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Ray v. Lee Brass Foundry, LLC

United States District Court, N.D. Alabama, Northeastern Division

June 21, 2017

SHIAMA RAY, Plaintiff,


         Plaintiff, Shiama Ray, asserts claims against her employer, Lee Brass Foundry, LLC, for race discrimination, race-based harassment, and retaliation pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).[1] The case currently is before the court on defendant's motion for summary judgment, [2] and plaintiff's motion to strike portions of the declaration of Jerome Truss.[3] Upon consideration of the motions, briefs, and evidentiary submissions, the court concludes that plaintiff's motion to strike should be denied, and defendant's motion for summary judgment should be granted.


         Federal Rule of Civil Procedure 56 provides that a 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is ‘only a guess or a possibility, ' for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).


         Plaintiff asks the court to strike portions of the declaration of Jerome Truss, defendant's Human Resources Manager, which was submitted in support of defendant's motion for summary judgment.[4] Plaintiff asserts that the declaration is a “sham” because it contradicts Truss's prior deposition testimony. The Eleventh Circuit has said that a district court

may determine that an affidavit is a sham when it contradicts previous deposition testimony and the party submitting the affidavit does not give any valid explanation for the contradiction. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656 (11th Cir. 1984). However, “[t]his rule is applied sparingly because of the harsh effect it may have on a party's case.” Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306, 1316 (11th Cir. 2007). As such, courts must “find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Id.

Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010) (alteration in original).

         Jerome Truss was deposed twice. During his first deposition, which occurred on March 31, 2016, he testified that he could not recall the details of any of plaintiff's complaints of discrimination, harassment, and retaliation, or of his investigations into those complaints, because he had been unable to locate the file containing his notes.[5]Between that deposition and his second on June 10, 2016, however, Truss found the missing file. Even so, plaintiff's attorney only asked him questions about complaints filed by other employees, and not plaintiff's complaints.[6] Accordingly, Truss provided no testimony during his second deposition about his investigation of plaintiff's complaints.

         The declaration challenged by plaintiff was executed on August 30, 2016.[7] In the challenged paragraphs (numbers 15 through 31), Truss states that plaintiff did not complain to him or any other Human Resources employee about racial harassment, but she did complain about other workplace issues unrelated to race.[8] Truss also provides details about his investigation of plaintiff's complaints, and the reasoning behind the subsequent decision to place plaintiff on suspension.[9]

         Plaintiff asserts that Truss's declaration testimony should not be allowed because it “contradict[s] Truss's deposition testimony that he was unable to remember the events surrounding Ray's complaints, his investigation, and her EEOC charge of discrimination.”[10] Plaintiff relies upon the Eleventh Circuit's unpublished opinion in Bryant v. United States Steel Corporation, 428 F. App'x 895 (11th Cir. 2011). There, the district court dismissed the plaintiff's statutory discrimination claims as untimely because she had filed suit more than ninety days after the EEOC had mailed her right-to-sue letter. Id. at 896.

In doing so, the court struck, as a “sham, ” an affidavit Bryant filed in response to U.S. Steel's motion for summary judgment, which averred that she did not receive the EEOC's letter until December 5, 2008 [i.e., a date that fell within 90 days of the date on which she filed suit]. The court did so because the affidavit squarely contradicted unequivocal testimony Bryant gave on deposition, which was that she did not remember when she received the letter.

Id. (alteration and emphasis supplied). The Eleventh Circuit panel held that the district court did not abuse its discretion in striking the affidavit, saying that:

The affidavit, filed after her deposition had been taken and discovery had closed, supplied a specific fact that Bryant denied knowledge of when questioned on deposition. Notably, the affidavit presented no valid reason for Bryant's subsequent recollection that she received the letter on the specific date, December 5. For example, while Bryant was entitled to refresh her memory, her affidavit did not state that her recollection had been refreshed. True, her attorney argued that her recollection had been refreshed, but counsel's argument is not evidence. See Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir.1980).

Bryant, F. App'x at 897 (emphasis supplied).

         In contrast, this case presents ample evidence of a valid reason for Truss's subsequent recollection of the details of plaintiff's complaints, his investigations, and the discipline plaintiff received. Even though Truss did not state so in his declaration, he testified in his second deposition that he had located an investigatory file with notes that refreshed his recollection about those matters.[11] Plaintiff's attorney had the opportunity to question Truss during the second deposition about his handling of plaintiff's complaints, but she chose not to do so. There is, therefore, nothing to prevent Truss from providing declaration testimony about matters for which his recollection was refreshed following his first deposition. Plaintiff's motion to strike is due to be denied.

