Opinion
CIVIL ACTION NO. 1:21-CV-01206-SEG
2023-03-30
Stephanie POWE, Plaintiff, v. FARMERS INSURANCE EXCHANGE, Defendant.
Nikil Erramilli, Erramilli Law Group, Tucker, GA, for Plaintiff. Annalese Reese, Edward N. Boehm, Jr., Fisher & Phillips LLP, Atlanta, GA, for Defendant.
Nikil Erramilli, Erramilli Law Group, Tucker, GA, for Plaintiff. Annalese Reese, Edward N. Boehm, Jr., Fisher & Phillips LLP, Atlanta, GA, for Defendant. ORDER SARAH E. GERAGHTY, United States District Judge
This case is before the Court on Defendant Farmers Insurance Exchange's ("Farmers") Motion for Summary Judgment. (Doc. 60.) Having carefully considered the parties' positions and applicable law, the Court enters the following order.
This is an employment discrimination case involving Defendant Farmers' termination of Plaintiff Stephanie Powe's insurance agency. Plaintiff argues that she was terminated in retaliation for complaining about one supervisor's alleged sexual harassment and another supervisor's offensive comment related to her race. Plaintiff additionally argues that she was terminated because of her race. Farmers denies that Plaintiff was terminated for any retaliatory or discriminatory reason. Rather, Farmers argues, Plaintiff was terminated because an internal investigation determined that Plaintiff engaged in fraud when she submitted to Farmers two reimbursement requests containing false information. Further, Farmers contends that no genuine issue of material fact exists as to the true reasons for Plaintiff's termination. For the reasons set forth in this order, the Court finds that Farmers is entitled to summary judgment.
I. Background
A. Plaintiff's Agent Appointment Agreement
Plaintiff Stephanie Powe is a former insurance agent for Defendant Farmers. (Doc. 64 ¶ 1.) Plaintiff is a Black woman. (Id.) On February 24, 2017, Plaintiff became a full-time insurance agent with Farmers and signed an Agent Appointment Agreement that allowed her to sell Farmers insurance policies. (Id. ¶ 6; Doc. 60-2, Ex. 7 at 268-73.) Plaintiff's insurance agency was located in Newnan, Georgia. (Doc. 64 ¶ 1.)
Plaintiff's Agent Appointment Agreement governed the agency relationship between Plaintiff and Farmers and set forth each party's respective duties. (See Doc. 60-2, Ex. 7 at 268-73.) Section (E) of the Agent Appointment Agreement provided grounds upon which the parties could terminate the agreement. (Id. at 270, § (E).) This section stated that Farmers could terminate the Agent Appointment Agreement immediately for, among other things, "fraud . . . [or] misappropriation . . . in connection with the Agency" or "[m]isrepresentation in connection with the Agency that is material to the operation of the Agency or [Farmers]." (Id. § (E)(4)(a),(d).)
B. Alleged Sexual Harassment
Plaintiff's supervisor and Area Sales Leader in Newnan was Matt Cromer, a white male. (Id. ¶ 3.) During an April 2017 meeting with Cromer, Plaintiff contends that Cromer looked at her "up and down" in a sexual way and was staring at her chest. (Doc. 59, Powe Dep. at 74:14-18.) Plaintiff left the meeting feeling "extremely violated" and uncomfortable with Cromer. (Doc. 60-2, Ex. 15 at 535.) Plaintiff reported the incident to Cromer's supervisor, Susan Elliott. (Id.) Plaintiff contends that Elliott was defensive of Cromer and "made [Plaintiff] feel like the problem was with [her] and not him." (Id.; Doc. 59, Powe Dep. at 79:5-11.)
After Plaintiff spoke with Elliott about Cromer, Cromer allegedly began to retaliate against Plaintiff by not providing support or guidance in helping her grow her business. (Doc. 60-2, Ex. 15 at 535.) In 2020, Plaintiff relocated her agency to College Park, Georgia. (See Doc. 59, Powe Dep. at 105:24-106:5.) The "main reason" for doing so was to "get away" from Cromer. (Id. at 106:6-10, 118:12-19.) But another reason for her relocation was that she had many clients who were located in or near College Park. (Id. at 106:11-20.)
C. Plaintiff's Customer Appreciation Events and Reimbursement Requests
Farmers has a "Community Engagement" program through which it reimburses agents for hosting certain, eligible marketing events, such as "customer appreciation" events. (Doc. 60-2, Ex. 12 at 447-450.) If an agent complies with the eligibility and documentation requirements set forth in Farmers' "Community Engagement Guidelines," Farmers will reimburse the agent for 50% of the cost of the event. (Id. at 448.) The agent must submit a request for reimbursement that includes, among other requirements, a photo of the event showing Farmers branding and attendance, as well as an itemized invoice from the vendor showing proof of payment. (Id.) The Community Engagement Guidelines state that an agent may not be reimbursed for payments made to "a business in which the agent has a personal or family relationship." (Id. at 449.) Between 2017 and 2019, Plaintiff hosted three community engagement events. (Doc. 64 ¶ 16; Doc. 60-2, Ex. 9, Hobson Dep. at 48:2-15.) She submitted requests for reimbursement for each of these events, and Farmers granted each request. (Doc. 64 ¶ 16.)
On October 30, 2020, Plaintiff hosted a customer appreciation event at a venue in College Park called the Forum ("the October Event"). (Doc. 59, Powe Dep. at 148:9-25.) The Forum is in the same building as Plaintiff's College Park agency office and is owned by Plaintiff's mother, who is also named Stephanie Powe. (Id. at 149:1-9; 150:21-24.) On November 4, 2020, Plaintiff submitted to Farmers a reimbursement request for the October Event. (Doc. 60-2, Ex. 10 at 391.) As part of the request, Plaintiff submitted an invoice from the Forum for $5,000, which was comprised of a $3,000 catering cost and a $2,000 event space rental fee. (Doc. 59, Powe Dep. at 156:24-157:9.) Three photos of the event were attached in support of the request—none of which contained Farmers branding. (Doc. 64 ¶ 19.) Farmers nevertheless granted Plaintiff's request and reimbursed her $2,500. (Id. ¶ 21.)
Plaintiff does not dispute that a reimbursement request was submitted, but she does dispute that she was the one who submitted it. (Doc. 64 ¶ 19.) She instead contends that one of her employees did it. (Doc. 59, Powe Dep. at 146:11-147:1.) This contention is addressed below in the context of Plaintiff's § 1981 retaliation claim.
On November 20, 2020, Plaintiff hosted another customer appreciation event at the Forum ("the November Event"). (Doc. 59, Powe Dep. at 164:20-22.) On the same day, Plaintiff submitted a reimbursement request for the November Event. (Doc. 64 ¶ 22.) Plaintiff again submitted an invoice for $5,000, which included $3,000 for catering and $2,000 for the event space rental fee. (Id. ¶ 23.) And again, three photos of the event were attached to the request—each without visible Farmers branding. (Doc. 60-2, Ex. 9, Hobson Dep. at 75:25-76:6; Doc. 60-2, Ex. 10 at 390.) On December 4, 2020, Farmers' Agency Marketing department contacted Plaintiff and requested additional photos of the event to support her reimbursement request. (Doc. 64 ¶ 25; Doc. 60-2, Ex. 10 at 390.) The same day, Plaintiff submitted three more photos, which showed Farmers branding. (Doc. 60-2, Ex. 10 at 390.)
Again, Plaintiff does not dispute that such a reimbursement request was submitted, but she contends that she was not the one who submitted it. (Doc. 64 ¶ 22.)
D. Farmers Begins Fraud Investigation into Plaintiff's Reimbursement Requests
On December 3, 2020, Farmers' Agency Marketing department determined that Plaintiff's reimbursement request for the November Event raised multiple red flags, including: (1) it strongly resembled her request for the October Event; (2) it was unusual for an agent to host two community engagement events within twenty-one days of each other; and (3) Plaintiff called Agency Marketing four times within a twenty-minute period on the day of the November Event to attempt to get her reimbursement request approved. (Doc. 64 ¶¶ 26, 32.) As a result of these perceived red flags, Farmers began looking further into Plaintiff's reimbursement requests.
