Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendants motion for summary judgment (Doc. 37), Plaintiffs opposition thereto (Doc. 46), and Defendants reply (Doc. 47). For the reasons explained below, the Court finds that Plaintiff has not supported a prima facie case of racial discrimination and also has not shown that Defendants legitimate, non-discriminatory, reason for terminating Plaintiff was pretextual. Accordingly, summary judgment will be granted in favor of Defendant.
FACTS
The Plaintiff in this case is a black male who alleges he was discriminated against on the basis of his race by his employer, Defendant AM/NS Calvert. (Doc. 9). Defendant manufactures steel in the form of heavy coils that are then transported to one of the storage areas, ST1, ST2, ST3, or ST4, where they are evaluated for any defects before being transported out. (Doc. 40-1, ¶¶ 3, 9). Plaintiff was hired in April 2011 as an Operator and was promoted to Packaging Coordinator in ST4 in 2013. (Doc. 41-2, ¶¶ 16, 17). Plaintiff understood from going through orientation when he was hired that Defendant had in effect an Equal Employment Opportunity Policy that prohibited discrimination. (Doc. 39-1, p. 13; Doc. 41-1, pp. 20-21).
Shipping and Packaging Coordinators in ST4 manage a crew of Team Members working under their supervision. (Doc. 40-1, ¶ 9). A Coordinators primary responsibility is vigilance of safety with Cranes and Team Members. (Doc. 40-1, ¶ 10; Doc. 40-2, p. 8). The Coordinators responsibilities include ensuring safety of all Team Members, as well as evaluating the receiving coils for any defects that violate customers coil specifications, packaging coils once that are confirmed in specification, and transporting the packaged coils to the required method of hauling. (Doc. 40-1, ¶ 9). A Coordinator is responsible for ensuring the crew is adhering to all Personal Protective Equipment (PPE) requirements, including gloves, sleeves, eye protection and other required items. (Doc. 40-1, ¶ 11). A Coordinator is responsible for overseeing the crews completion of all required computer-based trainings (CBTs), some of which pertain to safety awareness and PPE. (Doc. 40-1, ¶ 11). A Coordinator is to address and correct all safety concerns the moment they come up and is responsible for filling out Yellow Near Miss cards if necessary. (Doc. 40-2, p. 8). Team Members are required to fill out Near Miss cards whenever they see a potential hazard - to help prevent future safety incidents and to create an awareness by all Team Members in safety-sensitive positions to be vigilant in noticing and resolving potential hazards. (Doc. 40-1, ¶ 12). The cards require the Team Member to identify the hazard and also identify what steps the employee took to resolve the hazard. (Doc. 40-1, ¶ 13). Plaintiff testified that Coordinators were expected to complete two Near Miss cards per month and Operators were to complete Near Miss cards too. (Doc. 45-2, pp. 69-70).
In March 2015, Tim York became Team Manager of ST4. (Doc. 40-1, ¶ 2). As the Team Manager over ST4, York was familiar with Plaintiffs job performance and the job performance of other Packaging and Shipping Coordinators in that area. (Doc. 40-1, ¶ 8). York obtained the approval of Stephanie Davis, the Team Member Relations Specialist, prior to disciplining employees. (Doc. 40-1, ¶ 18). York reported to and worked closely with the Area Manager of ST4, Nick Kirkland. (Doc. 40-1, ¶ 8). York was not required to secure Kirklands approval to discipline employees with letters of reprimand or suspensions but was required to obtain Kirklands approval, as well as the approval of Stephanie Davis and the HR Director, Dale Laidlaw, before terminating an employee. (Doc. 40-1, ¶ 8; Doc. 41-1, ¶ 7; Doc. 41-3, p. 10).
On April 6, 2015, a Team Member on Plaintiffs crew, Damien Fountain, sustained a laceration due to failure to wear proper PPE - gloves. (Doc.39-1, pp. 71-72; Doc. 40-1, ¶ 20). York issued Plaintiff a letter of reprimand for the incident because he had often noticed Plaintiffs failure to reprimand his crew for failing to wear proper PPE and York had to continually remind Plaintiff to tell his crew to wear proper PPE. (Doc. 40-1, ¶ 21). Plaintiff admits that York had come to him on occasion and said that he had seen guys without their gloves on or something to that effect. (Doc. 39-1, pp. 72-73). However, Plaintiff does not feel it was fair to reprimand him because Plaintiff was in another building when the incident happened, they had just had their safety meeting for ST4, and Plaintiff had each of the Team Members sign a form saying they had been counseled that morning. (Doc. 39-1, pp. 71-74).
On June 22, 2015, York issued Plaintiff a second letter of reprimand. (Doc. 39-1, p. 75; Doc. 40-1, ¶ 23). The second letter of reprimand was because Plaintiff was delinquent in completing his computer-based training modules (CBTs) - he was 53 days late completing one module and was similarly delinquent for seven other CBTs. (Doc. 40-1, ¶ 23). Plaintiff says he was overdue because the computer that was available for him to complete the CBTs was in a noisy area where he could not concentrate. (Doc. 39-1, p. 77). Plaintiff never asked if he could take the CBTs somewhere else because he did not think York would listen to him. (Doc. 39-1, p. 77). Plaintiff admits that it was reasonable that he was expected to complete his trainings. (Doc. 39-1, p. 78).
