Cole v. Gestamp North America Inc.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TAMITRA J. COLE, )

)

Plaintiff, )

)

v. ) Case No.: 2:19-cv-00056-JHE

)

GESTAMP NORTH AMERICA, et al., )

)

Defendants. )

MEMORANDUM OPINION1

Plaintiff Tamitra J. Cole (“Cole”) brings this action against Defendants Gestamp North

America, Inc. (“Gestamp NA”) and Gestamp Alabama, LLC (“Gestamp Alabama”) alleging that

the defendants discriminated against her on the basis of her color in violation of Title VII of the

Civil Rights Act of 1964, as amended, (“Title VII”).2 (Docs. 1 & 34). After the close of discovery,

Defendants moved for summary judgment. (Doc. 58). Cole responded in opposition to the motion

(doc. 62), and Defendants filed a reply brief, (doc. 62). Defendants have moved to strike the

affidavits of Tamitra Cole and Crystal Harris, affidavits Cole submitted in support of her

opposition to the motion for summary judgment. (Doc. 64). Thereafter, Cole filed a response

(doc. 66), which the undersigned construed as a response to the motion to strike (doc. 68). Both

the motion for summary judgment and the motion to strike are fully briefed. The undersigned has

addressed the motion to strike (doc. 64) in a separate document and incorporated those findings

herein. For the reasons stated below, the motion for summary judgment (doc. 58) is GRANTED.

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge

conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 29).

2 The undersigned previously granted motions to dismiss brought by individual

defendants Will Smith and Sonya B. Green. (Doc. 34).

I. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” Rule 56 “mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the

light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-

moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,

283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

moving party’s favor when that party’s version of the events is supported by insufficient evidence).

However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

II. Summary Judgment Facts3

A. Gestamp NA and Gestamp Alabama

Gestamp Alabama manufactures automotive parts and components at its production facility

in McCalla, Alabama. (Doc. 59-12 at 2, ¶ 3). Gestamp Alabama is a subsidiary of Gestamp NA.

Gestamp Alabama’s Associate Handbook is distributed to and applies to all Gestamp Alabama

associates, and Cole received a copy of the handbook. (Doc. 59-1 at 17 (61:9-14), 84-94; doc. 59-

2 at 1-21; doc. 59-3 at 1-5). Gestamp Alabama has in effect an equal employment opportunity

policy that strictly prohibits discrimination in all employment terms and conditions, including, but

not limited to, discrimination based on race and color. (Doc. 59-1 at 17, 18, 22 (61:9-14, 62:16-

22, 80:2-9), 84-94; doc. 59-2 at 1-21; doc. 59-3 at 1-5). Gestamp Alabama’s Associate Handbook

includes a Standards of Conduct policy, which outlines and describes specific requirements and

expectations for associate conduct. (Doc. 59-1 at 17 (61:9-14), 84-94; doc. 59-2 at 1-21; doc. 59-

3 at 1-5). The Standards of Conduct policy subjects an associate to discipline up to and including

immediate termination for “[r]efusal to carry out work assignments (insubordination).” (Doc. 59-

1 at 17 (61:9-14), 84-94; doc. 59-2 at 1-21; doc. 59-3 at 1-5). The Associate Handbook also

includes a Job Opportunity policy, which outlines promotional opportunity for associates and

specifically states that Gestamp Alabama will consider the following criteria, among other things,

3 Because Cole failed to respond to any of the defendants’ undisputed facts, those facts

are properly deemed admitted. FED. R. CIV. P. 56(e)(2)-(3). However, the summary judgment

facts only include those facts that are properly supported by the record. The undersigned has

also considered the evidence Cole offers in opposition to summary judgment, to the extent it is

properly referenced in her brief and admissible.

when assessing an associate for promotion: “skill and ability, to perform the work” as well as

length of service with Gestamp Alabama. (Doc. 59-1 at 17 (61:9-14), 84-94; doc. 59-2 at 1-21;

doc. 59-3 at 1-5; doc. 59-12 at 3, ¶ 7).

B. Cole’s Employment at Gestamp Alabama

Cole is an African-American female who describes her skin color as between brown and

light brown. (Doc. 59-1 at 32 (120:15-17)). Before she started with Gestamp Alabama, Cole knew

Andrea Matthews (“Matthews”), who was the ex-wife of Will Smith (“Smith”), the Director of

Human Resources of Gestamp NA. (Id. (119:17-120:7)). Cole considered Matthews to have

brown skin (id.), but Smith characterized it as lighter than Cole’s skin color, (doc. 59-13 at 2, ¶ 4).

