United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.
action, Cedric Yarbrough (“Plaintiff”) claims
that his former employer, Kamtek, Inc.
(“Defendant”), discharged him because of his race
and gender and in retaliation for complaining about
discrimination, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended, 42 U.S.C.
§ 2000e et seq. (Doc. 4, Amended Complaint). He
also asserts that he was sexually harassed while he worked
for Kamtek. The case now comes to be heard on summary
judgment motions filed by both Plaintiff and Defendant.
(Docs. 20 & 24). Also before the court is Defendant's
motion to strike portions of Plaintiff's evidentiary
submission offered in support of his opposition to
Defendant's motion for summary judgment. (Doc. 25). Upon
consideration, the court concludes that Defendant's
motion is due to be granted, Plaintiff's motion is due to
be denied, and the motion to strike is due to be granted in
part and denied in part.
SUMMARY JUDGMENT STANDARD
to Rule 56 of the Federal Rules of Civil Procedure, party is
authorized to move for summary judgment on all or part of a
claim or defense asserted either by or against the movant.
Under that rule, the “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. Proc. 56(a).
The party moving for summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, ” relying on submissions
“which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); see also Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970). Once the moving party has met its burden, the
nonmoving party must “go beyond the pleadings”
and show that there is a genuine issue for trial. Celotex
Corp., 477 U.S. at 324.
the party “asserting that a fact cannot be, ” and
a party asserting that a fact is genuinely disputed, must
support their assertions by “citing to particular parts
of materials in the record, ” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ.
Proc. 56(c)(1)(A), (B). In its review of the evidence, a
court must credit the evidence of the non-movant and draw all
justifiable inferences in the non-movant's favor.
Stewart v. Booker T. Washington Ins., 232 F.3d 844,
848 (11th Cir. 2000). At summary judgment, “the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Facts Leading to the Termination
is African-American. He was hired in 2011 as an assembly
operator by Defendant, which is a manufacturer of automobile
body parts located in Birmingham, Alabama. He moved to the
position of quality auditor about one year later. He was
supervised by Tiffany Washington, Allen Bryant and Joe
Griffin. These supervisors reported to group leader Carlin
Shade, who reported to quality manager Bill Zinn. Charman
Meador is the Human Resources Manager for Defendant.
March 2014, Kamtek employee Sherrell Hall lodged a complaint
against Plaintiff, alleging that Plaintiff sent her some
inappropriate photograph and text messages. This incident
occurred shortly after they were in a sexual relationship
while Plaintiff was separated from his wife. (Pl.
Dep. at 55-62). When Hall told Plaintiff
that she would be showing the photograph to Kamtek human
resources, he responded, “I can ask u what I want
I'm not a[t] work....” (Def. Ex. 3 (Doc. 21-1
at 95)). Plaintiff also sent Hall additional text messages.
(Id. at 95-97; Pl. Dep. at 59).
receiving Hall's complaint, Meador talked with Plaintiff.
She showed him the text messages and told him that regardless
of when they were sent, such communications were
inappropriate. (Pl. Dep. at 63). Meador investigated the
complaint and, ultimately, issued a progressive discipline to
Plaintiff. The documented discipline informed Plaintiff that
this type of behavior was unacceptable and will not be
tolerated. It further informed him that further incidents
would result in additional progressive discipline, “up
to and including termination.” (Def. Ex. 5 (Doc.
21-1 at 101)). Plaintiff refused to sign the disciplinary
document and did not agree with the write-up. (Id.)
was coached on October 3, 2014,  for working unscheduled
time without supervisor authorization. The coaching was not a
progressive discipline and had no impact on Plaintiff's
March 20, 2015, Human Resources Coordinator Amanda Eubanks
received a LinkedIn message from Benita Sager, a woman who
was not a Kamtek employee and whom Eubanks did not know. The
message stated, in part, that Plaintiff had been sending
Sager “very inappropriate (nude) pictures of
himself” and that he had sent her inappropriate
information from his work computers. (Meador Decl., ¶ 7
& Exhibit 2 (Doc. 21-2 at 8-9)). Meador
investigated Plaintiff's use of his Kamtek computer and
email system and discovered that Plaintiff had been using his
Kamtek computer to communicate with various women through
LinkedIn and email, asking them on dates and giving them his
phone number. (Meador Dec., ¶ 8; Pl. Dep. at 105,
Def. Exs. 7, 8 (Doc. 21-1 at 106-21)). Meador also discovered
a nude picture on Plaintiff's work email that had been
sent to him from his personal email. (Pl. Dep. at 106-08;
Def. Ex. 9 (Doc. 21-1 at 122-23)).
of the discipline Plaintiff received due to the Hall
complaint in March 2014, Kamtek considered this additional
conduct to be a second offense. Premised on the repeat nature
of this conduct, Kamtek determined that Plaintiff's
inappropriate communications merited immediate termination.
(Meador Dec., ¶ 9). Accordingly, Meador and Zinn met
with Plaintiff on March 26, 2015, to inform him that his
employment was being terminated. They told him the
termination was based on his violation of company policy by
sending inappropriate emails and having inappropriate
pictures on his email. (Pl. Dep. at 104, 117).