York had observed other problems with Plaintiffs job performance while York was Team Manager. York sent Plaintiff numerous emails asking Plaintiff about incomplete, inaccurate or missing reports, his failure to complete CBTs and other duties and his failure to properly maintain his work area or perform housekeeping duties on shift. (Doc. 39-1, pp. 45-55; Doc. 40-1, ¶ 27). According to York, Plaintiffs productivity as a Team Coordinator was substandard. (Doc. 40-1, ¶ 25). York created charts every month that compared the productivity of the four shifts and for October and November 2015 Plaintiffs shift was outperformed by two of the other three shifts, for December 2015 Plaintiffs shift was outperformed by all three of the other shifts, and for January 2016, Plaintiffs shift was outperformed by one of the other shifts. (Doc. 40-1, ¶ 25; Doc. 40-3, pp. 15-18). Plaintiff disagrees with Yorks assessment of the production data. (Doc. 40-3, p. 6, ¶ 54).
On October 1, 2015, York emailed Plaintiff complaining that Plaintiff had failed to put an issue reporting form on quarantined coils or log the quarantined coils in the spreadsheet that morning, resulting in the quarantined coils not being recorded in the computer system. (Doc. 39-1, pp. 78-79). Plaintiff asserts that the issue reporting form could have gotten knocked off because they were double stacking coils in the quarantine area and there were big fans that could have blown it off. (Doc. 39-1, pp. 58-59, 81). According to York, it was Plaintiffs responsibility to place issue reporting forms on the coils and to check the quarantine bay before the end of shift to confirm that no coils were left without issue reporting forms for the next shift. (Doc. 40-1, ¶ 30). York reports that he had experienced similar issues with Plaintiff on September 28 and September 29. (Doc. 40-1, ¶ 30). Josh Abel, a Coordinator who would relieve Plaintiffs shift, brought to Yorks attention multiple times that Plaintiff had failed to properly label or move coils. (Doc. 40-1, ¶ 32; Doc. 41-4, ¶ 19). In the Oct. 1 email, York notified Plaintiff that he was going to draw up a Performance Improvement Plan (PIP) for Plaintiff. (Doc. 39-1, p. 79).
York decided to place Plaintiff on a Performance Improvement Plan (PIP) after consulting with Ms. Davis. (Doc. 41-2, ¶ 20). Davis drafted the PIP memorandum which was signed by Plaintiff on October 15, 2015, with Yorks input. (Doc. 40-1, ¶ 34; Doc. 41-2. ¶ 22; Doc. 41-3, pp. 42-43, Doc. 39-3, pp. 19-20). A memorandum addressed to Plaintiff and signed by Plaintiff on October 15, 2015 stated that the PIP is a written set of expectations designed to assist you in understanding your performance expectations and how that relates to the overall success of the organization. (Doc. 39-3, p. 15). The memorandum listed the following areas of performance expectations that Plaintiff needed to focus on to ensure [his] success as a Shift Coordinator:
• Create an environment where Team members know that standing around waiting is not acceptable. Also, encourage them to communicate with the cranes to stock their areas.
• Regardless of what is passed down, it is your responsibility once your shift starts to make sure all information is correct.
• Above all safety is first and foremost. Kenard needs to enforce this on his team. When a safety rule is broken, progressive discipline must be administered.
• This job requires multi tasking. Develop time management skills in order for tasks to be completed as expected.
• Kenard needs to manage all aspects of this Team. He needs to be more active in the overall state of the business during his shift. He needs to spend more time on the mill floor interacting and coaching other Team Members. (Manage By Walking Around) He is expected to keep a weekly report that documents this activity. Kenard needs to manage his Teams CBTs, as well as his own to ensure compliance.
(Doc. 39-3, pp. 15-16). The memorandum stated that Plaintiffs [f]ailure to meet these performance expectations may result in termination. (Doc. 39-3, p. 16). The PIP memorandum also stated that they would meet formally every 4 weeks for 90 days to assess how you are progressing towards these goals. (Doc. 39-3, p. 16).
During the 30-day period after Plaintiffs PIP was implemented, York observed numerous performance issues by Plaintiff, including: Plaintiffs failure to submit any Near Miss cards, a serious quality failure on Plaintiffs shift, Plaintiffs failure to follow Yorks instruction to move a particular coil to quarantine during his shift, Plaintiffs failure to send York a requested status report, Plaintiffs failure to pack up a list of coils during his shift as directed, Plaintiffs Team Members failure to properly communicate with the crane operator, Plaintiffs Team Members were observed standing around idly instead of attending to needed tasks and Plaintiffs failure to complete his CBTs as directed. (Doc. 40-1, ¶¶ 40-47). York and Davis met with Plaintiff for the 30-day review of his PIP on November 17, 2015. (Doc. 40-1, ¶ 39). York prepared a spreadsheet that listed the five areas the PIP stated he needed improvement in and also included a few additional specific performance issues to be addressed, including in relation to the third listed performance area involving safety, that Plaintiff does not participate as often as he should in the Near Miss Program. (Doc. 39-3, pp. 18-20; Doc. 40-1, ¶ 39; (Doc. 41-2, ¶ 24). At the 30-day review York told Plaintiff that he had not seen any improvement in his performance in the areas identified in the PIP and in fact, his performance was worse in some of the areas. (Doc. 40-1, ¶ 39; Doc. 41-2, ¶ 24). Plaintiff reports that he had a comment for each of the performance issues York identified. (Doc. 45-3, p. 40-41). York asked Plaintiff how he could help Plaintiff improve, but Plaintiff denied any assistance. (Doc. 40-1, ¶ 39; Doc. 41-2, ¶ 24).
