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McAboy v. The Westervelt Co. Inc.

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

December 11, 2018



          L. Scott Coogler, United States District Judge.

         Before the Court is Defendant The Westervelt Company Inc's (“Westervelt”) Motion for Summary Judgment (doc. 30). The motion has been briefed and is ripe for review. For the reasons stated below, Westervelt's Motion for Summary Judgment (doc. 30) is due to be granted.

         I. Background[1]

         Westervelt owns and manages a wood processing mill in Moundville, Alabama. In October 2000, Westervelt hired Shirley McAboy (“McAboy” or “Plaintiff”) as a sorter operator. In June 2005, McAboy was promoted to the position of stacker operator. McAboy remained in this position until she was terminated by Westervelt in June 2016.

         When McAboy was hired in 2000, she was given an Associate Information Guide (“Employee Handbook” or “Handbook”).This Handbook contained a reporting procedure for incidents of alleged harassment or discrimination, along with a zero tolerance policy on harassment. (Doc. 31-1 at Ex. 4.) The Handbook was updated periodically, and employees signed an acknowledgement every time they received an updated version of the handbook. McAboy acknowledged receiving the Handbook and signed multiple acknowledgments that she received to the Handbook. (Id. at 32-34); (Doc. 31-2 at 2-7.) Although the Handbook contained a step based process for escalating disciplinary problems, discipline regarding profane language would often “depend on the situation.” (Doc. 31-4 at 64.)

         McAboy testified that while she worked at Westervelt both herself and her co-workers discussed sex. (Doc. 31-1 at 54, 88-89.) However, McAboy testified that many of these conversations involved sexually harassing remarks being made to her by various co-workers. In September of 2012, McAboy filed an EEOC charge against Westervelt that alleged she was being harassed by some of her male co-workers due to complaints about her job performance and the usage of profanity towards her. (Doc. 31-2 at 11.) McAboy's charge acknowledged that she responded to these comments with further profanity and that she was reprimanded for and suspended for her comments. (Id.) The EEOC was unable to find any violation based upon its investigation of this charge, and thus dismissed her charge. (Id. at 12.) McAboy remained employed at Westervelt in the same position and at the same rate of pay after this incident. (Doc. 31-3 at 36.). According to McAboy, the harassing conduct continued as at least seven of her co-workers continued to discuss sex with her and solicit sex from her.

         In June of 2015, Westervelt placed McAboy on eighteen months' probation due to her poor work performance and use of her cell phone at her work station. (Doc. 31-2 at 64.) In 2016, McAboy experienced a falling out with her co-worker Morris Ashe (“Ashe”). (Doc. 31-1 at 107.) McAboy testified that after her friendship with Ashe ended, Ashe began calling her a “b***h, ” “slut, ” and “dumb a**, ” and he “told [her] he wanted to f***k [her] daughter.” (Id. at 175-76.) McAboy testified that Ashe “called [her] a b***h and ho . . . more than 30, 40 times” in 2016. (Id. at 112-13.) McAboy reported Ashe's comments to James Scott (“Scott”), her supervisor, and Nish Phillips (“Phillips”), the head of Human Resources. (Id. at 113). As a result of her complaint, Scott required Ashe and McAboy to exchange apologies. (Id. at 113-14.) McAboy testified that Ashe's harassment started again two days after Scott made the two exchange apologies. (Id. at 114.) McAboy testified that she reported Ashe's continued harassment to Scott, but Scott told her “y'all need to get along down there.” (Id.) After the second report to Scott, McAboy no longer reported Ashe. (Id.)

         On June 8, 2016, Phillips received a report from Ashe that McAboy had harassed him, telling him “[w]orry about your effing mama. You a b***h.” (Doc. 31-8 at 75-76.) Ashe also complained to Scotty Noland (“Noland'), the production superintendent, about this incident. (Id. at 33) Noland, Phillips, and Scott then met to discuss both this incident and McAboy's continued employment at Westervelt. (Doc. 31-4 at 70-72.) Noland, Phillips, and Scott decided to terminate McAboy. (Id.) Upon her termination, McAboy sought to speak with Phillips about the incident but Noland told her she could not speak to Phillips, and Phillips did not answer McAboy's calls. (Doc. 31-1 at 77-78.)