Patty Hobson (the Marketing Manager for Farmers' Agency Growth department) began investigating Plaintiff's reimbursement requests and found information that aroused further suspicion of impropriety. First, in reviewing Plaintiff's social media accounts, Hobson found that Plaintiff identified herself as the owner of the Forum. (Doc. 60-2, Ex. 13, Hobson Dep. at 13:5-15, 81:21-82:1.) As noted above, Farmers prohibited agents from seeking reimbursement for payments made to a business with which the agent had a personal or family connection. Second, there were discrepancies between the invoices submitted for reimbursement and information on the Forum's website. (Id. at 25:6-14.) For instance, the space rental fee listed on the Forum's website was much lower than the $2,000 rental fee reflected on Plaintiff's invoice. (Id.) It indicated a rental fee of $130 per hour for events of more than 60 people, plus a $90 cleaning fee, which would have resulted in a $480 event space charge for Plaintiff's three-hour event. (Id.; Doc. 60-2, Ex. 10 at 389; Doc. 60-2, Ex. 14 at 530.) And the Forum's website stated that it did not offer catering services, yet Plaintiff's invoice showed a $3,000 charge for catering at each of her events. (Doc. 60-2, Ex. 13, Hobson Dep. at 25:6-14; Doc. 60-2, Ex. 10 at 389.) Farmers denied Plaintiff's reimbursement request for the November Event. (Doc. 64 ¶ 31.)
Plaintiff contends that these alleged red flags can be explained and do not constitute evidence of fraud. The Court addresses this contention below in discussing Plaintiff's claims.
On December 3, 2020, Farmers' Agency Marketing department notified the Internal Audit department of perceived irregularities associated with Plaintiff's reimbursement requests. (Doc. 60-2, Ex. 10 at 390.) The Internal Audit department then commenced an investigation into Plaintiff's requests for reimbursements ("the Fraud Investigation"). (Doc. 60-2, Ex. 13 at 527-31.) That investigation was led by Ryan Summy, an investigator in Farmers' Internal Audit department. (Doc. 64 ¶ 33.)
E. Plaintiff's Complaint Regarding Chara Kautz
On December 8, 2020, five days after Plaintiff's reimbursement requests were referred to Internal Audit for investigation, Plaintiff called Chara Kautz—Farmers' Market Leader for Georgia—to discuss Farmers' denial of her November Event reimbursement request. (Doc. 64 ¶ 34.) On the call, Kautz (a white woman) discussed Plaintiff's events and told her that, "it looks like you threw an event for your friends and family." (Doc. 59, Powe Dep. at 178:22-24.) Plaintiff found this comment to be offensive because most of the attendees of her events (including most of the individuals in the submitted photos) were Black. (Doc. 60-2, Ex. 15 at 536.) Plaintiff felt that Kautz was suggesting that because the attendees were mostly Black, "that means they had to all be [Plaintiff's] family and/or friends." (Id.)
After her conversation with Kautz, on the same day, Plaintiff spoke with Kautz's supervisor, Carl Hackling. (Doc. 59, Powe Dep. at 181:2-13.) Plaintiff told Hackling that Kautz had made a comment based on her race that she found offensive. (Id.) Hackling told Plaintiff that he would look further into her allegations. (Doc. 60-2, Ex. 15 at 536-37.)
The next day, December 9, 2020, Plaintiff sent a complaint to Farmers' CEO, Jeff Dailey, in which she described the ways that she felt she had been disrespected and mistreated while working as a Farmers agent. (Id. at 533-36.) Specifically, Plaintiff discussed: (1) her experience with Matt Cromer; (2) Farmers' failure to provide her agency with assistance and support, which she viewed as retaliatory for voicing her complaint about Cromer; (3) what she viewed as "extremely subjective" requirements in Farmers' Community Engagement Guidelines, which led to her reimbursement request denial; and (4) Kautz's remark. (Id.) Dailey responded to Plaintiff's email, stating that Farmers would investigate Plaintiff's allegations. (Id.)
F. Farmers' Complaint Investigation Finds No Discrimination or Harassment
Angie Bechtel, an HR consultant in Farmers' Employee Relations department (which was separate from the Internal Audit department conducting the Fraud Investigation), led the investigation into Plaintiff's complaints of sexual and racial harassment and retaliation ("the Complaint Investigation"). (Doc. 60-2, Ex. 3, Bechtel Dep. at 95:15-18.) As part of her investigation, Bechtel received a statement from Plaintiff and interviewed Matt Cromer, Chara Kautz, and Susan Elliot. (Id. 95:23-96:7.) Ultimately, after conducting an approximately month-long investigation, Bechtel determined that no Farmers employee, including Cromer and Kautz, had violated any Farmers policies. (Id. at 95:10-14.) Bechtel recorded the findings of her Complaint Investigation in a January 20, 2021 report. (Doc. 60-2, Ex. 6 at 263-67.) Farmers did not discipline any Farmers employee following the Complaint Investigation. (See Doc. 60-2, Ex. 3, Bechtel Dep. at 95:10-14.)
Plaintiff objects to the admissibility of the contents of this report because Farmers failed to produce it during discovery. The Court need not resolve this issue of admissibility, however, because the contents of the report are not material to the resolution of this matter on summary judgment.
G. Results of the Fraud Investigation and Plaintiff's Termination
At the same time Bechtel and the Employee Relations department were conducting the Complaint Investigation, Summy and the Internal Audit department were proceeding with the Fraud Investigation. As part of the Fraud Investigation, Summy looked further into the above-identified red flags associated with Plaintiff's reimbursement requests. He, for example, verified that Plaintiff's invoices showing $2,000 in charges for rental fees and $3,000 in charges for catering were inconsistent with information on the Forum's website, which indicated that (1) the event rental cost should have been only $480, and (2) the Forum did not offer catering services. (Doc. 60-2, Ex. 13, Summy Dep. at 117:2-12.) Summy also found that the Forum's website stated that it could hold 80 people, but the invoices showed that Plaintiff sought reimbursement for catering costs for 120 attendees. (Id.)
Additionally, Summy investigated the photos that were submitted with Plaintiff's reimbursement requests. Summy learned that the file properties of the photos showed that most of the photos were taken on dates other than the dates of Plaintiff's customer appreciation events. Summy determined that all three photos submitted to support Plaintiff's October Event reimbursement request were taken between January and March 2020—months before the October Event occurred. (Doc. 60-2, Ex. 13, Summy Dep. at 21:16-20; Doc. 60-2, Ex. 10 at 389.) One of those photos had been posted on the Forum's Facebook page in February 2020. (Doc. 60-2, Ex. 10 at 389.) Summy also determined that three of the photos that Plaintiff submitted in support of her November Event reimbursement request (the only ones showing Farmers branding) were taken in December 2020—after the November Event occurred. (Id.)
On December 16, 2020 (one week after Plaintiff made her complaint to Farmers' CEO about alleged sexual harassment and racial discrimination), Ryan Summy interviewed Plaintiff on a call as part of his Fraud Investigation into Plaintiff's reimbursement requests. (Doc. 64 ¶ 58.) Plaintiff's supervisor, Makeda Coleman, was also on the call. (Id. ¶ 58.) Summy asked Plaintiff about her representations on social media that she was the owner of the Forum. (Doc. 59, Powe Dep. at 214:22-215:7.) She responded that what she posts on her social media is not "legally binding" and that her mother owned the Forum. (Id.) When Summy asked Plaintiff about the inconsistencies between the pricing and service information on the Forum's website and the charges reflected in Plaintiff's invoices, Plaintiff responded that she could not control what the Forum puts on its website and that Summy should contact the Forum directly if he had an issue with the costs. (Id. at 210:1-18.) Finally, Summy asked Plaintiff about the photos submitted with the reimbursement requests and, specifically, about the photo that was submitted with the October Event reimbursement request that was posted on the Forum's Facebook page in February 2020. (Doc. 60-2, Ex. 10 at 390; Doc. 59, Powe Dep. at 199:8-17; Doc. 61-5, Coleman Dep. at 64:24-65:17.) At this point, Plaintiff became "very upset" and ended the call without providing an explanation for the photos. (Doc. 61-5, Coleman Dep. at 64:24-65:17.) Plaintiff testified that she ended the call because she felt that Summy was conducting the interview in a rude and unproductive manner and that he did not allow her adequately to explain herself. (Doc. 59, Powe Dep. at 198:8-199:1.)
On December 17, 2020, Summy contacted Plaintiff and asked whether she would agree to a second meeting to further discuss the reimbursement requests. (Doc. 64 ¶ 68.) Plaintiff declined. (Id.)
