United States District Court, M.D. Alabama, Northern Division
ORDER AND RECOMMENDATION OF THE MAGISTRATE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
April 18, 2017, pro se Plaintiff filed a complaint
against Hwashin America Corporation (“Hwashin” or
“Defendant”). Doc. 1. Plaintiff's complaint
alleges violations of Title VII of the Civil Rights Act of
1964 stemming from her termination, failure to promote,
harassment, and failure to follow due process requirements
set forth in the employee handbook. Id. at 1, ¶
8. Plaintiff states that Defendant's conduct was
discriminatory based upon race, sex, and age. Id. at
1, ¶ 10. Plaintiff also seeks relief pursuant to the Age
Discrimination in Employment Act (“ADEA”), Equal
Pay Act (“EPA”), “Alabama Breach of
Employment Handbook Contract Alabama Law, ” and the Due
Process Clause. Id. at 3, ¶ 19.
15, 2017, Defendant filed an answer. Doc. 11. On June 28,
2018, Plaintiff filed a motion for summary judgment to which
she attached declarations signed by Alexander Wilson and
Brandon Lawson, as well as a document purporting to show the
names, sexes, and “[p]robable [a]ges” of certain
“Team Leaders” in Defendant's “stamp
department” both before and after her termination. Doc.
54, 54-1-54-3. On July 2, 2018, Defendant filed a motion for
summary judgment and brief. Docs. 56, 57. On July 23, 2018,
Defendant responded in opposition to Plaintiff's motion
for summary judgment. Doc. 62. On July 27, 2018, Plaintiff
filed an “AFFIDAVIT Reply in Response to
Defendant's Motion for Summary Judgment, ” to which
she attached Defendant's initial disclosures and
responses to interrogatories and requests for production.
Doc. 67, 67-1- 67-3. On August 3, 2018, Defendant filed a
reply in support of its motion for summary judgment. Doc. 69.
addition to the cross motions for summary judgment, pending
before the court is Defendant's motion asking the court
to strike certain portions of Plaintiff's evidentiary
submissions in support of her motion for summary judgment.
Doc. 63. On August 7, 2018, Plaintiff replied in objection to
Defendant's motion to strike. Doc. 70.
pending before the court is Plaintiff's motion for
alternative dispute resolution filed July 18, 2018. Doc. 61.
On August 7, 2018, Defendant responded in opposition, stating
that it was “not currently interested in pursuing a
settlement” based on its pending motion for summary
judgment. Doc. 66 at 2.
the matters before the court are fully briefed, they are ripe
for resolution or recommendation to the United States
District Judge. Upon consideration of Defendant's
motion to strike (Doc. 63), the undersigned will GRANT the
motion. Upon consideration of the parties' cross motions
for summary judgment, the evidentiary materials filed in
support thereof, the pleadings, and for the reasons that
follow, the undersigned Magistrate Judge RECOMMENDS that
Plaintiff's Motion for Summary Judgment (Doc. 54) be
DENIED, that Defendant's Motion for Summary Judgment
(Doc. 56) be GRANTED, and that this case be dismissed.
Accordingly, the undersigned finds that Plaintiff's
motion for alternative dispute resolution (Doc. 61) is DENIED
Defendant's Motion to Strike
undersigned turns first to Defendant's pending motion to
strike (Doc. 63), because such determination may be pertinent
to the recommendation on the parties' cross motions for
summary judgment. Defendant moves to strike Exhibit A to
Plaintiff's motion for summary judgment (Doc. 54-1), an
evidentiary submission in which Plaintiff has compiled the
names, sexes, and “[p]robable [a]ges” of Team
Leaders in Defendant's “stamp department”
both “before and after [Plaintiff's]
termination.” Doc. 54-1 at 1. In indicating the alleged
Team Leaders' ages, Plaintiff has described them in terms
of decades, such as “20's, ” “30's,
” and “40's.” Id. Defendant
objects that this evidentiary submission, which on its face
contains only “probable ages, ” is “based
solely upon Plaintiff's speculation” and lacks a
foundation of personal knowledge. Doc. 63 at 2.
undersigned agrees. Federal Rule of Civil Procedure 56(c)(4)
governs the form of affidavits in support of a motion for
summary judgment and provides that such an affidavit
“must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4) (emphasis added).
Similarly, Federal Rule of Evidence 602 states that
“[a] witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.”