York and Davis met with Plaintiff for his 60-day review of the PIP on December 17, 2015. (Doc. 40-1, ¶ 48). Prior to the meeting York reports that he had become quite frustrated with Plaintiff and his failure to improve. (Doc. 40-1, ¶ 48). Plaintiff had still not submitted a single Near Miss card. (Doc. 40-1, ¶ 48). York emailed Plaintiff numerous times between his 30-day review and his 60-day review regarding quality issues with coils Plaintiff was responsible for, Plaintiffs failure to follow instructions or complete tasks assigned, and his failure to accurately complete reports and other necessary logs. (Doc. 40-1, ¶¶ 49-54). Plaintiff had explanations for some of his failures, but York found the explanations to be unsatisfactory excuses. (Doc. 40-1, ¶¶ 52, 54). During the 60-day review, York told Plaintiff he had seen no improvement in the identified areas and specifically discussed Plaintiffs failure to submit any Near Miss Cards over the course of his PIP. (Doc. 40-1, ¶ 55). According to York and Davis, Plaintiff responded that he did not think the Near Miss Card program was worthwhile and that he had no interest or intention of participating in it. (Doc. 39-4, pp. 80-81; 40-1, ¶ 55; Doc. 41-2, ¶ 25). Plaintiff testified at his deposition that he does not think the Near Miss cards were worthwhile because a lot of time, the problem never gets fixed. (Doc. 39-1, pp. 98-99). After Plaintiff indicated he would not participate in the Near Miss Card program, York, with Davis approval, decided to suspend Plaintiff and they informed Plaintiff that he was suspended pending further review. (Doc. 40-1, ¶¶ 55, 56; Doc. 41-2, ¶ 25). According to Davis, they knew when they did the 60-day review that it was not working out with Plaintiff and they had plans to terminate him before the meeting occurred. (Doc. 45-1, p. 26).
Following Plaintiffs suspension, York discussed the circumstances with the Area Manager, Nick Kirkland, and Kirkland decided that Plaintiff should be terminated for his failure to improve in the PIP and his insubordination and rejection of the Near Miss program. (Doc. 39-4, pp. 82-84; Doc. 41-1, ¶¶ 28, 29). On January 11, 2016, Davis and York called Plaintiff to tell him he was terminated. (Doc. 40-1, ¶ 62). No one was hired to replace Plaintiff, instead the shipping coordinator for that shift, Shannon Scruggs, who is white, took over Plaintiffs packaging duties as the company transitioned from using two coordinators (one for shipping and one for packaging) to using one Logistics Coordinator per shift. (Doc. 40-1, ¶ 63; Doc. 39-4, p. 77). In 2017, Elston Walker, who is African-American, was hired to replace Scruggs as the Coordinator on A shift for ST4. (Doc. 39-4, p. 79).
From 2015 to 2016, there were four Shipping Coordinators and four Packaging Coordinators in ST4 under Tim Yorks management, Josh Abell, Josh Goodell, John Johnston, Greg Kunkel, Jay Langley, Chad Larimore, Shannon Scruggs, and Plaintiff. These coordinators received discipline while under Yorks supervision but, according to York, none of the conduct of the other coordinators warranted termination or ever culminated to the level of conduct exhibited by Plaintiff. (Doc. 40-1, ¶ 64).
Johnston was reprimanded for being twenty days overdue on completion of his CBTs in August 2015 and because of continued performance and attendance problems was placed on a PIP in September 2015. (Doc. 40-1, ¶ 65). At Johnstons 30-day review, York and Davis noted improvements in Johnstons communication with other Coordinators and improvement in his attendance. (Doc. 40-1, ¶ 67). At the 60-day review York noted that Johnston had continued to improve in those areas as well as in creating and fostering an environment of teamwork and empowering his team. (Doc. 40-1, ¶ 67). York noted Johnson had particularly improved his productivity in November and December 2015. (Doc. 40-1, ¶ 67). Johnston asked York to help him identify ways he could improve further. (Doc. 40-1, ¶ 67). By the 120-day review meeting, Johnston had improved in each of the identified performance issues and Davis and York agreed that he had successfully completed his PIP. (Doc. 40-1, ¶ 67). Johnston completed one Near Miss card in July 2015, one in September 2015, three in October 2015, and one in December 2015. (Doc. 45-4, pp. 44-47). Johnston received a letter of reprimand April 2016 for failure to complete housekeeping and other assigned tasks. (Doc. 40-1, ¶ 69). The letter of reprimand noted the previous PIP and included the following:
You should consider this Letter of Reprimand a last and final warning. Any further violations of AM/NS policies, procedures or performance expectations will result in further corrective action up to an including termination of employment.
(Doc. 40-6, p. 23). Johnston voluntarily resigned in 2017 for medical reasons. (Doc. 40-1, ¶ 29). Plaintiff contends that Johnston was a failure since day one and was written up numerous times but he was not terminated. (Doc. 39-1, p. 129). Plaintiff does not know how many times Johnston was written up, what areas Johnston was asked to improve in, how far behind his CBTs were, or whether he showed any improvement. (Doc. 39-1, pp. 129-130).