On December 18, 2020, Summy submitted his final investigative report to Bryce Kerr, Farmers' Director of Home Office Agencies. (Doc. 64 ¶ 70; Doc. 60-2, Ex. 10 at 386-95.) In his report, Summy provided the following summary of his findings:
Agent Powe submitted questionable event invoices and inaccurate photos to obtain reimbursement for two Community Engagement events. The event invoices included catering and rental costs inconsistent with what the event space's own website lists and the agent was untruthful about her being the owner of the event space in question. The agent also submitted photos as proof of the events, but those photos were taken on dates both before and after the actual events took place. The agent was reimbursed for one of the two events and Marketing declined the other.(Doc. 60-2, Ex. 10 at 388.) Summy's report further described the factual background for Plaintiff's reimbursement requests, the steps Summy took to investigate the potential fraud, and the factual bases for his findings. (Id. at 388-395.) Specifically, Summy detailed, among other things, the inconsistencies between the invoices and the information on the Forum's website, the photos that were taken on dates other than Plaintiff's events, the discussion he had with Plaintiff, and Plaintiff's decision not to participate in a second interview. (Id.) Summy's report did not mention Plaintiff's complaint of sexual and racial discrimination or the concurrent Complaint Investigation. (See id.)
Once Summy completed the Fraud Investigation, the matter was "out of [his] hands," and it shifted to Kerr to determine "what action should be taken with the agent." (Doc. 60-2, Ex. 13, Summy Dep. at 26:24-27:9; 74:6-20.) Kerr was responsible for making "the decision on whether or not [Plaintiff] should be terminated based on the findings of the [Fraud Investigation]." (Doc. 61-17, Kerr Dep. at 29:18-22; Doc. 60-2, Ex. 13, Summy Dep. at 26:24-27:9.)
Plaintiff disputes that Bryce Kerr was the ultimate decision maker. That dispute is addressed below in the Court's discussion of Plaintiff's § 1981 discrimination claim.
After reviewing the information provided in Summy's report, Kerr determined that Plaintiff had committed fraud in connection with her reimbursement requests. (Doc. 61-17, Kerr Dep. at 80:7-12; Doc. 60-2, Ex. 18 at 645.) On January 12, 2021, Kerr submitted a "Request for Corporate Legal Department Assistance" to Tina Hernandez in Farmers' legal department to obtain a legal opinion related to Plaintiff's potential termination. (Doc. 61-15; Doc. 61-18, Kerr Dep. at 216:17-19.) On January 19, 2021, after receiving Farmers' in-house legal opinion, Kerr decided that Plaintiff was subject to immediate termination for cause. (Doc. 60-2, Ex. 18 at 645; Doc. 61-18, Kerr Dep. at 203:24-204:3.) At the time he made his decision, Kerr had never met or spoken with Plaintiff. (Doc. 64 ¶ 75.) Kerr stated that he consulted with Chara Kautz about the termination decision because she was the Market Leader for Georgia, and Kerr generally consulted with an agent's Market Leader prior to terminating the agent. (Doc. 61-17, Kerr Dep. at 46:17-23.) Kautz "agreed with [Kerr's] assessment of the Investigation Report." (Doc. 61-18, Kerr Dep. at 212:7-16.)
Plaintiff argues that the decision to terminate her was actually made "well before January 19, 2021," and "before the Report was ever reviewed." (Doc. 64 at 68.) This argument is addressed below in the Court's discussion of Plaintiff's § 1981 claims.
On January 22, 2021, Farmers sent Plaintiff a notice of termination, which set forth the grounds for her termination. (Doc. 60-2, Ex. 20 at 256.) Those grounds included "fraud" and "misrepresentation," as proscribed by Section (E) of Plaintiff's Agent Appointment Agreement. (Id.)
II. Relevant Procedural History
On March 24, 2021, Plaintiff commenced this lawsuit against Farmers. (Doc. 1.) Farmers has filed a motion for summary judgment. (Doc. 60.) That motion is fully briefed (Docs. 61, 62) and now before the Court.
III. Legal Standard
Federal Rule of Civil Procedure 56 provides "[t]he 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). A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the Court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party's burden is discharged merely by " 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).
Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no "genuine [dispute] for trial" when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. (citations omitted).
IV. Discussion
Plaintiff asserts the following causes of action against Farmers: (1) § 1981 retaliation, (2) § 1981 discrimination, (3) breach of contract, (4) negligent retention, and (5) quantum meruit. Farmers seeks summary judgment on all five claims. The Court will address each claim in turn.
Plaintiff's brief does not distinguish between her § 1981 discrimination claim and § 1981 retaliation claim, and it is unclear whether she has abandoned her discrimination claim. Nevertheless, the Court will presume that she still asserts both retaliation and discrimination claims under § 1981.
A. Section 1981 Retaliation Claim
Plaintiff brings a § 1981 retaliation claim against Farmers, arguing that she was terminated in retaliation for complaining about Kautz's comment and Cromer's conduct. Section 1981 of the Civil Rights Act of 1866 "prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts." Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999); 42 U.S.C. §1981. "Retaliation claims, including employment-related retaliation claims, are cognizable under § 1981." Bell v. City of Auburn, Ala., 722 F. App'x 898, 900 (11th Cir. 2018) (citing CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-57, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008)). Section 1981 claims "are analyzed under the same framework as Title VII claims." Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020).
A plaintiff may use either direct evidence or circumstantial evidence to prove her retaliation claim. Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022). Here, Plaintiff relies on circumstantial evidence. When a plaintiff's retaliation claim is based on circumstantial evidence, "this Circuit utilizes the three-part McDonnell Douglas burden-shifting framework." Johnson v. Miami-Dade County, 948 F.3d 1318, 1325 (11th Cir. 2020).
1. McDonnell Douglas Analysis
Under the McDonnell Douglas test, "[f]irst, 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." Johnson, 948 F.3d at 1325. "Second, once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for its employment decision." Id. "Third, if the defendant offers a legitimate, nondiscriminatory reason for its employment decision, the burden shifts back to the plaintiff to establish that the reason offered by the defendant was not the real basis for the decision, but a pretext for discrimination." Id. (quotations marks omitted).
a. Step One: Prima Facie Case of Retaliation
To establish a prima facie case of retaliation, a plaintiff must show: "(1) that [s]he engaged in statutorily protected expression; (2) that [s]he suffered an adverse employment action; and (3) that there is some causal relationship between the two events." Johnson, 948 F.3d at 1325. "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination [or retaliation]." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Once established, the prima facie case "creates a presumption that the adverse action was the product of an intent to retaliate." Gogel, 967 F.3d at 1134-35 (internal quotation omitted).
Farmers does not dispute (1) that Plaintiff engaged in protected expression by submitting a complaint regarding alleged sexual and racial harassment, or (2) that Plaintiff suffered an adverse employment action by having her agency terminated. Farmers does, however, dispute that there is "some causal relationship" between these two events.
To show causation at the prima facie stage the plaintiff need only provide evidence that "the protected activity and the adverse action were not wholly unrelated." Id. "Generally, a plaintiff can show the events are not wholly unrelated if the plaintiff shows that the decision maker was aware of the protected conduct at the time of the adverse employment action." Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1271 (11th Cir. 2017). A plaintiff may also establish a prima facie causal link "by showing close temporal proximity between the statutorily protected activity and the adverse action." Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1294 (11th Cir. 2021). But "mere temporal proximity, without more, must be very close." Id.
Here, the causal link between Plaintiff's complaint and subsequent termination is sufficient at the prima facie stage. Plaintiff has provided enough evidence, at this point, to show that the events were not "wholly unrelated." It is, for example, undisputed that Bryce Kerr knew at the time he terminated Plaintiff's agency that Plaintiff submitted a complaint against Cromer and Kautz and that the complaint was being investigated by the Employee Relations department. (Doc. 61-15 at 3.) Moreover, the roughly six weeks that elapsed between Plaintiff's complaint and her termination is close enough in time to warrant a finding of a causal link at the prima facie stage. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (one month between the protected expression and the adverse action "is not too protracted"); Gogel, 967 F.3d at 1154 (Wilson, J., concurring in part) (stating that two months between protected conduct and adverse action was close enough to show a prima facie causal link). In deference to Plaintiff's "not onerous" burden at this stage of the McDonnell Douglas analysis, the Court concludes that Plaintiff has established a prima facie case of retaliation.
