Thomas v. Amentum Services Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

RONDA THOMAS,

Plaintiff,

v. Case No. 1:21-cv-407-CLM

AMENTUM SERVICES INC.,

Defendant.

MEMORANDUM OPINION

Plaintiff Ronda Thomas (“Thomas”) sues Amentum Services, Inc.

(“Amentum”) for discriminating against her because of pregnancy, sex,

disability, and race, and for retaliating against her for complaining about

discrimination and filing an EEOC complaint. For the reasons stated

below, the court DENIES IN PART and DENIES AS MOOT IN PART

Amentum’s motion to strike (doc. 51), and GRANTS Amentum’s motion

for summary judgment (doc. 31).

BACKGROUND

This case is at the summary judgment stage, and frankly, the court

struggled to parse the pleadings and the briefing. So the court held a

hearing so the parties could clarify the facts, claims, and defenses. (See

Doc. 57). With a better understanding of the issues and arguments, here

are the relevant facts, stated in a light most favorable to Thomas:

1. Thomas’s work for VSE: VSE was a company that performed a

federal contract at the Anniston Army Depot. (Doc. 33, p. 6). VSE hired

Thomas to work at the Depot as an Electrician Helper in March 2019.

(Doc. 1, p. 3, ¶ 14).

Three months later (June 2019), Thomas told VSE that she was

pregnant. (Doc. 1, p. 3, ¶ 15). Soon after, Thomas’s doctor gave her medical

restrictions, including a limitation on her ability to lift and bend. (Doc. 1,

p. 4, ¶ 20). Thomas asked VSE for accommodations, including a

“modified/light duty assignment.” (Doc. 1, p. 4, ¶¶ 20-21; p. 6, ¶ 40).

Thomas claims that VSE refused to accommodate her, and she was forced

to take early leave in July 2019. (Doc. 1, p. 4, ¶¶ 22-23; Doc. 33, p. 6, ¶ 5).

While on leave, VSE reclassified Thomas as a Supply Technician. (Doc.

33, p. 6, ¶ 6). The work performed by Supply Technicians is generally

similar to the work Thomas performed as an Electrician Helper.

Those facts might give rise to legal claims against VSE. But Thomas

has not sued VSE here. Thomas has sued Amentum Services, a company

that entered the picture after Thomas took leave from VSE.

2. Amentum Services: In December 2019—while Thomas was still

out on leave—AECOM bought VSE, and Amentum then bought AECOM.

(Doc. 1, p. 4, ¶¶ 16-18). According to Thomas, Amentum placed VSE and

AECOM employees who were out on medical leave into an “incumbent

pool” to transition—but only if they could provide Amentum with a

“return to work” date. (Doc. 48, p. 21, ¶ 6). Thomas was out on leave, but

she did not have a “return to work” date. So Amentum did not process her

for hire. (See Doc. 35-2, p. 1).1

The Complaint repeatedly states that VSE fired Thomas. (See, e.g.,

Doc. 1, p. 5, ¶ 30; p. 9, ¶ 58). But Thomas’s counsel confirmed at the court’s

hearing that Thomas was laid off after VSE lost its contract at the

Anniston Army Depot. Thomas said the same thing at her deposition;

specifically, she testified VSE sent her and other employees a letter that

said VSE had lost its contract, so the employees would soon be laid off.

(Doc. 32-4, p. 5). The parties agree that Thomas’s last day of employment

under the VSE contract was January 15, 2020. (Doc. 48, p. 5, ¶ 4.a).

1 Amentum disputes this description of its hiring process (see doc. 33, p. 7-8), but at this

stage, the court must accept Plaintiff’s version of events.

The parties dispute whether Thomas was ever employed by

Amentum. Thomas argues that Amentum considered her an employee

because the company had a profile for her in iCMIS, a program for storing

employee and applicant information. (Doc. 48, p. 3, ¶ 2). Thomas also

contends that Amentum counted her as an employee in April 2020 when

Amentum employees were discussing the number of Supply Technicians

via email. (Doc. 44-1, p. 2-4). But Thomas also admits that she knew that

she was laid off, and she knew that she needed to reapply. (Doc. 32-1, p.