Cole was hired as an HR Generalist on August 8, 2016, (doc. 59-1 at 9-10 (27:4-6, 31:9-

11), 80-81), after Smith had encouraged Cole to apply and had forwarded her resume to Gestamp

Alabama HR Manager Traci Wells (“Wells”). (Doc. 59-13 at 3, ¶ 6; doc. 59-1 at 14 (47:4-9)).

Smith and Wells interviewed Cole and offered her the position as HR Generalist. (Doc. 59-1 at

15-16 (52:19-55:15)). At the time Cole was hired, she reported directly to Gestamp Alabama’s

HR Manager, Wells, who is African-American. (Id. at 18, 42 (65:15-66:3, 161:7-10), 80-81, doc.

59-3 at 7). Cole’s HR Generalist job duties focused on employee relations, including time and

attendance, administering Gestamp Alabama policy and procedure, managing effective employee

and management communications, and management company events and luncheons. (Doc. 59-1

at 17-18 (60:10-63:15), doc. 59-11 at 2, ¶ 4(c)).

At the time Cole started with Gestamp Alabama, there were three other African-American

female HR Generalists at Gestamp Alabama reporting to Wells: Sonya Green, Michelle Averitte,

and Claudia Games. (Doc. 59-1 at 16-18, 42 (54:10-19, 56:6-15, 58:1-4, 63:16-64:21, 64:22-

65:19, 161:7-10), doc. 59-1 at 80, doc. 59-3 at 7).

For the year 2016, although Cole assessed her own performance as “exceeds expectations”

in every category, Wells evaluated Cole’s performance and rated her at 3.8 out of 5, which falls

within the “meets expectations” category. (Doc. 59-11 at 4, ¶¶ 6, 6(a), 8-12). Wells observed that

Cole believed that she should be paid more and have a more senior position because of her Master’s

degree. (Id. at 4, ¶¶ 6(b)). Wells also observed that Cole believed her Master’s degree should hold

great weight and that Cole considered her performance as better than it actually was. (Id. at 4, ¶¶

6(b), (c)).

Cole asserts that Wells and Smith told her she would be second-in-command in the HR

Department at Gestamp and that other employees were aware of this. (Doc. 62 at 18-19). There

is no indication of this in any of Cole’s Gestamp Alabama’s paperwork (doc. 59-1 at 80), and

Gestamp Alabama’s organizational charts show all HR Generalists at the same level reporting to

the Gestamp Alabama HR Manager (doc. 59-3 at 7). Crystal Harris (“Harris”), who was a contract

recruiter for Gestamp, testified that when she was first assigned to Gestamp Alabama, she was to

report to Cole, but that Cole and Green were both HR Generalists and had quality responsibility

for Human Resources. (Doc. 64 at 74, ¶ 5). Wells considered Green the “second-in-command”

in the Gestamp Alabama HR Department and assigned her important and confidential duties not

assigned to the other HR Generalists. (Id. at 3-4, ¶¶ 4(b), (c)).

C. Cole’s Failure to Promote Allegations

Cole alleges Defendants discriminated against her based on her color by denying her a

promotion to the HR Manager position. (Doc. 47 at ¶¶ 6-7. 14-15, 17-24). In November 2017,

Wells voluntarily resigned her position as HR Manager of Gestamp Alabama. (Doc. 59-11 at 2, ¶

2). While working out her notice period, Wells recommended that Green perform the Interim HR

Manager role while management made an official selection for the position. (Doc. 59-11 at 5, ¶

7(b); doc. 59-1 at 24 (87:20-88:4); doc. 59-13 at 5, ¶ 14). Wells told Smith that Green was ready

to move into the HR Manager position on a full-time basis. (Doc. 59-13 at 5, ¶ 14; doc. 59-11 at

7; doc. 59-9 at 4, ¶ 8). Wells considered Green to be a much better candidate than Cole and

recommended her based on her experience, personality, professionalism, and performance. (Doc.

59-11 at 5, ¶ 7(a)). Green had more than seven years of experience working for Gestamp Alabama

and over twenty-five years of general human resources experience. (Doc. 59-11 at 3, ¶¶ 5, 5(a);

doc. 59-12 at 4, ¶ 11). Vice President of HR Melissa Horn, a Caucasian female, and Plant Manager

Bob Day agreed with the decision to place Green in the interim position given Green’s experience

and knowledge, and Green was named interim HR Manager during the hiring process. (Doc. 59-

9 at 2-3, ¶¶ 2, 5; doc. 59-13 at 5, ¶ 15).