         III. FACTS

         A. Plaintiff's Employment with Lee Brass Foundry

         Lee Brass Foundry, LLC (“Lee Brass”), located in Anniston, Calhoun County, Alabama, is a facility that manufactures metal castings, fittings, and parts based upon specifications provided by its customers.[12] It is not clear why this case was filed in the Northeastern division of the Northern District of Alabama, as opposed to the Eastern division which encompasses Calhoun County. This court also does not understand why defendant did not file a motion to transfer, because the following footnote to defendant's answer records that counsel clearly were aware of the impropriety of venue in this division:

Lee Brass denies that venue is appropriate in the Northeastern Division of the Northern District of Alabama. Lee Brass maintains and operates a plant in Calhoun County, Alabama, which is located in this Court's Eastern Division. The alleged events giving rise to Plaintiff's claims are limited to her employment in that Division. Therefore, this action should be transferred to the Eastern Division.

Doc. no. 7 (Answer), at 1 n.1 (emphasis supplied). As counsel apparently failed to appreciate, however, a footnote reference is not a substitute for a formal motion to change venue.

         In any event, plaintiff, Shiama Ray, who is African-American, began working for Lee Brass as a “Machine Shop Operator A” on May 11, 2011. She later moved up to a “Machine Operator C” position by using Lee Brass's internal bidding process. During the fall of 2012, she became a “Quality Control Inspector.”[13]

         It was plaintiff's responsibility as a Quality Control Inspector to ensure that products were produced to the customer's specifications.[14] Plaintiff functioned as a “floater” in the Quality Control Department. She received training in every division of that department, and could fill in for any Quality Control employee when needed. Even so, she worked primarily in the Machine Shop and Cleaning Room.[15] The nature of the tasks plaintiff was required to perform generally did not vary from day to day, but the volume of her work did vary according to the number of parts being produced on any given day, which in turn varied according to the volume of orders received from customers.[16] Lee Brass employees used the term “hot jobs” to describe situations in which there was a particular rush to complete a part within a short period of time. “Hot jobs” increased the stress level in the facility because they were “a pressure situation where it's being rushed through to get finished so that it can meet the customer's request.”[17]

         Lance Nichols, a white male, was plaintiff's direct supervisor from the time she started working in Quality Control until the latter part of 2015.[18] Nichols' direct supervisor was the occupant of the “Quality Control Manager” position. Bill Boozer occupied that position until April of 2013, when David Smith took over as Quality Control Manager.[19]

         B. Lee Brass's Human Resources Department and Policies

         Lee Brass is an equal opportunity employer. It has policies prohibiting workplace discrimination and harassment based upon race, among other protected characteristics.[20] The “Workplace Harassment Policy” found in the Lee Brass Employee Handbook contains the following instructions about the manner of reporting complaints of harassment or discrimination:

Any associate who believes that actions or words by a manager, supervisor, co-worker, customer or vendor constitute harassment has a responsibility to report or complain about the situation as soon as possible. Such a report or complaint should be made to the associate's supervisor, department manager, Human Resource Manager, Operations Manager, or CFO at Lee Brass.
If the immediate supervisor is the source of the alleged discrimination or sexual harassment, the associate should report the problem to the department manager, Human Resources Manager, Operations Manager, or the President/CEO.
If the plant department manager, Operations Manager, or the CFO is the source of the alleged discrimination, the associate should report the problem to the next higher level of management, Human Resource Manager, or President/CEO.

Doc. no. 42-3 (Lee Brass Employee Handbook), at ECF 79 (Workplace Harassment Policy, § B).[21]

         The Lee Brass Employee Handbook also contains a “Problem Resolution Policy” that addresses workplace issues that do not arise from unlawful discrimination. That policy states:

The Company welcomes a free exchange of thinking between associates and management at all levels. The Company's policy is to give prompt, careful and courteous consideration to all associates' complaints and problems arising out of the work situation. We believe this is the best method of communicating with one another and ensuring that our policy of fair employment practices is being enforced.

