Opinion
Case No.: 5:20-cv-01762-LCB
2022-09-27
Laqueta WARD, Plaintiff, v. SYSTEM PRODUCTS AND SOLUTIONS, INC. and Millennium System Services, Inc., Defendants.
Kevin W. Jent, Wiggins Childs Pantazis Fisher & Goldfarb, Birmingham, AL, for Plaintiff. Daniel B. Harris, Jackson Lewis, Birmingham, AL, R. Brett Adair, Carr Allison, Birmingham, AL, for Defendants.
Kevin W. Jent, Wiggins Childs Pantazis Fisher & Goldfarb, Birmingham, AL, for Plaintiff. Daniel B. Harris, Jackson Lewis, Birmingham, AL, R. Brett Adair, Carr Allison, Birmingham, AL, for Defendants. OPINION & ORDER LILES C. BURKE, UNITED STATES DISTRICT JUDGE
Plaintiff Laqueta Ward filed this civil rights action against System Products and Solutions, Inc. ("SPS") and Millennium System Services, Inc. ("MSSI") on November 9, 2020. Plaintiff—a Black woman—was formerly employed as Defendants' human resources director. Here, Plaintiff claims that Defendants fired her for unlawfully discriminatory and/or retaliatory reasons. On the basis of those allegations, Plaintiff seeks legal and equitable relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
She began employment with SPS as HR manager in 2009 but was later promoted to HR director when her duties were expanded to encompass MSSI in 2015. (Doc. 26-5 at 7-8.)
Before the Court are Defendants' Motion for Summary Judgment and Brief in Support. (Docs. 25, 27.) Also before the Court are Plaintiff's Response (Doc. 32) and Defendants' Reply. (Doc. 33). In light of the Motion, briefing, relevant facts, and applicable law, Defendants' Motion is hereby GRANTED in part and DENIED in part.
Plaintiff's and Defendants' evidentiary materials are contained in ECF Document Numbers 31 and 26, respectively.
I. FACTUAL SUMMARY
Plaintiff bases her claims—and Defendants, their Motion—on the following facts, which are not disputed by the parties.
A. Defendants' Finances
By late 2018, Defendants were in financial distress. Their combined budgets projected an operating deficit of $580,000 for 2019, and atop that anticipated loss, Defendants furthermore bore unbudgeted expenses in the hundreds of thousands. (Thompson Dep., Doc. 26-1 at 15; Hinchman Dep., Doc. 26-8 at 16; Doc. 27 at 4-5.)
In an attempt to rectify the situation, Defendants "eliminated highly paid director-level positions" and delegated the associated duties to lower-management employees. (Doc. 27 at 5.) They hired no replacement following their contract director's December 2018 resignation, instead delegating the associated duties to a lower-salaried contract manager. (Doc. 26-1 at 18; Doc. 26-10 at 2.) In like fashion, Defendants' government-programs director resigned in January 2019, and no replacement was hired. (Doc. 26-10 at 2.)
To further streamline expense reduction, Defendants' Owner and CEO, Nilmini Thompson, hired a new President and Vice President in Clayton Hinchman and John Brooks, respectively. (Doc. 26-1 at 10, 15-16.) Hinchman would have supervisory authority over everyone at SPS/MSSI (save for Thompson). (Doc. 31-1.) The pair arrived in early February 2019, and Thompson recommended assessment of the remaining staff to see whether any high-salaried directorial positions might be expendable. (Doc. 26-1 at 10.) Another director, called Rick Smart, also negotiated a resignation date with Brooks "[a]round the time that Hinchman and Brooks were hired." (Id. at 21.) Following that negotiation, Plaintiff was Defendants' only remaining director-level employee without an exit plan. (Id. at 34.)
B. The AmEx Repayment Plans
Select employees at SPS and MSSI possess American Express ("AmEx") cards, which are linked to Defendants' corporate line of credit and with which those employees fund travel expenses, office-event purchases, and the like. (Pl.'s Dep., Doc. 26-5 at 14.) In the past, employees often charged their cards for personal expenses and repaid Defendants monthly. (Id.) To that end, Hinchman's "job" was to "take control" of AmEx repayment. (Doc. 26-1 at 28-29.)
So Hinchman "put together" a repayment "policy" upon arrival at SPS/MSSI. (Id. at 28.) By way of memorandum and meeting, he placed a moratorium on personal use of the corporate AmEx account. (Doc. 26-13; Doc. 26-8 at 6-7.) At the time, Plaintiff owed approximately $6,000 for personal AmEx charges. (Doc. 26-5 at 17-18; Doc. 26-11.) "Immediately [there]after," Plaintiff reached out to Hinchman about her balance, and in a "sit down" with Plaintiff, Hinchman said that "he was willing to work with her to set up whatever payment plan [was] necessary" to settle her balance. (Doc. 1 at 4; Doc. 26-8 at 20.) Defendants permitted Plaintiff to "sell" her vacation time in partial satisfaction of the balance, with the rest to be repaid via regular payroll deduction through August. (Doc. 26-12.)