         McAboy filed a second EEOC charge in September 2016 alleging sexual harassment by Ashe and asserting that she was terminated in retaliation for complaining to her supervisors about Ashe's harassment. (Doc. 31-2 at 21.). McAboy's EEOC charge only mentioned harassment by Ashe. (Id.) McAboy received her notice of the right to sue letter on March 10, 2017 and filed this action on May 17, 2017 (Doc. 31-2 at 23.)

         II. Standard of Review

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact[2] and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if “the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         In considering a motion for summary judgment, trial courts must give deference to the non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         III. Discussion

         McAboy alleges that Westervelt violated Title VII by discriminating against her on the basis of sex because it (1) engaged in disparate treatment of her, (2) it allowed her to be sexually harassed creating a hostile work environment, and (3) it terminated her in retaliation for reporting sexual harassment.

         a. Disparate Treatment

         McAboy articulates, for the first time in her response to Westervelt's motion for summary judgment, a disparate treatment theory of discrimination in regard to discipline and termination under Title VII.[3]

         i. Exhaustion

         The Eleventh Circuit has noted that a “plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004) (noting that “[l]iberal pleading does not require that, at the summary judgment stage, defendants must infer all possible claims that could arise out of facts set forth in the complaint.”). This is because “[e]fficiency and judicial economy require that the liberal pleading standard under Swierkiewicz and Rule 8(a) are inapplicable after discovery has commenced.” Id. at 1314. Therefore, the proper way for a plaintiff to bring a new claim of discrimination is to move to amend the complaint through Rule 15(a). Id.

         Here, the Court's review of McAboy's initial and amended complaint does not reveal that McAboy asserted a disparate treatment theory in regard to discipline or her termination, nor that she plead sufficient facts to establish such a claim. The proper method through which McAboy should have sought to add such a claim would have been to seek leave to amend her complaint and assert such a claim. See Id. However, McAboy has not sought to amend her complaint. Nor has Westervelt waived any objection to such amendment. In fact, Westervelt has explicitly objected to McAboy's attempt to raise this claim for the first time in her brief opposing summary judgment. Therefore, Westervelt is entitled to summary judgment on McAboy's disparate treatment claim because it was not properly raised. See Huddleston v Sunshine Mills, Inc., 965 F.Supp.2d 1298, 1310 (N.D. Ala. 2013) (refusing to consider a plaintiff's disparate impact theory of discrimination when this theory was raised for the first time in plaintiff's brief in opposition for summary judgment.); Cooley v. Great Southern Wood Preserving, 138 Fed.Appx. 149, 154 (11th Cir. 2005) (concluding that it was not an abuse of discretion for a district court to dismiss a claim of hostile work environment raised for the first time in plaintiff's brief in opposition to summary judgment).

         If this claim was allowed to proceed, it would not be barred by a failure to exhaust administrative remedies. Exhausting one's administrative remedies before filing a civil complaint for discrimination is required by 29 C.F.R. § 1614.407 and 42 U.S.C. § 2000e-16(c), and the Eleventh Circuit has held that courts have subject matter jurisdiction over Title VII claims only if the plaintiff “pursue[d] and exhauste[d] [those] administrative remedies.” Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). A judicial complaint is limited by claims that are “like or related to, or grew out of, the administrative allegations.” Basel v. Sec'y of Defense, 507 Fed.Appx. 873, 876 (11th Cir. 2013) (per curiam); see also Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (retaliation claim was not administratively barred because it was intertwined with other discrimination claims). Therefore, “[J]udicial claims are allowed if they ‘amplify, clarify, or more clearly focus' the allegations in the EEOC complaint, but [the Eleventh Circuit] has cautioned that allegations of new acts of discrimination are inappropriate.” Gregory, 355 F.3d at 1279-80 (quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)).