33; Doc. 32-4, p. 5; see also Doc. 1, p. 5, ¶¶ 30-31). So the court construes

all of this to mean that while Amentum expressed an intent to rehire

Thomas, she was never employed by Amentum.

3. Attempts at re-employment: As her medical leave neared its end,

Thomas reached out to Amentum about employment opportunities. One

Human Resources employee told Thomas, “You have got nothing to worry

about. As soon as you get released by the doctor, you will be first on the

list.” (Doc. 48, p. 3). And at least two other employees told Thomas she

had “nothing to worry about” regarding her hire. (Doc. 32-1, p. 15). Vernon

Lewis told Thomas she would be “placed in front, first on the list”

whenever she was released by her doctor to return to work. (Id.).

On April 20, 2020, Thomas’s doctor lifted her restrictions and

released her to return to work. (Doc. 1, p. 5, ¶ 24). Thomas’s counsel

confirmed at the hearing that Thomas had no medical restrictions upon

her release. Thomas then applied for various positions at Amentum, but

was never interviewed or hired. (Doc. 1, p. 6, ¶¶ 36-37).

The first position Thomas applied for was Supply Tech 18525. (Doc.

33, p. 10-11). She applied on May 12, 2020, but Amentum hired Melinda

Andrew, a Black female, for the position the day before. (Doc. 33, p. 11).

And even if Thomas had applied sooner, Amentum would have considered

her ineligible. Amentum maintains a conflict of interest policy, which

prohibits employees from supervising or otherwise making employment

decisions that affect their immediate family members or anyone with

whom they have a romantic or intimate relationship. (Doc. 1, p. 5, ¶ 25).

And at the time of Thomas’s application, Supply Tech 18525 was

supervised by Daniel Ball, the father of Thomas’s child. (Doc. 33, p. 11).

So even if Thomas had applied when the position was open, her placement

in that role would have violated Amentum’s policy.

Thomas alleges that Amentum does not enforce its policy. (See, e.g.,

Doc. 1, p. 8-9, ¶ 57). But nothing in the record supports that allegation.

Thomas says that Amentum allowed a nephew to be supervised by his

uncle, and allowed siblings to work on the same shift in the same

departments. (Doc. 1, p. 8-9, ¶ 57). But those arrangements don’t violate

the plain language of the policy. And the record shows that Amentum fired

an employee after discovering an undisclosed familial relationship with

an employee under his supervision. (See, e.g., Doc. 32-7, p. 3).

Thomas later applied for two supervisor positions: Site Supervisor

19115, and Site Supervisor 19626. (Doc. 33, p. 12-13, 16-17). But the

conflict of interest policy still rendered her ineligible because she would

supervise Daniel Ball, the father of her child, in both roles. (Id.). Site

Supervisor 19115 was filled by Jerry Moore, an incumbent employee with

more supervisory experience than Thomas. (Doc. 33, p. 12-13). And Site

Supervisor 19616 was offered to several candidates, both male and female,

and ultimately filled by Coty Flowers. (Doc. 33, p. 17).

Thomas also applied for a Production Control Clerk position. (Doc.

33, p. 11-12). Amentum determined that Thomas failed to meet the

minimum qualifications for that position, and instead hired Heather

Sparks, a white female, and incumbent employee. (Id.).

And on July 15, 2020, Thomas applied for Supply Tech 19468. (Doc.

33, p. 15-16). But like her earlier Supply Tech application, Thomas applied

after the position was filled. (Id.) The job went to Daniel Ball, an

incumbent employee, and the father of Thomas’s child. (Id.).

This chart summarizes Thomas’s applications:

Amentum’s Non-

Position Applied Filled By

Discriminatory Explanation

Supply Tech May 12, Melinda Richard Position already filled (May 11)

18525 2020 Black female, incumbent Ball was supervisor

Production May 13, Heather Sparks

Deemed not minimally qualified

Control Clerk 2020 White female, incumbent

Jerry Moore

Site Supervisor June 17, Ineligible: supervise Ball

White male, 10 yrs. exp, Amentum

19115 2020 Minimally qualified

K (temp agent)

Supply Tech July 15, Daniel Ball Position already filled (July 13),

19468 2020 White male, incumbent not minimally qualified

Site Supervisor July 21, Coty Flowers Ineligible: supervise Ball

19626 2020 White male (offers made to females) Minimally qualified

Site Supervisor Sept. 3,

Kenneth Brown Ineligible: supervise Ball

20406 2020

The briefing also discusses applications for a Material Coordinator

position, and a Human Resources Manager position. But Thomas states

that she “makes no claim” for these positions. (Doc. 48, p. 39).