Another employee, called Heriberto Perez, also had an AmEx balance for personal charges. (Doc. 26-8 at 20.) He met privately with Hinchman, on the same day as did Plaintiff, to discuss his outstanding balance. (Id.; Doc. 26-4 at 26-34.) By February's end, Plaintiff and Perez were the only employees with remaining AmEx balances for personal charges, and both were on approved repayment plans.
The record demonstrates that Perez had an outstanding balance of $2,121.55 on December 31, 2018; he began repayment in February and finished in May. (Doc. 26-4 at 26.)
Other employees were indebted to Defendants, but no employees (besides Plaintiff and Perez) owed Defendants for personal AmEx charges after February 2019. (Doc. 26-14.)
C. The Perez Promotion & The E-mail
In April 2019, Hinchman notified the company of Perez's promotion to "quality manager." (Doc. 26-15.) This "promotion" would have imposed upon Perez additional duties without additional pay, though he ultimately declined to accept the position for those reasons. (Id.; Doc. 26-5 at 14.) Plaintiff sent Hinchman the following response:
Will there be a [Personnel Action Form] for this change? If so, please complete attached. Will he bill the same rate for both direct and indirect? Also, please complete the attached sole justification form for this promotion, as it was not internally announced for other potentially qualified applicants to apply.(Doc. 26-15 at 2.)
Plaintiff sent that response ("The E-mail") because the quality-manager position had not been posted for other potential applicants. More specifically, Plaintiff sought a "sole justification form . . . for audit purposes," which she believed necessary to justify the posting's absence vis-à-vis OFCCP regulations. (Doc. 26-5 at 22.) She sent The E-mail "[m]ainly just for documentation to support [Defendants'] reasoning" for appointing Perez without fielding other applications; her "intent [was] to protect the company from any type of discrimination [claims] or charges related to the violation of OFCCP." (Id. at 22, 33.) Stated simply, she "was not complaining."
Office of Federal Contract Compliance Programs.
Doc. 26-5 at 22 ("My E-mail was not complaining. It's a company process for the standards.").
Plaintiff was fired 11 days after sending the email. (Id.)
D. Plaintiff's Termination
Defendants fired Plaintiff, their last director without an exit plan, on May 10, 2019. (Id.) Present at Plaintiff's termination meeting were Plaintiff, Hinchman, and Tempie Yates. (Id. at 28.) The parties agree upon the following with respect to Plaintiff's termination: (1) Plaintiff's AmEx repayment plan had not yet run to completion; (2) Defendants, through Hinchman, offered Plaintiff a severance agreement, and that offer included forgiveness of Plaintiff's outstanding AmEx balance; (3) At the time, Perez had completed his AmEx repayment plan; and (4) Plaintiff's termination preceded the scheduled satisfaction of her AmEx balance. But crucial here is the parties' dispute regarding what occurred during that meeting. See discussion infra Section III(A).
Yates, another employee, assumed Plaintiff's former duties following Plaintiff's termination.
The same day, Hinchman documented Plaintiff's termination and severance in a "Memorandum for Record," in which he stated no reason for the termination. (Doc. 26-3 at 22.) He later prepared another memorandum in response to "legal questions concerning [Plaintiff]'s EO Complaint," offering financial strain as the basis for Plaintiff's dismissal. (Doc. 26-9.)
II. LEGAL STANDARD
Summary judgments are "an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To obtain summary judgment, the movant must demonstrate that all material facts are undisputed and entitle him to a judgment on the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That burden requires the movant to point out portions of the record or pleadings that justify summary judgment. Fed. R. Civ. P. 56(a). Hand in hand with that burden goes the Court's absolute duty to take the nonmovant at her word with respect to all the parties' genuine disagreements about legally significant facts. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.
The movant is, of course, burdened with "producing in turn evidence that would support a jury verdict." Id. at 256, 106 S.Ct. 2505. Beyond "the mere allegations or denials of her pleading"; she "must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 (citation omitted); accord Fed. R. Civ. P. 56(e). To that end, evidence that "is merely colorable" or otherwise "is not significantly probative" cannot preclude summary judgment. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505.
Applicable substantive law distinguishes the material from the immaterial. Id. It bears noting that there can be "no genuine issue as to any material fact" where the nonmovant is unable put forth reasonable evidentiary support for even one legal element of her case. Celotex, 477 U.S. 317, 106 S.Ct. 2548. In other words, dispensing with just one element of an opposing party's claim is sufficient for summary-judgment purposes because doing so "necessarily renders all other facts immaterial." Id. at 322, 106 S.Ct. 2548. In these instances, "the plain language of Rule 56(c) mandates the entry of summary judgment." Id.
