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Mahone v. BBG Speciality Foods, Inc.

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

March 28, 2018

ANDRE J. MAHONE, Plaintiff,
v.
BBG SPECIALTY FOODS, INC., d/b/a TACO BELL, Defendant.

          MEMORANDUM OPINION AND ORDER[1]

          Susan Russ Walker, United States Magistrate Judge.

         Plaintiff Andre J. Mahone brings this action against defendant BBG Specialty Foods, Inc., d/b/a Taco Bell (“BBG”), alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”). See Doc. 9 (Amended Complaint). BBG is a Taco Bell restaurant franchisee. The plaintiff was employed by the defendant at a Taco Bell in Dothan, Alabama, from November 29, 2013 until he was fired on October 9, 2015. He was hired to the position of “team member, ” and defendant promoted him to “shift leader” on February 4, 2014. Plaintiff held the shift leader job title until his termination from employment. This lawsuit concerns allegations of disparity in plaintiff's pay relative to female shift leaders, as well as allegations that the defendant failed to promote the plaintiff to Assistant Manager because of gender discrimination.

         Plaintiff maintains that defendant terminated his employment on October 9, 2015 in retaliation for the plaintiff's complaints of gender discrimination.

         This cause is presently before the court on defendant's motion for summary judgment. See Doc. 22. Plaintiff filed an opposition to the motion, see Doc. 29, and BBG replied, see Doc. 30. Upon review of the motion and the record, the court concludes that defendant's motion for summary judgment is due to be granted.

         SUMMARY JUDGMENT STANDARD

         A movant is entitled to summary judgment if it “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). For summary judgment purposes, an issue of fact is “material” if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S.Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish - “by producing affidavits or other relevant and admissible evidence beyond the pleadings” - specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed.R.Civ.P. 56(c)(1)(A). “All affidavits [and declarations] must be based on personal knowledge and must sets forth facts that would be admissible under the Federal Rules of Evidence[.]” Josendis, F.3d at 1315; Fed.R.Civ.P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d at 1315; Fed.R.Civ.P. 56(c)(4). However, “[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted).

         BACKGROUND AND UNDISPUTED FACTS[2]

         I. Material Facts Regarding Pay

         In the nearly two years that the plaintiff was employed by defendant, he received three pay raises. When defendant promoted plaintiff from team member to shift leader on February 4, 2014, plaintiff received a raise from $7.50 per hour to $8.25 per hour. He also received raises on May 28, 2014 and August 19, 2015 to $8.75 per hour and $9.00 per hour, respectively. The latter two raises came after the plaintiff complained in July 2015 to the Restaurant General Manager that female shift leaders were paid more per hour. Plaintiff complained about discrimination generally, but he did not specify that he was complaining about gender discrimination. The plaintiff testified that he was satisfied with the raise, and he did not have any conversation with a member of management about pay discrimination after July 2015. (Doc. 23-4; Pl. Dep. 155, 190-91). Further, in his brief in response to the instant motion, the plaintiff concedes that he did not make complaints about gender discrimination after July 2015. See Doc. 29 at 4 (“Plaintiff agrees that he never explicitly complained about being discriminated against after July 2015.”). There is no evidence of record that the plaintiff complained at any other time about discrimination during his period of employment with the defendant.

         Throughout the entirety of plaintiff's employment by defendant, the highest pay differential between the plaintiff and that of the highest paid shift leader was $0.75 per hour.

         II. Material Facts Regarding Promotion to Assistant Manager

         Defendant hired Bonnie Emerson as the Assistant Manager effective May 13, 2015. Defendant created the position because, in March 2015, the store began selling breakfast, there were employees on-site from 6:00 a.m. until 1:00 a.m., and the Restaurant General Manager could not be on-site for that amount of time. Emerson had twenty years of restaurant management experience at or above the assistant manager level, and she had been an Assistant Manager at another Taco Bell location in Tennessee. None of the shift leaders at the restaurant at the time Emerson was hired as the Assistant Manager had that amount of relevant experience, including the plaintiff. He had no management experience at a level higher than the shift leader position. He admits that Emerson was more qualified than he for the Assistant Manager position. See Doc. 29 at 6.