Certain parts of the Complaint also suggest that Thomas might be

bringing claims related to a Supply Tech position filled by Tim Beyers.

But Thomas’s counsel confirmed at the hearing that Thomas brings no

claims against Amentum over that Supply Tech position. Thomas’s claims

pertain only to the six positions listed above.

4. Legal proceedings: Thomas filed an EEOC complaint on July 13,

2020. (Doc. 1, p. 2, ¶ 8). The EEOC mailed Thomas’s Dismissal and Notice

of Rights on December 17, 2020. (Doc. 1, p. 3, ¶ 9). Thomas filed this

lawsuit within the next 90 days.2 (Id.).

The Complaint includes five counts: (1) pregnancy discrimination in

violation of the Pregnancy Discrimination Act, (2) gender discrimination

in violation of Title VII, (3) disability discrimination in violation of the

Americans with Disabilities Act and the Americans with Disabilities Act

2 As the chart shows, Thomas applied for three of the six positions at issue after filing

her EEOC complaint. Based on the attorneys’ statements at the hearing, the court

assumes—without finding—that Thomas exhausted her administrative remedies for

all six positions because Thomas notified the EEOC about all six positions during the

EEOC’s investigation. See (Trans. 30-32).

Amendments Act, (4) race discrimination in violation of Title VII and 42

U.S.C. § 1981, and (5) unlawful retaliation. (Doc. 1).

Amentum moved for summary judgment on all of Thomas’s claims.

(Doc. 31). Thomas filed a brief in opposition (doc. 48), which she supports

with various documents including emails, text messages, and declarations

from witnesses. (See Docs. 33, 34). Amentum moved to strike some of those

documents. (Doc. 51). So the court decides two motions here: the motion

to strike (doc. 51) and the motion for summary judgment (doc. 31).

STANDARD OF REVIEW

“The court shall grant summary judgment 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). “The moving

party bears the initial burden of demonstrating the absence of a genuine

dispute of material fact.” FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d

1282, 1307 (11th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986)). A “material fact” is one that “might affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

The court must view all evidence and make all reasonable

inferences in favor of the non-moving party. Allen v. Board of Public Educ.

for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007) (internal quotation

marks omitted). The court is “neither required nor permitted to determine

whose version of any disputed fact is actually correct, or more likely to

be.” Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1341 (11th Cir. 2022).

Instead, the court’s task is only to determine whether the non-moving

party’s version of events has evidence to support it. Id.

DISCUSSION

This discussion proceeds in two parts. Part I addresses Amentum’s

motion to strike (doc. 51). Part II addresses Amentum’s motion for

summary judgment (doc. 31).

I. Motion to Strike

Amentum asks the court to strike as inadmissible certain evidence

presented by Thomas. (Doc. 51).

Amentum suggests that Doc. 43-4 is hearsay. (Doc. 51, p. 8).

Hearsay is an out-of-court statement offered “to prove the truth of the

matter asserted.” Fed. R. Evid. 801(c). Doc. 43-4 contains an email in

which Alicia Henness, an Amentum human resources employee, refers to

Thomas a “Danny Ball’s baby momma.” But Thomas does not offer the

email to prove that Danny Ball was the father of her child. That’s

undisputed. Thomas offers the email to prove that Amentum’s employee

spoke about her in a derogatory way. Thus, the email is not hearsay.

Amentum also argues that the email was never provided to the

court reporter or provided with the deposition. (Doc. 51, p. 9). But

Amentum produced these emails to Thomas, so it had notice of them. So

the court DENIES Amentum’s motion to strike Doc. 43-4.

The court DENIES AS MOOT all other documents discussed in the

motion to strike. Consideration of these materials would not impact the

court’s ruling on the motion for summary judgment in any material way.

II. Motion for Summary Judgment

The court addresses the counts in the order Thomas pleaded them.

