Opinion
Civil Action 99-D-765-N
May 7, 2001
David G. Flak, Montgomery AL, for plaintiff.
Leura Garrett, Office of the United States Attorney, Montgomery, AL, for defendant.
MEMORANDUM OPINION AND ORDER
Before the court is the Federal Defendants' Motion To Alter Or Amend Judgment, which was filed December 7, 2000. (Doc. No. 70.) The court ordered the parties to prepare a list of disputed and undisputed facts for trial. The Government filed its list on February 27, 2001. Plaintiff filed a Response on April 2, and the Government issued a Reply on April 23. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the Government's Motion is due to be granted. This case is due to be dismissed.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this lawsuit under 28 U.S.C. § 1331 (federal question). The parties do not contest personal jurisdiction or venue.
II. STANDARD FOR RECONSIDERATION OF SUMMARY JUDGMENT
Because the denial of a motion for summary judgment is an interlocutory order, the trial court may reconsider or reverse its decision for any reason it deems sufficient. See Canaday v. Household Retail Serv., Inc., 119 F. Supp.2d 1258, 1260 (M.D. Ala. 2000). The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. p. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. INTRODUCTION
This is the third time that the court has visited this case. The court granted summary judgment, then reconsidered its ruling, and now everyone wants a third crack at it. As explained previously, the court had difficulty going through the pleadings and actually finding the facts. No one took any depositions, and so the court is left with declarations that are heavy on hearsay, conclusory allegations, and self-serving statements. The court has no idea why mediation did not resolve this case, although it appears that the Government's unwillingness to settle for even a nominal sum is inversely related to Hooks's eagerness to go the distance. There being no such resolution, the Government's Motion is due to be granted.
Plaintiff's affidavits appear to be inadmissible. The "Affidavit of Jeanette Hooks" and the "Affidavit of Dorothy Leonard" are signed by Hooks and Leonard, but they state on page one as follows: "Before me, the undersigned authority, a Notary Public in and for State at Large, personally appeared, Carolyn P. Flack, who is known to me, and who, after being first duly sworn by me, deposes and says on oath as follows: . . ." (Hooks Aff. at 1; Leonard Aff. at 1.) The face of the affidavit makes clear that neither Hooks nor Leonard appeared before the notary public; rather Carolyn P. Flack did. What Ms. Flak told the notary about what Hooks and Leonard said is entirely hearsay. It may not be considered at summary judgment. See Macuba v. DeBoer, 193 F.3d 1316, 1322-25 (11th Cir. 1999). Because Plaintiff's affirmative evidence relies exclusively on these two materials, the court finds that summary judgment is appropriate for that reason alone .
Early on, Plaintiff filed a Motion To Strike various portions of the affidavits of Beverly Montgomery and Barbara Sannino. (Doc. No. 53.) Although the court struck Plaintiff's Motion as untimely filed, the court did reflect upon the arguments raised therein. The court has been careful to construe the Government's affidavits in accordance with the Eleventh Circuit's holding in Macuba. Almost all of the statements objected to by Plaintiff could be admissible to show the state-of-mind of the affiant. The court did not consider hearsay or conclusions based on hearsay as evidence used to prove the matters asserted. See id. at 1322-25.
IV. FACTUAL BACKGROUND
This case revolves around a series of facts surrounding the revocation of Plaintiff Jeanette T. Hooks's vendor badge, which was a prerequisite to her employment as the deli manager at the Gunter Air Force Base Annex Commissary ("the Commissary.") The two questions before the court are: (1) whether race played a role in Plaintiff's suspension of commissary privileges; and (2) whether racism led to Plaintiff's permanent loss of her commissary vendor badge. Hooks is a black female.
