United States District Court, N.D. Alabama, Northeastern Division
JOHN H. ENGLAND, III, Magistrate Judge.
Plaintiff Milton Watkins ("Watkins") initiated this action against his former employer, Defendant EFP, LLC ("EFP"), for alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§1981"). (Doc. 1). EFP seeks summary judgment on Watkins' claims. (Doc. 14). The motion is fully briefed and ripe for review. (Docs. 15, 22, & 26). For the reasons stated below, EFP's motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
I. Standard of Review
Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, the discovery, and disclosure materials on file, and any affidavits shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 447 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish there is a "genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); see also Anderson, 477 U.S. at 255, 106 S.Ct. at 2514 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. V. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252, 106, S.Ct. 2512).
II. Factual Background
EFP operates a foam manufacturing plant in Decatur, Alabama. (Docs. 16-6 at ¶4). EFP's parent corporation is the John B. Poindexter Company ("JBPCO"). (Doc. 16-7 at 3-4 (8:16-9:5)). Watkins, a black male, worked at the Decatur plant as a "Warehouse B" employee form October 19, 2010, until his termination on June 22, 2011. (Docs. 16-4 at 102, 16-5 at 38-38). EFP employees are also referred to as "Team Members." (Docs. 16-4 at 23). EFP assigned Watkins to work second shift during his employment. (Doc. 16-1 at 10 (30:4-7)). At all times relevant to this action, John Dunn ("Dunn"), a white male, was the second shift supervisor. (Doc. 16-1 at 19-20 (69:17-70:4)). Dunn voluntarily resigned on July 21, 2011. (Doc. 71-1 at 9 (28:12-20)). When Dunn was absent, David Harvel, a white male, would sometimes fill in for him. (Doc. 16-1 at 19-20 (69:22-70:4)).
Ronnie Cottles ("Cottles"), a white male, was EFP's Production Manager from approximately January 2011 through the end of Watkins' employment. (Doc. 18-3 at ¶1). As Production Manager, Cottles was responsible for production on all shifts, and the shift supervisors reported to him. ( Id. at ¶2). Cottles' typical work day was from 5:00 a.m. until 4:00 p.m. ( Id. ). Although Cottles hours primarily covered first shift, he sometimes stayed on after the start of second shift (starting at 4:00 p.m.) to communicate with second shift team members what he needed done if necessary. (Doc. 17-1 at 38 (143:8-15)).
Beverly Thompson ("Thompson"), a white female, was EFP's Human Resources Manager from May 2007 through April 2012. (17-4 at 3-4 (8:3-9:7)). Her regular hours were from 8:00 a.m. to 5:00 p.m. ( Id. ). In April 2012, Thompson left for another position and Melonee Wilkerson, a white female, replaced Thompson as HR Manager while maintaining the duties of her previous position, Quality, Health, and Safety Manager ("QHSM"). (Doc. 17-6 at 3 (6:22-8:10)). From October 2011 through April 2012, Wilkerson served as EFP's QHSM. ( Id. (7:15-9:12)). From May 2011 through October 2011, Wilkerson was EFP's Quality, Health, and Safety Coordinator ("QHSC"), an interim training position created for the purpose of training Wilkerson to replace the retiring QHSM. ( Id. at 3-4 (8:6-9:12)). Wilkerson's position prior to May 2011, and at all time during Watkins' employment (except for June 2011), was as Quality Inspector, a bargaining unit position. ( Id. at 4 (9:16-12:10)). All members of the bargaining unit,  whether an actual member of the Union or not, are subject to the Collective Bargaining Agreement ("CBA"), including being represented by the Union during grievances as well as receiving a seniority date. (Doc. 16-6 at at ¶3). While in the Quality Inspector position, Wilkerson served as the Union recording secretary and shop steward. ( Id. ).
Jim Watts ("Watts") was EFP's Decatur plant manager from August 20, 2007 through November 7, 2011. (Doc. 18-1 at 4-5 (11:14-17, 13:21-14:4)).