But first, the court notes that Thomas waived any argument that she did

not set out in her brief in opposition. T.R. by and through Brock v. Lamar

County Board of Educ., 25 F.4th 877, 884-85 (11th Cir. 2022) (because

appellant “did not raise this argument before the district court in her brief

in opposition to the Defendant’s motion for summary judgment… she

waived this argument below”). The court applies this rule throughout.

A. Count 1: Pregnancy Discrimination

Thomas alleges pregnancy discrimination in violation of the

Pregnancy Discrimination Act.

Title VII of the Civil Rights Act of 1964 prohibits employment

discrimination on the basis of race, color, religion, sex, or national origin.

42 U.S.C. § 2000e et eq. And the Pregnancy Discrimination Act provides

that the prohibition against sex-based employment discrimination in Title

VII applies with equal force to discrimination because of “pregnancy,

childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k); see also

Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320 (11th Cir. 2000).

The analysis required for a pregnancy discrimination claim is the

same type of analysis used in other Title VII sex discrimination suits.

Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1313 (11th Cir. 1994).

Thus, a plaintiff can survive summary judgment on a pregnancy

discrimination claim in either of two ways.

i. McDonnell Douglas Framework

The first option is to rely on the 3-step McDonnell Douglas

framework. In Step 1, the plaintiff must prove a prima facie case of

discrimination by showing that (1) she belongs to a protected class; (2) she

suffered an adverse employment action; (3) she was qualified to perform

the job; and (4) 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). If the plaintiff makes out a prima

facie case, the burden shifts to the defendant to produce a legitimate, non-

discriminatory reason for its actions in Step 2. Id. at 1221. If the

defendant carries its burden in Step 2, then the plaintiff must show that

the defendant’s proffered reason was merely a pretext for unlawful

discrimination. Id.

The court will dismiss Count 1 because Thomas cannot satisfy Steps

1 or 3 of the McDonnell Douglas framework.

1. Prima facie case: The briefing on this claim was minimal. Thomas

asserts that but for her pregnancy, Amentum would have placed her in an

open position. (See Doc. 48, p. 41). And Thomas asserts that she “has

presented evidence that would allow a reasonable factfinder to conclude

that Amentum’s reasons are unworthy of credence.” (Doc. 48, p. 39-40).

But as the court explained at the hearing, the Pregnancy

Discrimination Act prohibits discrimination because of “pregnancy,

childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Thomas

applied for the six positions at issue on May 12, May 13, June 17, July 15,

July 21, and September 3. Thomas was not pregnant on any of these dates.

Nor did Thomas have any pregnancy-related disabilities or medical

conditions, or restrictions imposed by her doctor. And she didn’t perceive

herself as having any medical conditions. As a result, the court finds that

Thomas cannot establish that she is a member of a protected class, and

she thus fails to make a prima facie case.

2. Pretext: Even if Thomas could establish a prima facie case in Step

1, Thomas’s claim would fail in Step 3 (proving pretext) because Thomas

failed to respond to Amentum’s nondiscriminatory explanations. See T.R.,

supra (finding waiver of arguments not raised in a brief in opposition).

Thomas applied for six open positions at Amentum. Four of the six

positions would have required Thomas to supervise Daniel Ball, or be

supervised by Daniel Ball, in violation of Amentum’s conflict of interest

policy. Thomas’s counsel conceded this point at the hearing. Thomas

claims generally that Amentum does not enforce its policy. But there’s no

evidence in the record to support that claim. Instead, the record shows

that Amentum has terminated employees for violating the policy. (See,

e.g., Doc. 32-7, p. 3).

Thomas applied to two jobs that would not require her to supervise

or be supervised by Daniel Ball. And Amentum explained why Thomas

was not hired for each of them. The first position was Supply Tech 19468,

which Thomas applied for on July 15, 2020. (Doc. 33, p. 15). Amentum

says that Thomas was not considered because the position had been filled

on July 13, 2020. (Doc. 33, p. 15). And even if Thomas had been considered,

Amentum says Thomas was considered not minimally qualified by the

African American recruiter. (Doc. 33, p. 15). The position was ultimately

filled by Daniel Ball, the father of Thomas’s child, and Thomas admits

that Daniel Ball was more qualified for Supply Tech 19468 than she was.

(Doc. 32-1, p. 26).

