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Whitt v. Berckman's Foods, Inc.

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

March 20, 2018

ADRIAN M. WHITT, Plaintiff,
BERCKMAN'S FOODS, INC. d/b/a McDonald's, Defendant.



         The 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.[2] (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.[3] After consideration of the briefs and evidence, the motion is due to be granted for the following reasons.

         I. STATEMENT OF FACTS [4]

         Defendant 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.).

         Plaintiff 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, [5] when she voluntarily resigned. (Id. at 3). In approximately December 2014, [6] 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.).

         Plaintiff 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.[7] (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 man;
• Pass often stated Whitt needed to “tone down” her attitude to appear more “feminine”;
• 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 time.”
• 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 look cute.


         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).


         Under 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.

         The 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 ...

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