The inquiry ultimately turns upon "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In engaging with that inquiry, the Court is "required to view the evidence and all factual inferences therefrom in the light most favorable" to the nonmovant and to resolve all reasonable doubts about the facts in her favor." Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1341 (11th Cir. 2022) (citation omitted) (cleaned up). Should "conflicts arise between the facts evidenced by the parties," the Court "must credit the nonmovant's version." Id. at 1351 (citation omitted). "This is because credibility determinations and the weighing of evidence 'are jury functions, not those of a judge.' " Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505).
III. DISCUSSION
For the forthcoming reasons, the Court finds that a genuine issue of material fact precludes summary judgment on Plaintiff's discrimination claim but that no such issue exists with respect to her retaliation claim. As for the former, the jury's job is to decide whether discriminatory animus provided the true basis for Plaintiff's termination. But Plaintiff's retaliation claim falls short at the prima facie stage for want of any evidence showing that Plaintiff engaged in protected activity—namely, that she actually opposed an employment action.
Plaintiff also brings her Title VII race-discrimination claim under § 1981; on account of their identical legal elements, the Court discusses those discrimination claims together and without distinction, often with reference to Title VII for simplicity's sake. E.g., Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009) (citation omitted). The same goes for Plaintiff's retaliation claims. Id. So for purposes of the forthcoming analysis, Plaintiff's claims are considered to fall within one of two pails: discrimination or retaliation.
A. Discrimination
Plaintiff claims that Defendants discriminatorily terminated her employment on May 10, 2019. She testified that Hinchman told her she was being dismissed "because of" her outstanding AmEx balance despite having previously been approved for a repayment plan. (Doc. 26-5 at 28.) Hinchman contrastingly testified that no reason was offered during the meeting; he maintains that the decision was "[p]urely financial." (Doc. 26-8 at 12.) And as for the actual meeting, Hinchman testified that he only mentioned the AmEx in reference to the severance offer. (Id. at 13.) Yates's testimony corroborated Hinchman's (nearly to the letter), and she could recall no other mention of the AmEx during the meeting. (Doc. 26-16 at 12.)
Thompson was not present at the meeting but testified to the same effect. (Doc. 26-1 at 10.)
Either direct or circumstantial evidence may sufficiently substantiate Title VII discrimination claims of the disparate-treatment variety. E.g., E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). Nearly a half-century ago, the Supreme Court outlined the analytical framework applicable to those based on circumstantial evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That burden-shifting framework requires first that the plaintiff establish a prima facie case for discrimination; second that the defendant "articulate some legitimate, nondiscriminatory reason" for the employment action; and third that the plaintiff "be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for [termination] were in fact a coverup" for discrimination—that is, that any facially nondiscriminatory basis is pretextual. Id. at 802-805, 93 S.Ct. 1817.
This obligation "merges with the plaintiff's ultimate burden of persuading the factfinder that she has been the victim of intentional discrimination." Lewis v. City of Union City, 918 F.3d 1213, 1221 (11th Cir. 2019) (en banc) (quoting Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (cleaned up).
i. Plaintiff's Prima Facie Case
To establish a prima facie discrimination case, the plaintiff must show that she suffered adverse employment action while a "similarly situated" individual outside her protected class received more favorable treatment. Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Plaintiff's ability to establish a prima facie discrimination case here hinges entirely upon her ability to identify a valid comparator—that is, a non-Black man to whom Plaintiff was "similarly situated" yet who received more favorable treatment than did Plaintiff. Plaintiff has shown just that. Under the Lewis standard, discussed infra, Perez is a valid comparator.
In other cases, a plaintiff may show—in place of a comparator who received more favorable treatment—that the employer replaced her with someone outside her protected class. Maynard, 342 F.3d at 1289. But "Plaintiff's claim is not that she was terminated and replaced by someone of a different race or sex." (Pl.'s Resp., Doc. 32 at 20.)
"[A]s the [Eleventh Circuit] (and the Supreme Court) have traditionally held," "a meaningful comparator analysis must be conducted at the prima facie stage of McDonnell Douglas's burden-shifting framework" rather than during the pretext stage of analysis. Lewis, 918 F.3d at 1218, 1221.
