United States District Court, N.D. Alabama, Western Division
SHIRLEY A. MCABOY, Plaintiff,
THE WESTERVELT COMPANY, INC., Defendant.
MEMORANDUM OF OPINION
Scott Coogler, United States District Judge.
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.
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.
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
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.
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.
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
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.)
Standard of Review
judgment is appropriate “if the movant 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). 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).
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).
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
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.
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.
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).
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)).
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.
McDonnell Douglas Framework
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)).
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).
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.
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
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.)
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. 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.)
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.)
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 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”
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.) 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).
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. 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.
attempts to create pretext by pointing to inconsistencies in
Westervelt's explanation for her
termination. 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.
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
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.”).
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.) 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.)
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.
The Convincing Mosaic
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.”).
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).
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 ...