Fed.R.Civ.P. 602. Consequently, when considering a motion for
summary judgment, “a court does not accept testimony
that is not based on personal knowledge.” Sullivan
v. United Parcel Serv., Inc., No. 1:07-cv-0976-JEC-LTW,
2008 WL 11320143, at *5 (N.D.Ga. June 16, 2008) (citation
omitted). A court is “bound to accept . . . as
true” statements in an affidavit or declaration that is
made on personal knowledge, “unless the context
demonstrate[s] otherwise.” Martin v. Rumsfeld,
137 Fed.Appx. 324, 326 (11th Cir. 2005).
in this case, the affidavit is not based on Plaintiff's
personal knowledge with respect to the Team Leaders'
ages. Plaintiff's submission openly acknowledges that it
is based on her speculation, not personal knowledge,
regarding the Team Leaders' ages. Therefore,
Plaintiff's evidentiary submission fails to provide a
foundation sufficient to show that the actual ages of the
named Team Leaders are within her personal knowledge.
the undersigned will GRANT Defendant's motion to strike
(Doc. 63) to the extent that it will strike and exclude from
consideration Plaintiff's statements regarding the
probable ages of the Team Leaders. Because Defendant did not
object to Plaintiff's statements regarding the names and
sexes of the Team Leaders, the undersigned will not strike
those portions of Plaintiff's evidentiary submission.
Motions for Summary Judgment
parties have filed cross motions for summary judgment. Docs.
54, 56. Before addressing the motions, the undersigned will
provide the applicable standard of review.
Standard of Review
Federal Rule of Civil Procedure 56(a), a reviewing court
“shall grant a motion for summary judgment if the
movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only
disputes about material facts will preclude the granting of
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). “An issue of fact is
‘genuine' if the record as a whole could lead a
reasonable trier of fact to find for the nonmoving party. An
issue is ‘material' if it might affect the outcome
of the case under the governing law.” Redwing
Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489,
1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at
Rule 56, summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The party asking for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrates the absence of a genuine issue of
material fact.” Id. at 323. The movant can
meet this burden by presenting evidence showing there is no
dispute of material fact, or by showing the non-moving party
has failed to present evidence in support of some element of
her case on which she bears the ultimate burden of proof.
Id. at 322-23.
the movant has satisfied this burden, the non-moving party
must “go beyond the pleadings and by [her] own
affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,' designate
‘specific facts showing that there is a genuine issue
for trial.'” Id. at 324. In doing so, and
to avoid summary judgment, the non-movant “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
parties must support their assertions “that a fact
cannot be or is genuinely disputed” by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations[ ], admissions,
interrogatory answers, or other materials” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A) and (B).
nonmovant “fails to properly address another
party's assertion of fact” as required by Rule
56(c), then the court may “consider the fact undisputed
for purposes of the motion” and “grant summary
judgment if the motion and supporting materials- including
the facts considered undisputed-show that the movant is
entitled to it.” Fed.R.Civ.P. 56(e)(2) and (3).
determining whether a genuine issue for trial exists, the
court must view all the evidence in the light most favorable
to the non-movant. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
Likewise, the reviewing court must draw all justifiable
inferences from the evidence in the nonmoving party's
favor. Anderson, 477 U.S. at 255. However,
“mere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment
motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam). Furthermore, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990); see also Anderson, 477 U.S. at
249-50 (“If the evidence [on which the nonmoving party
relies] is merely colorable, or is not significantly
probative, summary judgment may be granted.”) (internal
citations omitted). A reviewing court is restrained during
summary judgment proceedings from making the sort of
determinations ordinarily reserved for the finder of fact at
a trial. See Strickland v. Norfolk S. Ry. Co., 692
F.3d at 1154 (citations and quotations omitted)
(“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he is
ruling on a motion for summary judgment or for a directed
verdict.”). After the nonmoving party has responded to
the motion for summary judgment, the court must grant summary
judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a).
undersigned has carefully considered the pleadings in this
case and the documents in support of the parties' motions
for summary judgment. The parties' submissions establish
the following relevant undisputed facts.
is an automotive manufacturer for Hyundai Motors
Manufacturing of America. Doc. 58-2, Simmons Dec. ¶ 2.
Defendant has policies in place strictly prohibiting any form
of discrimination, retaliation, or harassment on the basis of
race, age, or sex in all terms and conditions of employment.
Id. ¶ 5, Att. 1 Sec. 1.4. These policies are
set forth in a “Team Member Handbook” which was
distributed to and applied to all employees. Id.