Of course, for suspect-class purposes, a Black male would suffice for the sex-discrimination claim (as would a non-Black female for the race-discrimination claim). But Plaintiff alleges discrimination on both grounds, and her comparator is neither Black nor female. So the Court discusses them in kind.
a. The Lewis Standard
The Eleventh Circuit recently sat en banc "to clean up, and to clarify once and for all," the manner in which its district courts should answer the following question: "Just how 'similarly situated' must a plaintiff and her comparator(s) be?" Lewis v. City of Union City, 918 F.3d 1213, 1217-18 (11th Cir. 2019). The prima facie stage of McDonnell Douglas analysis, answered the court, requires that the Plaintiff present a comparator to whom she was "similarly situated in all material respects." Id.
Discrimination "is the act of treating like cases differently." Id. at 1225 (citation omitted). But while Title VII expressly requires similarity, the Eleventh Circuit has "repeated[ly] reassure[ed] that 'comparators need not be the plaintiff's doppelgangers.' " Id. at 1226 ("[D]oppelgangers are like unicorns—they don't exist.") (quoting Flowers v. Troup Cnty., 803 F.3d 1327, 1340 (11th Cir. 2015)). In other words, "exact correlation is neither likely nor necessary." Id. (citation omitted). And though deciding whether two persons are sufficiently similar requires individual-case assessment, the Lewis court provided "guideposts" relevant to the determination. Id. at 1227.
Similarities that are—in a general sense—typical of valid comparators include, but are not limited to, (1) "engage[ment] in the same basic conduct (or misconduct)"; (2) subjection to "the jurisdiction of the same supervisor"; (3) governance by "the same employment policy, guideline, or rule"; and (4) shared "employment or disciplinary history." Id. at 1227-28 (citations omitted). To be clear, the standard is not formalistic: For example, a plaintiff and her comparator need not share job titles. Id. at 1227 (citing Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) ("The relevant inquiry is . . . whether the employer subjected them to different employment policies."))
In Lewis, the plaintiff failed to identify a valid comparator; her discrimination claim accordingly fell to adverse summary judgment at the prima facie stage. In brief, the Lewis plaintiff took leave for a heart condition that rendered her unable to complete mandatory training but failed to submit the requisite FMLA papers. Id. at 1230. Her absence was thus deemed "unexcused," and she was fired pursuant to her employer's policy that any unexcused absences gave grounds for termination. Id. at 1230-31. The court reasoned that the plaintiff and her proffered comparators—two fellow police officers who, years later, went on unauthorized leave to rectify physical-fitness issues without termination—were not similarly situated in all material respects. Id. They "were placed on leave . . . pursuant to altogether different personnel policies and, perhaps even more importantly, for altogether different conditions," the Plaintiff's condition having been uniquely irremediable. Id.
b. Plaintiff and Perez were similarly situated in all material respects.
Plaintiff and Perez were similarly situated in all respects material to Plaintiff's discrimination claim. Plaintiff alleges that she was terminated on the grounds of her outstanding AmEx balance while Perez, on the other hand, was permitted to complete his AmEx-repayment plan in lieu of termination. Defendants allege, arguendo, that Plaintiff and Perez are not valid comparators even if Plaintiff was fired over her AmEx debt. Defendants' argument holds no water.
Doc. 27 at 17-18 ("[T]his dispute is immaterial because under either [Plaintiff's or Defendants'] version of the facts, Plaintiff cannot identify any similarly situated individual who ever received more favorable treatment."). The Court must credit Plaintiff's version here. See Section II, supra.
For starters, both Plaintiff and Perez charged personal expenses to their company credit cards; in fact, only Plaintiff and Perez owed Defendants for such conduct after February 2019. Stated simply, both Plaintiff and Perez made personal charges to the same line of credit—Defendants'—and were dutybound to repay Defendants for those charges. Plaintiff and Perez thus "engaged in the same basic conduct" upon which Plaintiff bases her discrimination claim and seeks to establish the lone disputed element of her prima facie case.
Plaintiff and Perez each individually reached out to and met privately with Hinchman, who had supervisory authority over all employees and whose job was to "put together" a "policy" for AmEx repayment, for the same reason and on the same day. Each discussed AmEx repayment immediately following Hinchman's moratorium on personal AmEx charges. Plaintiff and Perez were clearly subject to "the jurisdiction of the same supervisor" in every meaningful sense.
Cf. Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (noting that "measures undertaken by different supervisors may not be comparable for purposes of Title VII analysis").
After meeting with Hinchman, both Plaintiff and Perez began repaying their respective debts. Each executed monthly reimbursement payments, through regular payroll deductions, in accord with a preordained plan. How, then, could the Court be asked to determine that Plaintiff and Perez were not "subject to the same employment policy" under these circumstances?
As for shared history, some factual dispute surrounds Defendants' prior approval of the personal charges. Accepting Plaintiff's recollection—that the personal charges were authorized so long as repayment was to follow—the factor weighs neutrally. But if, as Defendants contend, the charges were never authorized, then one could infer that the repayment plans constituted disciplinary action for unauthorized AmEx use (and thus that Plaintiff and Perez share similar disciplinary history), in which case this factor would also weigh in Plaintiff's favor.