         McAboy's EEOC Charge alleges that she was subject to harassment based on her sex and fired in retaliation for complaining about the alleged harassment. (Doc. 31-2 at 21.) McAboy's EEOC charge also asserts that she believed that her supervisor's explanation for her firing was “pretext for discrimination” and that she believed she was “discriminated against due to [her] sex” in violation of Title VII. (Id.) The Court finds that McAboy's disparate treatment claim grows out of her EEOC charge. An EEOC charge does not include a box to indicate discrimination based on disparate treatment or sexual harassment. However, sexual harassment and disparate treatment are both instances of sex discrimination, and not a new type of discrimination. Therefore, under the facts of this case, McAboy's disparate treatment claim grows out of the allegations in the EEOC charge and would properly be before this Court, if McAboy had actually alleged disparate treatment in her initial or amended complaint.[4]

         ii. McDonnell Douglas Framework

         Even if McAboy was allowed to bring her disparate treatment claim, it would still fail. When a plaintiff “attempts to prove intentional discrimination in violation of Title VII using circumstantial evidence, we apply the now familiar shifting burden framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).” Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999). The plaintiff must first establish a prima facie case of discrimination. Id. If the plaintiff can satisfy this burden, an inference of discrimination arises. Id. The burden is then shifted to the employer to refute this inference by articulating a “legitimate, nondiscriminatory reason for its action.” Id. If the employer articulates a legitimate reason, “then the burden shifts back to the plaintiff to show that the proffered reason is really pretext for unlawful discrimination.” Id. The offered reason is not a pretext for discrimination unless the plaintiff can show “both that the reason was false, and that the discrimination was the real reason.” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)).

         To make out a prima facie case, a plaintiff must show: “(1) she is a member of a protected class; (2) she was qualified for her job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably.” Curtis v. Broward Cty., 292 Fed.Appx. 882, 883 (11th Cir. 2008) (citing Maynard v. Bd. of Regents of Div. Of Univs of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003)). An adverse employment action may be an ultimate employment decision such as termination. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). To qualify as an adverse employment action, anything less than an ultimate employment decision must “in some substantial way, alter the employee's compensation, terms, conditions, or privileges of employment, deprive him or her of employment opportunities, or adversely affect his or her status as an employee.” Id. (citations omitted). To meet the “similarly situated” requirement, a plaintiff must show that “[she] is similarly situated in all relevant respects to the non-minority employee.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001).

         Westervelt does not contest that McAboy is a member of a protected class; that she was qualified for her job; and that she was subjected to what would constitute adverse employment actions. However, Westervelt argues that McAboy is unable to establish that Defendant treated similarly situated employees outside her class more favorably in order to establish a prima facie case. The Court agrees.

         McAboy argues that her suspension without pay, probation, and termination were all adverse employment actions based on her sex. When there are accusations of discriminatory discipline, the “quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.” Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). Therefore, the comparator must be “similarly situated to the plaintiff in all relevant respects.” Stone & Webster Const., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012) (quoting Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008)). When seeking to find a proper comparator from a pool of co-employees, the Court should not ask whether the employees hold the same job titles, but whether the employer subjected them to different employment policies. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011) (citing Lathem v. Dep't of Children and Youth Services, 172 F.3d 786, 793 (11th Cir. 1999)).

         However, McAboy has not presented evidence of similarly situated comparators. To support her argument that she was treated differently than male comparators, McAboy points to her own testimony that (1) her male supervisor told her that she was a liar, (2) that Westervelt did not apply its “zero tolerance” policy against Ashe, (3) that disciplinary policies were applied against her that were not applied against others like Ashe and Johnson, and (4) that her supervisor told her not to go to the office about her issues with Ashe because “they're going to fire both of y'all.” (Doc. 32 at 25-26.)