At the pretext-rebuttal stage, temporal proximity alone will be insufficient to survive summary judgment. Gogel, 967 F.3d at 1137 n.15. Rather, close temporal proximity must be "coupled with other evidence" to establish pretext. Id.
b. Step Two: Legitimate, Non-Retaliatory Reason for the Adverse Action
At this point, the burden shifts to Farmers, which must provide a legitimate, non-retaliatory reason for terminating Plaintiff's Agreement. The employer's burden at this stage is "exceedingly light." Perryman v. Johnson Prods. Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). "Because the employer's burden is one of production—not persuasion—the employer need not persuade the court that it was actually motivated by the proffered reason." Kidd v. Mando Am. Corp., 731 F.3d 1196, 1205 (11th Cir. 2013) (emphases in original) (internal quotations omitted). Farmers easily satisfies its burden here, as it contends that it terminated Plaintiff not on account of her complaint of discrimination but because it found that she submitted fraudulent requests for reimbursement in violation of her Agent Appointment Agreement. Farmers' proffered, non-retaliatory reason for its adverse action is sufficient to satisfy its burden at this stage.
See infra § I(C),(D),(G) (summarizing Farmers' evidence supporting its proffered reason for termination).
c. Step Three: Pretext-Rebuttal Stage
The burden now shifts back to Plaintiff. At this stage, Plaintiff must "come forward with evidence . . . sufficient to permit a reasonable factfinder to conclude that the reasons given by [Farmers] were not the real reasons for the adverse employment decision." Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1313 (11th Cir. 2016). When an employer's proffered reason for adverse action is one that might motivate a reasonable employer, "an employee must meet that reason head on and rebut it." Gogel, 967 F.3d at 1136. An employee may do so by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Id. (quotation marks omitted). A reason is not pretext for retaliation, however, "unless it is shown both that the reason was false, and that discrimination was the real reason." Brooks v. Cnty. Comm'n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (emphases in original) (quotation marks omitted). An employee cannot show that an employer's proffered reasons were pretextual simply by "quarreling with the wisdom" of those reasons or by positing "conclusory allegations" of retaliation. Furcron, 843 F.3d at 1313-14.
At the pretext-rebuttal stage, the plaintiff must once again identify evidence of a causal link between her protected conduct and the employer's adverse action against her. Tolar, 997 F.3d at 1294. This time, however, "the plaintiff must meet the more demanding 'but for' test" to show causation. Id. (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)). That is, "the plaintiff must show that, based on the evidence, one could reasonably infer that but for her protected conduct the employer would not have taken the alleged adverse action." Id.
The Court will next assess (i) whether Plaintiff has shown a triable issue of fact exists as to pretext and, relatedly, (ii) whether Plaintiff has shown that a reasonable jury could infer that her complaint was the but-for reason for her termination.
i. Pretext
Plaintiff argues that the investigation into her alleged fraud was a "formality," meaning that Bryce Kerr's decision to terminate Plaintiff was a mere rubber stamp that ratified a preordained result. In support of this contention, Plaintiff argues that "Summy conducted a cursory investigation," in which he deliberately ignored Plaintiff's exculpatory evidence. (Id. at 22.) Summy's failure to conduct a more rigorous investigation, Plaintiff argues, is evidence of pretext.
Even assuming that Plaintiff is correct that Summy left certain stones unturned during the Fraud Investigation, it is not the Court's role to second guess the adequacy of the investigation in question. Rather, in determining whether an employer's proffered reason was pretextual, the Court's "sole concern is whether unlawful discriminatory or retaliatory animus motivates a challenged employment decision." Gogel, 967 F.3d at 1148 (modified in original) (quotation marks omitted). "The relevant inquiry is therefore whether the employer in good faith believed that the employee had engaged in the conduct that led the employer to discipline the employee." Id.
Plaintiff's disagreement with the findings of Summy's Fraud Investigation, and the methods Summy used to reach them, is insufficient to demonstrate pretext. The Eleventh Circuit has stated:
[w]hen an employer is told of improper conduct at its workplace, the employer can lawfully ask: is the accusation true? When the resulting employer's investigation . . . produces contradictory accounts of significant historical events, the employer can lawfully make a choice between the conflicting versions—that is, to accept one as true and to reject one as fictitious—at least, as long as the choice is an honest choice.E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000). Further:
[t]he inquiry . . . centers on the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker's head . . . . The question is whether [the] employers were dissatisfied with [the employee] for these or other nondiscriminatory reasons, even if mistakenly or unfairly so, or instead merely used those [reasons] as cover for discriminating against her.Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Ultimately, "[a]n employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory] reason." Gogel, 967 F.3d at 1148 (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999)).
Here, evidence abounds to support a finding that Farmers made its decision to terminate Plaintiff not for any retaliatory reason but due to a good-faith belief that Plaintiff engaged in misconduct. Most notably, Farmers began investigating Plaintiff for fraud before she engaged in protected conduct. It is undisputed that before Plaintiff sent her complaint on December 9, 2020, Farmers had already been alerted to red flags in her reimbursement requests, such as Plaintiff's personal connection to the Forum and inconsistencies between Plaintiff's submitted invoice and information on the Forum's website. (Doc. 60-2 at 527-31.) Once Farmers completed its investigation, there were other findings that, in Kerr's view, justified his decision to terminate Plaintiff's Agreement. Crucially, Summy's Fraud Investigation further found, and Plaintiff does not dispute, that the three photographs submitted as proof of the October Event were taken on January 28, 2020, February 26, 2020, and March 11, 2020, which were all well before the event date of October 30, 2020. (Doc. 60-2 at 389.) And three photos submitted in support of Plaintiff's November Event request were admittedly taken on December 4, 2020, which was after the event date of November 20, 2020, and the same day that Farmers asked Plaintiff to provide additional photos of the November Event. Upon giving Plaintiff two opportunities to present her side of the story, Summy concluded that Plaintiff had failed to rebut Farmers' allegations against her. Upon review of the Fraud Investigation report, Kerr concluded that Plaintiff intentionally submitted reimbursement requests containing false information.
Plaintiff seeks to cast doubt on Summy's investigation in three ways. First, she alleges that Summy's report reached an incorrect conclusion because she was not the one who submitted the reimbursement requests; rather, Plaintiff contends that her employee did it. Even accepting this contention as true, it appears that Plaintiff did not tell Farmers this information during the investigation. (Doc. 61-17, Kerr Dep. at 118:23-119:1.) Plaintiff did not mention it during her interview with Summy, and she declined a follow-up interview. Thus, at the time Farmers decided to terminate Plaintiff, she had provided little to no evidence to rebut the allegation that she submitted a reimbursement request containing false information. Looking only at "reality as it exist[ed] [in] the decision maker's head," Farmers has submitted evidence to show that Kerr's termination decision was reasonably based on this unrebutted allegation (along with the other, above-described red flags). Alvarez, 610 F.3d at 1266; Landry v. Lincare, Inc., 579 F. App'x 734, 738 (11th Cir. 2014) ("An employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct.").
Moreover, even if Farmers learned during its investigation that Plaintiff's employee was the one who submitted the reimbursement requests, there is uncontradicted evidence in the record to suggest that it would not have altered Farmers' termination decision. Patty Hobson, for example, testified that an agent's employees may only gain access to the reimbursement request system with the agent's permission. (Doc. 60-2, Ex. 9, Hobson Dep. at 94:21-95:2.) Hobson also testified that, ultimately, the agent is responsible for the contents of reimbursement requests submitted by her agency. (Id. at 90:14-20 ("Wherever it's coming from, ultimately, it's her agency and her responsibility if she had someone else submit the request."); Id. at 98:21-99:1 ("Again, it's her responsibility; it's her agency. She owns the agency; she's responsible for the actions of her employees.").) Hobson's testimony is corroborated by § (M) of Plaintiff's Agent Appointment Agreement, which states that, "[a]t all times, Agent is and shall be responsible for the acts and/or omissions of Agency personnel." (Doc. 60-2 at 272.) This contractual provision, alongside Hobson's uncontradicted testimony, plausibly suggests that Plaintiff's claim that someone else at her office actually sent in the pre- and post-dated photos would not have changed the outcome of the investigation or the termination decision.