Of the Lewis court's four comparator-analysis "guideposts," at least three unquestionably point the Court toward finding Plaintiff and Perez to have been similarly situated in all material respects.
Defendants misguidedly assert that "Perez and Plaintiff having had payment plans would only be a relevant consideration if they both had unpaid balances when Plaintiff was terminated." But rather than supporting Defendants' position, that fact itself—true or not—provides the entire basis for Plaintiff's discrimination claim. In arguing otherwise, Defendants vastly misconstrue the brunt of Plaintiff's claim: Plaintiff alleges that she was fired on account of her outstanding AmEx balance and that because Defendants permitted Perez—under nearly identical circumstances—to complete repayment in lieu of termination, Defendants treated Plaintiff less favorably than an individual to whom she was similarly situated in all material respects. In other words, Plaintiff alleges that Defendants fired her for reasons equally applicable to Perez even though she and Perez, a Hispanic man, were otherwise in the same boat, so Defendants must really have fired her for unlawfully discriminatory reasons (race and/or sex). Had Plaintiff, for example, defaulted on her payments, then Perez's unblemished satisfaction of his balance might turn the tide. But under the facts of this case, Defendants fail to address fundamental comparator-analysis considerations.
Doc. 33 at 4. Without citation or supporting authority, Defendants ask the Court to focus its prima facie determination on the following question: "Did Perez have an outstanding balance like Plaintiff at the time of Plaintiff's termination?" (Doc. 27 at 5 (describing that question as "[t]he critical inquiry").)
In conclusion, Plaintiff has established a prima facie discrimination case (and with it, the rebuttable presumption of discrimination) sufficient to pass Defendants the burden of offering a legitimate justification for Plaintiff's termination. Binding precedent makes clear that, viewing all reasonable factual disputes in Plaintiff's favor, Perez is a valid comparator: Plaintiff and Perez committed nearly identical acts, reconciliation of which subjected each to the same plan under supervision of the same figure.
ii. Defendants' Nondiscriminatory Alternatives
"Presentation of a prima facie case by a plaintiff raises a rebuttable inference of discrimination and shifts the burden of proof to the employer to respond with a legitimate, nondiscriminatory reason for dismissing the plaintiff." Carter v. City of Miami, 870 F.2d 578, 584 (11th Cir. 1989) (citation omitted). And "[c]ourts routinely hold that an employer's elimination of an employee's position" in order "to save costs constitutes a legitimate, nondiscriminatory reason for the employment action." Keith v. Talladega City Bd. of Educ., 2021 WL 913481, at *14 (N.D. Ala. March 10, 2021) (citations omitted). A defendant "need not persuade the court that it was actually motivated by the proffered reason" but need merely demonstrate a fact issue regarding the existence of a discriminatory motive. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (citation omitted). This burden is one of production, not persuasion; it permits no credibility assessment by the Court. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
At present, Defendants have offered numerous pieces of evidence indicating that Plaintiff was terminated—and the position of HR director eliminated—on account of Defendants' need to eliminate expenses. Both Thompson and Hinchman testified in deposition to that effect. Hinchman also signed a memorandum in September 2019 stating that Plaintiff was fired as a cost-cutting measure. Defendants have also pointed to their elimination of all other director-level positions. The Court, without weighing or otherwise speaking to the credibility of that evidence, finds that Defendants have satisfied their burden of articulating a legitimate, nondiscriminatory reason for Plaintiff's termination.
iii. Pretext (or lack thereof)
At the pretext stage, a plaintiff must present evidence sufficient to plausibly support a reasonable jury's determination that the employer's "proffered reason was not its true reason." Royal Atl., 610 F.3d at 1265. She may do so with evidence discrediting the proffered justifications. Id. As a practical matter, she must point out "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact-finder could find them unworthy of credence." Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)).
The plaintiff must demonstrate "not just that [the employer's] proffered reasons for firing her were ill-founded but that unlawful discrimination was the true reason." Id. at 1267 (citing Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (applying the same framework)). The Supreme Court has made clear, however, that "this evidence might take a variety of forms." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (citing McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817).
For instance, the jury may "infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 530 U.S. at 134, 147, 120 S.Ct. 2097 (citation omitted); accord St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742 ("[R]ejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."). The prima facie case itself may further the plaintiff's discreditation efforts. St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742. Most importantly, the plaintiff need not provide independent evidence of discrimination to survive summary judgment. Id. (rejecting "the premise that a plaintiff must always introduce additional, independent evidence of discrimination"); Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 831 (11th Cir. 2000) (reversing because district court demanded evidence beyond discreditation).