Thomas also applied for the Production Control Clerk position on

May 13, 2020. And Amentum explained that the company did at first

consider Thomas, but recruiters found her not minimally qualified. (Doc.

33, p. 11-12).

Thomas fails to explain whether or why these nondiscriminatory

explanations are pretextual. She points to the fact that Quintez Arnold

said that he did not believe in black and white relationships. (See Doc. 32-

1, p. 16). But that fact, viewed in light most favorable to Thomas, does not

support her claim. If a decisionmaker at Amentum discriminated against

Thomas because of her interracial relationship, that constitutes

discrimination on the basis of race—not pregnancy. And Thomas’s counsel

conceded this point at the hearing.

Thomas also points to the fact that an Amentum employee called

her a “baby momma.” (Doc. 43-4, p. 3). But in the same email, the HR

employee states that there’s no open position for Thomas because her

employment in any of the open positions would violate Amentum’s conflict

of interest policy. Thomas concedes that hiring her would have violated

Amentum’s conflict of interest policy. So it’s unclear how this statement—

even viewed in the light most favorable to Thomas—is evidence of pretext.

On this record, there is no basis for a jury to conclude that

Amentum’s stated reasons are pretextual. So Thomas cannot meet her

burden under the final step of McDonnell Douglas.

ii. “Convincing Mosaic” Framework

As an alternative to the McDonnell Douglas framework, a plaintiff

can survive summary judgment by presenting “circumstantial evidence

that creates a triable issue concerning the employer’s discriminatory

intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.

2011). “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

decisionmaker.” Id. (internal quotation marks omitted). “A plaintiff may

establish a convincing mosaic by pointing to evidence that demonstrates,

among other things, (1) suspicious timing, ambiguous statements, or other

information from which discriminatory intent may be inferred, (2)

systemically better treatment of similarly situated employees, and (3)

pretext.” Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (citing

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

(internal quotation marks omitted).

Again, the briefing on this claim is minimal. But Thomas’s counsel

stated at the hearing that she thinks there “is a better argument under

convincing mosaic.” And she encouraged the court to “look at everything

that happened with every job that she applied for.” But again, Thomas’s

failure to make a pretext argument is fatal. See Lewis v. City of Union

City, Ga., 934 F.3d 1169, 1185 (11th Cir. 2019).

—

In sum, Thomas fails to meet her burden of establishing a prima

facie case of pregnancy discrimination under any theory of proof. So the

court GRANTS summary judgment for Amentum on Count 1.

B. Count 2: Sex Discrimination

Thomas merges her pregnancy and sex discrimination claims in her

brief in opposition. (See Doc. 48). She says the issue before the court in

Count 2 is “whether there is evidence to support Plaintiff’s claim that

Amentum discriminated against he [sic] because of her sex – specifically

pregnancy.” (Doc. 48, p. 38-39). Thomas says there is no argument about

sex discrimination apart from the issue of pregnancy discrimination.

To be sure, the Complaint alleges that Amentum hired “less-

qualified men to fill the positions she has applied for or requested.” (Doc.

1, p. 10, ¶ 67). But Thomas makes no argument in support of this

allegation. If Thomas tried to plead a separate claim of Title VII sex

discrimination apart from her PDA claim, the court finds that she has

waived that claim by failing to discuss it in the brief in opposition. See

T.R., supra. Because only pregnancy discrimination remains, the court

GRANTS summary judgment for Amentum on Count 2 for the same

reasons the court granted summary judgment on Count 1.

C. Count 3: Disability Discrimination

Thomas claims that Amentum discriminated against her and failed

to rehire her because of a disability.3

Under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12112(a), it is unlawful for an employer to “discriminate against a

qualified individual on the basis of disability in regard to job application

procedures . . . hiring . . . and other terms, conditions, and privileges of

employment.” And to establish a prima facie case for disability

discrimination, a plaintiff must produce sufficient evidence for a jury to

find that (1) she is disabled, (2) she is a qualified individual, and (3) she

was discriminated against because of her disability. Lewis v. City of Union

City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019) (citing Mazzeo v. Color

Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014)). “The ADA

defines the term ‘disability’ as (1) a physical or mental impairment that

substantially limits one or more of an individual’s major life activities, (2)

a record of such an impairment, or (3) being regarded as having such an

impairment as described in subsection (1).” Lewis, 934 F.3d at 1179 (some

internal quotation marks omitted).