On March 10, 2015, One of Chad Larrimores team members received a laceration due to his failure to wear required PPE and on March 27, 2015 Larrimore failed to wear proper PPE while banding a coil. (Doc. 40-1, ¶ 71). York issued Larrimore a Letter of Reprimand on April 2, 2105 for failure to promote safety. (Doc. 40-1, ¶ 71). York requested that Larrimore receive a one-day suspension, but Davis suggested he issue the Letter of Reprimand. (Doc. 40-1, ¶ 71). In September 2015, York issued Larrimore a Letter of Reprimand for failing to catch a serious quality issue. (Doc. 40-1, ¶ 71). In June 2016, Larrimore received a Letter of Reprimand and was demoted for failing to properly manage his Team Members on shift which caused overcapacity and delay in ST4. (Doc. 40-1, ¶ 71). Plaintiff asserts that Larrimore walked off the job and still was not terminated. (Doc. 39-1, p. 127). Plaintiff reports that Larrimore told Plaintiff he walked out because York got in Larrimores face and dogged him in front of his peers and he walked out to keep from hitting him. (Doc. 39-1, p. 128). According to York, Larrimore did not walk off the job. (Doc. 39-1, ¶ 72). York reports that during a discussion with Larrimore, Larrimore became upset, said he needed to take a minute to cool down, and left the discussion, which was continued later. (Doc. 39-1, ¶ 72). Plaintiff also contends that Larrimore was the one that actually put the coil in the quarantine area the morning that [Plaintiff] was suspended and that Plaintiff was blamed for. (Doc. 39-1, p. 132). However, Plaintiff admits that even if the coil was put in quarantine during Larrimores shift, when Plaintiff came on shift and found the coil it was his responsibility to add it into the system. (Doc. 39-1, pp. 97-98).
Plaintiff reports he heard that Josh Goodell cursed York out, but he did not work with Goodell a lot and had never talked to Goodell about that and was not sure how Goodell was treated. (Doc. 39-1, pp. 128, 131). York reports that Goodell never cursed at him. (Doc. 40-1, ¶ 75). Plaintiff also points out that Greg Kunkel turned over a forklift and was not terminated. (Doc. 39-1, pp. 127, 130). According to York, the forklift incident was not Mr. Kunkels fault, but was caused by the weight of the object, not negligence or a violation of a safety rule. (Doc. 40-1, ¶ 74). Plaintiff testified that Josh Abells numbers were not any better than Plaintiffs, but Plaintiff does not know how his CBT numbers were. (Doc. 39-1, p. 131). Plaintiff testified that he knows Jay Langley was written up on several occasions and was not terminated, but he does not know what he was written up for. (Doc 39-1, p. 133).
Shannon Scruggs was issued a letter of reprimand in November 2016, after Plaintiffs termination, for three instances of failing to properly scan Quality Summary Sheets in Sharepoint. Plaintiff says he did not have any problem working with Scruggs. (Doc. 39-1, p. 28).
Plaintiff testified that York would refer to Plaintiff as you peoples all the time. (Doc. 39-1, pp. 75-76). Plaintiff reports that when York talked to him he would say You peoples, I dont understand you peoples. (Doc. 39-1, p. 76). Plaintiff testified that he asked York What the hell is you people? and York said he was not referring to Plaintiff as a black man, but to you as the north and the south. (Doc. 39-1, p. 76). Plaintiff testified that he never heard York say that to anyone else. (Doc. 39-1, p. 76).
DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted: 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. The trial courts function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson , at 249-250, 106 S.Ct. 2505. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. See Anderson , 477 U.S. at 251-252, 106 S.Ct. 2505. The moving party bears the burden of proving that no genuine issue of material fact exists. OFerrell v. United States , 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade , 178 F.3d 1175, 1187 (11th Cir. 1999). If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co. , 750 F.2d 838, 841 (11th Cir. 1985) ).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving party must make a sufficient showing to establish the existence of each essential element to that partys case, and on which that party will bear the burden of proof at trial. Howard v. BP Oil Company , 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Otherwise stated, the non-movant must demonstrate that there is indeed a material issue of fact that precludes summary judgment. See Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party may not rely merely on allegations or denials in its own pleading; rather, its response .... must be by affidavits or as otherwise provided in this rule be set out specific facts showing a genuine issue for trial. Vega v. Invsco Group, Ltd. , 432 Fed.Appx. 867, 870 (11th Cir. 2011). A mere scintilla of evidence supporting the [non-moving] partys 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) (citation omitted). [T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole. Tipton v. Bergrohr GMBH-Siegen , 965 F.2d 994, 998 (11th Cir. 1992). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574 at 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation omitted).
B. Plaintiffs Claims
Plaintiff claims he was discriminated against on the basis of his race when he was terminated by Defendant in violation of Title VII and 42 U.S.C. § 1981. (Doc. 9). It is well established that [c]laims of race discrimination under 42 U.S.C. § 1981 are analyzed in the same manner as claims brought under Title VII. Bolton v. Baldwin Cty. Pub. Sch. , 47 F.Supp.3d 1342, 1349 (S.D. Ala. 2014), affd, 627 F. Appx 800 (11th Cir. 2015) (citations omitted). Title VII makes it an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove discrimination by relying on either direct, circumstantial, or statistical evidence. See Walker v. NationsBank of Florida N.A. , 53 F.3d 1548, 1555 (11th Cir. 1995). Direct evidence is evidence which, if believed, proves the existence of discriminatory motive without inference or presumption Hamilton v. Montgomery County Bd. of Educ. , 122 F.Supp.2d 1273, 1279 (M.D. Ala. 2000) (quoting Carter v. Three Springs Residential Treatment , 132 F.3d 635, 641 (11th Cir. 1998) ). As the U.S. District Court for the Middle District of Alabama explained:
Not only must it be evidence of discriminatory actions or statements of an employer but the actions or statements at issue must correlate to the discrimination or retaliation complained of by the employee. Further, the statements must be made by a person involved in the challenged decision and must not be subject to varying reasonable interpretations.