See also Reeves, 530 U.S. at 147, 120 S.Ct. 2097; McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) ("As we indicated in McDonnell Douglas, an allegation that other 'employees involved in acts against (the employer) of comparable seriousness were nevertheless retained' is adequate to plead an inferential case that the employer's reliance on his discharged employee's misconduct as grounds for terminating him was merely a pretext.").
At bottom, Plaintiff must show—to the extent permitting such a conclusion by a reasonable jury—that her firing was discriminatory. She may do so by calling into question the validity of Defendants' proffered justification to an extent sufficient to support the reasonable conclusion that the justification is pretextual. This makes good sense in light of the reality that employers rarely—if ever, these days—discriminate openly under light of day. So where the employer offers facially legitimate reasons upon which the plaintiff subsequently casts doubt, a reasonable jury may infer that the proffered justification served merely to mask discriminatory animus.
Even Defendants concede the existence of a fact issue regarding the validity of their proffered justification: In their brief, "Defendants acknowledge[d] that the 'given' reason for Plaintiff's termination is disputed." That concession all but establishes the dispute's genuine existence. But rather than basing its decision on Defendants' concession alone, the Court looks also to Plaintiff's discreditation evidence, which for the reasons below the Court finds sufficient to permit a reasonable jury's affirmative discrimination determination.
Doc. 27 at 17-18.
Plaintiff rests her pretext argument, in large part, upon the following: (1) disparate treatment of a comparator; (2) shifting reasons for her termination; (3) conflicting testimony regarding the decisionmaker behind her firing; and (4) the timing of her firing, with respect to Defendants' general activity. (See Doc. 32 at 21-25.)
See discussion Section III(A)(i)(b), supra (finding that a valid comparator received more favorable treatment).
As an initial matter, Plaintiff's prima facie case—its supporting evidence and the inferences permissible therefrom—tends to discredit Defendants' proffered justification. That Plaintiff and Perez were the only employees with outstanding AmEx balances after February 2019 (and that Perez, unlike Plaintiff, was employed for the duration of his repayment) is undisputed. Retaining Perez but firing Plaintiff because of her AmEx balance "is adequate to plead an inferential case that the employer's reliance on his discharged employee's misconduct as grounds for terminating him was merely a pretext." Construing in Plaintiff's favor the factual dispute, the existence of which Defendants concede, regarding the basis for Plaintiff's termination, the disparately favorable treatment of Perez undermines the veracity of Defendants' cost-cutting justification.
Santa Fe Trail, 427 U.S. at 283 n.11, 96 S.Ct. 2574 (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817).
Moving forward, Plaintiff brings to light Defendants' "failure to articulate clearly and consistently the reason" for her termination, which "may serve as evidence of pretext." Hurlbert v. St. Mary's Health Care Sys., 439 F.3d 1286, 1298 (11th Cir. 2006) (citations omitted). Plaintiff alleges that Hinchman told her, in no uncertain terms, that she was being fired because of the AmEx balance; Hinchman's contemporary memorandum contains no countervailing evidence. And while an employer need state no reason (so long as the real reason is nondiscriminatory), Hinchman later cited financial strain as the basis for Plaintiff's termination in his September memorandum. Though it substantiates Defendants' justification to some extent, the September memorandum is also the first record of Defendants' nondiscriminatory justification and, notably, came in response to Plaintiff's formal complaint at EEOC. The memorandum's timing significantly undermines any of its otherwise probative value. Construing those contested facts in Plaintiff's favor, the evidence indicates that Defendants have inconsistently articulated the reason for firing Plaintiff. That inconsistency is probative of pretext.
Defendants' conflicting testimony regarding the genesis of their decision to terminate Plaintiff also raises questions. Hinchman testified that he was informed on his first day of Thompson's prior decision to terminate Plaintiff, but Thompson testified that Plaintiff's termination was not discussed until about a week before her firing. (Compare Doc. 26-8 at 44-45, with Doc. 26-1 at 35-40.) While certainly not dispositive, the irreconcilably disparate testimony speaks directly to credibility. Defendants brush this self-contradiction off as "immaterial" because, in essence, Thompson and Hinchman kept their stories straight when it really counted: "Plaintiff was terminated for cost cutting reasons." But particularly where Defendants rely so heavily upon the testimony of Thompson and Hinchman to substantiate their proffered nondiscriminatory justification, the jury—not this Court—should be the arbiter of credibility. Simply put, Plaintiff has identified "contradictions" capable of enabling a reasonable jury to find Defendants' justification "unworthy of credence."
Doc. 33 at 5.
Royal Atl., 610 F.3d at 1265 (quoting Plantation Patterns, 106 F.3d at 1538).