3 The Complaint also mentions a failure to provide reasonable accommodations. (See

Doc. 1, p. 11). But Thomas never worked for Amentum, so she could not have asked

Amentum for reasonable accommodations. Thomas may have asked VSE for

accommodations, but VSE is not the defendant here.

This is Thomas’s briefing on Count 3:

ADA

To establish a prima facie case of disability discrimination, Claimant must

show that he (1) had a disability, (2) was a qualified individual and (3) was subjected

to unlawful discrimination because of his disability. Claimant has established these

elements. Plaintiff has established a claim of discrimination pursuant to the

ADA/ADAAA.

(Doc. 48, p. 438). Thomas does not identify her disability or argue how

Amentum discriminated against her because of that disability. So the

court finds that Thomas has waived her argument related to Count 3. See

T.R., supra.

Even if Thomas did not waive her argument, the claim fails for other

reasons. Thomas was released by her physician to return to work—with

no restrictions—on April 20, 2020. (Doc. 1, p. 5, §] 24). Thomas applied for

the first position at issue on May 12, 2020. (Doc. 33, p. 11). Thomas’s

counsel confirmed at the hearing that Thomas did not have a disability

when she applied for any of the six positions at issue. And counsel

confirmed that Thomas “didn’t perceive herself as having conditions.” The

record shows that Thomas had medical restrictions before April 20, 2020

(and Amentum surely knew about that), but nothing suggests that anyone

perceived her as having these restrictions after April 20, 2020. To be sure,

Thomas’s counsel stated on the record: “I believe she was perceived or

regarded as disabled by [Amentum].” But counsel never explained who

perceived Thomas in this way, and never cited evidence that tends to

prove that claim. Instead, Thomas’s counsel told the court that Thomas’s

disability claim “is the weakest claim for sure.”

Nothing in the record allows a jury to find that Thomas was disabled

under the ADA. Accordingly, the court finds that Thomas has failed to

establish a prima facie case of disability discrimination, and GRANTS

summary judgment for Amentum on Count 3.

13

D. Count 4: Race Discrimination

Title VII prohibits employment discrimination on the basis of race.

42 U.S.C. § 2000e et eq. And like other Title VII claims, a plaintiff can

survive summary judgment on a race discrimination claim by either

relying on the McDonnell Douglas framework, or by presenting a

“convincing mosaic” of circumstantial evidence that allows to infer

intentional discrimination. See Lewis v. City of Union City, Ga. (Lewis II),

934 F.3d 1169, 1185 (11th Cir. 2019).

Thomas argues in her briefing that she presented a prima facie case

of race discrimination under the McDonnell Douglas framework. And at

the hearing, Thomas’s counsel argued that she presented sufficient

evidence to establish a “convincing mosaic” of discrimination. So the court

addresses each theory in turn.4

i. McDonnell Douglas Framework

The same 3-step McDonnell Douglas framework the court described

in Part A applies to Thomas’s race-based claim. See supra at p. 8.

1. Prima facie case: Thomas makes no argument in her brief in

opposition that would make a prima facie case of race discrimination. In

a subsection of her brief titled, “Race and Retaliation,” Thomas lists the

elements for a prima facie case of retaliation, and then asserts that

Plaintiff engaged in protected activity. (Doc. 48, p. 42). That’s not an

argument related to race. So the court finds that Thomas waived her race

discrimination claim under the McDonnell Douglas framework by failing

to brief the issue in her opposition brief. See T.R., supra.

4 The court considered the possibility that Thomas tried to plead a discrimination-based

and/or retaliation-based hostile work environment claim. (See Doc. 1, p. 14, ¶ 105). But

Thomas’s counsel confirmed at the hearing that Thomas brings no such claim.

And Thomas’s claim fails in Step 1 even if Thomas did not waive it

because Thomas’s Complaint and her briefs do not identify similarly

situated employees.

2. Pretext: Assuming Thomas had not waived this claim, and she

could establish a prima facie case in Step 1, Thomas fails to explain why

Amentum’s non-discriminatory explanations are pretextual in Step 3. The

court considers each job application in turn.