         The following procedures will apply to problems that arise on the job:

1. Discuss the problem with your supervisor. He/she has been instructed to make every effort to deal with your problems in a prompt and courteous fashion, and will be able to solve most problems.
2. If you are not satisfied with the answer from your supervisor, you may submit the matter to the department manager. He/she will review the situation with you and give you an immediate answer, if possible. Otherwise, you will be told approximately when to expect an answer.
3. If the problem is not resolved as outlined above, the matter will be submitted to the Human Resources Manager. The Human Resources Manager will review the situation with you and give you an immediate answer, if possible, or you will be informed approximately when to expect an answer.
4. If the situation is not resolved to your satisfaction as outlined above, a meeting will be arranged with the President.
The Company believes in its associates and the need to maintain open lines of communication. We sincerely hope that you will utilize the above procedure if you have a problem.

Id. at ECF 66 (Problem Resolution Policy).

         The company's disciplinary policy is stated as follows in the Employee Handbook:

The purpose of this policy is not primarily to punish, but to correctively encourage behavior modification to discourage repetition of misbehavior by the offender or by another following their example. Record of disciplinary action will become part of a[n] associate's personnel file.
Before administering discipline, the manager should be sure they have all the facts. The associate's past record should be examined in the Human Resources office to determine if the associate has had any previous violations. Associates should be given ample opportunity to present their side before any final decision is made as to the discipline to be administered. The review and decision to issue disciplinary action is to be done in a timely manner.
• A verbal counseling should represent a direct attempt of the manager and associate to deal with a breach of rules at an early stage. It should clarify, in specific terms, what behavior needs attention and define a method and a reasonable time for correction.
• Written warnings represent a more formalized means of correcting behavior and become part of an associate's work record. Should associates have any additional factors or knowledge of extenuation [sic] circumstances relating to the incident they should be discussed at this time. The supervisor or department manager will then consider this information when deciding what discipline to administer. In order to maintain consistency, Human Resources must be involved in the preparation of any written warnings. Human Resources will insure [sic] that documentation of the event leading to any action is made a part of the offending associate's record.

         All disciplinary actions will be cumulative for a rolling period of 6 (six) months. Group violations are cumulative.

         The usual disciplinary steps will be:

Informal Step Verbal Counseling
First Step Written Warning
Second Step Final Written Warning
Third Step Subject to Discharge
Depending upon the violation, the procedure may be at any of the above steps and other required condition/actions may have to be met.

Id. at ECF 64-65 (Plant Rules & Disciplinary Procedures Policy) (alteration supplied).

         Jerome Truss, Lee Brass's Human Resources Manager, testified that the company may also issue a suspension before resorting to termination.[22]

         Lee Brass also has a policy of giving preference to current employees for open positions. The company posts job openings by placing written notices of the opening in the employee break room, near the employee time clock, and in the Human Resources Office. Some job openings are also verbally announced by department supervisors during weekly departmental meetings. Employees who are interested in a posted position sign their name to a bid sheet posted in the Human Resources Office.[23] Jerome Truss attested that:

There are no factors about an employee's employment that would preclude him or her from signing their name to the posting or bidding on an open job. However, disciplinary and other issues could be weighed when considering whether an employee should be awarded a job he or she has bid on.

Doc. no. 42-3 (Declaration of Jerome Truss), at ¶ 11. Plaintiff, on the other hand, testified that she was told from the beginning of her employment with Lee Brass that if an employee was in disciplinary trouble, she could not write her name on a bid sheet for an open job. She was not asked, and did not specify whether she was told that by a member of management, or by other employees, and she did not know whether her belief was founded upon a “formal policy of Lee Brass.”[24]

         Plaintiff acknowledged receiving a copy of the Employee Handbook when she began working at Lee Brass.[25] Lance Nichols, plaintiff's direct supervisor, testified that he had never been trained on the Employee Handbook, including any of Lee Brass's anti-harassment or anti-discrimination policies.[26] David Smith, the Quality Control Manager (and, therefore, Nichols's direct supervisor), testified that he was not aware of any Lee Brass employees receiving formal training about discrimination, harassment, or retaliation.[27] Robert Smith, the Company President, testified that, other than discussions with Human Resources Manager Jerome Truss, he never personally investigated any allegations of harassment or talked to any employees about racial issues at the plant.[28]

         C. Plaintiff's Allegations of Harassment and Racial Incidents at Work

         1. Jackie Hogan's comment

         Soon after plaintiff transitioned into the “Quality Control Inspector” position, Lance Nichols (plaintiff's direct supervisor) told her that Jackie Hogan, a white female co-worker, had said of plaintiff, “that black girl knows everything.”[29] There is no evidence that Hogan ever made such a comment directly to plaintiff, or that plaintiff heard the comment.