An introduction of the relevant parties is necessary. Defendants Montgomery, Harris, Sannino, and Nobles are civil service employees of the U.S. Government, who are employed by the Defense Commissary Agency ("DECA"), an agency of the Department of Defense. EURPAC is a private corporation that holds a contract with DECA to operate a deli at Gunter Annex. Montgomery was the acting store manager of the Commissary. She reported to Harris, who was the Maxwell Air Force Base store manager. Harris, in turn, was subordinate to Sannino, who was the commissary officer in charge of all operations at Maxwell and Gunter. Nobles was nothing more than the on-site work supervisor of the Commissary's meat department. Similarly, Hooks was a lower-level employee who worked for EURPAC as the Commissary's deli manager.
On August 13, 1997, Nobles told a subordinate to place five boxes of chicken, which had reached their "sell by" date, in the freezer. Two days later, Dorothy Leonard (who is a meat cutter at the Commissary but is not a party to this suit), received a telephone call from a customer asking whether any chicken was on sale. After receiving authorization from Nobles to mark down the chicken, Leonard told the customer that there was a blue light sale on expired chicken, and that she could purchase the fowl if she picked it up by 5:30 p.m. that day. After getting off the telephone with that customer, Leonard marked down five boxes of birds by 50%.
Chicken should be sold by the "sell by" date stamped on the package.
The hour of 5:45 p.m. came and went. The customer, however, never materialized. At that time, Leonard happened to notice Hooks — who was off duty at the time — shopping. Leonard asked Hooks whether she wanted to buy the chicken. Hooks asked Leonard whether Nobles knew that it had been marked down, and Leonard answered in the affirmative. Leonard then loaded up Hooks's shopping cart with five whole boxes of expired chicken.
Hooks proceeded to the check-out counter. About that time, another Commissary employee told Montgomery that she had seen Hooks with several cases of chicken in her shopping cart and that at least one of the cases was marked with a price of $4. The employee told Montgomery that she was not aware that such game was on sale.
Hooks bought and bagged her groceries. Montgomery's eyebrows were raised a little at the purchases, and she gave chase. Montgomery began to re-check Hooks's purchase. Hooks took umbrage. At some point, Montgomery called Harris and the military base's security police. She asked them to come to the Commissary on the double.
Meanwhile, Montgomery had a bagger take Hooks's chock-full-0'-chicken cart back inside. Montgomery rescanned the chicken at the register, and it showed that the unreduced price of the cuisine was well over $100. After doing some mental math, Montgomery concluded that Plaintiff had purchased the chicken at low prices — a little too low, in fact. DECA regulations prohibit commissary managers from marking down items over 50% of their regular price. In addition, Montgomery noticed that the "sell by" date on the chicken had passed. DECA regulations also generally prohibit commissaries from selling food items after this date. Montgomery asked Leonard, "Who marked down the chicken?" Leonard pointed the finger at Nobles.
After doing the re-check, Montgomery showed the security police Hooks's original receipt and the re-check receipt. The security police, marching to their own drum, tried to smooth things over by detaining Leonard and Hooks for interrogation. The police then slapped the duo with a notice of suspension, for they suspected foul play. The suspension banned Hooks and Leonard from entering the Gunter Commissary for any purpose. They both requested post-deprivation hearings to plead their case.
The next business day, on August 18, Hooks informed EURPAC that she was suspended. At that time, EURPAC told Hooks that she was not terminated, but would be placed in limbo pending investigation of the incident.
Montgomery, meanwhile, had telephoned EURPAC's vice president of sales and told him that EURPAC should arrange for someone to operate the Commissary deli during Hooks' absence. During their conversation, Montgomery said that Hooks had no regard for the Commissary, as evidenced by the disturbance that she created on the 15th. For that reason, and because Hooks had raised her voice to Montgomery on a previous occasion, Montgomery told EURPAC that she did not want Hooks to return.
Hooks got her hearing a few weeks later. The base commander cleared Hooks of willful wrongdoing. The following day, Hooks presented evidence to Sannino reflecting that her Commissary privileges had been restored. Hooks asked Sannino to reinstate her vendor badge. Sannino said no. EURPAC gave Hooks the boot some time shortly thereafter.