The HR Manager position at Gestamp Alabama is responsible for all Human Resources

functions at the facility, including developing, implementing and coordinating company policy,

recruiting, training, compliance, benefit administration, payroll, managing employee relations, and

supervising all HR Generalist employees. (Doc. 59-9 at 3-4, ¶ 6, 9-10). Defendants assert that,

while a four-year or post-graduate degree is “preferred” for the HR Manager position, the primary

considerations for the position are the candidate’s experience, performance for internal candidates,

and an overall assessment of the candidate’s capabilities. (Doc. 59-9 at 4, ¶ 7; doc. 59-13 at 6, ¶

16; doc. 59-1 at 25-26 (92:12-96:12); doc. 59-4 at 8-9). Cole argues that the job description

requires a four-year degree. (Doc. 62 at 2). Specifically, she points to the “Education and

Experience” section of the job description, which states “4 year degree, post graduate preferred.”

(Doc. 59-4 at 8). Cole also points to the question on the application that asks “Do you meet the

minimum education requirement for the positions as outlined in the job description[,]” arguing this

question is indicative of an education requirement. (Doc. 62 at 2). The job description also listed

“8-10 years’ experience” under the education and experience requirements. (Doc. 59-9 at 9).

Three candidates applied for the HR Manager position: Cole, Green, and an external

candidate, Marcene Emmett (“Emmett”). (Doc. 59-9 at 4, ¶ 8). Horn interviewed each of the three

candidates in November 2017, and Horn and Gestamp NA President John Petroni (“Petroni”), a

Caucasian male, considered their respective qualifications and experience, and determined that

Green was the most qualified candidate for the position based on her performance and experience

as well as her more extensive history with Gestamp Alabama. (Doc. 59-9 at 5, ¶ 11; doc. 59-1 at

26-27 (97:22-100:5). When asked at her deposition “Do you know who made the decision that

[Green] would be promoted to HR Manager[,]” Cole answered “No.” (Doc. 59-1 at 27 (99:22-

100:1)). To the extent that Cole now asserts that Smith or someone other than Horn and Petroni

made the decision to promote Green, those statements were stricken under the sham affidavit

doctrine. See Van T. Junkins and Assocs., Inc., 736 F.2d at 656.

Although Cole had a bachelor’s degree from the University of Alabama and a Master’s

degree from the University of Phoenix (doc. 59-13 at 17), she had only been employed by Gestamp

Alabama for a little over a year at the time she applied for the HR Manager position, whereas

Green had a total of seven years with Gestamp Alabama and over twenty-five years in human

resources generally. (Doc. 59-9 at 5, ¶ 10; doc. 59-12 at 4, ¶ 11). At her deposition, Cole testified

that she did not know what was asked or said in any interviews or why any selection decisions

were made. (Doc. 59-1 at 26-27, 41 (94:1-97:10, 97:22-98:14, 99:22-100:5, 156:11-18, 157:1-

12)). Cole further testified that she does not know anything about Green’s employment history,

performance history, or other qualifications, except that Green did not have a four-year degree.

(Doc. 59-1 at 27, 39-41 (97:22-98:14, 99:22-100:5, 148:17-151:23, 156:11-18, 157:1-12)). Cole

began her work in HR in 2012 as an HR Administrator for another company. (Doc. 59-13 at 16).

Neither Horn, Smith, nor Craig Lane (“Lane”), a Caucasian male who is the current Plant

Director at Gestamp Alabama’s McCalla facility, considered Cole to have noticeably lighter skin

color than Green. (Doc. 59-9 at 2, ¶ 3; doc. 59-13 at 9, ¶ 26; doc. 59-10 at 2, 4, ¶¶ 2, 11). They

all considered Green and Cole to have similar skin colors. (Doc. 59-9 at 2, ¶ 3; doc. 59-13 at 9, ¶

26; doc. 59-10 at 4, ¶ 11). HR Generalist, Claudia James, who remains employed at Gestamp

Alabama, has lighter skin than Cole. (Doc. 59-13 at 9, ¶ 26; doc. 59-9 at 2, ¶ 3; doc. 59-12 at 9, ¶

26; doc. 59-1 at 16 (56:23-57:9)). The company photographs of Green and Cole demonstrate

similar skin colors, while James’s skin color is lighter than either of them. (Doc. 59-12 at 9, 71

(Cole), 73 (Green), 75 (James), ¶ 26). Cole testified that no one told her that the decision to

promote Green to the HR Manager position was based on race or color and she was not sure if

anyone told her anything to lead her to that conclusion. (Doc. 59-1 at 41 (156:11-18, 157:1-12)).