         2. Refusal to train

         When plaintiff became a Quality Control Inspector during the fall of 2012, Lance Nichols told her that she would be training as a backup for the position of Quality Control Specialist.[30] The Quality Control Specialist is located in the front office of the Lee Brass facility, and works directly with the sales department to make sure that all the required paperwork is sent with each outgoing order.[31] Plaintiff did not receive training for that position, and when she asked Nichols why, he informed her that Diane Sparks, a white female who then occupied the Quality Control Specialist position, refused to train plaintiff.[32] Plaintiff does not know why Sparks refused to train her, but Nichols informed her that Sparks had also refused to train another black female employee in the past.[33]

         David Smith, the current Manager over the Quality Control Department, testified that the backup for the Quality Control Specialist usually comes from the Engineering Department, rather than the Quality Control Department, because the position requires some specialized engineering knowledge.[34] Plaintiff's supervisor at the time of her deposition, Naylon Williams, a white woman, was trained to fill in for the Quality Control Specialist position, but she had engineering experience.[35]

         3. Martin Luther King Day comments

         The national holiday celebrated on the third Monday of January each year as the birthday of Dr. Martin Luther King, Jr. (who actually was born on January 15, 1929) is not a holiday for Lee Brass employees. Soon after plaintiff arrived for her shift on Martin Luther King Day in 2013, Curtis Clay, the Receiving Clerk (a non-supervisory position) and a white male,

said in a jokingly [sic] voice, what are you doing here today. And I said excuse me. And he said what are you doing here today, isn't this your guy's [sic] holiday. And I said Curtis, that is not funny, you know. And he laughed and Gary Stinson [another white male employee who was standing nearby] laughed.

Doc. no. 42-2 (Deposition of Shiama Ray), at 76 (alterations supplied). Plaintiff walked directly to the office of Bill Boozer, who then was the Quality Control Manager, to report the comment. On the way to Boozer's office, plaintiff encountered Lance Nichols, her direct supervisor, and she also reported the incident to Nichols. When Boozer learned what had happened, he immediately went to talk to Curtis Clay's supervisor, but plaintiff does not know what occurred after that.[36] Plaintiff did not make an additional report of the incident to the Human Resources Department, and there is no evidence that she subsequently heard similar comments from Clay.[37]

         Approximately two days later, Jackie Hogan approached plaintiff and asked why she had “told on” Curtis Clay.[38] Hogan told plaintiff, “you know he was just playing with you, ” and plaintiff responded, “well, I don't play like that and I didn't think it was funny.”[39] After that, Hogan “started yapping” and plaintiff “just walked away from her because [she] didn't want to go into it any further.”[40]

         4. Jason Alexander's use of racial slurs and offensive posters

         Sometime during the early part of 2013, a white employee named Jason Alexander said “those n's are always tearing something up.”[41] He did not direct the comment at any particular employee; he just “said it out open in the open” so that other employees could hear.[42] Alexander also hung politically opinionated posters on the wall of his work space, including a photo of President Obama dressed in native African dress, and another photo of the President delivering a speech with the caption, “Four more years of hell: Obama wins re-election, ” and a cross-hair drawn on the President's forehead.[43] Lee Brass issued Alexander a written warning on February 25, 2013, stating:

This letter is being issued to you due to a couple of different incidents that we need to resolve and have a general understanding. We expect our associates to treat each other with respect and our behaviors must be contained in certain guidelines.
The first incidents happen [sic] a few months ago, when all associates were informed during one of our Safety Meetings that any materials on walls, lockers, or work areas that could be offensive to others must come down. You area had several posting [sic] of materials that were not appropriate and had to be taken down by a manager. This type of behavior is not appropriate and will not be tolerated in te workplace.
The second incident happen [sic] a couple of weeks ago, when Foundry III brought a pattern down to be worked on. It was brought to our attention that you used the “N” word in making a comment (paraphrasing - those “N” are always tearing something up). These types of comments will not be tolerated.
This letter will be going in your personnel file and if this type of behavior continues, then more severe disciplinary actions will be taken.

Doc. no. 56-19, at ECF 2 (February 25, 2013 letter). There is no evidence that plaintiff personally heard Jason Alexander make any racially offensive comments, or that she saw the posters hanging in his work area.

