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Bosby v. Hydratech Industries Fluid Power, Inc.

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

June 14, 2018

ANGELA T. BOSBY, Plaintiff,



         This matter is before the court on Defendant's motion for summary judgment (Doc. 25), Plaintiff's response in opposition (Doc. 35), Defendant's reply (Doc. 37), and Defendant's motion to strike Plaintiff's evidentiary submission (Doc. 38). For the reasons explained below, the Court finds that Defendant's motions to strike and for summary judgment should be granted.


         Plaintiff Angela T. Bosby filed this case pro se asserting that she was racially discriminated and retaliated against by her employer, Defendant Hydratech Industries Fluid Power, Inc. (“Hydratech”), in violation of Title VII of the 1964 Civil Rights Act, as amended. (Doc. 1). The complaint alleges that she was discriminated against when employees in Hydratech's accounting department treated her negatively by making her job more difficult because she is African-American. (Doc. 1, ¶¶ 19, 20). The Complaint also alleges that Plaintiff was terminated on May 5, 2015 in retaliation for having “reported her treatment by other employees to Selph, Human Resources Director, Vosen, General Manager, and Israel, Finance Manager who were all aware that Plaintiff was complaining that the treatment was based on her race, African-American.” (Doc. 1, ¶¶ 23-24). Plaintiff's complaint also alleges that Hydratech's stated reasons for firing her were pretextual, as she had received no counseling or discipline for any of the stated reasons prior to her termination. (Doc. 1, ¶¶ 8, 23). According to the complaint, other Caucasian employees committed the same actions she was accused of committing but were not terminated. (Doc. 1, ¶ 10).

         Plaintiff was hired as an Accounting Specialist at Hydratech in November 2012. (Doc. 27-1, ¶ 9). Plaintiff and other Hydratech employees received and signed a copy of Hydratech's Policy and Procedures Manual, which contains an Equal Employment Opportunity Policy that strictly prohibits racial discrimination and retaliation and also contains a Non-Harassment Policy that prohibits racial discrimination and harassment. (Doc. 27-1, ¶¶ 5, 9; Doc. 30-1, pp. 6-7). Hydratech hired Mitchell Israel in January 2015 to serve as its Finance Manager and a month later Israel hired Robyne Clower as the Accounting Department Team Leader. (Doc. 27-1, ¶ 13; Doc. 30-1, pp. 10-11). Upon her hire, Ms. Clower became Plaintiff's direct supervisor. (Doc. 28-1, ¶ 13).

         Both Clower and Plaintiff complained to Israel and the Human Resources Manager, Ms. Selph about each other concerning routine interoffice personality conflicts. (Doc. 28-1, ¶ 14, Doc. 29-1, ¶¶ 14-15). Clower complained that Plaintiff was resistant to change, and Plaintiff complained that she did not think changes in the accounting department were necessary. (Doc. 28-1, ¶¶ 14, 15). Clower also reported that Plaintiff did not meet performance standards, failed to properly communicate with her and did not display a positive cooperative attitude. (Doc. 29-1, ¶ 14). None of the complaints were based on race and Plaintiff never complained to Israel or Selph that she felt discriminated against or harassed on the basis of her race. (Doc. 28-1, ¶¶ 14, 15; Doc. 29-1, ¶ 15).

         From January 2015 to May 2015, Plaintiff clocked in late 28 times and clocked out early 22 times. (Doc. 29-1, ¶ 18). Ms. Selph had multiple verbal counseling conversations with Plaintiff during that time period to improve her attendance. (Doc. 29-1, ¶ 18). In March 2015, Plaintiff falsely recorded on her time card that she arrived at 8:00 a.m. on March 17 when she had been observed arriving after 8:00 a.m. and she was counseled on that issue as well. (Doc. 29-1, ¶ 18). Hydratech also had issues with Plaintiff working off the clock and refusing to follow policy that she take a full lunch hour rather than work through lunch. Hydratech had implemented a policy to cut down on overtime unless absolutely necessary but needed to abide by all Department of Labor rules and regulations and fully compensate its employees for overtime. When discovered, Plaintiff's time entry was adjusted so that she would be fully compensated, and she was counseled against working off the clock again. (Doc. 28-1, ¶ 26, Doc. 29-1, ¶ 24).