         There is no evidence before the court that the plaintiff applied to be the Assistant Manager. The plaintiff testifies that, “[s]ometime in February or March 2015, [he] had conversations with [Restaurant General Manager] Charity Carnley about being promoted to the Assistant Manager position. … She said that [he] might get the position or that [he] would get the position.” Doc. 29-2 at 2. One of defendants' former employees, Christopher Trawick, submitted sworn testimony that, “As early as December 2014, Charity Carnley … told [him] that [the plaintiff] would get the Assistant Manager position.” Doc. 29-3. Plaintiff “believed” that Carnley “was the ultimate decision maker” with respect to promotions. Doc. 29-2 at 2. However, the defendant presents uncontroverted evidence that Carnley, as a Restaurant General Manager, lacked the authority to promote an employee. Plaintiff was not a part of the decision-making team as to the hiring of an Assistant Manager. He did not know who had final hiring authority, but he testified at his deposition that he thought the decision would be made by the Restaurant General Manager and the Market Coach, Sandy Howell. However, those individuals did not have hiring authority. The Restaurant General Manager could make hiring recommendations to the Market Coach and to Kay Nailen, one of BBG's owners. The decision to hire Emerson was made by the Market Coach with final approval from Nailen.

         III. BBG's Termination of Plaintiff's Employment

         Plaintiff was responsible for making bank deposits, and there was a question about a short deposit - a deposit that was less than defendant's records indicated that it should be - made by the plaintiff around October 2, 2015. Plaintiff testified that he was “very upset” about being accused of making a short deposit. Doc. 23-4; see also Doc. 23-13 at 15-23 (text messages). Beginning on October 3, 2015, plaintiff sent late-night, profanity laden texts to the Restaurant General Manager and the Market Coach about the deposit issue.

         Also on October 3, 2015, he argued with Assistant Manager Emerson about the deposit, and he raised his voice during the altercation. Emerson called the Restaurant General Manager to inform her about the argument. Thereafter, the Restaurant General Manager called the store and sent the plaintiff home. On October 5, 2015, management discovered that the deposit shortage was an error outside of the plaintiff's control, and that the money was in the defendant's bank account. The plaintiff was not disciplined for making a short deposit. However, he remained upset about the allegation of wrongdoing.

         On the evening of October 8, 2015, plaintiff attended a meeting with his managers in the lobby of the restaurant. According to the plaintiff, there were one or two customers in the lobby or the nearby dining area. Near the end of the manager's meeting, plaintiff and a co-worker, Tawanna Stovall, argued. According to the plaintiff's deposition, he did not yell or curse at Stovall, but he raised his voice and he lost his temper. He asked the Restaurant General Manager if he could leave, she responded that he could, and he clocked out.

         As plaintiff left the restaurant, another employee told plaintiff that the Restaurant General Manager caused the altercation between the plaintiff and Stovall. He reentered the restaurant, and confronted the Restaurant General Manager with a raised voice. He was yelling “a little bit” and he was upset, but he did not use profanity during his altercation with the Restaurant General Manager. Doc. 23-4 at 29. He also did not threaten her. See id.

         The following day, the plaintiff was scheduled to work, and he texted the Restaurant General Manager to ask if he could miss his shift because he felt uncomfortable returning to the restaurant. According to the plaintiff, she responded that he could miss work if he found someone to cover the shift. For reasons that are not clear from the briefs or the evidence of record, the plaintiff reported to the restaurant on October 9. The Restaurant General Manager told him then that he was fired because he was “cussing” at her the night before. Doc. 23-4 at 29.

         Plaintiff testified that he was terminated for a number of reasons, including his altercation with the Restaurant General Manager on October 8, his argument with Stovall on October 8, the issue with the deposit on October 2, his argument with Emerson about the deposit issue, his reaction to the accusation of wrongdoing about the short deposit, and the text messages that he sent to the Restaurant General Manager to ask that she prepare paperwork properly. See Doc. 23-4. The plaintiff testified that his termination came after he complained on July 5, 2015, about discrimination with respect to pay and promotion, but he did not testify that he was fired because of those complaints.[3]

         DISCUSSION

I. Mahone's Claims

         The plaintiff's claims are: (1) a Title VII claim for failure to promote him to the Assistant Manager position that was awarded to Bonnie Emerson; (2) a Title VII disparate treatment in pay claim due to gender discrimination based on plaintiff's complaint to management about discrimination in July 2015; (3) an EPA claim for disparate pay; (4) a Title VII retaliation claim due to defendant's termination of plaintiff's employment on October 9, 2015; and (5) and an EPA retaliation claim based on defendant's termination of plaintiff's employment. The plaintiff does not plead additional legal claims in the amended complaint, see Doc. 9, and no other claims are before the court.[4]

         II. Disparate Treatment Gender Discrimination Claims

         A. Title VII Failure to Promote Claim[5]

         The McDonnell Douglas framework was established by the Supreme Court for evaluating a Title VII plaintiff's claims of discrimination against an employer where, as here, there is no direct evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997); Brown v. Ala. Dep't of Trans., 597 F.3d 1160, 1174 (11th Cir. 2010). The plaintiff must first make out a prima facie case of discrimination. Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Walker v. Mortham, 158 F.3d 1177, 1183 (11th Cir. 1998); Combs, 106 F.3d at 1527-28. “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 254) (internal quotations marks omitted).