         5. Employees using the term “boy” in a racially charged way

         At some unspecified time during the five-year period preceding Jerome Truss's March 31, 2016 deposition, white employee Vincent Gunter called his black co-worker, Marquis Mason, “boy.” Gunter and Mason had a history of conflict, but Truss believed that Gunter was the more aggressive of the pair, so he concluded that a suspension was appropriate. Gunter received a letter in his file, was suspended for three days, and was told that if he ever said anything similar again, his employment would be terminated.[44]

         At another unspecified time during the five-year period preceding Jerome Truss's March 31, 2016 deposition, Ray Wood, a white supervisor in the foundry, called another black employee “boy.” Wood was suspended for three days but was allowed to retain his position as a supervisor.[45]

         There is no evidence that plaintiff personally heard anyone call a fellow African-American employee “boy.”

         6. Tony Poland's comments to John Foster

         Tony Poland, a white employee, was accused at some unspecified time of saying that John Foster, a black employee, had obtained “a white man's job.”[46]Foster denied the accusation, and Poland was never disciplined for the incident.[47]There is no evidence that plaintiff personally heard Poland's comment.

         7. Harassment by Jackie Hogan, Teresa Turner, and Donald Wade

         Plaintiff “didn't have any issues” with co-workers Jackie Hogan, Teresa Turner, and Donald Wade - all of whom are white - before she complained about Curtis Clay's Martin Luther King Day comment.[48] After that, however, and for approximately a month and a half beginning in March or April of 2013, plaintiff's work station was moved to the back of the machine shop for the purpose of checking a large volume of parts produced by the testing department. Nichols prevented plaintiff from performing tasks that she previously had performed, like audits. He also removed the computer from plaintiff's work space and directed her focus on visually inspecting parts.[49] Hogan, Turner, and Wade, who worked in the testing department, began rushing plaintiff to finish her work on “hot jobs” coming through the Quality Control Department.[50] Notably, none of those individuals ever made any race-based comments to plaintiff.[51] Even so, she complained to her supervisor Lance Nichols and Quality Control Manager David Smith that Hogan, Turner, and Wade had been “harassing” her. She did not characterize the “harassment” as race-based, but stated that it did not begin until after she had complained about Curtis Clay's Martin Luther King Day comment.[52]

         8. Other alleged harassment by Jackie Hogan

         On a couple of occasions during April or May of 2013, Jackie Hogan asked plaintiff whether she would “go on” food stamps if plaintiff ceased working at Lee Brass. Other employees were within earshot when Hogan asked those questions, but Hogan directed the question specifically to plaintiff. Plaintiff interpreted the comment as suggesting that all black people are on food stamps.[53]

         On another unspecified occasion after February 26, 2012, Hogan, Turner, and Wade were discussing the tragic shooting of Trayvon Martin, a seventeen-year-old African-American male who was fatally shot in Sanford, Florida, by George Zimmerman, a white “neighborhood watch” volunteer. When asked her opinion about the shooting, plaintiff said that she did not believe anyone deserved to be shot, and then attempted to divert the conversation to another subject. Nevertheless, Hogan stated that Martin deserved to be shot because he had “jumped on” Zimmerman.[54]Plaintiff believed the comment was racially motivated, because she was the only African-American person in the area when the comment was made.[55] After the statement, plaintiff attempted to avoid Jackie Hogan. As a consequence, she did not know whether Hogan made any other race-based comments.[56]

         During November of 2015, Curtis Clay heard Jackie Hogan say that, when she recently traveled to Disney World, she had trouble getting around because there were so many “niggers” in the hotel.[57] There is no evidence that plaintiff personally heard that comment.

         During January of 2014, Michael Judkins, a black employee, accused Hogan of saying that she might have to work with “niggers, ” but she did not have to eat with them. When Truss investigated that accusation, Hogan denied making the comment, and there is no indication that she was disciplined.[58] There also is no evidence that plaintiff heard Hogan make the comment.

         9. Plaintiff's stool

         During April of 2013, Jackie Hogan, Teresa Turner, and Donald Wade complained to supervisor Lance Nichols about plaintiff being allowed to sit on a stool during part of the work day. Nichols asked plaintiff to remove the stool from her work area. Plaintiff initially complied, but then asked Quality Control Manager David Smith if she could sit on the stool to check small parts in order to avoid bending over. Smith agreed, so plaintiff retrieved the stool and returned it to her work area.[59] Approximately three days later, however, plaintiff found the stool missing when she reported to her work area. She did not search for another stool.[60]

         David Smith testified that Lance Nichols should have asked him, or a member of the Human Resources team, before summarily telling plaintiff ...

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