Horn assets that neither Cole’s race nor color played any role whatsoever in the decision not to

promote Cole or any other employment action or decision with respect to her. (Doc. 59-9 at 7, ¶

16).

D. Cole’s Termination

Cole alleges Defendants discriminated against her based upon color by terminating her

employment. (Doc. 47 at ¶¶ 21, 25-28). Following the decisions to promote Green to interim HR

Manager role and later to the HR Manager position, Green and Smith reported Cole’s attitude,

performance, and willingness to work as team began to decline. (Doc. 59-12 at 4, ¶14; doc. 59-13

at 7, ¶ 19).

Cole states in her affidavit that Green made comments comparing the texture of the

women’s hair and would say that Cole had hair like a white person and did not know anything

about black hair. (Doc. 62 at 9). Specifically, Green asked Cole what kind of shampoo she used.

(Id.). Cole told her Pantene. (Id.). Green asked if she used the white or brown bottle. (Id.). Cole

answered that she used the white bottle, and Green said “see, that’s what I’m talking about.” (Id.).

Cole also asserts that Green made comments about which black employees would “work in the

house” and who would “work in the field.” (Id.). Cole asserts that this was “teasing” about Cole’s

lighter skin color.4

After not being chosen for the HR Manager position, Cole began seeking different

employment. (Doc. 59-1 at 35, 36 (130:1-131:10, 134:19-135:20); doc. 59-6 at 10-15; doc. 59-12

at 6, ¶ 7). Cole applied internally for an open administrative assistant position and applied to other

external companies as well. (Id.).

On one occasion in early January 2018, soon after Lane became Plant Director, Lane,

Smith, and Petroni had a dinner meeting at a restaurant near the Gestamp Alabama McCalla

facility. (Doc. 59-10 at 3, ¶ 5). Lane forgot his glasses at the restaurant, and Smith asked Cole to

go to the restaurant to get the glasses for him. (Id.; doc. 59-13 at 7-8, ¶ 20; doc. 59-1 at 36-37

(135:21-138:3)). Cole refused to do so and stated that such a task was not in her job description,

and another HR Generalist, Claudia James, went to pick up the glasses. (Id.).

While Cole’s specific responsibilities included keeping up with time and attendance for

Gestamp Alabama employees and issuing disciplinary warnings when appropriate, in March 2018,

Green became aware that the company was behind in issuing nearly one hundred disciplinary

warnings and terminations based on attendance, which was Cole’s responsibility to initiate, and

4 Although the undersigned granted Defendants’ motion to strike as to much of Crystal

Harris’s March 9, 2020 affidavit, there is also a January 2020 affidavit from Harris. In the initial

affidavit, Harris states that “[a]t no time have I heard or been made aware of anyone at Gestamp

Alabama or any Gestamp entity refer to Mrs. Cole’s skin color or make any employment-related

decision based on Mrs. Cole’s skin color. . . . Green never said anything about my skin color . . .

.” (Doc. 64 at 76, ¶ 9).

which caused significant problems to correct. (Doc. 59-12 at 5-6, ¶ 15; doc. 59-13 at 8, ¶ 21).

On March 15, 2018, Manager Mel Rose (“Rose”) emailed and called Cole to coordinate a

training lunch for employees on his Quality Team. (Doc. 59-6 at 18-21). The following week,

Rose emailed Cole to ask her for the lunch receipt, to which Cole told Rose to come get it from

her office. (Id.). Then, without any prompting or other request from Rose, Cole emailed him on

March 26, 2018, and said, “Please use your card to order your lunches or give your card

information to one of your quality associates to order your lunch. I have a ton of other things to

do and I cannot keep running to meet drivers with lunches to take up.” (Id.; doc. 59-1 at 37 (138:4-

140:18); doc. 59-12 at 6-7, ¶ 18). The next day, on March 27, 2018, Green (HR Manager) asked

Cole via email to assist the catering restaurant with set up for an employee dinner taking place that

evening. (Doc. 59-12 at 7, ¶19; doc. 59-7 at 2-3). Cole responded, “Seeing as how, I am usually

the one to come back to assist, I’m sure someone else can assist tonight.” (Doc. 59-7 at 2-3; doc.

59-1 at 37 (140:21-141:5)). Green also asked Cole if she had selected employees to attend the

next employee dinner, and Cole responded, “You had the container to pull the names. . . . But to

answer your question, no, I did not pull any names.” (Id.). Green found these communications

from Cole to be rude, uncooperative, and insubordinate, particularly because managing company

events like employee lunches and dinners fell within Cole’s job duties and responsibilities. (Doc.

