plaintiff has failed to demonstrate that any decisionmaker was

ever aware of his protected activities prior to the adverse employment actions that

he claims occurred. Plaintiff’s meeting with David Foreman regarding disparate

treatment he faced occurred on March 28, 2017, after Foreman participated in the

decision to issue Plaintiff a Level II CPR. Plaintiff has not shown that Foreman

participated in any further disciplinary actions taken against him, and Foreman

himself denies that he communicated the pair’s discussion with anyone else.

Furthermore, Plaintiff admits that he lacks any knowledge of whether other

decisionmakers ever learned of his EEOC Charges of Discrimination or his Hot Line

call. Indeed, decisionmakers, such as James Sadberry, Ted Solomon, and David

Olive, have affirmatively denied having any knowledge of Plaintiff’s protected

activities during the time in which Plaintiff faced discipline. Plaintiff thus has

demonstrated no causal connection between his protected activities and any adverse

employment action, and he has therefore failed to establish a prima facie case of

retaliation.

Furthermore, even if Plaintiff could establish a prima facie case of retaliation,

he has not provided enough evidence to rebut Defendant’s non-retaliatory

justifications for its actions. As an initial matter, Plaintiff has produced no evidence

to support his belief that his attendance violations warranted only a Level I CPR

under Defendant’s progressive disciplinary policy. Furthermore, Defendant

maintains that Plaintiff received a Termination CPR because he failed to follow the

required procedure for rolling sill plates and had a prior Level III CPR, thus

necessitating progression to a Termination CPR. Against this justification, Plaintiff

argues that (1) termination for failure to roll the sill plate was inappropriate due to

the ongoing issues with the “limo” device, and (2) the EEOC’s findings of evidence

to support a claim of retaliation make summary judgment inappropriate in this case.7

However, neither of Plaintiff’s arguments warrant denial of summary judgment.

First, the fact that the limo was non-functional does not excuse the undisputed

fact that Plaintiff violated Defendant’s requirement that he roll the sill plate. “A

plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons

or substitute his business judgment for that of the employer.” Chapman v. AI

Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). Plaintiff argues that

Defendant “failed, repeatedly, over an extended period of time, [to provide] the

tools and/or equipment necessary to accomplish the proper sill applications.” (Doc.

17.) However, the record does not indicate that Plaintiff lacked the roller necessary

to roll the sill as required. Instead, Plaintiff has shown only that the mechanism on

7 The EEOC’s letter of determination specifically provides that “it was determined that the

evidence obtained during the investigation established that there is reasonable cause to conclude

that the Charging Party was discriminated against on the basis of race, Black and retaliation, in

violation of Title VII.” (Pl’s Ex. 2 at 2.)

which the roller was required to be kept often malfunctioned and moved away from

Plaintiff’s workstation. It is undisputed that, on several occasions prior to May 18,

2017, Plaintiff resolved issues with the limo by alerting his supervisors when it

malfunctioned. Plaintiff has not produced any evidence explaining why he could not

alert his supervisors on May 18, 2017, in the same manner that he had alerted them

on numerous prior occasions. Thus, the record indicates that the malfunctioning

limo only made the required procedure of rolling the sill plate inconvenient, rather

than impossible. Under these circumstances, the Court will not question the

business judgment of Defendant in terminating Plaintiff’s employment for failure to

perform a required—albeit inconvenient—task.

Second, even the EEOC’s finding of evidence to support a claim for retaliation

does not warrant a different outcome in this case. To be sure, a district court may

rely upon an EEOC finding of reasonable cause to bolster its own finding that a

genuine dispute of fact exists for a claim of retaliation. See Horne v. Turner Constr.

Co., 136 F. App’x 289, 292 (11th Cir. 2005) (per curiam) (noting that EEOC’s

findings bolstered other direct and circumstantial evidence of discrimination

produced by plaintiff). However, Plaintiff has not cited any authority indicating that

EEOC findings in his favor, without more, are sufficient to create a genuine dispute

of material fact. Moreover, as a general matter, “EEOC findings are not binding with

regard to subsequent discrimination suits in federal court.” Danielle-DiSerafino v.

Dist. Sch. Bd. of Collier Cty, Fla., 756 F. App’x 940, 944 (11th Cir. 2018) (per curiam).

“The probative value of EEOC findings is left to the district court’s discretion.” Id.