         Yet, the testimony McAboy cites does not present any basis for this Court or a jury to find that Westervelt treated any similarly situated comparators differently.[5] McAboy points to her own testimony that “they always say I'm lying” to assert that Westervelt credited males' versions of events when disciplinary actions are considered. However, the evidence McAboy points to indicates that Noland Scott had issues verifying her complaints, suggesting that McAboy may not have been similarly situated to these alleged male comparators who were believed instead of her. (See Doc. 31-3 at 16-17, Ex. 1.)[6]

         Additionally, although McAboy identifies Ashe and Johnson as comparators, she fails to provide any evidence as to why they are similarly situated. Later in her brief, McAboy does point to evidence that Johnson, an alleged male comparator, was not fired or disciplined for multiple violations of employee rules and having a number of final notices. (Doc. 32 at 32.) However, the evidence indicates that Johnson was not similarly situated to McAboy because he was often subject to discipline for attendance issues, and not for problems with co-workers or complaints on his use of language like McAboy. (Doc. 31- 7 at Ex. 1.)

         To the extent McAboy argues that Ashe engaged in the same conduct and was not disciplined, McAboy has not pointed this Court to evidence that Ashe had the same low performance ratings[7] or that Ashe was not disciplined for such language when it was brought to Westervelt's attention. See Walker v. St. Joseph's/Candler Health Sys., Inc., 506 Fed.Appx. 886, 890 (11th Cir. 2013) (finding that a comparator was not a proper comparator because the “quality and quantity of complaints against him” differed).[8]

         McAboy's deposition testimony does not identify any other employee who was on probation and violated a last chance notice but was not terminated. (Doc. 31-1 at 138-39.) Moreover, McAboy's testimony reveals that she lacks knowledge as to whether any other employees with her similar history of incidents were terminated by Westervelt or subject to different discipline, despite her argument otherwise in her brief. (Doc. 31-1 at 139.)[9] Ultimately, McAboy's complaint about alleged male comparators does not provide sufficient factual information for a jury to conclude that any of these individuals were “involved in or accused of the same or similar conduct.” Edmonds v University of Miami, 441 Fed.Appx. 721, 724 (11th Cir. 2011).

         Even if McAboy could establish prima facie case, Westervelt has met its burden to assert legitimate, nondiscriminatory reasons for its discipline and termination of Plaintiff. Westervelt asserts that McAboy was terminated due to a documented history of problems at work and a recent dispute with Ashe that “violated her last chance agreement.” (Doc. 31-3 at 42.). Prior to that incident, McAboy had consistently documented safety and performance related issues, including problems getting along with her co-workers.[10] Moreover, Westervelt argues that at the time McAboy was terminated she was still on probation for her failure to improve her performances and using her cell phone at her workstation at the time.

         McAboy attempts to create pretext by pointing to inconsistencies in Westervelt's explanation for her termination.[11] McAboy argues that there are inconsistencies because (1) the memo concerning her termination was dated June 2016 and October 2016, (2) Westervelt's explanation for her firing in the memo included an incident where Ashe was punished, and (3) her testimony that Westervelt inconsistently applied procedures to her that did not apply to others. However, none of these allegations create a question of material fact as to whether the proffered reason was both false and that discrimination was the real reason.

         While the inconsistent dating on the memo is suspect, McAboy has not presented sufficient evidence from which any reasonable factfinder could make an adverse inference that the information contained in it was false or discriminatory. The evidence supporting Westervelt's explanation is produced not only in the memo, but by documentary evidence, identified in the record by Defendant, of past disciplinary actions against McAboy and the testimony of the memos creators. Although this evidence may create a question of fact as to when the memo was created or its initial contents, it does not create a question of fact as to whether Westervelt's legitimate, nondiscriminatory explanation was pretextual.[12]