59-12 at 8, ¶ 20; doc. 59-1 at 17-18 (60:10-63:15)). Green forwarded these conversations to Smith,

who suggested she discuss Cole’s conduct with Horn and Lane. (Doc. 59-13 at 8-9, ¶¶ 22-23).

Green reported Cole’s failure to perform her duties and uncooperativeness to her superiors,

Plant Director Lane and Vice President of Human Resources Horn. (Doc. 59-12 at 7-8, ¶¶ 20-21).

Green notified Lane and Horn that she believed Cole was unwilling to work with Green as her

superior. (Id.; doc. 59-9 at 6, ¶ 12; doc. 59-10 at 4, ¶ 9, doc. 59-1 at 37-38 (141:6-141:19)). Horn

and Lane directed Green to terminate Cole’s employment based on her conduct. (Doc. 59-9 at 5-

6, ¶12; doc. 59-10 at 4, ¶ 10).

On April 6, 2018, Green, along with Operations Manager Rich Metcalf (“Metcalf”), met

with Cole and informed her that she was being terminated due to these issues. (Doc. 59-1 at 35-

38 (131:11-134:18, 141:6-143:15); doc. 50-6 at 16-1; doc. 59-12 at 8, ¶ 21). No Caucasian or

darker-skinned HR Generalist under Green’s supervision had engaged in insubordinate behavior

like Cole. (Doc. 59-12 at 8, ¶ 22; doc. 59-9 at 6, ¶ 13; doc. 59-1 at 40-41 (152:4-153:4; 156:8-

10)). Cole admits she does not know the details of other HR Generalists’ performance or work

histories. (Doc. 59-1 at 18 (63:16-65:9)). Cole testified that nobody told her that her termination

was based on her race or color and no one said anything that led her to that conclusion. (Doc. 59-

1 at 41-42 (157:13-19, 158:18-159:8, 159:17-160:2)).

Following Cole’s termination, Belinda Walker (“Walker”), an African-American female,

was hired as an HR Generalist in Cole’s former role. (Doc. 59-1 at 41-42 (157:20-158:17)). Smith

and Horn both observed Walker’s skin color to be similar to that of Cole’s skin Color. (Doc. 59-

9 at 6, ¶14; doc. 59-13 at 9, ¶ 25). Cole testified Walker’s skin color was similar to Green and

Will’s but darker than hers. (Doc. 59-1 at 41-42 (157:20-158:17)).

E. Cole’s EEOC Charge of Discrimination

On June 19, 2018, Cole filed a Charge of Discrimination with the EEOC alleging race and

color discrimination as well as retaliation in violation of Title VII. (Doc. 59-14 at 2-5). Cole filed

her Charge against “Gestamp” located at 7000 Jefferson Metro Parkway, McCalla, Alabama

35111, which is the physical location for Gestamp Alabama. (Id.). Cole does not mention or

reference Gestamp NA in her Charge. (Id.). Gestamp NA did not receive notice of Cole’s Charge

and did not have the opportunity to conciliate on its own behalf in the EEOC proceedings. (Id.).

III. Analysis

A. Cole Failed to Exhaust Administrative Remedies Against Gestamp NA

Assuming Cole could establish an employment relationship with Gestamp NA,

Defendants contend Cole’s Title VII claims against Gestamp NA must be dismissed because she

failed to timely exhaust administrative remedies. (Doc. 60 at 15-16). As a condition precedent to

bringing a civil action pursuant to Title VII, an individual must file a charge “within one hundred

and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-

5(e)(1). Defendants argue Cole did not exhaust her administrative remedies against Gestamp NA

because she did not mention Gestamp NA in her EEOC Charge and only mentioned “Gestamp,”

providing the Gestamp Alabama address in McCalla. (Doc. 60 at 16).

A party not named in an EEOC charge cannot be named as a defendant in a subsequent

suit. See Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994); see also 42

U.S.C. § 2000e-5(f)(1) (authorizing suit “against a respondent named in the charge”). Defendants

assert that Gestamp NA did not receive notice of Cole’s EEOC charge and thus did not have an

opportunity to conciliate on its behalf. (Doc. 60 at 16).

Although there may be a situation in which a parent company could receive notice of an

EEOC charge, Cole fails to respond to Defendants’ failure to exhaust argument. (See doc. 62).

