United States District Court, N.D. Alabama, Southern Division
ADRIAN M. WHITT, Plaintiff,
BERCKMAN'S FOODS, INC. d/b/a McDonald's, Defendant.
MEMORANDUM OPINION 
G. CORNELIUS U.S. MAGISTRATE JUDGE
court has before it the July 28, 2017 motion for summary
judgment filed by Defendant Berckman's Food's, Inc.
d/b/a McDonald's. (Doc. 23). Pursuant to the court's
initial order (Doc. 18) and the August 11, 2017 and September
1, 2017 orders (Docs. 26, 29), the motion is fully briefed
and under submission as of September 22, 2017. After
consideration of the briefs and evidence, the motion is due
to be granted for the following reasons.
STATEMENT OF FACTS 
is a McDonald's franchisee that owns and operates two
McDonald's restaurants in Alabama. (Doc. 23-1 at 1). One
restaurant is located in Brighton, Alabama, and the other is
located in Bessemer, Alabama. (Id.). Alain Nkoudou
is the sole owner of Defendant. (Id.).
Adrian Whitt, a lesbian female, began working as a shift
manager for Defendant at its location in Bessemer, Alabama,
on March 31, 2013. (Doc. 30-1 at 2, 3-4). Plaintiff worked at
that location until October 2013,  when she voluntarily
resigned. (Id. at 3). In approximately December
2014,  Whitt was rehired by Defendant at its
Brighton, Alabama location. (Id.). Whitt's
manager and direct supervisor at the Brighton location was
Dena Pass. (Id.).
contends Pass began sexually harassing her from the first
week of her employment at the Brighton location. Plaintiff
stated Pass told her, “I don't like people like
you, ” during her first week after her rehire.
(Id. at 3). Pass knew Plaintiff was a lesbian
because Plaintiff's partner worked at the Bessemer store,
told Pass they were in a committed relationship, and often
picked up Plaintiff from work when her shift
ended. (Id. at 3-4). After that first
week, Plaintiff contends Pass continued to harass her.
Specifically, Plaintiff alleges:
• On numerous occasions, Pass commented Whitt was
“too aggressive” and walked and talked like a
• Pass often stated Whitt needed to “tone
down” her attitude to appear more
• On one occasion, Pass, Nkoudou, and Whitt were sitting
at a dining table when the discussion became heated. Pass
stated, “I barely talk to you because I don't deal
with people like you.” Whitt asked Pass if she was
referring to “gay people, ” and Pass nodded her
head in the affirmative. Nkoudou tried to comfort Whitt by
stating, “I don't judge people, ” but then
laughingly asked Whitt how she had kids if she was gay;
• After that meeting, Pass's alleged comments about
Whitt's “sexual identity and lack of
femininity” increased, and she often made these
comments in front of customers, including telling one man
“he was barking up the wrong tree with that one”;
• Pass often questioned Whitt about why she lived a
“lesbian lifestyle when men liked” her. On
numerous occasions, Pass stated, “I don't see why
you're like that guys try to talk to you all the
• Pass told Whitt she needed to act more “lady
like” because she “scares people”;
• Pass often commented Whitt should walk more
femininely, talk more femininely, date men, wear makeup, and
alleges she told Nkoudou she was being sexually harassed and
treated hostilely by Pass because of her gender identity and
gender non- conformity. (Id. at 4). Plaintiff
asserts she also told the Bessemer store manager, Monique
Taylor, about the alleged harassment. (Id.).
Plaintiff contends Taylor attempted to address her
allegations, and after Taylor would speak to Pass, the
harassment would stop for about a day and then resume.
(Id.). Both Nkoudou and Taylor deny Whitt ever
complained of harassment. (Docs. 31-1 at 3, 7).
was terminated on July 31, 2015, for stealing money from the
deposits during the time she was employed at Defendant's
Bessemer location. (Id. at 2; Doc. 30-1 at 6).
According to Defendant, employees reported to Nkoudou that
Plaintiff had bragged about successfully stealing money from
the deposits when she was a manager. (Doc. 31-1 at 2).
Nkoudou investigated and offered Plaintiff an opportunity to
respond to the allegations. (Id.). Plaintiff denied
stealing any money. (Doc. 30-1 at 6). Nkoudou concluded
Plaintiff stole the money and terminated her employment based
on this conclusion. (Doc. 31-1 at 2).
filed a charge of discrimination with the EEOC on August 3,
2015. (Doc. 1-1 at 3). In her charge, Plaintiff outlined
comments allegedly made by Pass and stated her belief that
her “termination [wa]s a pretext for sexual
discrimination” and she was terminated because of a
“perceived failure to conform to a gender role.”
(Id.). The EEOC dismissed Plaintiff's charge on
April 28, 2016, and Plaintiff timely filed her complaint on
July 28, 2016. (Id. at 1; Doc. 1).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at ...