United States District Court, M.D. Alabama, Southern Division
ANDRE J. MAHONE, Plaintiff,
BBG SPECIALTY FOODS, INC., d/b/a TACO BELL, Defendant.
MEMORANDUM OPINION AND ORDER
Russ Walker, United States Magistrate Judge.
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.
maintains that defendant terminated his employment on October
9, 2015 in retaliation for the plaintiff's complaints of
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.
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
AND UNDISPUTED FACTS
Material Facts Regarding Pay
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.
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.
Material Facts Regarding Promotion to Assistant
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
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.
BBG's Termination of Plaintiff's Employment
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
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
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.
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
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.
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.
I. Mahone's Claims
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
Disparate Treatment Gender Discrimination Claims
Title VII Failure to Promote Claim
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
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
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)).
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
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. Nevertheless, the court will address the
claim on its merits.
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.
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.
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
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
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