(citing Barfield v. Orange Cty., 911 F.2d 644, 649–51 (11th Cir. 1990)). Upon

comparison of the EEOC’s findings with the remainder of the record, the Court finds

that the EEOC’s findings are too incomplete to hold probative weight. For example,

in support of its conclusion that a reasonable basis for a finding of retaliation exists,

the EEOC’s letter notes that “on observation, the employees after [Plaintiff’s]

dismissal were not adhering to the [sill rolling] process and no action was taken.”

(Pl’s Ex. 2 at 2.) However, it is undisputed by the parties that Logan Wright, a white

Team Member, faced disciplinary action after he, like Plaintiff, failed to roll the sill

plate as required under Defendant’s policies. The EEOC’s findings are thus

inconsistent with other undisputed evidence in the record, and they carry little

probative weight in this proceeding.

Plaintiff has thus failed to raise a genuine dispute of material fact regarding his

retaliation claim. Accordingly, summary judgment is due to be granted for Defendant

as to this claim.

B. RACE DISCRIMINATION

Plaintiff also brings a claim of race discrimination under Title VII and § 1981,

alleging that Defendant treated white employees more favorably than himself. “A

plaintiff may prove a claim of intentional discrimination through direct evidence,

circumstantial evidence, or through statistical proof.” Rioux v. City of Atlanta, Ga.,

520 F.3d 1269, 1274 (11th Cir. 2008). Absent direct evidence or statistical proof of

discrimination, the Court analyzes a disparate treatment claim under the McDonnell

Douglas framework. Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642

(11th Cir. 1998). However, a “plaintiff will always survive summary judgment if he

presents circumstantial evidence that creates a triable issue concerning the

[defendant’s] discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,

1328 (11th Cir. 2011).

Because Plaintiff relies only on circumstantial evidence of discrimination, the

Court considers his claim under the McDonnell Douglas framework. See Carter, 132,

F.3d 635 at 642. Under that framework, a plaintiff has the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.

To establish a prima facie case, a plaintiff must show “(1) that she belongs to a

protected class, (2) that she was subjected to an adverse employment action, (3) that

she was qualified to perform the job in question, and (4) that her employer treated

‘similarly situated’ employees outside her class more favorably.” Lewis v. City of

Union City, Ga., 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). Once a plaintiff

has established a prima facie case, the burden then shifts “to the [defendant] to

articulate some legitimate, nondiscriminatory reason” for its actions. McDonnell

Douglas, 411 U.S. at 802. Finally, if the defendant articulates a non-discriminatory

reason, then the plaintiff is afforded an opportunity to show that the stated reason

was a pretext for discrimination. Id. at 804.

Plaintiff’s race discrimination claim rests on two basic types of disparate

treatment that he allegedly experienced. First, Plaintiff argues that Team Leader

Ted Solomon deliberately inspected the sign-in sheets of certain black Team

Members, including Plaintiff, while choosing not to inspect the sign-in sheet of

Charles Owens, a white Team Member. Second, and much more broadly, Plaintiff

argues that Defendant took several disciplinary actions against him that it did not

take against similarly situated white employees.

Regarding the inspections that Ted Solomon conducted of black employees’

sign-in sheets, Plaintiff has not established a prima facie case of race discrimination.

Specifically, Plaintiff cannot show that these inspections, even if done with

discriminatory bias, constituted an adverse employment action. To qualify as an

adverse employment action in the context of discrimination, “the employer’s action

must impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real and

demonstrable way.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.

2001) (quoting 42 U.S.C. § 2000e-2(a)). The impact must be “serious and

material,” such that, under the circumstances presented, a reasonable person could

find that it was materially adverse. See id. Here, even if Solomon conducted the

alleged inspections with discriminatory bias, Plaintiff has produced no evidence—

and indeed does not even claim—that these inspections led to any material impact

on his employment. Accordingly, Plaintiff has failed to establish a prima facie case of

race discrimination with respect to the inspections that he faced.

Regarding the discipline that Plaintiff received, the Court need not devote

much discussion to several elements of Plaintiff’s prima facie case because there is

no dispute regarding those elements. For example, the parties do not dispute that

Plaintiff, as a black male, is a member of a protected class. Nor do they dispute that

he was qualified for his position or that the forms of discipline he received, including

termination, constituted adverse employment actions.

The only area of dispute regarding Plaintiff’s prima facie case concerns

whether Plaintiff has identified “similarly situated” employees outside his class who

received more favorable treatment. For this element to be satisfied, Plaintiff and his

comparators must be “similarly situated in all material respects.” Lewis, 918 F.3d at

1226. Ordinarily, a similarly situated comparator: (1) “will have engaged in the same

basic conduct (or misconduct) as the plaintiff;” (2) “will have been subject to the

same employment policy, guideline, or rule as the plaintiff;” (3) “will ordinarily

(although not invariably) have been under the jurisdiction of the same supervisor as

the plaintiff;” and (4) “will share the plaintiff’s employment or disciplinary

history.” Id. at 1227–28 (cleaned up).