V. DISCUSSION A. First Amendment Claims Against Harris and Nobles, First Amendment Claims
The court first revisits what it has already decided in previous opinions, with respect to Plaintiff's First Amendment claim and some of her Fifth Amendment claims.
The court reaffirms its findings that Plaintiff's First Amendment claims are without merit. The court previously found that almost none of Plaintiff's sweeping allegations were supported by any facts in the record. The court also found that, "while Plaintiff has the right to protest her allegedly discriminatory discharge, that does not convert her protest into an issue of public concern . . . . If the court was giving awards for creativity or chutzpah, Plaintiff would receive one. That not being the case, summary judgment is due to be granted." See 11/22/00 Order at 11-12.
In addition, the court reaffirms that Plaintiff's Fifth Amendment Equal Protection claim against Harris and Nobles is without merit. As previously stated, "Harris' involvement was too remote to link him to any adverse employment decision that Hooks supposedly suffered. The same goes for Nobles." Id. at 12 (internal citations omitted). A Bivens action requires far more than what was placed on the table by the plaintiff.
However, the court finds that it erred when it stated that Hooks has a retaliation claim against the Federal Defendants. See id. at 15-16. First, Plaintiff's Complaint only alleged retaliation under the First Amendment. Second, freedom from workplace retaliation is a statutory right; it rests nowhere in the Fifth Amendment's Equal Protection Clause. The court's contrary finding is due to be vacated. See Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) ("[a] pure or generic retaliation claim, however, simply does not implicate the Equal Protection Clause.")
B. Race Discrimination Claims Against Montgomery and Sannino
In 1971, Justice Brennan created a cause of action against federal agents who deprive an individual of her federal rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Hooks did not work for the Government. She worked for EURPAC, a private firm that operates on Government property. Thus, she has no Title VII case against the Federal Defendants. Her case rises and falls under Section 1983. The analytical framework is the same as in a Title VII case. See Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir. 1995) (per curiam)
This case is somewhat unusual, given that neither Sannino nor Montgomery actually employed Hooks. As the court stated previously, "EURPAC was the ultimate decisionmaker with respect to employment issues," although "the record reflects that Hooks could not work at the EURPAC-staffed Commissary unless Sannino provided Hooks with a vendor's badge." 11/22/00 Order at 10. Moreover, the court finds no evidence other than conclusory assertions to show any affirmative causal connection between the Federal Defendants' acts and EURPAC's decision to install a white person in the position formerly occupied by Hooks. In addition, as explained infra, Montgomery and Sannino had legitimate reasons for making any statements to EURPAC regarding Hooks's fitness for work. Thus, the court finds that Hooks's claims against Montgomery and Sannino on this front fail as a matter of law. See Peppers v. Coates, 887 F.2d 1493, 1498 (11th Cir. 1989) (granting summary judgment when federal defendant's connection with complained-of activity was "far too attenuated to subject him to the rigors of trial.")
Rather than reinvent the wheel, the court points the reader to the Government's Reply brief, and the arguments made on this point. (Doc. No. 88 at 17-25.)
Of course, that does not mean that Hooks is left without remedy. It merely means that the McDonnell Douglas framework must be tailored to the facts of this case. Title VII states that it is unlawful for an employer:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. S 2000e-2(a)(1) (emphasis supplied). The Eleventh Circuit has held that such language encompasses actions that interfere with the employee's labor opportunities with a third party. See Pardazi v. Colman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir. 1988).
The regular burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff must first raise an inference of discriminatory intent. As noted by Judge Posner, the former chief judge of the Seventh Circuit, the failure to establish a prima facie case "is the end of your case if McDonnell Douglas is all that you have to go on." Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1180 (7th Cir. 1997); see also Anderson v. Twitchell-A Tyco Int'l Ltd., 76 P. Supp.2d 1279, 1287 n. 9 (M.D. Ala. 1999) (same). If Hooks can raise an inference of discriminatory intent, the Government must then proffer a race-neutral reason for its actions. Hooks must then show that each reason is pretextual. If she carries this burden, then summary judgment is generally inappropriate. Chapman v. AI Transp., 229 F.3d 1012, 1025 n. 11 (11th Cir. 2000) (en banc). Otherwise summary judgment is mandatory. See id. at 1037 (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997))
So we turn to the merits. Plaintiff's problem with Montgomery is that Montgomery contacted base police in response to Hooks's chicken purchase at the Commissary. The police then hit Hooks with a suspension. The suspension meant that Hooks couldn't set foot on the military base. As a result, she couldn't work.