Plaintiff argues that "Summy and Bryce Kerr admit that whether an employee or the agent made a submission for marketing reimbursements would have an impact on the investigation and the conclusion of that investigation." (Doc. 61 at 21.) This contention, however, does not fully contextualize Summy's and Kerr's testimony on the matter. When asked whether it would make a difference in the investigation whether someone other than Plaintiff submitted the allegedly fraudulent reimbursement request, Summy testified:
I guess if she told me, you know what, I didn't have anything to do with these events, I didn't handle it, I didn't make the invoices, I didn't take the pictures, I had absolutely nothing to do with it; it was -- it was this person over here that works for me, that -- it could make a difference . . . [I]f she pointed the finger at somebody else and said, I actually had nothing to do with any of these documents and I didn't request this reimbursement, yeah, it could have an impact.(Doc. 60-2, Summy Dep. at 97:7-19.) Plaintiff does not contend that she "had nothing to do with" the events or the submissions. When asked the same question, Kerr answered:
I just think that would require speculation because that would have led to a series of -- potentially a different series of questions asked by the investigator, which would have weighed on whether or not that would make a difference.(Doc. 61-17, Kerr Dep. at 118:6-10.) Neither of these statements contradicts Hobson's testimony that the agent is ultimately responsible for the contents of her agency's reimbursement requests.
Second, with respect to the discrepancies between Plaintiff's invoices and the information on the Forum's website, Plaintiff contends that a more thorough investigation would have revealed that she used for her events the Forum's "all-inclusive" package—an option that is listed on the Forum's website without a set price and which provides catering. Plaintiff argues that Summy's failure to inquire about the "all-inclusive" package suggests that he did not intend to conduct a serious investigation. Here again, Plaintiff quarrels with the thoroughness of Summy's investigation. But "it is not the court's role to second-guess the wisdom of an employer's decisions" so long as those decisions are not made for a retaliatory reason. Alexander v. Fulton County, 207 F.3d 1303, 1341 (11th Cir. 2000). Critically, Plaintiff does not connect Summy's failure to investigate the "all-inclusive" package to the heart of the matter—whether the Fraud Investigation was mere pretext to fire Plaintiff because she complained about sexual and racial harassment.
Further, the math doesn't add up. Per its website, the Forum would have charged $480 for a three-hour event for over 60 people. But Plaintiff, claiming she used the "all-inclusive package," sought two reimbursements of four times that amount ($2,000) for venue space plus $3,000 in catering costs.
Third, Plaintiff seeks to undermine the legitimacy of Summy's investigation by arguing that he incorrectly concluded that she owns the Forum, when her mother, who is also named Stephanie Powe, is the true owner of the venue. Accepting that face as true, it is immaterial because Farmers' Community Engagement Guidelines prohibit agents from seeking reimbursement for events hosted at businesses "in which the agent has a personal or family relationship." (Doc. 60-2, Ex. 12, at 449.) Thus, regardless of whether the Forum was owned by Plaintiff or Plaintiff's mother, Farmers' guidelines clearly prohibited Plaintiff from seeking reimbursement for money paid to the Forum.
In short, "[n]one of [Plaintiff's] criticisms of the investigation considered separately or together show that the investigation was unfairly conducted, or at a minimum so unfairly conducted that it should be considered evidence of pretext." Ellison v. St. Joseph's/Candler Health Sys., Inc., 775 F. App'x 634, 648 (11th Cir. 2019). Plaintiff's identification of perceived flaws in the Fraud Investigation does not satisfy her pretext-rebuttal burden.
ii. But-For Causation
Plaintiff additionally fails to show that a triable issue of fact exists as to causation. As part of her burden at the pretext-rebuttal stage, Plaintiff "must show that, based on the evidence, one could reasonably infer that but for her protected conduct the employer would not have taken the alleged adverse action." Tolar, 997 F.3d at 1298. Plaintiff contends that but for her complaint, she "would have had a fair investigation that would have confirmed that no fraud occurred, and no 'misrepresentation' occurred." (Doc. 61 at 24.) As noted above, however, Plaintiff has offered little evidence to show that the Fraud Investigation was "so unfairly conducted that it should be considered evidence of pretext." Ellison, 775 F. App'x at 648. But more importantly, Plaintiff fails to offer sufficient evidence from which a reasonable jury could infer that her complaint was the but-for cause of her termination.
While Plaintiff's protected activity and subsequent termination occurred close enough in time to establish a prima facie case of retaliation, at the pretext-rebuttal stage, temporal proximity alone is insufficient to survive summary judgment. Gogel, 967 F.3d at 1137 n.15. Rather, close temporal proximity must be "coupled with other evidence" to establish pretext and but-for causation. Id. That is particularly true in situations such as this one in which an employer contemplates a potential adverse employment action before an employee engages in a protected activity. Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). In such cases, "temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation." Id.
The timeline of events in this case simply does not support an inference of retaliation. Before Plaintiff engaged in a protected activity, Farmers had already started to investigate her for fraud. More specifically, before Plaintiff submitted her complaint to the CEO, Farmers was already scrutinizing her reimbursement requests for potential fraud based on (1) the vast discrepancies between Plaintiff's invoices and the information on the Forum's website, (2) Plaintiff's personal connection to the ownership of the Forum, (3) the lack of Farmers branding in the photos submitted with the requests, (4) the unusual nature of two customer appreciation events—each costing $5,000—occurring within less than one month of each other, and (5) Plaintiff's repeated phone calls to the Agency Marketing department on the date of the November Event to attempt to have her reimbursement request processed. The Fraud Investigation, in Farmers' view, confirmed these suspicions and uncovered additional facts undermining the legitimacy of the reimbursement requests—most notably, the photos that were taken on dates other than the dates of the customer appreciation events. These facts indicate that Farmers reasonably decided to move forward with its Fraud Investigation before Plaintiff made her complaint. On this record, Plaintiff has failed to demonstrate a triable issue as to whether her complaint was the but-for cause of her termination. See DeBose v. USF Board of Trustees, 811 F. App'x 547, 558 (11th Cir. 2020) (noting that the "timeline did not give rise to proof of causation" when an employer was alerted to an employee's workplace misconduct before she engaged in protected activities); Fitzgibbon v. Fulton County, Georgia, 842 F. App'x 385, 389-90 (11th Cir. 2021) (employee could not establish causation when employer was considering terminating employee for workplace performance deficiencies before employee engaged in protected conduct). Because Plaintiff fails to show sufficient evidence of pretext or but-for causation, she cannot sustain her burden under the McDonnell Douglas framework.
Again, it is worth noting that the individuals involved with the Fraud Investigation were not the same individuals who were involved with the Complaint Investigation.
2. Convincing Mosaic of Circumstantial Evidence
Plaintiff argues that she need not satisfy the McDonnell Douglas three-part test because she may survive summary judgment under an alternative convincing mosaic theory. In § 1981 cases, a plaintiff may defeat a summary judgment motion by presenting "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination." Smith v. Lockheed-Martin, Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). This is so because "establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case." Id. "However, the plaintiff must also show pretext under this alternative framework." Reyes v. Fed. Express Corp., No. 21-12639, 2022 WL 3867901, at *3 (11th Cir. Aug. 30, 2022) (citing Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022)).
As noted above, Plaintiff's brief does not distinguish between her § 1981 retaliation claim and § 1981 discrimination claim. She instead seeks to assemble a single mosaic of circumstantial evidence sufficient to survive summary judgment as to both claims. The Court examines Plaintiff's proposed mosaic theory in its discussion of Plaintiff's discrimination claim below. The Court does so because the Eleventh Circuit has "yet to decide in a published decision whether retaliation claims can survive summary judgment under a convincing-mosaic theory." Reyes, 2022 WL 3867901, at *4 n.2. There is thus no binding authority in this Circuit that expressly permits Plaintiff to pursue her retaliation claim using the convincing mosaic approach. After careful consideration, the Court has determined that, even assuming that Plaintiff can use the convincing-mosaic theory for her retaliation claim, for the reasons set forth in Section IV(B), infra, Plaintiff has failed to put forth sufficient evidence to survive summary judgment under this theory on either her retaliation or discrimination claim.
B. Section 1981 Discrimination Claim
Plaintiff arguably asserts a § 1981 discrimination claim against Farmers, asserting that she was terminated because of her race. Section 1981 prohibits workplace discrimination on the basis of race. 42 U.S.C. § 1981; Ferrill, 168 F.3d at 472. In race discrimination cases, "a plaintiff can survive summary judgment through satisfying the well-known burden-shifting framework from McDonell Douglas Corp. v. Green . . . , or by demonstrating a convincing mosaic of circumstantial evidence that creates a triable issue concerning an employer's discriminatory intent." Freeland v. HR Synergies LLC, 508 F. Supp.3d 1351, 1360 (M.D. Ga. 2020) (citing Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) ("Lewis II")).
As noted above, it is unclear whether Plaintiff asserts a discrimination claim. The Court performs the following analysis in an abundance of caution.