Plaintiff additionally disputes that Hinchman and Brooks were actively working to eliminate expenses by citing Thompson's acknowledgement that Hinchman encouraged her to invest more money—"to take care of" and "reward"—the "support staff," which Thompson said included HR, contracts, and other support positions.
Doc. 26-1 at 97:10-20.
Defendants counter the discreditation evidence by pointing to the elimination of all other director-level positions. But Smart negotiated his resignation date long before (and left months after) Plaintiff was informed of her immediate termination; other employees that previously filled nowvacant directorial positions also left voluntarily. This certainly undermines the notion that Plaintiff's effective-immediate termination was but another example of some preordained plan to terminate all director-level positions for expense-reduction purposes. The Court will not make a credibility determination here.
Plaintiff has discredited Defendants' proffered justification to a degree sufficient to survive summary judgment. This dispute is not "so one-sided that [Defendants] must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. Nor is this case one in which "the record [has] conclusively revealed" a nondiscriminatory justification for the employment action such that "no rational [jury] could conclude that the action was discriminatory." Reeves, 530 U.S. at 148, 120 S.Ct. 2097.
For the foregoing reasons, Defendants' Motion should be and is hereby DENIED with respect to Plaintiff's discrimination claim.
B. Retaliation
Plaintiff also brings a claim for retaliatory termination, which she bases on The E-mail. Her theory of recovery sounds in Title VII's Opposition Clause.
Though largely unworthy of mention on account of the identical analysis applicable to each, see supra note 8, to the extent that Plaintiff alleges she opposed the Perez promotion as racially discriminatory, she also brings this claim under § 1981.
McDonnell Douglas applies here as well and demands demonstration, at the prima facie stage, of the plaintiff's engagement in expression protected by § 2000e-3(a). E.g., Goldsmith v. City of Atmore, 996 F.2 d 1155, 1162-63 (11th Cir. 1993). To that end, Title VII's "Opposition Clause" protects conduct through which the plaintiff "opposed" discriminatory employment activity. § 2000e-3(a). If a plaintiff actually opposed conduct that she believed to violate Title VII, that belief must have been held in good faith and have been objectively reasonable under the circumstances. Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997). The opposition must also have caused adverse employment action. Goldsmith, 996 F.2d at 1163.
Before delving further into its conclusion and reasoning, a couple of things are worth clarifying at the outset. The first is that the Court relies upon neither the socalled "manager rule" nor its theoretical underpinnings in disposing of Plaintiff's retaliation claim. For reasons perspicuously articulated by Judge Carnes in Patterson v. Georgia Pacific, courts in this Circuit are forbidden to unevenly construe the Opposition Clause's protections on account of job title. 38 F.4th 1336, 1346-47 (11th Cir. 2022) ("That rule has no basis in the text of Title VII's opposition clause and actually contradicts the text of it.") "The anti-retaliation provision applies the same to all employees," including HR employees. Id. at 1347-48 ("Opposition is opposition, whether the opposer is drawing a manager's salary or not.")
The operative word in the (aptly named) Opposition Clause is "opposed." Id. at 1347 ("Congress made the verb, not the noun, the key."). "What matters" are "the actions or conduct that caused the [alleged] retaliation." Id. Whether an employee has 'opposed' an unlawful employment practice depends on whether the employee's activity would be understood as opposition 'in ordinary discourse,' " namely, whether the employee acted "to resist or antagonize, to contend against, to confront; to resist, or to withstand." Id. (cleaned up) (quoting Crawford v. Metro. Gov't, 555 U.S. 271, 276-77, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009)) (citation omitted); see also Grayer v. Children's Healthcare, 2001 WL 1577339, at *5 n.2 (N.D. Ga. Oct. 31, 2022) ("Opposition to an unlawful employment practice usually involves an employee's complaining to a supervisor about alleged harassment or discrimination." (emphasis added)).
Against that backdrop, just one relatively simple question—or, perhaps, a simple answer to a dispositive question—remains. That question is whether Plaintiff can survive summary judgment, even assuming she held a reasonable and bona fide belief that Defendants violated Title VII by promoting Perez without otherwise advertising the position, on the notion that she actually "opposed" Defendants' practices.
The Court must first address The E-mail itself, through which Plaintiff claims to have opposed the Perez promotion on Title VII grounds. Therein, the Court finds nothing that an ordinary person could construe as even remotely oppositional in nature. The E-mail facially presents nothing beyond a request for documentation.
See Section I(C), supra (quoting the email in its entirety); accord Defs.' Ex. 15 at 2; Doc. 26-5 at 81:14-16.