A military police officer is not Sherlock Holmes. It appears that officers do little more than take down information and issue suspensions, pending a due process hearing. Assuming this to be true, the inquiry vis-a-vis Montgomery is whether discriminatory intent tainted that initial suspension. See Hamilton v. Montgomery County Bd. of Educ., 122 F. Supp.2d 1273, 1283-85 (M.D. Ala. 2000) (exhaustively analyzing the elements of "cat's paw" liability). To raise an inference of discrimination, there must be evidence that: (1) Plaintiff belongs to a protected class; (2) she was entitled to be on base originally; (3) her privileges were revoked because of Montgomery's complaint; and (4) some white employee got access to Plaintiff's base privileges, or that similarly-situated employees were treated differently. See Burdine, 450 U.S. at 254 n. 6 (prima facie case should be tailored to unique factual settings); McDonnell Douglas at 411 U.S. 802 n. 13 (same).
Plaintiff's problem with Sannino is that Sannino refused to reinstate Hooks's vendor badge. To raise an inference of discrimination, Hooks must come up with evidence that: (1) Plaintiff belongs to a protected class; (2) she was entitled to a vendor's badge originally; (3) she lost future access to the badge because of Sannino's actions; and (4) the badge was given to a white employee or that similarly-situated employees were treated differently. See Holifeld v. Reno, 115 F.3d at 1555, 1561-62 (11th Cir. 1997); Givhan v. Electronic Engr's. Inc., 4 F. Supp.2d 1331, 1339 (M.D. Ala. 1998).
In the next two sections, the court considers the evidence and finds that summary judgment is due to be granted. There is no genuine issue of material fact, and no rational jury could find that the Federal Defendants discriminated against Hooks.
1. Plaintiff's case against Montgomery fails.
Hooks cannot raise an inference of discrimination because she cannot establish the fourth element of the prima facie case against Montgomery. There is no evidence that some white employee got access to the base in lieu of Hooks. Nor is there evidence that Montgomery became aware of misconduct similar to Hooks's but did not contact base police afterwards.
"In order to satisfy the similar offenses prong, the comparator's misconduct must be nearly identical to the plaintiff's in order `to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.'" Silvera v. Orange County Sch. Bd., ___ F.3d ___, 2001 WL 273853 at *4 (11th Cir. 2001) (Carnes, J.) (quotingManiccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). In Silvera, the Court held that an employee arrested for DUI and criminal sexual abuse of a child was not similarly-situated to the plaintiff, who had three arrests for violent assaults in addition to his arrest for criminal sexual abuse of a child. Though both employees were child molesters, the comparator was dissimilar because a DUI is not a violent offense, and the DUI occurred earlier in time than the plaintiff's most recent arrest. See id. at *4-5.
Plaintiff contends that she has found a comparator in Bill Nobles, who allegedly was not suspended for marking down frozen chicken for sale. But Nobles cannot be a proper comparator for several reasons. The most obvious is that Nobles wasn't even around the night that Hooks got into hot water. It would be absurd to argue that Montgomery could have reported Nobles to the base police for his alleged misconduct in connection with being stopped and asked to have his bags rechecked. That obviously never happened.