Without any evidence Gestamp NA received notice of Cole’s claims, Cole’s Title VII claims

against Gestamp NA are due to dismissed for failure to exhaust. See Floyd v. Home Depot U.S.A.,

Inc., 274 Fed. App’x 763, 764-66 (11th Cir. 2008) (citing Resolution Trust Corp. v. Dunmar Corp.,

43 F.3d 587, 599 (11th Cir. 1995)) (affirming dismissal of grant of summary judgment based on

district court’s finding that plaintiff had abandoned her claim). Furthermore, even if Cole had

exhausted her claims against Gestamp NA, the following analysis would apply to support dismissal

of those claims.

B. Cole’s Discriminatory Failure to Promote Claim

Cole asserts she was denied the HR Manager position in favor of Green because of her

lighter skin color. To state a prima facie failure-to-promote claim, Cole must present evidence

that (1) she is a member of a protected class; (2) she applied and was qualified for the position

sought; (3) she was rejected in spite of her qualifications; and (4) Defendant promoted an

individual outside of the plaintiff’s protected class. Johnson v. Bd. of Trustees of Univ. of Ala.,

191 F. Appx. 838, 843 (11th Cir. 2006). Once a plaintiff establishes a prima facie case of

discrimination, the burden of production shifts to the defendant employer to articulate a legitimate,

nondiscriminatory reason for the challenged employment action. Chapman v. AI Transport, 229

F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Planation Patterns, 106 F.3d 1519, 1528 (11th

Cir. 1997)). If the defendant articulates one or more such reasons, the presumption of

discrimination is eliminated, and the plaintiff then must come forward with evidence sufficient to

permit a reasonable factfinder to conclude that the reasons given by the employer were not the real

reasons for the adverse employment action. Id. If the plaintiff does not proffer sufficient evidence

to create a genuine issue of material fact regarding whether each of the defendant employer’s

articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff’s

claim. Id. at 1024-25.

1. Cole’s Prima Facie Case

Defendants contend that Cole cannot establish a prima facie case for discrimination based

on not being promoted to HR Manager because (a) she was not qualified for the HR Manager

position and (b) she cannot establish Green was outside of her protected class. (Doc. 60 at 17-19).

Defendants contend Cole was not qualified for the HR Manager position because the position

required eight to ten years’ experience in HR, and Cole had only been working in HR for five

years. (Doc. 60 at 18). Cole does not directly rebut this argument, but asserts she “met the job

requirements” and was “fully qualified” for the position because she had a Master’s degree and

“substantial work on her doctorate.” (Doc. 62 at 2). The HR Manager job description is unclear

as to whether a four-year degree is required. (Doc. 59-9 at 9). Under the heading “Education and

Experience,” it states “4 year degree, post graduate preferred.” (Id.). As Cole suggests, this can

logically be read as a four-year degree being required and a post-graduate degree being preferred.

However, it can also be logically read as Defendants contend, that neither degrees are required,

but both degrees are preferred. Notwithstanding this disagreement, what is undisputed is that the

HR Manager position required eight to ten years’ experience, and Cole only started working in HR

in 2012 (doc. 59-13 at 16), approximately five years before the promotion opportunity. Because

of this, Cole did not have the requisite HR experience to be qualified for the promotion. Cole

broadly states she was “qualified,” but does not directly address this experience requirement. The

undisputed evidence demonstrates Green met this experience requirement and Cole did not. (Doc.

59-11 at 3, ¶¶ 5, 5(a); doc. 59-12 at 4, ¶ 11). Although Defendants argue Cole cannot establish

that someone outside of her protected class was promoted, for purposes of summary judgment,

Cole has presented sufficient evidence that Green could have been viewed as having darker skin

than Cole.

Because at the time she was considered for the promotion, Cole did not have eight to ten

years’ experience, she cannot establish she was qualified for the position and therefore cannot

establish a prima facie case of discrimination. However, even if Cole was qualified for the

position, and therefore could establish a prima facie case of discrimination, her failure-to-promote

claim would fail because Cole cannot establish that Defendants’ reasons for promoting Green were

pretextual.

2. The Legitimate, Non-Discriminatory Reasons for Promoting Green Were Not

Pretextual

Three candidates applied for the HR Manager position: Cole, Green, and an external

candidate, Marcene Emmett (“Emmett”). (Doc. 59-9 at 4, ¶ 8). Horn, VP of HR, interviewed each

of the three candidates in November 2017, and Horn and Petroni, Gestamp NA President,

considered their respective qualifications and experience, and determined that Green was the most

qualified candidate for the position based on her performance and experience as well as her more

extensive history with Gestamp Alabama. (Doc. 59-9 at 5, ¶ 11; doc. 59-1 at 26-27 (97:22-100:5).

These are legitimate, non-discriminatory reasons that meet the defendants’ burden of production.