¶ 5. The Team Member Handbook states that employees who
believe they have witnessed or been subjected to any unlawful
conduct should report the conduct to their supervisor or to
Defendant's human resources department. Doc. 58-1,
Pl.'s Depo. 27:1-4; Doc. 58-2 Simmons Dec. ¶ 5, Att.
1, Section 1.4.
also had in effect “Team Member Conduct and Work Rules,
” which were distributed to and applied to all
employees, and which outlined and described specific
requirements and expectations for employee conduct. Doc. 58-2
Simmons Dec. ¶ 15, Att. 1, Section 3.1. These rules
include a list of “major offenses that would almost
always result in discharge, ” including
“[u]ndermining the authority of upper
management.” Id. Defendant's Team Member
Handbook also states that, “[t]his handbook is not a
contract nor offer to contract” and that team members
are employed at will, unless they “have a written
employment contract signed by the president of Hwashin . . .
and approved by the designated Hwashin America Corporation
Management Team by written resolution.” Id.,
Att. 1, Sec. 1.1.
began working with Defendant as an operator in the Stamping
Department on March 21, 2005. Doc. 58-1, Pl.'s Depo.
23:3-11; 27:18-20, Att. Ex. 3. In 2008, Plaintiff was
promoted to “Team Leader” in the Stamping
Department. Id. at 30:13-22; 32:2-7; 33:3-9, Att.
Ex. 4. Team Leaders are hourly workers who perform production
work and also help monitor team members in the course of
their work. Doc. 58-2 Simmons Dec. ¶ 7; Doc. 58-3, Sedan
Dec. ¶ 3. Team Leader is not a management role, but team
Lead Leaders help convey management's directives and
implement company goals. Id.
2013, Plaintiff was transferred to a new supervisor, Terry
Sedan, after Plaintiff's supervisor at the time
complained that she was not getting along with other
employees. Doc. 58-1, Pl. Depo 35:12-13; 43:16-20; 50:16-17;
Doc. 58-2, Simmons Dec. ¶ 9; Doc. 58- 3, Sedan Dec.
¶ 3. Between 2012 and 2015, Plaintiff received annual
pay increases, partially because of performance evaluations
completed by Mr. Sedan. Doc. 58-1, Pl. Depo 43:1-5, Att. Ex.
8. In April 2015, Plaintiff reached the top of
Defendant's pay scale for Team Leaders, which does not
provide for pay increases based on length of employment
beyond ten years. Doc. 58-1, Pl.'s Depo. 37:21-38:12;
74:1-5; 87:15-18; Att. Ex. 8.
crux of Plaintiff's complaint involves two incidents that
occurred in 2016. In June 2016, Mr. Sedan directed Alexander
Wilson, an African American male, to stay after his shift to
finish counting parts. Doc. 58-3, Sedan Dec. ¶ 4; Doc.
58-5, Wilson Dec. ¶ 3. Mr. Wilson's sister, Alexis
Wilson, an African American female, also stayed to help count
parts. Doc. 58-1, Pl.'s Depo. 51:20-52:14; Doc. 58-3,
Sedan Dec. ¶ 4; Doc. 58-5, Wilson Dec. ¶ 3.
Plaintiff disagreed with Mr. Sedan's decision to let
employees stay after the end of the shift to count parts and
told Mr. Alexander and Ms. Wilson that she had clocked them
out and to go home. Doc. 58-1, Pl.'s Depo. 51:20-52:16;
Doc. 58-3, Sedan Dec. ¶ 4, Doc. 58-5, Wilson Dec. ¶
3. Plaintiff did not consult with her supervisor, Mr. Sedan,
as she was required to do, before sending Mr. Alexander and
Ms. Wilson home. Doc. 58-1, Pl.'s Depo. 51:20-52:16; Doc.
58-3, Sedan Dec. ¶ 4; Doc. 58-5, Wilson Dec. ¶3.
Following this incident, Plaintiff complained to Kista
Hinson, a human resources assistant manager, about Mr. Sedan
letting Mr. Wilson and Ms. Wilson work late. Doc. 58-4,
Hinson Dec. ¶ 4; Doc. 58-1, Pl.'s Depo. 50:8-51:9.
The following day, Mr. Sedan met with Plaintiff and Mr.
Wilson to discuss the incident. Plaintiff did not make any
complaints during this meeting. Doc. 58-3, Sedan Dec. ¶
5; Doc. 58-5, Wilson Dec. ¶ 4.
second incident involves an incentive program in which
Defendant provided gift cards to production workers if a line
had met its production targets. Doc. 58-1, Pl.'s Depo.