At the risk of flogging a horse that died paragraphs ago, the Court acknowledges (and construes in Plaintiff's favor) the dispute regarding Plaintiff's bona fide belief that the Perez promotion was discriminatory and the dispute regarding the reasonableness of that belief. People often believe any number of things; and those beliefs, even if misguided, are often quite reasonable. But while those beliefs—both their existence and their reasonableness—implicate issues frequently at the core the core of Title VII retaliation disputes, the Opposition Clause provides no recourse for persons who themselves admit never actually opposed anything at all.
But wait—is there any reason to believe that an ordinary person digesting The E-mail could infer, from its text and surrounding context, that Plaintiff's intent was to "oppose" the activity she allegedly believed violative of Title VII? No—not, at least, according to Plaintiff's unambiguous testimony:
1. "My E-mail was not complaining." (Doc. 26-5 at 85:10-11.)
2. "That was my job duty and my intent[,] to protect the company from any type of discrimination or charges related to the violation of OFCCP." (Doc. 26-5 at 22, 33.)
3. "Mainly [I] just [asked] for documentation to support our reasoning, which is not uncommon for me to ask." (Doc. 26-5 at 82:18-20.)
The logical inference here has nothing to do with the previously dismissed "manager rule" or otherwise with Plaintiff's particular employment position at SPS/MSSI; it does, however, have everything to do with whether Plaintiff (a) was actually opposing Defendants' conduct; or (b) was merely requesting routine documentation, unlike the scenario in which an HR manager, despite fulfilling his or her HR duties, actually opposes the conduct at issue. See Patterson, 38 F.4th at 1342, 1349 (finding fact issue on opposition sufficient to defeat summary judgment where HR employee testified that she had opposed hospital-employer's allegedly discriminatory firing of pregnant employees in reference to her previously advising employer " 'not to do anything' until she could consult with another HR advisor" about the matter). In Patterson, not only did the plaintiff actually contest the action by advising cessation, she testified to that effect during the course of her retaliation suit. Id. Here, Plaintiff sought instead to justify the action and shield the practice she believed discriminatory from liability.
The Court will not stretch the meaning of "oppose" to encompass a statement that the author describes as "not [a] complain[t]" and that the author explains was issued not to combat alleged discrimination but instead, in opposite fashion, to "protect" the allegedly discriminatory actor. The Patterson plaintiff, on the other hand, advised her employer to halt the alleged misconduct unless and until her consultation with a fellow HR employee revealed that no issue existed; she later testified to that effect under penalty of perjury. And the Patterson court found the plaintiff's "testimony that she had opposed" employer conduct sufficient to create a fact issue rendering summary judgment improper. But no such testimony exists in our case; in fact, Plaintiff has testified oppositely.
Patterson, 38 F.4th at 1342, 1349.
Plaintiff here was content to proceed—business as usual—so long as her employer filled out some paperwork to "support" the conduct she now claims to have opposed, at the time, as unlawfully discriminatory.
Yates also recalled that Plaintiff's intent was likely "to make sure that there was no recourse" for "discrimination or anything like that." (Yates Dep., Doc. 26-16 at 6.)
Plaintiff points out that Thompson used the word "questioned" when asked in deposition whether she was aware of The E-mail. Two quick notes with respect to that testimony: First, whether Thompson meant that Plaintiff's E-mail had "questioned" the employment practice or simply "questioned" the necessity of paperwork is unclear. The E-mail itself was comprised, in large part, of "questions." Second, even if Thompson—who was not The E-mail's recipient—understood from secondhand information that Plaintiff had "questioned" the activity, the Court is not convinced that a "question" amounts to "opposition," "resist[ance]," "conten[tion]," "confront[ation]," or any other ordinary interpretation of the Opposition Clause's language. Notwithstanding, one ambiguous word (in hundreds of pages of deposition testimony) uttered by a secondhand recipient overcomes neither the E-nail itself nor, perhaps more importantly, Plaintiff's own description of the E-mail's contents and purpose.
Doc. 32 at 8 ¶ 27 (citing Doc. 26-1 at 82:19-22.) After having been read the email aloud, Thompson was asked whether she had heard of the email; she responded, "I was aware of it that she questioned this, yes."
"Will there be a PAF for this change? If so, please complete attached. Will he bill the same rate for both direct and indirect? Also, please complete the attached sole justification form for this promotion, as it was not internally announced for other potentially qualified applicants to apply."
The Court notes that Plaintiff's evidence on the retaliation claim is, at best, "merely colorable" and thus cannot stave off summary judgment. Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. She has presented no evidence from which any reasonable jury could conclude that her E-Mail constituted oppositional, protected activity. Because Plaintiff has failed substantiate an essential element of her prima facie case, "the plain language of Rule 56(c) mandates the entry of summary judgment." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' Motion with respect to Plaintiff's discrimination claim (Counts I & II) and GRANTS the Motion with respect to Plaintiff's retaliation claim (Count III).
DONE and ORDERED September 27, 2022.