United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE.
matter is before the court on the motion for summary judgment
filed by Defendant, Koch Foods of Gadsden, LLC (“Koch
Foods” or “Defendant”), on July 31, 2017.
(Doc. 19). After the motion for summary judgment was filed,
the court entered an order reminding the parties of the
briefing deadlines set out in the Initial Order. (Doc. 22;
see Doc. 12 at 4-6). Plaintiff, who is proceeding
pro se, has not filed any response to the motion for
summary judgment. Defendant filed a supplemental brief
requesting that, in addition to the reasons set forth in its
initial briefing, the motion for summary judgment be granted
as unopposed. (Doc. 23). For the reasons discussed below,
Defendant's unopposed motion for summary judgment is due
to be granted.
BACKGROUND AND RELEVANT FACTS
initiated this action with an application for leave to
proceed in forma pauperis. (Doc. 1). Although the
court allowed him to proceed without prepayment of costs,
Plaintiff was ordered to file an amended complaint. (Doc. 3).
amended complaint, Plaintiff alleges he was called
“n----r” in 2014 by a superviser named Zack,
which led to his filing a discrimination charge with the
Equal Employment Opportunity Commission (“EEOC”).
(Doc. 4 at 1). The charge was mediated, and although
Plaintiff had been terminated, he was reinstated with back
pay. (Id. at 1-2). Plaintiff returned to work for
Defendant on April 9, 2015. (Id.).
after returning to work, Plaintiff saw Zack speaking with
Plaintiff's new superviser, Brandon. (Id.).
After this encounter, Brandon began staring at Plaintiff.
Brandon then “scream[ed]” at Plaintiff and
“look[ed] at [him] in a mean way.” (Id.
at 2). Plaintiff alleges this does not happen to other
employees. (Id.). On May 10, 2015, Plaintiff filed a
second EEOC charge against Defendant. (Id.). This
second charge resulted in another mediation, but the second
mediation ended without the parties coming to any agreement.
(Id. at 2).
the second, unsuccessful mediation, Plaintiff alleges
Brandon, like Plaintiff's prior superviser, referred to
Plaintiff twice as “n----r.” (Id.).
Plaintiff approached Cindy, the white female director of
human resources, but she discouraged him from reporting the
incidents with Brandon. (Id.). Cindy told Plaintiff
he could “get in trouble by filing a false
report.” (Id.). Plaintiff filed an EEOC charge
in connection with this incident on July 1, 2015.
(Id. at 3). Plaintiff alleges the charge was to be
mediated but Defendant's representative failed to attend
the mediation. (Id.).
Defendant's Undisputed Statement of
asserts the following in its statement of undisputed facts.
(Doc. 20 at 5-13). Defendant terminated Plaintiff on November
3, 2014, from his job on the production line because he
accumulated too many points under the company's
attendance policy. (Id. at ¶ 6). Defendant
concedes Plaintiff has filed three separate charges of
discrimination against it with the EEOC. (Id. at
¶ 11). The first, on November 10, 2014, resulted in
Plaintiff being rehired and choosing an open position.
(Id. at ¶ 13). That charge was settled;
Plaintiff was reinstated and was employed by Defendant on the
date the motion for summary judgment was filed. (Id.
at ¶¶ 13-17).
Nichols was hired by Koch Foods on November 28, 2014.
(Id. at ¶ 21). Though Plaintiff alleges Nichols
was his superviser, Defendant states Plaintiff's
“direct supervisor” was Tammy Ford. (Id.
at ¶ 18). Nichols worked as a “lead” in the
packing department with Plaintiff from April 9, 2015, until
Nichols left the company on June 29, 2015. (Id. at
¶ 22). Defendant states Nichols had no power to
hire or terminate employees, assign job duties, or exercise
supervisory authority over Plaintiff. (Id. at ¶
did not complain of Nichols's behavior to any employee of
Defendant before filing a second EEOC charge on May 22, 2015.
(Id. at ¶ 31). The incident at issue in
Plaintiff's second charge was Nichols's having
screamed at Plaintiff. The EEOC declined to investigate and,
in its letter, told Plaintiff: “[T]here does not appear
to be any evidence that you were subjected to objectionable
or offensive treatment because you filed a charge of
discrimination.” (Id. at ¶ 32); (see
also Doc. 21-2 at 89).
1, 2015, Plaintiff filed a third charge of discrimination
with the EEOC, alleging he had been subjected to a racially
hostile working environment. (Id. at ¶ 34).
Plaintiff alleged that on June 25, 2015, Nichols stated to
him, “N----r, put the trash in the back, ” while
Plaintiff was putting trash away. (Id. at ¶
35). Nichols called Plaintiff “n----r” again as
Nichols was walking away. (Id.). Plaintiff reported
these slurs to human resources manager Cindy DeBerry on June
26, 2015. (Id. at ¶ 37). DeBerry conducted an
investigation, and Nichols denied the allegations.
(Id. at ¶¶ 39-40). DeBerry counseled
Nichols on Defendant's anti-harassment policy,
“including the potential for termination if
violated.” (Id. at ¶ 41). In an affidavit
attached to Defendant's brief, DeBerry states Plaintiff
has received regular raises since he returned to work in
April 2015. (Doc. 20-1 at ¶ 7).
EEOC declined to pursue the third charge and informed
Plaintiff: “[T]here does not appear to be any evidence
that you were subjected to objectionable or offensive
treatment because of your race . . .” and “it
appears that although there were not any witnesses to the
allegation of your charge, the employer took immediate
corrective action.” (Doc. 20. at ¶ 42).
Plaintiff identified another witness to the EEOC but not to
Defendant. After interviewing the additional witness, the
EEOC issued a supplemental statement indicating the witness
did not provide information ...