         If the plaintiff establishes a prima facie case, the employer has the burden of producing “legitimate, nondiscriminatory reasons for the challenged employment action.” Combs, 106 F.3d at 1528 (citing McDonnell Douglas, 411 U.S. at 802). “To satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 257). If the employer articulates a legitimate, nondiscriminatory reason for its decision, the mandatory inference of discrimination arising from the prima facie case is destroyed. Walker, 158 F.3d at 1184.

         The plaintiff must then produce evidence “including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Combs, 106 F.3d at 1528. A plaintiff may establish pretext by producing evidence that reveals “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in [the defendant's] proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)) (internal quotation marks omitted). However, “[a] reason is not pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was the real reason.'” Id. (citing Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in the original)).

         It is well-established in the Eleventh Circuit that:

Under the McDonnell Douglas framework, to prevail on a claim of failure to promote, a plaintiff may establish a prima facie case of … discrimination by showing that: (1) [he] is a member of a protected class; (2) [he] was qualified and applied for the promotion; (3) [he] was rejected despite [his] qualifications; and (4) other equally or less qualified employees who were not members of the protected class were promoted.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). “The comparators for the fourth prong must be “‘similarly situated in all relevant respects.'” Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)).

         The plaintiff is a member of a protected class, but he fails to meet any of the remaining elements of a prima facie case. Moreover, the plaintiff does not argue that he satisfies a prima facie case in his response to the defendant's motion for summary judgment, and he has waived any such arguments that could have been raised.[6] Nevertheless, the court will address the claim on its merits.

         As to the second element of the prima facie case, the plaintiff did not apply for the position - he merely discussed the possibility that he might become the Assistant Manager with the Restaurant General Manager. See Taylor v. Austal, U.S.A., LLC, 829 F.Supp.2d 1162, 1177 (S.D. Ala. 2011) (“A plaintiff claiming that he was discriminatorily denied a promotion usually must show that he actually applied for the position as part of his prima facie case.”) (citing Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999) and Combs, 106 F.3d at 1539 n. 11). The plaintiff subjectively believed that the Restaurant General Manager was the ultimate decision maker, but the undisputed evidence of record is that she lacked hiring or promotion authority. Also, the plaintiff adduces no evidence that he was qualified for the Assistant Manager position. As to the third element, Bonnie Emerson, a woman, was hired to the Assistant Manager position; however, the undisputed evidence is that the ultimate decision makers did not know of plaintiff's interest in the job. Accordingly, he has not shown that he “was rejected despite his qualifications.” Wilson, 376 F.3d at 1089.

         Finally, the plaintiff does not satisfy the fourth element. He “concedes” that his qualifications “were not superior” to Emerson's qualifications. Doc. 29 at 6. Thus, the remaining question at issue is whether plaintiff's and Emerson's qualifications are equal. See Wilson, 376 F.3d at 1089. The court concludes that they are not on this record. Prior to being hired to the Assistant Manager position, Emerson had approximately twenty years of restaurant management experience at the assistant manager, co-manager, or manager positions, including eighteen months as an Assistant Manager at a Taco Bell restaurant in Tennessee. The plaintiff's highest management position was that of team leader or the equivalent management level at other fast food restaurants. Simply put, the evidence of record does not present “a sufficient disagreement to require submission to a jury” on the issue of a comparison of plaintiff's and Emerson's qualifications. Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (citation omitted). No. reasonable juror could find that the plaintiff and Emerson are equally qualified for the Assistant Manager position, and the plaintiff does not argue the point.[7]

         Assuming that plaintiff could make out a prima facie case, the defendant contends that Emerson was hired, in part, because of her superior qualifications, and that is a legitimate, non-discriminatory basis for a promotion or hiring decision. See Burdine, 450 U.S. at 259 (An “employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.”); Brooks v. Cty. Comm'n of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (an employer's hiring of a more qualified candidate meets is a legitimate business decision that shifts the burden to the plaintiff to show pretext); Beal v. Convergys Corp., 489 F. App'x 421, 423-24 (11th Cir. 2012) (an employer's decision to hire a more qualified candidate is a legitimate, non-discriminatory reason for a hiring decision).

         Thus, the burden shifts to the plaintiff to show pretext. “A reason is not pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was the real reason.'” Brooks, 446 F.3d at 1163 (quoting St. Mary's Honor Ctr. v. ...


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