56:15-17; Doc. 58-2, Simmons Dec. ¶ 10; Doc. 58-3, Sedan
Dec. ¶ 7. The gift cards were typically distributed to
supervisors who, in turn, distributed the gift cards to team
members. Doc. 58-1, Pl.'s Depo. 56:18-57:2; 58:12; Doc.
58-2, Simmons Dec. ¶ 10; Doc. 58-3, Sedan Dec. ¶ 7.
Mr. Sedan always distributed the gift cards to team members
who worked on the line or press, but not to the team leader.
Doc. 58-2, Simmons Dec. ¶ 10; Doc. 58-3, Sedan Dec.
¶9. In June 2016, Mr. Sedan distributed gift cards to
four workers in the Stamping Department who had met their
production target for the previous month. Doc. 58-1,
Pl.'s Depo. 58:18-20; 59:4-15; Doc. 58-2, Sedan Dec.
¶ 9; Doc. 58-5, Wilson Dec. ¶ 6; Doc. 58-6, Lawson
Dec. ¶ 4. One of these workers was Brandon Lawson. Doc.
58-1, Pl.'s Depo. 60:2-3; Doc. 58-2, Sedan Dec. ¶ 9;
Doc. 58-5, Wilson Dec. ¶ 6; Doc. 58-6, Lawson Dec.
¶ 4. Mr. Lawson had been working for approximately three
weeks, but Mr. Sedan determined that because of Mr.
Lawson's contributions and hard work, he deserved the
gift cards. Doc. 58-3, Sedan Dec. ¶ 9. Plaintiff
disagreed with Mr. Sedan's decision. Doc. 58-1, Pl.'s
Depo. 63:10-64:1; Doc. 58-3, Sedan Dec. ¶ 10. She later
told Mr. Lawson that he did not deserve the gift cards and
that she should have received them because he had not been
employed long enough. Id.; Doc. 58-1, Pl.'s
Depo. 63:22-64:1; Doc. 58-6, Lawson Dec. ¶¶ 1, 4.
Plaintiff told Mr. Lawson that he should give her his gift
cards, which he then did. Id. Plaintiff later used
the gift cards. Doc. 58-1, Pl.'s Depo. 63:22-64:3.
learning of Plaintiff's actions, Mr. Sedan immediately
reported the incident to the human resources department. Doc.
58-2, Simmons Dec. ¶ 11; Doc. 58-3, Sedan Dec. ¶
10; Doc. 58-4, Hinson Dec. ¶ 6. On June 7, 2016,
Plaintiff was suspended pending an investigation. Doc. 58-1,
Pl.'s Depo. 66:19-21; Doc. 58-2, Simmons Dec. ¶ 12;
Doc. 58-4, Hinson Dec. ¶ 7. Human resources manager,
Josh Simmons, and assistant manager, Kista Hinson, conducted
the investigation. Id. Following their
investigation, it was determined that Plaintiff had taken the
gift cards from Mr. Lawson, and that, in so doing, she had
undermined Mr. Sedan's authority and misappropriated
company property intended for another employee for her own
personal gain. Doc. 58-1, Pl.'s Depo. 66:19-67:13, Att.
Ex. 9; Doc. 58-2, Simmons Dec. ¶ 14. As a result, her
employment was terminated on June 23, 2016. Doc. 58-1,
Pl.'s Depo. 67:11-13; 68:2-7, Att. Ex. 9; Doc. 58-2,
Simmons Dec. ¶ 15. The decision to terminate was made
jointly by Mr. Simmons and Ms. Hinson. Doc. 58-1, Pl.'s
Depo. 66:19-67:13; Doc. 58-2, Simmons Dec. ¶ 15; Doc.
58-4, Hinson Dec. ¶ 9. Mr. Sedan played no role in the
decision to terminate Plaintiff's employment. Doc. 58-2,
Simmons Dec. ¶ 15; Doc. 58-3, Sedan Dec. ¶ 11; Doc.
58-4, Hinson Dec. ¶ 9.
human resources department has received no other reports of
employees taking gift cards from other employees. Doc. 58-2,
Simmons Dec. ¶ 16; Doc. 58-4, Hinson Dec. ¶ 10;
Doc. 58-1, Pl.'s Depo. 68:15-20. Several years ago,
Safety Coordinator Chuck Branum made Mr. Simmons aware that
some drums were missing, but it was ...