• Supply Tech 18525

Amentum hired Melinda Richard, a Black female, and incumbent

employee. (Doc. 33, p. 11). Amentum says that Thomas was not considered

because she applied after the position was filled. (Doc. 33, p. 11). And even

if she had applied on time, Amentum would have considered her ineligible.

As explained, Amentum maintains a conflict of interest policy that

prohibits employees from supervising or otherwise making employment

decisions that affect their immediate family members or anyone with

whom they have a romantic or intimate relationship. (Doc. 1, p. 5, ¶ 25).

If Thomas were hired for the Supply Tech 18525 position, Danny Ball, the

father of Thomas’s child, would have been her supervisor—an

arrangement that violates Amentum’s recorded policy. (Doc. 33, p. 11).

And nothing in the record suggests that Amentum does not actively

enforce this policy. Instead, the record shows that Amentum has

terminated employees for violating the policy. (See, e.g., Doc. 32-7, p. 3).

To be sure, Thomas says that Amentum does not enforce the policy

because they permitted an uncle to supervise his nephew. But that

arrangement doesn’t violate the plain meaning of the policy.

Thomas never says whether or why Amentum’s explanation is

pretext for race discrimination.

• Site Supervisor 19115, 19626, and 20406

Thomas also applied for three Site Supervisor positions. And for all

of these positions, Amentum considered her ineligible because she would

have been supervising Daniel Ball in violation of the company’s conflict of

interest policy. Again, Thomas never explains whether or why this

explanation is pretext. The record evidence shows that Amentum enforced

this policy. And Thomas’s counsel agreed at the hearing that Thomas and

Ball could not work together under this policy. Thus, the court finds that

Thomas has failed to carry her burden for the Site Supervisor positions.

• Production Control Clerk

Thomas also applied for the Production Control Clerk position on

May 13, 2020. Amentum hired Heather Sparks, an incumbent employee,

to fill the position. And while Amentum at first considered Thomas, the

company found her not minimally qualified. (Doc. 33, p. 11-12). Thomas

never says whether or why Amentum’s explanation is pretext for race

discrimination.

• Supply Tech 19468

Thomas also applied for Supply Tech 19468 on July 15, 2020. (Doc.

33, p. 15). Amentum says Thomas was not considered because the position

had been filled on July 13, 2020. (Doc. 33, p. 15). The position was filled

by Daniel Ball, the father of Thomas’s child, who had recently stepped

down from his supervisor role. (Doc. 33, p. 16). And even if Thomas had

been considered, Amentum says Thomas was considered not minimally

qualified by the African American recruiter. (Doc. 33, p. 15).

Thomas never says whether or why Amentum’s explanation is

pretext for race discrimination. And Thomas admits that Daniel Ball was

more qualified for Supply Tech 19468 than she was. (Doc. 32-1, p. 26).

—

In sum, Thomas waived her McDonnel Douglas-based arguments on

Count 4. And even if she hadn’t, Thomas cannot meet her of proving a

prima facie case in Step 1 or proving pretext in Step 3.

ii. Convincing Mosaic Framework

A plaintiff can also survive summary judgment by presenting

“circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp., 644

F.3d 1321, 1328 (11th Cir. 2011). And again, “[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 decisionmaker.” Id. (internal

quotation marks omitted). “A plaintiff may establish a convincing mosaic

by pointing to evidence that demonstrates, among other things, (1)

suspicious timing, ambiguous statements, or other information from

which discriminatory intent may be inferred, (2) systemically better

treatment of similarly situated employees, and (3) pretext.” Jenkins v.

Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (citing Lewis v. City of Union

City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019)) (internal quotation

marks omitted).

Thomas presents evidence of suspicious timing and ambiguous

statements. For example, a human resources employee told Thomas, “You

have got nothing to worry about. As soon as you get released by the doctor,

you will be first on the list.” (Doc. 48, p. 3). And at least two other

employees told Thomas she had “nothing to worry about” regarding her

rehire. (Doc. 32-1, p. 15). Vernon Lewis told Thomas she would be “placed

in front, first on the list” whenever she was released by her doctor to

return to work. (Id.). These statements aren’t necessarily binding, but

their import is clear. Thomas was essentially told that she would have a

job at Amentum—and in the end, she was not hired.