Id. (quoting Lane v. Ogden Entertainment, Inc. , 13 F.Supp.2d 1261, 1274 (M.D. Ala. 1998) ). No direct evidence of discrimination has been submitted to the Court. None of the evidence offered proves without inference or presumption that the persons who made the employment decisions did so based on Plaintiffs race. Plaintiff has also not attempted to show discrimination through statistical evidence.
A plaintiff may attempt to show discrimination or retaliation based on circumstantial evidence through the application of the McDonnell Douglas burden-shifting analysis established by the Supreme Court. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. See Chapman v. AI Transport , 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation Patterns , 106 F.3d 1519, 1527-28 (11th Cir.1997) ).
Under the McDonnell Douglas framework, to prevail on a claim for discrimination based on circumstantial evidence, a plaintiff may establish a prima facie case of discrimination by showing:
(1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class.
Maynard v. Bd. of Regents of Div. of Universities of Fla. Dept of Educ. ex rel. Univ. of S. Fla. , 342 F.3d 1281, 1289 (11th Cir. 2003) (citations omitted). There appears to be no dispute that Plaintiff is a member of a protected class and that he suffered an adverse employment action when he was terminated. However, Defendant contends that Plaintiff was not qualified for his position, he was not replaced by anyone initially and was ultimately replaced by a person of the same protected class and he was not treated less favorably than similarly situated individuals outside his protected class.
As to whether Plaintiff was qualified, Defendant asserts that Plaintiff was not qualified because he failed or refused to perform the requirements of his position. However, it has been held that plaintiffs, who have been discharged from a previously held position, do not need to satisfy the McDonnell Douglas prong requiring proof of qualification. Damon v. Fleming Supermarkets Of Fla., Inc. , 196 F.3d 1354, 1360 (11th Cir. 1999) (citations and internal quotations omitted). Allegations that Plaintiff performed poorly do not show he was not qualified because where a plaintiff has held a position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima facie case can be inferred. Id. (citation and internal quotations omitted). Defendant argues that the cases cited by Plaintiff to support such a presumption are age discrimination cases under the ADEA, rather than Title VII race discrimination cases. (Doc. 47, p. 9). Defendant points to a Title VII case from this Court which listed the four prongs a plaintiff must show to make out a prima facie case and included the second prong requiring that the plaintiff show she was qualified to do the job. Johnson v. Mobile Infirmary Med. Ctr. , 2015 WL 1538774, at *9 (S.D. Ala. Apr. 7, 2015). However, in Johnson , the defendant did not contend that the plaintiff was not qualified and this Court made no pronouncement about whether or not it could be inferred that the second prong was satisfied because the plaintiff had worked in the position for a period of time. The Johnson case merely listed the four standard prongs of a prima facie discrimination case just as the Damon case listed four prongs (including that the plaintiff was qualified to do the job) of a prima facie age discrimination case before it determined that it could be inferred from the plaintiffs long tenure at the position that she was qualified. Damon , 196 F.3d at 1359-1360. Defendant has cited no cases that have held that this inference or presumption should not apply to Title VII discrimination cases and has offered no other explanation why Title VII race discrimination cases should be treated differently in this regard than age discrimination cases under the ADEA. Allowing the inference does not really eliminated the second prong from the requirements of a prima facie case, but rather satisfies the prong by presumption.
Where the evidence demonstrates that an employee did not meet the objective requirements of the position, the employees qualification may not be inferred from the fact that he held the position for an extended period of time. See, e.g., Dudley v. City of Bessemer, Ala. , 2014 WL 4829532, at *7 (N.D. Ala. Sept. 29, 2014) (plaintiff did not meet listed job qualification that she must be able to be certified as a Magistrate because her federal criminal conviction made her ineligible by law to be a Magistrate) (citing Anderson v. Embarq/Sprint , 379 Fed. Appx. 924, 929 (11th Cir.2010) (plaintiff could not establish he was qualified for his job where he could not perform the physical requirements of it, such as frequently lifting up to 70 pounds); Samuels v. Univ. of S. Ala. , 153 Fed. Appx. 612, 614 (11th Cir. 2005) (plaintiff did not establish she was qualified for position of Ultrasonographer II despite already holding the job where she lacked the requisite certification); Santillana v. Florida State Court Sys. , 2011 WL 722765, at *16 (M.D. Fla. Feb. 23, 2011) affd, 450 Fed. Appx. 840 (11th Cir. 2012) (plaintiff failed to show she was qualified for position she held where she could not demonstrate that she met all the objective requirements in the job announcement); Brady v. Santa Sweets, Inc. , 2007 WL 1017670, at *7 (M.D. Fla. Mar. 30, 2007) (plaintiff could not show he was qualified for job where defendant changed job requirements during plaintiffs tenure) ). In the instant case, Plaintiffs reported poor performance issues are subjective judgments regarding specific incidents that involve Plaintiffs attention to safety needs or how well he performed his duties. Plaintiffs reported outright refusal to participate in the Near Miss program might qualify as not meeting an objective requirement, but Plaintiff disputes that he completely refused to participate and reports that he merely expressed his opinion that he does not think the Near Miss cards were worthwhile. Although York was not happy with Plaintiffs performance regarding the Near Miss cards, the stated requirements of Plaintiffs position only required that Plaintiff fill out Near Miss cards when he saw a potential hazard. Although there was evidence that Coordinators were expected to fill out two Near Miss cards per month there was no company rule that required a specific quota. Looking at the evidence in the light most favorable to Plaintiff, the Court finds that Defendant has not shown that Plaintiff did not meet an objective requirement of the job. The Court finds that, in this case, Plaintiffs continued employment in the position for more than two years is sufficient to support the second prong of a prima facie case.