         Mr. Israel was aware that Plaintiff had made accounting errors on invoices during her employment with Hydratech, but on May 5, 2015, Israel discovered a large error: Plaintiff had posted an invoice in the amount of $147, 600.00 to the wrong Hydratech entity, causing a discrepancy in intercompany balances and reconciliation. (Doc. 28-1, ¶ 16). Plaintiff contends that it was Clower that made the mistake, but Israel believed that Plaintiff made the mistake and Israel and Selph still maintain that it was in fact Plaintiff's mistake. (Doc. 30-1, pp. 53, 55; Doc. 28-1, ¶ 16; Doc. 29-1, ¶ 16). Mr. Israel decided to terminate Bosby as a result of the culmination of the issues with her attendance, her falsification of time record, her accounting errors, and particularly due to her $147, 600.00 invoice error. (Doc. 28-1, ¶ 18). Plaintiff's termination notice, dated May 5, 2015, listed several accounting errors made by Plaintiff as well as Plaintiff's time clock issues Hydratech had documented and concluded that the incidents violated Hydratech's policies and as a result that Plaintiff was terminated effective that day. (Doc. 30-1, pp. 64-65).

         Plaintiff admits that when she complained about the way she was treated she never said she felt she was being racially discriminated against. (Doc. 30-1, p. 42). Plaintiff believes the HR director knew Plaintiff was the only black employee in the accounting department and should have understood that the reason she was being treated different was because she was black. (Doc. 30-1, pp. 42-42). Plaintiff contends that certain white employees were allowed to work off the clock but admits that she has never seen their time records or disciplinary history. (Doc. 30-1, pp. 30-35). Israel avers that he is not aware of any employee being allowed to work off the clock without being counseled the same as Plaintiff and fully compensated for their time. (Doc. 28-1, ¶ 27). Plaintiff also contends that certain white employees were permitted to violate the attendance policy without consequence but admits that she never saw their attendance records or disciplinary history. (Doc. 30-1, pp. 35-39, 48-49). According to Israel, the attendance policy, including the requirements to arrive on time, correctly report hours worked, and not to work off the clock, applied equally to all employees and infractions by any employee were not tolerated if Israel or Ms. Selph was aware of the infractions. (Doc. 28-1, ¶¶ 27, 28, 29, 30). Israel states that the employees Plaintiff suggests were treated better did not have the level and severity of attendance issues that Plaintiff had. (Doc. 28-1, ¶ 28).

         Israel also states that other employees were not treated preferentially with regard to receiving mileage reimbursements, overtime, or being allowed to work through lunch. These policies were followed equally with regard to all employees. (Doc. 28-1, ¶¶ 31, 32).

         Plaintiff claims two of the white employees caused her issues in completing her work by not giving her the information she needed, but Plaintiff admits that she has no evidence that the reason they treated her that way was because she was black. The reason Plaintiff believes it was because of her race is because they are white, and she is black. (Doc. 30-1, pp. 15-16).

         Plaintiff also claims she was discriminated against when Hydratech stopped participating in the Premium Reimbursement health insurance plan because she was the only participant in the plan at the time. However, due to changes in health insurance from the Affordable Care Act, Hydratech was no longer permitted to allow the Premium Reimbursement and could only allow employees the option of joining its United healthcare plan. (Doc. 28-1, ¶ 34).

         Plaintiff claims she was discriminated against when her name was removed from the Hydratech invoice email address, when another white employee's name remained. However, Israel and Selph report that the decision was made to help streamline the Accounting Department because it created confusion when both Plaintiff and the other employee printed all the invoices and receivables. (Doc. 28-1, ¶ 34; Doc. 29-1, ¶ 35).

         Plaintiff claims she was discriminated against when Israel decided to split the responsibility for vendors so that Plaintiff was responsible for vendors A-L and another employee was responsible for vendors M-Z. Israel later gave some of the vendors back to Plaintiff. Plaintiff felt all the changes were directed towards her and not towards the white employees. However, Plaintiff admits she has no evidence the decision was based on race and that the purpose of the ...

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