Plaintiff does not address the McDonnell Douglas framework with respect to her discrimination claim and instead relies on a convincing mosaic theory of discrimination. As discussed above, this approach allows a plaintiff to survive a motion for summary judgment by presenting "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination." Lewis II, 934 F.3d at 1185. Under this approach, Plaintiff must still demonstrate a genuine issue of material fact exists as to pretext. Reyes, 2022 WL 3867901, at *3.
Plaintiff likely did not address the McDonnell Douglas framework because she cannot establish a prima facie case of discrimination under it. Specifically, she cannot satisfy the fourth prong—that she was treated less favorably than similarly situated employees outside of her protected class. Jenkins, 26 F.4th at 1249; Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1221 (11th Cir. 2019) ("[A] comparator analysis must be conducted at the prima facie stage of the McDonnell Douglas framework"). To establish the fourth prong, a plaintiff must show that she and her comparators are "similarly situated in all material respects." Id. at 1226. As discussed later in this section, Plaintiff's one, proposed comparator, Stephen Butler, is not similarly situated. Like Powe, Butler was terminated for fraud. While Butler was later re-hired to work for his brother's Farmers' agency, Butler was not himself re-hired as an agent. It is further undisputed that Butler is ineligible to be an agent because of his past conduct. Additionally, Powe and Butler had significant differences in job function since Butler's work was more behind-the-scenes, while agents are the public face of the Farmers' brand. For these reasons, Plaintiff cannot show that Butler was "similarly situated in all material respects." Id.
Plaintiff contends that a jury could infer that Farmers terminated her for a discriminatory reason based on the following mosaic "tiles": (1) Kautz has made racially insensitive comments and Farmers has a history of mishandling complaints regarding racism and sexual harassment, (2) Farmers systematically treated white employees more favorably than minority employees such as Plaintiff; (3) the individuals involved with the Fraud Investigation were in communication with those involved with the Complaint Investigation, and (4) Farmers submitted a Proof of Loss to its accounting department to recover for Powe's alleged monetary misappropriation before she was terminated. Plaintiff's alleged mosaic of circumstantial evidence, however, fails to create a triable issue concerning Farmers' allegedly discriminatory intent.
In her brief, Plaintiff argues that the insufficiency of Summy's Fraud Investigation should be considered as part of her convincing mosaic of circumstantial evidence. For the reasons discussed above, however, her argument regarding the Fraud Investigation fails to raise a question of fact as to pretext.
1. Kautz's Alleged Previous Comments and Farmers' Alleged Mishandling of Past Complaints
Plaintiff alleges in her brief that Chara Kautz has made racially insensitive comments to Farmers employees, and that such comments "are a strong indicator that there is bias against African Americans or people of color" at Farmers. (Doc. 61 at 13.) Plaintiff further alleges that Farmers' "pattern of fumbling" prior complaints regarding racially insensitive conduct and sexual harassment is evidence of Farmers' discriminatory intent. (Id. at 14.) Specifically, Plaintiff's evidence in support of these allegations comes from the experiences of another former Black, female Farmers employee—Makeda Coleman.
In August 2020, roughly four months before Kautz's comment to Plaintiff, Coleman complained to higher-up Farmers employees about "numerous instances of . . . racially insensitive issues" relating to Chara Kautz. (Doc. 61-5, Coleman Dep. at 73:16-19.) During her deposition, Coleman specifically listed one of those instances in which Kautz had "mix[ed] the names of agents up, agents who were Persian in particular." (Id. at 75:16-18.) Coleman does not believe that any disciplinary action was taken against Kautz as a result of her complaint. (Id. at 75:10-12.) There is no further evidence of racially insensitive or offensive comments by Kautz or anyone else.
Additionally, Coleman described an instance in September 2019 in which another Farmers employee allegedly sexually harassed her. (Id. at 77:10-22.) Coleman explained that she complained about the harassment to Kautz, who then raised it to other, higher-up Farmers employees. (Id. at 79:3-80:1.) While there was an investigation into the matter, to Coleman's knowledge, no disciplinary action was taken against her alleged harasser. (Id. at 81:12-82:1-10.) Coleman described Farmers' handling of her racial and sexual harassment complaints as "traumatic." (Id. at 89:11.)
Plaintiff argues that this "history of discrimination," which Farmers permitted to take place with "impunity," is indicative of Farmers' discriminatory animus against Plaintiff. (Doc. 61 at 4, 13.) However, the actual record evidence of employees' past complaints, even when viewed in the light most favorable to Plaintiff, is underwhelming when compared to how the same is characterized in Plaintiff's brief. The allegation that Kautz made racially insensitive comments "with impunity" is supported on the record with the comment that Kautz made to Plaintiff and the comment noted above in Coleman's deposition. The undersigned in no way sanctions, condones, or downplays either comment. That offense was taken is certainly understandable. And perhaps there were other events or comments that are not a part of this record. But the Court is limited to the record before it. And on this record, one cannot reasonably conclude that the two cited comments by Kautz create a triable issue, in light of the full context in this case, with respect to the reason why Farmers terminated Plaintiff.
The other difficulty for Plaintiff here is that the comments just discussed came from Kautz but it was Kerr who made the decision to terminate Plaintiff. The Eleventh Circuit has held that evidence of past discrimination against other employees—what the court refers to as "me too" evidence—may be used in showing that an employer acted with a discriminatory intent. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1268 (11th Cir. 2008). But "me too" evidence is relevant only when the past instances of discrimination involve other employees who "were discriminated against by the same individuals that discriminated against the plaintiff." Jones v. City of College Park, Georgia, No. 1:05-CV-1797-JTC, 2009 WL 10666066, at *3 (N.D. Ga. Aug. 26, 2009) (citing Goldsmith, 513 F.3d at 1286); Ellison, 775 F. App'x at 650 (concluding that prior instance of discrimination against another employee did not create a triable issue as to pretext in a § 1981 case because "the decisionmakers who fired [the other employee] were not the same as the decisionmakers who fired [plaintiff].").
Here, the Farmers employee who terminated Plaintiff, Bryce Kerr, had nothing to do with Coleman's experiences. Plaintiff does not allege that Kerr discriminated against Coleman or any other Farmers employee. Coleman's allegations are therefore not "closely linked to [Plaintiff's] allegations" and do not supply sufficient circumstantial evidence to raise a plausible inference of discrimination.
Clemons v. Delta Air Lines, Inc., No. 1:13-CV-00048-RLV-AJB, 2013 WL 11328333, at *12 (N.D. Ga. Oct. 7, 2013), aff'd, 625 F. App'x 941 (11th Cir. 2015) (finding that plaintiff's "me too" evidence "d[id] not supply sufficient circumstantial evidence to raise a plausible inference" of discrimination when it was "unclear how the evidence underlying [other employees'] putative discrimination claims show[ed] Delta's intent to discriminate against Plaintiff").
Plaintiff insists that Coleman's experiences are still relevant because Kerr's termination decision was a mere rubber stamp carrying out the wishes of other Farmers employees who harbored discriminatory animus, like Kautz. Plaintiff, however, cites little evidence in support of this contention. She seeks to connect the dots between Kautz and Kerr by arguing that Kautz was involved in the decision to fire Plaintiff because Kerr spoke with her after he reviewed Summy's Fraud Investigation report. Plaintiff refers here to testimony from Kerr in which he states that he "consulted" Kautz prior to terminating Plaintiff. (Doc. 61-17, Kerr Dep. at 48:16-19.) Later in his deposition, however, Kerr makes clear that Kautz never asked him to terminate Plaintiff or otherwise influenced his decision to do so. (Doc. 61-18, Kerr Dep. at 210:13-213:18.) Instead, Kerr stated that his decision was based solely on his own independent review of the Fraud Investigation's findings, and Kautz merely "agreed" with his conclusion. (Id. at 212:10-12.) Moreover, Plaintiff does not dispute that Kerr similarly consults with an agent's Market Leader as a general practice when he terminates any agent. (Doc. 61-17, Kerr Dep. at 46:17-23.) Put simply, Plaintiff has failed plausibly to rebut Farmers' allegation that Kerr—and Kerr alone—was the decision maker in terminating her agent agreement. That Kerr spoke to Kautz before terminating Plaintiff does not raise a plausible inference of discrimination.