To survive summary judgment, Cole must present evidence that these reasons are

pretextual, meaning they are a cover for discrimination. Cole fails to point to sufficient evidence

to create a genuine issue of material fact regarding whether each of these articulated reasons is

pretextual, and there is absolutely no evidence in the record that Horn or Petroni ever expressed

any color-based bias against Cole or anyone else.5 Notably, Cole testified at her deposition that

she did not know why Green was chosen for the position and that she had no evidence that color

was the real reason she was not picked for the position. (Doc. 59-1 at 41 (156:11-18, 157:1-12)).

Instead, the record shows that Green had been with the company for seven years, and Cole

had only been there one year. Green had twenty-five years’ experience in HR, and Cole had five

years’ experience in HR. There is nothing in the record to undermine Defendants’ conclusion that

5 Interestingly enough, Cole spends significant time in her brief discussing the privilege

of light skin over dark skin and how people of all races experience that. (Doc. 62 at 3-5). Even

if Cole’s arguments were persuasive, they would support the implication that the white

decisionmakers would prefer a light-skinned employee, such as Cole; not that they would be

subconsciously biased against her.

Green was the superior candidate for the position. Cole places a lot of emphasis on her education,

which she believes is superior. While educational background is one difference between Cole and

Green, in light of all the other evidence, and the absence of any evidence of color bias on the part

of the decision makers, Cole cannot demonstrate “that the disparities between [Green’s] and [her

own] qualifications were of such weight and significance that no reasonable person, in the exercise

of impartial judgment, could have chosen the candidate selected over the plaintiff.” Webb v. IBM,

458 F. Appx. 871, 876 (11th Cir. 2012). For these reasons, summary judgment is due on Cole’s

failure to promote claim.

C. Cole’s Discriminatory Termination Claim

Cole contends Defendants terminated her employment because of her lighter skin color

and argues in her brief that Green was the individual with color bias who fired her. (doc. 62 at 6).

To state a prima facie case for color discrimination, Cole must prove (1) she is a member of a

protected class; (2) she was qualified for her job; (3) she was subjected to an adverse employment

action; and (4) the defendant employer treated a similarly-situated employee(s) outside her

protected class more favorably. See Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th

Cir. 2006); Wilson v. B/E Areospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).

If a plaintiff establishes a prima facie case, the burden then shifts to the defendant employer

to articulate a legitimate, nondiscriminatory reason for the challenged employment action, here

Cole’s termination. See Mazzeo v. Color Resolutions Intern., LLC, 746 F.3d 1264, 1270 (11th

Cir. 2004). If the employer satisfies this burden, then the plaintiff must provide sufficient evidence

that the proffered reason is merely a pretext for unlawful discrimination. See id. To discredit the

defendant employer's explanation, the “plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder could find all of those reasons

unworthy of credence.” Gresham v. City of Florence, Ala., 319 F. Appx. 857, 864 (11th Cir. 2009)

(quoting Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir.1998)).

1. Cole’s Prima Facie Case

Defendants assert that Cole cannot establish a prima facie case for discriminatory

termination because she cannot show that Defendants treated similarly-situated individuals more

favorably or any other evidence of discrimination based on her color. (Doc. 60 at 22). Generally,

“[t]o make a comparison of [a plaintiff’s] treatment to that of [someone outside of the plaintiff’s

protected class], [the plaintiff] must show that [s]he and the employees are similarly situated in all

relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “To meet the

comparability requirement a plaintiff is required to show that [s]he is similarly situated in all

relevant aspects to the non-minority employee.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253,

1259 (11th Cir. 2001). It is necessary for a comparator to be “nearly identical” to the plaintiff “to

prevent courts from second-guessing a reasonable decision by the employer.” Wilson, 376 F.3d at

1091; see also McCann v. Tillman, 526 F.3d 1370, 1374 (11th Cir. 2008).

Cole fails to point to any darker-skinned or white HR Generalist who displayed similar

poor performance or insubordinate behavior during the relevant time period, but was not

terminated. Without this evidence, Cole cannot establish a prima facie case of discriminatory

termination. Although it is plausible for one light-skinned African-American to be discriminated

against, but not another, the evidence shows James, who has lighter skin than Cole, was employed

at Gestamp Alabama prior to Cole and remains employed at Gestamp Alabama.