         Furthermore, McAboy's insistence that the memo is inconsistent is unavailing. In the memo documenting the reasons for McAboy's termination, Westervelt included as evidence of the hostile work environment McAboy created, a prior confrontation she had with Ashe. (Doc. 31-3 at 33.) McAboy attempts to manufacture an inconsistency by asserting that the inclusion of this incident creates an inconsistency because Ashe was later punished for his role in that altercation. However, the actual text from the memo McAboy cites states that “Morris and Shirley had a verbal altercation in the break room. They both said some things they should not have said and James told them both to stop.” (Id.) The memos mention of this incident with Ashe, in which he was disciplined, does little to create an inconsistency as it reveals that both McAboy and Ashe “said some things they should not have [said].” (Id.) Additionally, the memo contains other statements regarding McAboy's inability to get along with her co-workers. This is insufficient to create a genuine issue of material fact as to whether Westervelt's decision to fire McAboy was pretextual as it was based on her poor performance, including both her current disagreement with Ashe and her past issues with other co-workers. See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1377 (11th Cir. 1996) (noting that a plaintiff failed to show pretext because “there is nothing inconsistent between the [general] written reason and the more specific reason justifying [plaintiff's] termination.”).

         Lastly, McAboy argues “another ‘incoherence' or ‘inconsistency' is Westervelt's application of procedures to Plaintiff which did not apply to others.” (Doc. 32 at 27.) In support of this assertion, McAboy presents evidence that she was subject to coaching while at Westervelt and that this coaching did not require the production of documents, even though it could be a basis for termination. (Doc. 31-4 at 84.)[13] McAboy then asserts, without referencing any evidence, that these coaching sessions were the basis for additional discipline against her and that “no one else was required to participate in ‘coaching' sessions….” (Doc. 32 at 27.) However, the evidence presented by McAboy indicates that Johnson, McAboy's alleged male comparator, was in-fact subject to coaching. (See Doc. 31-7 at Ex. 1.)

         While the Court will interpret all reasonable inferences in favor of the plaintiff, the Court is not tasked with finding that a reasonable jury would make “an inference based on speculation and conjecture.” Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). Therefore, the Court finds that the only evidence McAboy has offered in support of her pretext argument, in this instance, is that she was subject to coaching that allowed for discretionary decisions to be made in terms of her employment. This evidence does little to rebut or call into question Westervelt's reliance on other documented instances of improper behavior as a basis for firing McAboy or imply that it was motivated by gender based animus. See McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986) (“Personal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a sex discrimination case by accusation.”) Thus, McAboy has failed to establish that Westervelt's proffered reasons for her termination or discipline were pretextual.

         iii. The Convincing Mosaic

         McAboy argues that her disparate treatment claim should nevertheless be allowed to proceed because she has presented sufficient circumstantial evidence to create “a reasonable inference of intentional discrimination.” Lockheed-Martin Corp., 644 F.3d at 1321 (finding that even if a plaintiff fails in her McDonnell Douglas claim, “[a] triable issue of fact exists if the record, viewed in the light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker.”).

         In Lockheed-Martin Corp., the Eleventh Circuit held summary judgment was inappropriate on a plaintiff's claim of disparate treatment even in absence of a proper comparator because there was substantial evidence of discriminatory racial animus, including documented racial tensions following a workplace shooting resulting from racism against black employees, and evidence indicating that the discipline matrix utilized included the plaintiff's protected class. Id. at 1329-30. Similarly, the Eleventh Circuit found that a Title VII plaintiff had created a convincing mosaic, when the plaintiff proffered evidence that that after disclosing her pregnancy, the fact that she was pregnant “became part of the decision-making process regarding her” and that “pregnancy was a subject of the discussions that led to her termination.” Holland v. Gee, 677 F.3d 1047, 1063 (11th Cir. 2012).

         McAboy has not presented a “convincing mosaic” of evidence because any evidence of gender -motivated animus in regard to her alleged disparate treatment in discipline and ultimate termination is missing. McAboy makes a number of allegations and conclusory statements that she was treated differently from other male employees. McAboy asserts that she has presented “evidence that she was treated worse than males at the plant because she was branded a liar and warned not to complain about her coworkers' performance.” (Doc. 32 at 23.) However, the evidence McAboy offers to support her assertion is Noland's testimony that he was “never able to validate that she was correct that other people were not doing their job” and a memorandum indicating that Noland had dealt with and investigated a number of unfounded ...

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