Defendant contends that Plaintiff cannot satisfy the fourth prong because he was neither replaced by a person outside his protected class, nor treated less favorably than a similarly-situated individual outside his protected class. Evidence of either of these would support a prima facie case. See Moore v. State of Ala. , 989 F.Supp. 1412, 1418 (M.D. Ala. 1997), affd sub nom. Moore v. Alabama , 178 F.3d 1303 (11th Cir. 1999). Defendant contends that no one was hired to replace Plaintiff because the shipping coordinator for that shift, Shannon Scruggs, took over Plaintiffs packaging duties as the company transitioned from using two coordinators (one for shipping and one for packaging) to using one Logistics Coordinator per shift. (Doc. 40-1, ¶ 63). An African-American employee was later hired to take Scruggs place as Logistics Coordinator. (Doc. 39-4, p. 79). This Court has held that where a longtime employee of the company took over a plaintiffs duties, resulting in a decrease in the number of employees, then the position was eliminated and the plaintiff was not replaced.
Gortemoller v. Intl Furniture Mktg., Inc. , 2010 WL 11506989, at *4 (S.D. Ala. Nov. 29, 2010), affd, 434 F. Appx 861 (11th Cir. 2011). Without some additional evidence that the position was not truly eliminated (as in Phillips [v. Aaron Rents, Inc. , 262 Fed. Appx. 202 (11th Cir. 2008) ] and Rollins [v. TechSouth, Inc. , 833 F.2d 1525 (11th Cir. 1987) ] ), Plaintiffs theory that he was replaced cannot be sustained. Id. Whenever a job is eliminated, in connection with a reduction in force or otherwise, at least some [of] the duties of the eliminated job will need to be undertaken by other employees. Blackburn v. Am. Tel. & Tel. Sys. , 925 F.Supp. 762, 768 (N.D. Ga. 1995). A person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiffs duties. Grosjean v. First Energy Corp. , 349 F.3d 332, 336 (6th Cir. 2003) (citations and internal quotations omitted). Accordingly, the Court finds that Plaintiff has not shown that she was replaced.
Plaintiff can still support the fourth prong of a prima facie case by showing that he was treated less favorably than a similarly-situated individual outside his protected class. Plaintiff points to the fact that John Johnston was not terminated even though he was behind in his Near Miss program participation and was deficient in his Computer Based Training. However, unlike Plaintiff, Johnston completed some Near Miss cards during the time period in question - he completed one Near Miss card in July 2015, one in September 2015, three in October 2015, and one in December 2015. Johnston was reprimanded and placed on a PIP the month before Plaintiff was placed on a PIP. However, unlike Plaintiff, Johnston showed improvement at both his 30-day and 60-day review. Also, unlike Plaintiff, Johnston did not refuse help and was not believed to have completely refused to perform any duties. In fact, Johnston asked York to help him identify ways he could improve further. By the 120-day review meeting Johnston had improved in each of the identified performance issues and was adjudged by Davis and York to have successfully completed his PIP. A few months after Plaintiffs termination, in April 2016, Johnston was reprimanded again and given a written warning that any further violations would result in his termination. This uncontroverted evidence indicates that Johnston was treated the same as Plaintiff for similar conduct and that Defendant had legitimate reasons for treating Johnston differently by not terminating him. Johnston worked towards completing his duties and improving his performance and was successful in doing so, whereas Plaintiff was not.
After reviewing the evidence regarding Defendants treatment of the other Coordinators under Yorks management, Josh Abell, Josh Goodell, Greg Kunkel, John Johnston, Jay Langley, Chad Larimore, and Shannon Scruggs, the Court finds that they were not treated preferentially. Most of the other Coordinators did not comply with the expectation that they submit two Near Miss cards per month, but none of the other Coordinators refused to participate at all or failed to submit any after being put on a PIP. The other Coordinators received discipline for certain incidents or poor performance, but their bad conduct did not culminate to the level of conduct exhibited by Plaintiff. Plaintiff has not shown that he was treated less favorably than the other coordinators. Looking at the evidence in the light most favorable to Plaintiff, as the non-movant, the Court finds that Plaintiff has not supported the fourth prong of a prima facie case.