In his deposition testimony, Plaintiff identifies numerous white co-workers

who committed the same acts for which he faced discipline and ultimately

termination of his employment. First, he identifies David Jones, Charles Owens, and

Adam Lewis as white Team Members who violated Defendant’s cell phone policies

without facing discipline. Second, he identifies Larry Roland as a white Team

Member who faced no punishment for his unauthorized absence from the Line.

Finally, the record indicates that Logan Wright, another white Team Member who

failed to roll the sill plate per Defendant’s policy, was not terminated for his violation

and instead received a Level II CPR. However, none of the comparators identified

by Plaintiff are “similarly situated in all material respects.” Lewis, 918 F.3d at 1226.

Plaintiff claims to have witnessed David Jones using his cell phone while he

was working on the Line. However, he has not shown that Jones did so after

Defendant began placing greater emphasis on its policy restricting cell phone use.

Thus, Plaintiff has not shown that he and Jones were “subject to the same

employment policy, guideline, or rule.” Lewis, 918 F.3d at 1227. Moreover, Plaintiff

has no knowledge of whether any of their shared supervisors ever witnessed Jones’s

improper cell phone use. Indeed, several supervisors have affirmatively denied ever

having seen Jones violating the cell phone policy while on the Line. A comparator’s

actions have no relevance in showing discrimination unless they are known to

Defendant. See Jones v. Gerwens, 874 F.2d 1534, 1542 (11th Cir. 1989) (holding

plaintiff had failed to establish a prima facie case of disparate treatment when he

could not show that decisionmakers knew about and consciously overlooked prior

rule violations by comparators). As a result, Plaintiff cannot rely upon Jones as a

comparator in establishing his prima facie case.

Plaintiff next identifies Charles Owens and Adam Lewis as comparators for

having improperly used their cell phones without facing punishment. Specifically,

Plaintiff claims to have seen Owens and Lewis each using a cell phone at the

beginning of a team start-up meeting. Regardless, neither Owens nor Lewis is a

proper comparator.

Owens cannot be a proper comparator because his actions did not qualify as

the “same basic conduct (or misconduct) as [Plaintiff].” Lewis, 918 F.3d at 1227.

The Eleventh Circuit has noted that a plaintiff and her comparator need not have

engaged in identical conduct, provided that the conduct alleged is materially similar

under the circumstances. See id. at 1227 n.13 (opining that conduct could be

sufficiently similar where a plaintiff is fired for routinely arriving late to work while

a comparator keeps his job despite routinely leaving work early). However, this

principle has limits, particularly where there is “some good reason” for treating the

conduct of a plaintiff and his comparators differently. See id. Here, Plaintiff faced

discipline for allegations that he had used his cell phone while working on the Line.

In contrast, the only time during which Owens is alleged to have used his cell phone

occurred at the beginning of a team start-up meeting, when the Line was not running.

Given the safety concerns present during the operation of the Line, there is good

reason to treat the cell phone use of Owens differently from that of Plaintiff.

Similarly, Lewis’s cell phone use does not make him a proper comparator.

Like Owens, he used his cell phone at the beginning of a team start-up meeting,

rather than on the Line. Thus, Lewis did not engage in the same basic misconduct as

Plaintiff did when he used his cell phone while working on the Line. See Lewis, 918

F.3d at 1227 n.13. Furthermore, Lewis did not “share [Plaintiff’s] employment or

disciplinary history” at the times supervisors witnessed each using his cell phone.

Id. at 1228. Specifically, Plaintiff had received training regarding Defendant’s cell

phone policy, and he was aware that, unless one was acting as a Team Leader, use of

a cell phone on the Line violated Defendant’s policies. In contrast, Lewis had just

transferred to B-Shift and therefore was unfamiliar with how those on B-Shift

conducted themselves. Thus, Lewis cannot be a proper comparator in this case.

Likewise, Larry Roland also is not a proper comparator with respect to

Plaintiff’s unexcused break in the Atrium. To be sure, Roland once left the Line

without obtaining permission to do so. However, it is undisputed that Roland’s

absence arose from an honest mistake that break time had begun. In contrast,

Plaintiff knowingly remained away from the Line without permission: he admits that,

though he had permission to leave the Line to use the restroom, he did not have

permission to remain in the Atrium and examine his notes instead of returning to the

Line. Thus, Plaintiff and Roland did not commit the same basic misconduct and are

not “similarly situated in all material respects.” Id. at 1227.