Around March 2011, Eric Yeager ("Yeager"), formerly the Vice President of Continuous Improvement for JBPCO, became acting President of EFP Decatur and was physically present, albeit periodically, at the Decatur plant beginning June 1, 2011. (Doc. 16-7 at 4-5 (9:3-7, 12:18-14:16)). Yeager brought Buck Scalzo ("Scalzo"), a white male JBPCO employee, with him to the Decatur plant during this timeframe to assist with soliciting employee engagement to understand employee "problems and challenges." ( Id. at 10 (33:13-34:6)).
Decatur Facility and Manufacturing Process
EFP Decatur makes foam packaging products for its customers. (Doc. 16-6 at ¶4). The Decatur facility has one primary area and one secondary area where its products are formed by industrial machines. ( Id. ). The primary area contains twelve industrial foam production machines. ( Id. ). The secondary area contains five smaller machines, known collectively as "thinwall, " which produces only foam cups. ( Id. ).
The Decatur plant is a large industrial building with extensive storage areas ("warehouse" areas) where bundles are stacked and temporarily stored until shipped to customers. ( Id. at ¶5, 8 (map of Decatur facility)). The area marked "Mezzanine" on the Decatur facility map is the primary area where the twelve machines are located. ( Id. ). The area marked "thinwall cup area" in the diagram is the secondary area where the thinwall machine is located. ( Id. ). The primary warehouse storage area for bundles is approximately the size of a football field. ( Id. ).
The machines, or "presses, " produce different size and shapes of foam products depending on a given order, (Docs. 16-1 at 19 (68:19-69:8) & 16-7 at 8 (25:1-7)), and the size and shape of the product is affected by periodic, and sometimes daily, "mold" changes. (Doc. 18-3 at ¶4). The molds are changed out by EFP's "Mold Maintenance" and/or "Set-Up" Positions to meet customer orders. (Doc. 16-6 at ¶ 7). Machines are periodically shut-down for various reasons including mold changes, which results in machine downtime and reduces the workload during periods of non-operation. (Docs. 18-3 at ¶4 & 16-1 at 48 (184:3-185:12)). The size and shape of the products coming off a machine and the machine's associated cycle times affect a Warehouse B employee's daily workload. (Doc. 16-1 at 19 (69:6-12)).
When the product leaves the individual machines, one of EFP's "Packers" removes finished parts from the machines, accounts for them, and then places them in a designated area, a "staging area, " of Warehouse B employees. (Doc. 18-7 at 74). The size and shape of the product affect the heaviness and rate of production of each product. (Doc. 16-1 at 19 (69:6-12)).
During Watkins' employment Decatur employees generally worked two shifts and would only periodically operate a third shift. (Doc. 16-6 at ¶2). The first shift started at 8:00 a.m. and ended at 4:30 p.m., and the second shift started at 4:00 p.m. and ended at 12:30 a.m. (Doc. 18-3 at ¶2).
Work Assignments and Job Duties
Cottles deferred to his shift supervisors, including Dunn, regarding work assignments, including whether to assign machines to each Warehouse B employee and which machines to assign. (Doc. 17-1 at 21-11 (77:18-81:19), 39 (146:15-147:23)). Cottles entrusts his supervisors to enforce (and their subordinates to follow) the rules, including the April 2011 bundle-stacking rule, to be discussed infra. ( See doc. 17-1 at 48 (184:12-21)). Dunn was responsible for structuring work assignments for Warehouse B employees on second shift. (Docs. 17-1 at 18 (63:23-64:21), 16-1 at 19 (69:13-19)). Watkins, along with two other employees, was assigned to second shift Warehouse B.
(Doc. 16-1 at 19 (67:1-18), 48 (183:12-13)). Jason Mullins ("Mullins"), a black male, and David Russell ("Russell"), a white male, filled these positions from April 8, 2011 until Watkins' termination. (Doc. 16-1 at 19 (67-1-18)). Other warehouse employees subject to the bundle-stacking policy included Patrick Malone, DeShaun Smith, Zachary Pirtle, Antonio Lee, Terrence Jones, Jimmy Reid, Milton Malone, and Jonathan Ray. (Doc. 20-25 at 2).