Even if Plaintiff could support a prima facie case, the Court finds that Defendant has proffered a legitimate, non-discriminatory, reason for terminating Plaintiff and that Plaintiff has failed to show pretext. Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the Defendant, who must proffer a legitimate, non-discriminatory reason for the adverse employment action. The employers burden is exceedingly light. Hamilton , 122 F.Supp.2d at 1280 (quoting Meeks v. Computer Assoc. Intl , 15 F.3d 1013, 1021 (11th Cir. 1994) (internal quotations omitted) ). Because the employers burden is one of production-not persuasion-the employer need not persuade the court that it was actually motivated by the proffered reason[ ]. Kidd v. Mando American Corp. , 731 F.3d 1196, 1205 (11th Cir. 2013) (quoting Chapman v. AI Transp. , 229 F.3d 1012, 1024 (11th Cir. 2000) ). If the Defendant proffers a legitimate reason for the employment decisions, the burden then shifts back to the plaintiff, who must show that the employers proffered reasons are pretextual, or merely a cover for discrimination. Id. At the pretext stage, in order to survive summary judgment, Plaintiff must provide sufficient evidence to allow a reasonable fact finder to conclude, at a minimum, that the proffered reasons were not actually the motivation for the employers decision. Miller v. Bed, Bath & Beyond, Inc. , 185 F.Supp.2d 1253, 1270 (N.D. Ala. 2002) (citing Combs , 106 F.3d at 1538 ). Plaintiff may do this (1) by showing that the employers legitimate nondiscriminatory reasons should not be believed; or (2) by showing that, in light of all of the evidence, a discriminatory reason more likely motivated the decision. Id. (citations omitted). This is done by pointing to such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons ... that a reasonable factfinder could find them unworthy of credence. Hamilton , 122 F.Supp.2d at 1281 (quoting Combs , 106 F.3d at 1539 ). The ultimate burden of persuasion remains with the plaintiff at all times in cases involving merely circumstantial evidence. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
In satisfying the ultimate burden of proving that the adverse employment action was on account of race, a plaintiff need not establish that race was the sole reason for the action, but that it was a determinative factor in the employers decision. See Anderson v. Savage Laboratories, Inc. , 675 F.2d 1221, 1224 (11th Cir. 1982) (citing Haring v. CPC International, Inc. , 664 F.2d 1234, 1239-40 (5th Cir. 1981) ). However, it should be noted that federal courts do not sit as a super-personnel department that reexamines an entitys business decisions. Chapman , 229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir. 1991) ). It is not appropriate for either the plaintiff or this Court to recast an employers proffered non-discriminatory reasons or substitute his business judgment for that of the employer. Chapman , 229 F.3d at 1030. An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. Nix v. WLCY Radio/Rahall Communication , 738 F.2d 1181, 1187 (11th Cir. 1984). An employers reason is not pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason. Brooks v. County Commn of Jefferson County , 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in original) (quoting St. Marys Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ). Courts are not in the business of adjudging whether employment decisions are prudent or fair, but rather, their sole concern is whether unlawful discriminatory animus motivates a challenged employment decision. Damon , 196 F.3d at 1361.
In the instant case, Defendant terminated Plaintiff because, after Plaintiff had been reprimanded and had continuing problems with his job performance, he was put on a PIP which he failed to successfully complete, and he indicated he would not comply with the Near Miss program. Defendant has clearly met the exceedingly light burden of production on this issue. Thus, the burden then shifts back to Plaintiff to show that his employers proffered reasons are pretextual, or merely a cover for discrimination.
Plaintiff contends that York made statements that show a racial animus. Plaintiff reports that York often told him I dont understand you peoples. According to Plaintiff, he asked York why he referred to him that way and York responded that he was not referring to Plaintiffs race, but to the north and the south. The meaning of the words you peoples in the context given is ambiguous. See e.g. Randall v. Intercontinental Exch., Inc. , 2005 WL 8154303, at *16 (N.D. Ga. June 2, 2005), report and recommendation adopted, 2005 WL 8154287 (N.D. Ga. July 14, 2005) (to assume that Tullis meant to refer to plaintiffs race when he [said you people] would constitute mere speculation.); see also Umani v. Michigan Dept of Corr. , 432 F. Appx 453, 459 (6th Cir. 2011) (finding the use of the term you people does not qualify as a clear reference to race. Without other allegations indicating a racist meaning, this ambiguous comment is not in and of itself racist.); Alvarado v. Health Net, Inc. , 21 F.3d 1111 (9th Cir. 1994) (finding statements like I dont understand you people are not necessarily racial). The fact that York explained the meaning to be non-racial before Plaintiff filed any sort of complaint is evidence that the comments were in fact devoid of racial content. Even if the comments could have a racial meaning, ambiguous, isolated stray remarks alone will not establish pretext. Ash v. Tyson Foods, Inc. , 190 F. Appx 924, 926 (11th Cir. 2006) (even if [the use of the word boy could be] construed as racial, we conclude that the comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable basis for a finding of racial discrimination). Such statements do not show pretext when there is no indication that they are related to the employment decision. Id. ; see also Joseph v. New Jersey Transit Rail Operations Inc. , 586 F. Appx 890, 892 (3d Cir. 2014) (Some courts have determined that the phrase you people is too ambiguous to constitute direct evidence of discrimination when used in isolation, as it was here. Although we do not doubt that racial animus will sometimes lurk beneath the surface of this phrase, something more than speculation is needed to connect those dots. Here, [e]ven if we were persuaded that the use of the phrase you people in this context would constitute direct evidence ... [Joseph] ha[s] not shown that [the decisionmaker] relied on [Josephs] race in deciding to terminate him. (citations and internal quotations omitted) ); Clay v. Interstate Nat. Corp. , 124 F.3d 203 (7th Cir. 1997) (Although Trandels subsequent you people remark is questionable, it was merely an isolated remark in a context independent of any adverse employment action and which, in light of the substantial evidence of Clays inadequate performance, could not persuade a rational factfinder to believe that Trandel had discriminated against him on the basis of race."). The Court finds the comments do not show that Plaintiff was discriminated on the basis of race.