2. Defendants’ Legitimate, Non-Discriminatory Reasons are Not Pretextual

Even if Cole could present evidence to establish a prima facie case of discriminatory

termination, she has failed to present evidence that Defendants’ legitimate, non-discriminatory

reasons for her termination were pretextual. Defendants have presented evidence that Cole was

terminated because of poor performance and insubordinate behavior. In January 2018, Cole

refused to take the plant director his glasses at a restaurant meeting with the President of Gestamp

NA and was disrespectful in her refusal. (Doc. 59-10 at 3, ¶ 5; doc. 59-13 at 7-8, ¶ 20; doc. 59-1

at 36-37 (135:21-138:3)). In March 2018, Green discovered that Cole had failed to generate over

one hundred attendance-related disciplinary notices, which caused a problem to correct. (Doc. 59-

12 at 5-6, ¶ 15; doc. 59-13 at 8, ¶ 21). That same month, Cole was rude to Gestamp Alabama

Manager Rose and essentially refused to do her job to coordinate employee lunches. (Doc. 59-6

at 18-21; doc. 59-1 at 37 (138:4-140:18); doc. 59-12 at 6-7, ¶ 18). On March 27, 2018, Cole

refused Green’s request to set up an employee dinner and was dismissive and rude about having

not drawn names for the next employee dinner. (Doc. 59-12 at 7, ¶19; doc. 59-7 at 2-3; doc. 59-1

at 37 (140:21-141:5)). These behaviors are legitimate, non-discriminatory reasons for Cole’s

termination sufficient to shift the burden to Cole to present evidence that these reasons were a

pretext for discrimination.

At Smith’s suggestion, Green reported Cole’s failure to perform her duties and

uncooperativeness to her superiors, Plant Director Lane and VP of HR Horn. (Doc. 59-12 at 7-8,

¶¶ 20-21). Green notified Lane and Horn that she believed Cole was unwilling to work with Green

as her superior. (Id.; doc. 59-9 at 6, ¶ 12; doc. 59-10 at 4, ¶ 9, doc. 59-1 at 37-38 (141:6-141:19)).

Horn and Lane directed Green to terminate Cole’s employment based on her conduct. (Doc. 59-9

at 5-6, ¶12; doc. 59-10 at 4, ¶ 10).

The evidence establishes that Horn and Lane made the termination decision. There is

absolutely no evidence that either harbored any color bias. However, it is true that Cole would not

have been in the figurative hot seat with Horn and Lane if Green had not notified Lane and Horn

about Cole’s behavior, poor performance, and unwillingness to work with Green as her supervisor.

For that reason, the undersigned will examine the evidence regarding Green’s motivation.

In Staub v. Proctor Hospital, 562 U.S. 411 (2011), the Supreme Court endorsed the cat’s

paw theory by defining the circumstances under which an employer could be liable when the

decision-maker has no discriminatory animus, yet is influenced by a subordinate supervisor’s

action that is the product of such discriminatory animus. The Court held that the employer could

be liable only if the subordinate supervisor (1) performs an act motivated by discriminatory animus

that is intended to cause an adverse employment action, and (2) that act is a proximate cause of

the ultimate employment action. Staub, 562 U.S. at 422. Cole does not cite Staub or reference

“cat’s paw theory.” (See doc. 62). However, out of an abundance of caution, the undersigned will

consider whether there is any evidence Green demonstrated color-based animus against Cole that

contributed to her termination.

Cole makes several unsupported assertions that Green harbored color-based bias. Many of

Cole’s statements in her affidavit were stricken as unfounded, speculative, and contradicted by her

prior sworn testimony. There is evidence that Green made comments indicating that there were

color differences among the black employees and that Cole had “white people hair.” These were

stray remarks not uttered in the context of decisions at issue and not sufficient circumstantial

evidence of bias to provide a reasonable basis for a finding of racial discrimination in Cole’s

termination. See Ash v. Tyson Foods, Inc., 190 F. App’x 924, 926 (11th Cir. 2006). What remains

undisputed is that no other employee in the HR department engaged in repeated insubordinate

behavior like Cole. There is simply insufficient evidence to raise any presumption of

discrimination in Cole’s termination.°

IV. Conclusion

For the reasons stated above, the undersigned finds there is no genuine issue of material

fact, and Defendants are entitled to summary judgment as a matter of law. The motion for

summary judgment is GRANTED. A separate order will be entered.

DONE this 21st day of October, 2020.

vo

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE

© The above-applied framework is not the only way for a plaintiff to survive summary

judgment in a discrimination case. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th

Cir. 2011). Rather, the plaintiff can survive summary judgment “if [s]he presents circumstantial

evidence that creates a triable issue concerning the employer's discriminatory intent.” Jd. A triable

issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a

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

discrimination by the decision-maker. Jd. As noted throughout this analysis, there is simply

insufficient evidence to raise a presumption of color-based discrimination.

20