2. Alleged Systemically Better Treatment of Other Employees
A plaintiff who proceeds under a convincing-mosaic theory of discrimination often must provide evidence of the employer's "systematically better treatment of similarly situated employees." Jenkins, 26 F.4th at 1250. Plaintiff argues systematically better treatment can be inferred from Farmers' allegedly more favorable treatment of Stephen Butler—a white male who was also terminated by Farmers for fraud. In 2017, Stephen Butler was an employee of Farmers agent Warren Belvin. Butler was not himself an agent and was not subject to an Agent Appointment Agreement. Later that year, Farmers found that Butler had been fraudulently changing the policy limits on certain insurance documents. (Doc. 61-8, Belvin Dep. at 29:10-18.) Bryce Kerr terminated Butler. (Id. at 29:16-18.) In 2020, Butler was rehired by his brother, who is currently a Farmers agent. Although Butler works as an employee at a Farmers agency, it is undisputed that he is not eligible to become a Farmers agent because of his past conduct. (Doc. 60-2, Ex. 5, Cromer Decl. ¶¶ 36-37.)
Plaintiff argues that in allowing Butler to be re-hired, Farmers treated him more favorably than Plaintiff. This is so, Plaintiff argues, because Bryce Kerr testified that Plaintiff would not be rehired by Farmers. (Doc. 61-17, Kerr Dep. at 103:21-104:9.) Farmers' allegedly more favorable treatment of Butler, Plaintiff contends, is evidence that Farmers "systematically" treated similarly situated employees better than Plaintiff.
Plaintiff's argument does not create a triable issue for two reasons. First, Butler is not "similarly situated" such that his treatment is probative of whether Farmers discriminatorily fired Plaintiff. While comparators in a convincing mosaic analysis need not "meet this Circuit's strict definition of similarly situated comparators," they must be sufficiently similar such that a reasonable jury could find from their treatment that "the [employer] did not consistently exercise its authority"—to the benefit of one racial group and to the detriment of another. Lewis II, 934 F.3d at 1187-88. It is undisputed that, while Plaintiff was an agent, Butler never was and never will be an agent. (Doc. 60-2, Ex. 5, Cromer Decl. ¶¶ 36, 37.) As an agent, Plaintiff wielded broader autonomy and responsibility than Butler did as an employee. Agents, as parties to Agent Appointment Agreements and the faces of the Farmers brand in the community, are subject to a different set of standards and expectations than their employees, who are not parties to Agent Appointment Agreements.
(See Doc. 60-2, Ex. 7 ¶ (B) (Agent Appointment Agreement setting forth the scope of an agent's duties), ¶ (M) (stating that (1) "Agent shall, as an independent contractor, exercise the sole right to control all Agency operations and determine the time and manner in which Agent's duties and other objectives of [Farmers] are met," and (2) the Agent has sole discretion in hiring, compensation, and management decisions related to her Agency).)
It is further undisputed that upon Plaintiff's termination, Farmers transferred her policies to another Black agent. (Doc. 60-2, Ex. 5, Cromer Decl. ¶ 22.)
Second, Bryce Kerr—the Farmers employee who decided to terminate Plaintiff—was not involved with the decision to rehire Butler following his termination. Other employees' treatment of Butler sheds no light on whether Kerr harbored discriminatory intent when he terminated Plaintiff. For these reasons, Plaintiff's evidence regarding Farmers' treatment of Butler does not create a triable issue of fact as to whether Farmers fired Plaintiff for discriminatory reasons.
3. Cross Communication Between Investigations
Plaintiff contends that certain Farmers employees who were involved with the Fraud Investigation were in communication with employees who were involved with the Complaint Investigation. These communications, Plaintiff argues, show that those employees were working together to ensure that Plaintiff's agency would be terminated regardless of what the investigations uncovered. Plaintiff identifies three instances of cross communications between the two investigations.
Because these communications relate to Plaintiff's complaint of alleged sexual harassment and racial discrimination (i.e., participation in protected expression), they are equally relevant to Plaintiff's retaliation claim as they are to her discrimination claim. No matter which claim this "tile" is assigned to, however, for reasons set forth in this Section, it fails to give rise to a genuine issue of material fact as to pretext.
First, on December 10, 2020, two days after Plaintiff sent her complaint, Matthew Carr (a Farmers employee who worked on the Complaint Investigation) sent an email to Susan Barnett (who worked on the Complaint Investigation), copying Ryan Summy (who led the Fraud Investigation), stating:
We have a unique situation with GA agent Stephanie Powe and some territory employees, I will forward you additional information but want to set up a meeting time to go over expectations going forward.(Doc. 61-14.)
Ryan - If you have time availability, it might be beneficial for you to join just to be sure we are all on the same page going forward.
Second, on December 16, 2020, Tina Hernandez (in-house legal counsel for Farmers, from whom Kerr sought legal consultation before firing Plaintiff) sent an email to several Farmers employees, including Kerr, Summy, and Carr. (Doc. 61-16.) Hernandez explained that, after Plaintiff ended her Fraud Investigation interview with Summy, Hernandez reached out to Plaintiff to encourage her to "remain collaborative" with the investigation. (Id. at 1.) In this email, Hernandez described her conversation with Plaintiff. Plaintiff contends that Hernandez's email shows that she was "disseminating information" to individuals involved in both investigations. (Doc. 61 at 18.)
Third, in Kerr's January 12, 2021, request for legal assistance regarding Plaintiff's termination, he writes the following:
As you are aware, there was also a complaint filed against employees in Georgia. That complaint has been sent to Employee Relations, and they will be conducting their investigation. While I will not be provided the outcome of that investigation, as it is an employee matter, should the outcome warrant, we would be willing to consider a confidential settlement agreement to allow Agent Powe to sell her service and commission rights.(Doc. 61-15 at 3.) This statement, Plaintiff argues, demonstrates Kerr's involvement with the Complaint Investigation.
Plaintiff argues that these communications, taken together, convey a coordination between the two investigations with the goal of ousting Plaintiff whether or not she committed fraud. The Court cannot agree. Even viewed in the light most favorable to Plaintiff, these communications fail to give rise to a reasonable inference of retaliation or discrimination. At most, these communications demonstrate that individuals working on the Fraud Investigation knew about the concurrent Complaint Investigation, and vice versa. Importantly, Plaintiff has offered no evidence that Summy and Kerr had any involvement with the Complaint Investigation. Indeed, Kerr states that he had never met Angie Bechtel (who led the Complaint Investigation), and he "w[ould] not be provided the out-come of [the complaint] investigation, as it is an employee matter." (Doc. 60-2, Ex. 17, Kerr Dep. at 43:3-4; Doc. 61-15 at 3.) Mere knowledge of a plaintiff's participation in a protected activity does not alone show pretext. Knight v. Fla. Dep't of Transp., 291 F. App'x 955, 959-60 (11th Cir. 2008); Robinson v. AFA Serv. Corp., 870 F. Supp. 1077, 1085 (N.D. Ga. 1994) ("Even though Defendant knew at the time of discharge that Plaintiff might pursue an age discrimination claim, this circuit does not hold that the employer's mere knowledge of a potential discrimination charge is enough.")
To conclude based on the comments described above that Summy and Kerr harbored an intent to retaliate or discriminate against Plaintiff for her complaint would require a giant speculative leap. See Cordoba v. Dillard's Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create genuine issue of fact; instead it creates a false issue, the demolition of which is a primary goal of summary judgment.") (emphasis in original). Further, it is again important to note that Farmers' Fraud Investigation began before Plaintiff made her complaint. Accordingly, the cross communications between investigations identified by Plaintiff do not create a triable issue of fact as to pretext.
4. Farmers' Pre-Termination Proof of Loss
In support of Plaintiff's contention that Farmers' Fraud Investigation was pretextual, she points to a proof of loss that Ryan Summy submitted to Farmers' internal accounting department to recover the $2,500 that Plaintiff received in connection with the October Event. (Doc. 61-19.) Summy submitted the first proof of loss document on December 18, 2020—the day he finalized his Fraud Investigation report, but before Kerr decided to terminate Plaintiff's agency. In this document, which he sent in an email titled "First Notice of Suspected Fraud - GA Agent Stephanie Powe," Summy wrote that Plaintiff had engaged in "Monetary Misappropriation" of $2,500. (Id. at 7.) Plaintiff argues that Summy's submission of this proof of loss is evidence that "the process to terminate Plaintiff was initiated before the [fraud] Report was ever reviewed by Kerr." (Doc. 61 at 20.)