Plaintiff also questions Yorks treatment of him because other Coordinators did not fill out the expected two Near Miss cards per month and had other performance issues but were not terminated. However, as previously discussed, a review of the evidence regarding the other Coordinators conduct and treatment reveals that they were not treated preferentially. The other Coordinators were disciplined just as Plaintiff was, but their perceived failures and inadequate conduct did not rise to the level exhibited by Plaintiff. Plaintiff contends that Yorks assessment of his and the other Coordinators was wrong. But even if York was mistaken in his evaluation of the individual incidents Plaintiff was reprimanded for or was mistaken in his conclusions about Plaintiffs performance or the other Coordinators performance, his mistake does not show pretext. As stated above, an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. Nix , 738 F.2d at 1187 (emphasis added).
The fact that Davis and Kirkland relied on Yorks assessment of the circumstances also does not show pretext. Their reliance on York does not show racial bias, but merely that they valued his judgment because he interacted directly with Plaintiff and the other Coordinators more and was in a better position to judge their work. If York was shown to be biased, then their reliance on his judgment would taint their decision to terminate Plaintiff. But the evidence has not shown that here.
Plaintiff also points to testimony indicating that Davis and York had already decided to terminate Plaintiff before they met with him for his 60-day review. After meeting with Plaintiff and discussing their issues with his work, they suspended Plaintiff. Plaintiff was not actually terminated until York discussed the situation with the Area Manager, Kirkland, and Kirkland agreed and approved the termination.
Nothing in this scenario indicates racial bias. The fact that York and Davis thought Plaintiff should be terminated before they met with Plaintiff at his 60-day review does not show bias. The evidence indicates that York was very frustrated with Plaintiffs performance and lack of improvement during the 60 days. Whether their meeting with Plaintiff was to give him one last chance to explain himself and promise to do better or was just a formality before they suspended him and sought formal approval to terminate him, the timing of their decision does not show bias. Nor is bias shown by the fact that York then went to Kirkland to obtain the final decision from Kirkland. York was required to secure Kirklands approval before terminating an employee. York was simply following company policy.
As explained above, the Court is not here to judge whether employment decisions are prudent or fair but whether the decisions were motivated by unlawful discriminatory animus. Damon , 196 F.3d at 1361. The Court finds there is not sufficient evidence for a reasonable fact finder to conclude that the proffered reasons were not actually the motivation for Defendants decision. Plaintiff has not shown that Defendants legitimate nondiscriminatory reasons should not be believed or that a discriminatory reason more likely motivated the decision.
CONCLUSION
For the reasons set forth above, Defendants motion for summary judgment (Doc. 37) is GRANTED and Plaintiffs claims are DISMISSED with prejudice .
DONE and ORDERED this the 29th day of October, 2018.
The McDonnell Douglas framework is not the only way to use circumstantial evidence to survive a motion for summary judgment. Chapter 7 Trustee v. Gate Gourmet, Inc. , 683 F.3d 1249, 1255 (11th Cir. 2012). If a plaintiff presents circumstantial evidence that creates a triable issue concerning the employers discriminatory intent, [he] will always survive summary judgment. Id. (quoting Smith v. Lockheed-Martin , 644 F.3d 1321, 1328 (11th Cir. 2011) ). [I]f the circumstantial evidence is sufficient to raise a reasonable inference that the employer discriminated against the plaintiff, summary judgment is improper. Id. (quoting Lockheed-Martin Corp. , 644 F.3d at 1328 ).
In Phillips , some of the plaintiffs duties were taken over by another employee but the store hired another employee after the plaintiff left and gave the new employee some of the plaintiffs duties. Phillips , 262 Fed. Appx. at 209.
In Rollins :
The purported replacement, Richardson, was hired just two months prior to Rollins termination. When Richardson was hired, Rollins was instructed to train Richardson to do her work. After Rollins was terminated, some of her former job duties were performed by Richardson. In the months immediately prior to Rollins termination, changes in the defendants customer contract eliminated Rollins primary job responsibility. Rollins contend[ed] that TechSouth, intending to fire her, restructured and relabeled her position, hired someone else to fill it, had her train that person, and then terminated her."
Gortemoller , 2010 WL 11506989, at *3 (quoting Rollins , 833 F.2d at 1529 ).
The Court notes that not all Circuits agree. See e.g. Griffin v. Sisters of Saint Francis, Inc. , 489 F.3d 838, 845 (7th Cir. 2007) (When an employee in a unique position is terminated and her position is not filled, but employees outside the protected class assume the fired employees responsibilities, the employer has effectively replaced the employee.).
The cats paw theory applies when a decisionmaker acts exclusively based on the recommendation of a biased party without independently investigating the complaint against the employee or evaluating the employees situation. See Llampallas v. Mini-Circuits, Lab, Inc. , 163 F.3d 1236, 1249 (11th Cir. 1998). In such a case, causation is established because the recommender is using the decisionmaker as a mere conduit, or cats paw to give effect to the recommenders discriminatory animus. Id.