Finally, Logan Wright cannot constitute a proper comparator for Plaintiff’s

prima facie case, either. Unlike other comparators identified by Plaintiff, Wright was

seen engaging in the same misconduct for which Plaintiff received a CPR: he too

failed to roll the sill plate as required under Defendant’s procedures. However, it is

irrelevant whether Wright is similarly situated with Plaintiff: Wright did not receive

treatment more favorable than that received by Plaintiff. See id. at 1221. Like Plaintiff,

Wright received a CPR for his misconduct. To be sure, Wright received only a Level

II CPR, as opposed to Plaintiff’s Termination CPR, but that discrepancy is

consistent with Defendant’s progressive disciplinary policy. Plaintiff had three prior

CPRs, so he received a Termination CPR. In contrast, Wright had no prior CPRs, so

he received only a Level II CPR. Furthermore, even if Wright receiving only a Level

II CPR qualifies as more favorable treatment, he does not “share [Plaintiff’s]

employment or disciplinary history” and is therefore not similarly situated in all

material respects. Id. at 1228. Accordingly, Wright is not a proper comparator, and

Plaintiff has failed to establish a prima facie case of race discrimination.

Having failed to establish a prima facie case of race discrimination, Plaintiff

can escape summary judgment only if he has otherwise presented “a convincing

mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Smith, 644 F.3d at 1328 (quoting Silverman

v. Bd. of Educ. of Chicago, 637 F.3d 729, 734 (7th Cir. 2011)). “A ‘convincing mosaic’

may be shown by evidence that demonstrates, among other things, (1) ‘suspicious

timing, ambiguous statements . . ., and other bits and pieces from which an inference

of discriminatory intent might be drawn,’ (2) systematically better treatment of

similarly situated employees, and (3) that the employer’s justification is pretextual.”

Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting

Silverman, 637 F.3d at 733–34). Regardless of what type of evidence Plaintiff

presents, it must be sufficient to “raise[] a reasonable inference that the employer

discriminated against” him. Smith, 644 F.3d at 1328.

Plaintiff’s response identifies several pieces of circumstantial evidence that he

argues could establish intentional discrimination by his superiors. First, Plaintiff

notes that, as discussed above, Defendant failed to discipline white employees, such

as Charles Owens and Adam Lewis, for improper cell phone use in violation of

Defendant’s policies. Second, when he brought this disparate treatment to the

attention of David Foreman, Foreman took no action and instead instructed Plaintiff

to worry about himself. Finally, Plaintiff again cites the EEOC’s “Letter of

Determination” which found a reasonable basis for Plaintiff’s claims that he faced

discrimination. (Pl’s Ex. 2.)

Upon review of the record, the Court finds that the evidence presented by

Plaintiff is insufficient to allow for a reasonable inference that Defendant

discriminated against Plaintiff based on his race. Plaintiff argues that Defendant’s

failure to discipline white employees for their cell phone use, regardless of

justification, “is counter intuitive to its progressive, purportedly, uniform discipline

structure that the Defendant stands behind.” (Doc. 17.) However, the record

indicates only that Defendant’s progressive disciplinary policy governs what level of

discipline should be issued, not when discipline is appropriate in the first place. (See

Def’s Ex. C at ¶¶ 4–5.) Neither party has pointed to any evidence indicating that

Defendant’s progressive disciplinary policy allows no discretion in determining

whether a Team Member’s rule violation warrants discipline. Thus, the fact that

Defendant did not discipline each violation by white employees does not, without

more, indicate that its justification for disciplining Plaintiff was merely a pretext for

racial discrimination. Nor does Foreman’s statement to Plaintiff instructing him to

worry about himself when Plaintiff raised concerns about disparate treatment;

Plaintiff has offered no evidence showing that Foreman had any obligation to

investigate Plaintiff’s claims further. Finally, for the same reasons that the EEOC’s

findings carry little probative weight in resolving Plaintiff’s retaliation claim, the

Court does not rely upon those findings in resolving Plaintiff’s race discrimination

claim.

Plaintiff has thus failed to present evidence that creates a genuine dispute on

the question of race discrimination. Accordingly, summary judgment is due to be

granted for Defendant as to this claim.

IV. CONCLUSION

For the reasons stated above, Defendant’s motion (doc. 12) is due to be

granted. An order consistent with this opinion will be entered contemporaneously

herewith.

DONE and ORDERED on June 10, 2020.

L. Scott g

United States Dist¥ict Judge

199455

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