Even if that is true, it doesn't help Plaintiff's case. Summy's submission of this proof of loss does not suggest that Plaintiff was terminated in retaliation for sending her complaint or because of her race. To the contrary, it lines up temporally with Farmers' position that Plaintiff was terminated for fraud. As discussed above, by December 18, 2020, Summy and Farmers already had reason to believe that Plaintiff violated Farmers' policies regarding her reimbursement requests. Summy recounted those bases for suspicion in the proof of loss document itself. In it, Summy stated that his investigation was prompted because of, among other things, "discrepancies with documents and [photos]" and "questionable event invoices." (Id.) Additionally, Plaintiff does not contend that Kerr, the decision maker in her termination, was involved in submitting the proof of loss. Consequently, the Court concludes that Summy's submission of a proof of loss document prior to her termination does not tend to show pretext.
The foregoing analysis has shown that each of Plaintiff's asserted "tiles" of evidence, considered on its own, fails to give rise to an inference of pretext. Because these tiles have each been "discarded as insufficient or irrelevant," they "cannot now be reassembled to create a convincing mosaic of discriminatory intent." Flowers v. Troup Cnty, Ga. Sch. Dist., 1 F. Supp.3d 1363, 1382 (N.D. Ga. 2014), aff'd, 803 F.3d 1327 (11th Cir. 2015). Even when Plaintiff's tiles are considered together as a broader mosaic, they still fail to allow for an inference of discrimination. Even after drawing all reasonable inferences in favor of Plaintiff, no reasonable jury could conclude from her proposed mosaic that she was fired because of her race or her complaint rather than because of Farmers' good-faith belief that she committed fraud in connection with her reimbursement requests. Farmers is therefore entitled to summary judgment on Plaintiff's § 1981 claims.
C. Breach of Contract Claim
Plaintiff argues that Farmers breached the parties' Agent Appointment Agreement when it terminated her agency. Plaintiff's Agent Appointment Agreement states, in pertinent part, that Farmers may terminate the agreement immediately for "fraud . . . [or] misappropriation . . . in connection with the Agency," or "[m]isrepresentation in connection with the Agency that is material to the operation of the Agency or the Companies." (Doc. 60-2 at 270, ¶ E(4).) Plaintiff's termination letter stated that Plaintiff's agency was terminated for the following reasons:
[(1)] B.8 failure to conduct business in accordance with the published policies, rules and guidelines of the Companies, [(2)] E.4.a fraud in connection with the Agency, [(3)] E.4.d misrepresentation in connection with the Agency that is material to the operation of the Agency or the Companies, [(4)] E.4.f conduct that is disparaging of or detrimental to the Companies, including, without limitation, conduct determined by the Companies, in their sole discretion, to constitute a conflict of interest, and [(5)] M failure to conform to normal good business practice, and all local, state and federal laws governing the conduct of the Companies, their agents and individuals working for agent.(Doc. 60-2 at 656.) Of these five reasons, Farmers relies in its briefing primarily on its finding of "fraud" and "misrepresentation" in connection with Plaintiff's reimbursement requests as the main bases for her agency's termination. As Plaintiff notes, however, the terms "fraud" and "misrepresentation" are not defined in the Agreement. She argues that her actions did not constitute fraud or misrepresentation under the contract.
"When determining the meaning of the words used in a contract, the words will generally bear their usual and common meaning and the usual and common meaning of a word may be supplied by common dictionaries." In re Estate of Boyd, 340 Ga.App. 744, 798 S.E.2d 330, 333 (2017) (internal quotation marks omitted). The parties do not dispute that the terms "fraud" and "misrepresentation" generally require an element of "scienter"—that is, one cannot "mistakenly" commit fraud or misrepresentation. See Rosen v. Protective Life Ins. Co., 817 F. Supp.2d 1357, 1376 (N.D. Ga. 2011) (noting that "fraud" and "misrepresentation" require an intent to deceive the opposing party). Plaintiff argues that she did not satisfy this "scienter" requirement because any false information contained in her reimbursement requests was the result of a mistake, not an intentional fraud or misrepresentation. Farmers, however, contends that its investigation found sufficient evidence of intentional fraud and misrepresentation such that it was justified in terminating her agency. In other words, Farmers argues that it terminated Plaintiff's agency in good faith.
When a contract affords a party discretion in carrying out its terms, as is the case here, "that party is bound to the exercise of good faith." Shelnutt v. Mayor & Aldermen of City of Savannah, 333 Ga.App. 446, 776 S.E.2d 650, 657 (2015) (quotations and alteration omitted). A decision is not made in good faith when it is made "for arbitrary or capricious reasons, is based on an improper pecuniary motive, or is predicated on dishonesty or illegality." Id.
As discussed with respect to Plaintiff's § 1981 claims, there is no indication that Farmers acted in bad faith in terminating Plaintiff's agency. Whether or not he was actually correct in his assessment, Kerr had multiple bona fide reasons for concluding that Plaintiff deliberately, not mistakenly, submitted reimbursement requests containing false information. Those reasons included, but were not limited to: (1) the submissions of photographs from dates other than the dates of Plaintiff's events; (2) the discrepancies between Plaintiff's invoices and the pricing information contained on the Forum's website; (3) Plaintiff's personal connection to the ownership of the Forum; (4) Plaintiff's refusal to answer certain questions during her interview with Ryan Summy; and (5) Plaintiff's decision to decline a second interview in which she could share her side of the story. (Doc. 61-15.) Plaintiff has failed to produce evidence from which a reasonable jury could find that Farmers acted in bad faith when it determined that Plaintiff had breached her contract terms. Plaintiff's argument to the contrary does not create a genuine issue of material fact. See Gould v. Interface, Inc., No. 1:20-CV-695-SDG-CCB, 2022 WL 2839961, at *18 (N.D. Ga. Feb. 9, 2022) (finding that plaintiff's dispute as to the sufficiency of an investigation into his alleged misconduct did not create a material issue of fact as to whether it was done in good faith). Farmers is entitled to summary judgment on Plaintiff's breach of contract claim.
D. Negligent Retention Claim
Plaintiff brings a negligent retention claim against Farmers, arguing that Farmers negligently retained Kautz and Cromer despite knowing that they had previously engaged in allegedly harmful conduct pre-dating their respective conduct described in Plaintiff's complaint to Farmers' CEO. Farmers seeks summary judgment on this claim.
Under Georgia law, a claim for negligent retention arises when "an employer negligently . . . retains . . . an employee and that employee subsequently harms the plaintiff." Canty v. Fry's Elecs., Inc., 736 F. Supp.2d 1352 (N.D. Ga. 2010). "To establish such a claim, the plaintiff must allege, and ultimately prove, that the defendant knew or should have known of an employee's tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff." Id. A negligent retention claim is "necessarily derivative." Metro. Atlanta Rapid Transit Auth. v. Mosley, 280 Ga.App. 486, 634 S.E.2d 466, 469 (2006). In other words, there must be an underlying tort that forms the basis of the injury against the plaintiff. Id.; Stewart v. City of Greensboro, No. 3:18-CV-129 (CAR), 2020 WL 1551828, at *13 (M.D. Ga. Mar. 31, 2020). "There is no distinct tort in Georgia law for harassment, retaliation or discrimination." Canty, 736 F. Supp.2d at 1380 (citing Alford v. Cosmyl, Inc., 209 F. Supp.2d 1361, 1372 (M.D. Ga. 2002)).
Here, Plaintiff's negligent retention claim fails because she "does not identify the underlying tort forming the basis of [her] derivative negligent [retention] claim other than to say that [Farmers] had a duty to protect [her] from discriminatory practices, harassment and retaliation." Id. In other words, Plaintiff does not contend that Kautz committed a tort against her when she made a racially insensitive comment to her. Similarly, Plaintiff does not allege that Cromer committed a tort when he allegedly looked at her in a lascivious way. Rather, Plaintiff argues, generally, that Kautz and Cromer caused her "harm." (Doc. 61 at 25.) Because Plaintiff has failed to identify an underlying tort that caused her to be injured, her derivative negligent retention claim must fail. Farmers is entitled to summary judgment on this claim.
E. Quantum Meruit
Plaintiff asserts a claim for quantum meruit in her complaint, yet she failed to respond to Farmers' motion for summary judgment with respect to this claim. The Court therefore deems Plaintiff's quantum meruit claim abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned"). Farmers is entitled to summary judgment on this claim.
V. Conclusion
For the reasons stated herein, Farmers' motion for summary judgment (Doc. 60) is GRANTED.
SO ORDERED this 30th day of March, 2023.