Plaintiff's Additional Facts
the end of 2013, Plaintiff complained to Meador that coworker
Tammy Quarles had harassed him. (Pl. Dep. at 91 & 142).
Plaintiff complained that Quarles rubbed his head, touched
his private parts, and told him that she wanted to give him a
“blow job.” (Id. at 140). Meador
initially learned of Plaintiff's complaint when
supervisor Allen Bryant contacted her about a loud verbal
confrontation between Plaintiff and Quarels. Meador
investigated the matter, talking with both Plaintiff and
Quarles. Plaintiff told both Bryant and Meador that all he
wanted was for Quarles's behavior to stop and that he did
not want to get anyone in trouble. (Pl. Dep. at 143; Meador
Dec., ¶ 11 & Exhibit 3 (Doc. 21-2 at 11)). Plaintiff
states that the harassment continued after his complaint to
Meador, but admits that Quarles never touched him again after
Meador spoke to her and that the additional harassment
consisted of her blowing him kisses and licking her lips at a
Christmas party. (Pl. Dep. at 144-46; 194). He also stated
that Quarles “passed [him] by” and that he heard
from other employees that she was talking about him.
(Id. at 144). According to Plaintiff, he told Meador
about the incidents, “but nothing happened.”
September 2014, Plaintiff complained to supervisor Tiffany
Washington that two black females in his department were sent
to Mercedes for the day for training and that he did not
receive the same training. (Pl. Dep. at 100-01 & 103).
Plaintiff did not speak to Meador about this complaint.
(Id. at 102 & 149-150).
around October or November 2014, Plaintiff complained to
Meador that white coworker Robert May was being allowed to
work extra hours on Sunday and he was not. (Pl. Dep. at
169-73). Kamtek payroll records show that May never worked on
a Sunday during that period of time. (Meador Dec.,
¶ 13 & Exhibit 4 (Doc. 21-2 at 13-17)).
November 22, 2014, Plaintiff also complained to Meador that
he believed he should have been paid for the full four hours
of a scheduled shift he worked despite the fact that he was
sent home early due to a lack of work. (Pl. Dep. at 81-83, 87
& Def. Ex. 6 (Doc. 21-1 at 103)). Plaintiff asserted that
Defendant's failure to pay him for those four hours
showed favoritism because he had learned that another
supervisor, Tiffany Washington, paid employee Raphael Ward
under similar circumstances. (Id. at 84 & 88).
Meador responded that Kamtek did not have a minimum amount of
hours pay guarantee. After several communications, Plaintiff
told Meador, “I understand the rule which I have no
issues or concern with” and “I don't need to
take any more of your time up on this matter.” (Pl.
Dep. at 87, 90 & Def. Ex. 6 (Doc. 21-1 at 103); Meador
Dec., ¶ 5).
2014, Plaintiff also reported to Meador and Zinn that
supervisor Joe Griffin had threatened to physically harm
another employee. (Pl. Dep. 95-96). According to Plaintiff,
no action was ever taken on his report. (Id.) As a
result, he was concerned about his well-being in this work
asserts that white employees Sam Stuckey, Jerry Conn, and
Adriano Avellar had nude pictures in their work email, but
Defendant treated them differently. (Pl. Dep. At 116-124;
Doc. 24). Plaintiff stated at his deposition that he did not
know whether Meador knew about the pictures. (Id.)
Meador states that she does “not regularly review
employees' email accounts.” (Meador Dec., ¶
14). Typically, she looks at them when she receives a
specific complaint about an employee. (Id.) She
further states that she never received a complaint about
Stuckey or Conn. She did receive a complaint in May 2014 from
a Kamtek employee that Avellar had inappropriate pictures on
his phone that he was showing to a coworker. (Id.,
¶ 14). Meador investigated the matter. As a result of
the investigation Avellar was removed from a team lead
position, which also resulted in a deduction in his pay.
(Id., ¶ 16). Avellar never engaged in this
conduct again. (Id., ¶ 17).
Plaintiff's filings can be difficult to follow, Plaintiff
appears to be advancing claims that he has been (1)
discriminated against on the basis of his race and gender;
(2) retaliated against; and (3) sexually harassed. Each of
these will be addressed below. Before doing so, however, it
is important to place the individual claims in context.
initially argues that while Plaintiff's primary
substantive claims seem to center around his termination, to
the extent he asserts claims of earlier events, many of them
are untimely. (Doc. 20 at 12). The court agrees.
VII plaintiff is required to file a Charge with the Equal
Employment Opportunity Commission (“EEOC”) within
180 days of the complained-of action. Anderson v.
Embarq/Sprint, 379 F. App'x 924, 926 (11th Cir.
2010) (citing 42 U.S.C. §
2000e-5(e)(1)). “Failure to file a timely charge with
the EEOC results in a bar of the claims.” Rizo v.
Ala. Dep't of Human Resources, 228 F. App'x 832,
835 (11th Cir. 2007). In this case, Plaintiff filed his EEOC
Charge on April 21, 2015. (Ex. C (April 21, 2015 EEOC Charge)
(Doc. 21-3 at 2)). Accordingly, any claims predating October
23, 2014, are time-barred as substantive claims. They may,
however, be considered in placing the timely claims in
General Framework for Analyzing ...