Thomas also claims that Quintez Arnold, a Site Manager at

Amentum, told her she was not being hired because she “had a biracial

son.” (Doc. 32-1, p. 33). In other words, Mr. Arnold stated that Thomas

was not hired because of her race.

That might be enough to paint an adequate mosaic. But again,

Thomas makes no argument (at all) against the nondiscriminatory

reasons offered by Amentum. And Thomas failed to brief the issue of race

discrimination in her brief in opposition. So the court GRANTS summary

judgment on Count 4 under all theories.

E. Count 5: Retaliation

Finally, Thomas alleges that Amentum retaliated against her for

(1) complaining about pregnancy discrimination to Amentum employees,

and (2) filing an EEOC complaint.

The court again applies the three-part McDonnell Douglas

framework.5 This means that Thomas bears the initial burden to prove a

prima facie case, then the burden then shifts to Amentum to produce a

legitimate, non-discriminatory reason for its actions, and finally, the

burden returns to Thomas to provide evidence of pretext.

1. Prima facie case: To establish a prima facie case of retaliation,

Thomas must show that (1) she engaged in statutorily protected activity;

(2) she suffered an adverse employment action; and (3) that there is some

causal relationship between the two events. Brown v. Alabama Dep’t of

Transp., 597 F.3d 1160, 1181 (11th Cir. 2010) (quoting Bryant v. Jones,

575 F.3d 1281, 1307 (11th Cir. 2009)). To establish a causal connection,

Thomas must show that (1) the decisionmakers knew of her protected

activity, and (2) the protected activity and the adverse action were not

wholly unrelated. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712,

716 (11th Cir. 2002).

Thomas has established a prima facie case of retaliation. The record

shows that she engaged in a statutorily protected activity when she (1)

5 Thomas does not argue that the “convincing mosaic” theory could be used to establish

her retaliation claim. And the Eleventh Circuit has never held that the “convincing

mosaic” theory can be used to establish a retaliation claim. See Bailey v. Metro

Ambulance Servs., Inc., 992 F.3d 1265, 1273, n.2 (11th Cir. 2021).

complained to Quintez Arold about discrimination between January 2020

through June 2020 (doc. 32-1, p. 13-14), and (2) filed an EEOC complaint

on July 13, 2020 (doc. 1, p. 2, ¶ 8). And Thomas was never hired for any

positions at Amentum, which constitutes an adverse employment action.

To be sure, the protected activity must occur before the adverse

employment action. So Thomas cannot claim that her failure to be hired

for Supply Tech 18525, which she applied for on May 12, 2020, was

retaliation for filing an EEOC complaint on July 13, 2020. But the record

shows that Thomas began complaining about discrimination to Quintez

Arnold as early as January 2020—well before she applied for any

positions. So the court finds that Thomas has met the first two elements

of a prima facie case.

Thomas can also establish a causal relationship between her

protected activity and the adverse employment action. Amentum’s

decisionmakers knew about her protected activity because she complained

to people involved in the hiring process. And the protected activity and

the adverse action are not wholly unrelated. Thus, the burden shifts to

Amentum.

2. Non-discriminatory reasons: As explained earlier, Amentum has

articulated legitimate, non-discriminatory reasons for its decisions on all

six positions at issue. For five of the positions, Amentum asserts that

Thomas was ineligible because her employment would have violated the

company’s conflict of interest policy. And for the other position, Thomas

was found not minimally qualified.

3. Pretext: The ultimate issue is thus whether Thomas has provided

sufficient evidence of pretext. But Thomas made no argument regarding

pretext. See (Doc. 48, p. 42-43). So the court finds that Thomas waived her

argument by failing to brief it. See T.R., supra.

Accordingly, the court GRANTS summary judgment for Amentum

on Count 5.

K*R*

The court went to great lengths to let the parties clarify what they

were trying to say in their pleadings. And they did. But clarity cannot

overcome the failure to make arguments when required, and the court

cannot overlook those failures.

For the reasons explained above, the Court DENIES IN PART and

DENIES AS MOOT IN PART Amentum’s motion to strike (doc. 51), and

GRANTS Amentum’s motion for summary judgment (doc. 31).

DONE and ORDERED on December 28, 2022.

CP Yea

COREY. MAZE

UNITED STATES DISTRICT JUDGE

20