After the products are placed in staging areas by each machine, Warehouse B employees must "strap and wrap" the product into bundles, which are then stacked on wheeled "buggies" and transported by hand to the warehouse, where the bundles, still stacked, are slid off the buggy into the location where they will be stored in the warehouse. (Docs. 16-6 at ¶8, doc. 16-1 at 18 (64:1-19), & 17-1 at 45 (172:2-6), 46 (174:14-19)). All second shift Warehouse B employees were responsible for ensuring the product was strapped, wrapped, and moved during their shift. (Docs. 16-1 at 18 (64:13-22) & 17-1 at 39 (146:3-20)). Following a reduction in Warehouse B staffing on second shift, (doc. 16-1 at 48 (183:10-184:2)), Dunn generally assigned Watkins and Mullins five machines each. ( Id. at 19 (67:13-68:11), 24 (86:8-10)). Russell was typically assigned two particular machines that allegedly "ran way slower" than Watkins' five machines, resulting in an easier workload for Russell according to Watkins. ( Id. ). The three of them rotated on thinwall. ( Id. at 24 (88:7-17)).
EFP Decatur Promotion and Testing Program
The CBA in effect during Watkins' employment, completed and signed in August 2009, includes information concerning promotions as well as a non-discrimination clause. (Doc. 17-5 at 24, 29). Past practices between the Union and EFP, including job requirements, were not necessarily memorialized in the CBA. (Doc. 17-4 at 6-7 (20:15-21:20)).
Generally, notices of job openings at EFP are posted on a bulletin board at the Decatur facility, and EFP employees are allowed to "bid" on the job internally. (Doc. 16-6 at ¶9). To bid, an employee need only to sign the posting. (Doc. 16-6 at ¶9). Openings are filled based on an employee's qualifications for the position and his or her seniority, irrespective of whether the employee is a member of the Union. ( Id. ).
To be eligible for certain advanced positions at the Decatur facility, generally Mold Maintenance and Set-Up positions, employees must take and pass a Mechanical Comprehension Test ("MCT"). (Doc. 17-4 at 5 (13:4-19)). At all times during Watkins' employment, Thompson was responsible for administering and grading the MCT. (Docs. 17-5 at 2-21 & 18-1 at 33 (126:19-127:2)). The MCT was administered in connection with job openings, as needed, for open positions, or upon the employee's request, subject to a potential objection by the Union. (Doc. 17-4 at 5 (13:20-14:19), 8 (26:19-28:6)).
Based on past practice with the Union, EFP contends it was standard practice to require an employee to wait six months between failing the MCT and retaking it. (Doc. 17-4 at 6 (18:22-19:2)). While the CBA contemplates the MCT, this practice was not reduced to writing in the 2009 CBA. ( Id. at 7 (22:13-23:7)). An employee promoted into a position requiring the MCT, including Set-Up, was then eligible to advance further within the position depending on their score on a Level Test related to the position. (Doc. 17-4 at 7 (23:14-19)). Under the CBA, an employee who failed the Level Test had to wait four months before being eligible to retake it. (Doc. 17-4 at 7 (23:14-19)).
Watkins does not understand how the Level Tests are administered or the associated timeframe between failing a Level Test and being eligible to retake it. (Doc. 16-1 at 58 (222:22-223:5) & 59 (227:18-23)). Watkins testified another employee was able to retake the MCT four months after failing it. (Doc. 16-1 at 60 (230:6-17)). Watkins contends another employee, Josh Proctor ("Proctor"), a white male, was permitted to take the MCT in October 2010 and again in February 2011. (Doc. 16-1 at 60 (230:6-17)). There is no evidence other than Watkins' testimony regarding what Proctor told him, inadmissible hearsay,  that Proctor took the MCT in October 2010. The cover sheets from Proctor's August 2010 and February 2011 MCTs are in the record. (Doc. 17-5 at 5-6). No cover sheet for any October 2010 MCT was provided. Watkins' testimony that, at one point, Thompson told him he could retake the test four months after he failed it, not six, is also inadmissible hearsay. (Doc. 16-1 at 59 (226:21-227:17)). Because EFP required Watkins to wait at least six months to retake the MCT, Watkins was not permitted to retake the test prior to Anthony Parker ("Parker"), a white male with less seniority, being awarded the Set-Up position. (Docs. 25-15 at 15 & 16-5 at 43).
EFP's Policies and Discipline Process
The CBA, along with the Employee Handbook, govern employee discipline at EFP. (Docs. 16-1 at 51 (195:13-22) & 16-4 at 23-65, 66-85). The Employee Handbook does not replace or override the CBA, but rather complements it. ( See e.g., doc. 16-4 at 25).
The CBA contains EFP's attendance policy and contains progressive discipline for employee "occurrences" or points under the system. (Doc. 16-4 at 84-85). Subject to past practice discussed infra, the CBA prescribes attendance discipline for occurrences within a twelve month period as follows: Two points, oral or "verbal" warning; four points, written warning; six points, three day suspension; eight points, "automatic discharge." (Doc. 17-5 at 41). Points will be removed from the employee's record after one year. ( Id. ). Employees can also earn back half a point for every thirty calendar days of perfect attendance. ( Id. ).
The Employee Handbook policies prohibit discrimination, harassment, and retaliation. (Doc. 16-4 at 29-31). The Employee Handbook also contains an "Open Door Policy" prescribing a procedure for employee complaints as well as a non-retaliation policy, which includes EFP's policy that, in response to an employee complaint of discrimination, EFP will investigate the relevant facts and take prompt and preventative action where necessary. ( Id. ). The policy also notifies employees that false allegations of harassment will be dealt with in similar disciplinary actions as engaging in objectionable conduct. ( Id. at 31). The Employee Handbook also proscribes violations of safety rules ("Rule 10") and provides "[t]he severity of the [safety] violation determines the level of disciplinary action" up to and including termination. (Doc. 16-4 at 58).
Employees must be present at work to receive discipline. (Doc. 16-6 at ¶10). Under the CBA, EFP's past practice dictated that employees must receive the next step of attendance discipline upon returning to work, even if having accrued sufficient points to receive a higher level of discipline. (Doc. 17-4 at 30 (115:23-117:20)). For example, if an employee previously received a verbal warning, had accrued three points, then was absent for three days, but called in every day while absent prior to the start of his shift, upon his return he would have six points; however, he would only receive a written warning, the next level of discipline, and not a suspension. ( Id. ; see doc. 16-6 at ¶12).
EFP contends when Cottles or shift supervisors observe an employee violating a work rule, they write down notes on what they observe and pass it on to HR, usually by dropping it in a little back box. (Doc. 17-1 at 32-33 (120:23-122:11), 47(179:10-23, 181:13-17), 50 (193:23-194:8)). EFP further contends Cottles and shift supervisors have no involvement in what level of discipline, if any, HR and/or the Plant Manger imposes after the written notes are turned in, ( id. at 47 (181:13-17)), and that this procedure was followed in the events leading to Watkins' termination, ( id. at 50 (193:23-194:8)). Watkins disputes this procedure was followed during the events leading up to his termination, contending Watts (plant manager) testified that he conferred with Cottles (production manager), Dunn (supervisor), and Thompson (HR) prior to deciding what level of discipline to impose. (Doc. 22 at 6 (citing doc. 18-1 at 23 (86:3-88:13)). According to Watts' testimony, he had separate conversations with Cottles, Dunn, Thompson, and Yeager. (Doc. 18-1 at 23 (86:3-14)). Watts testified he asked Dunn about the details of the incident, and Dunn verbally told him what he had written. ( Id. (86:15-19)). Watts further testified Cottles, who had actually witnessed the incident, told him such, but did not tell him anything other than what he had written down. ( Id. (86:22-87:15)). These facts indicate Watts conferred with Cottles and Dunn about the incident prior to Watkins' ...