Another important reason, which Plaintiff nowhere addresses, is that Hooks had prior workplace problems with Montgomery. Montgomery's affidavit states that she was alerted that Hooks might be purchasing chicken at suspiciously low prices. (Montgomery Aff. ¶ 10.) Armed with such information, Montgomery began to investigate the matter by conducting a recheck of Hooks's purchase, and Hooks "began screaming and yelling . . . so loud that it created a disturbance in the store." (Id. ¶ 11.) Montgomery had a "prior unpleasant encounter with Ms. Hooks and had been informed by Maxwell DECA employees that Ms. Hooks had been involved in a physical altercation at the Maxwell AFB Commissary." (Id.) There is no evidence that Nobles ever yelled at Montgomery or had such a prior track record at the shop.
Hooks admits that she had problems at the deli in 1984. She states that she was assaulted by her supervisor and acted in self-defense. (Hooks Aff. ¶ 2.) But there is no evidence that supervisor Montgomery knew these particulars, and so no reason to doubt that Montgomery rationally thought Hooks was fearsome.
Even though Montgomery later learned that Nobles had marked down chicken, no jury could infer that Montgomery treated black and white employees disparately. Leonard's affidavit reflects that Leonard told Montgomery that Nobles gave permission to Leonard to mark down chicken. (Leonard Aff. ¶ 9.) But Plaintiff concedes that Montgomery was unaware of any other EURPAC employee or manager who had ever attempted to purchase out-of-date chicken. (Doc. No. 83 at 30 #44; Montgomery Aff. ¶ 17.) Given that Montgomery was unaware of such purchases, it is not surprising that Plaintiff points to nobody who ever bought such chicken and was not disciplined by Montgomery in the same way that Hooks was.
In addition, Montgomery's affidavit states that she "would have taken steps to discipline" employees who froze or attempted to purchase such chicken. (Montgomery Aff. ¶ 17.) There is no evidence that Montgomery did not attempt to show Nobles the door after Montgomery later learned that Nobles had authorized such a sale. Harris is above Montgomery in the chain of command, and Sannino is above Harris. (Leonard Aff. ¶ 1.) Leonard's affidavit is the only arguably relevant evidence on point, and it reflects that Harris chose not to take action against Nobles. (Id. ¶ 16.) There is only speculation, but no evidence, that Montgomery could override that decision.
In other words, Montgomery, without raising any inference of discriminatory intent, could have called the security police about Hooks's actions but not Nobles's. They were plainly not similarly situated. Nobles, at most, authorized the sale of the chicken bought by Hooks. Period. By contrast, Hooks bought the chicken, had prior run-ins with Montgomery, was rumored to have had an incident with a prior supervisor, and raised a ruckus when she was asked to submit to a re-check. These facts, and many others, destroy similarity between Hooks and Nobles. See Silvera, 2001 WL 273853 at *4-8 (similarly situated);Chapman, 229 F.3d at 1031 (business judgment rule). Without a prima facie case, this cause of action is done. See Anderson, 76 F. Supp.2d at 1287 n. 9.
Even if Hooks could rase an inference of discrimination — and she cannot — summary judgment would be appropriate because she cannot knock down all of Montgomery's proffered reasons for calling the police that evening. Montgomery satisfies her "exceedingly light" burden underMcDonnell Douglas by stating that she called the police because: (1) an employee notified Montgomery that Hooks was buying chicken at disturbingly low prices; (2) Montgomery conducted a re-check and Hooks began yelling; (3) Montgomery feared for her safety because of the yelling and because she heard that Hooks had been involved in a physical confrontation earlier in time; and (4) the chicken bought by Hooks was sold after its "sell by" date, in violation of house rules. (Montgomery Aff. ¶ 11.) See Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The burden then shifts to Hooks to show that each and every reason is pretextual. This she cannot do.
To be sure, there is a genuine dispute as to whether Hooks raised her voice and shouted at Montgomery. Montgomery says she did; Hooks says she didn't. (Montgomery Aff. ¶ 11; Hooks Aff. ¶ 10.)
But there is no dispute that Hooks bought chicken that was sold at far more than 50% off, which is the maximum price reduction Montgomery believed was allowed. (Montgomery Aff. ¶ 12.) There is no evidence that anybody authorized any sale of chicken for more than half off. Leonard states that Nobles told her to mark the chicken down, but the affidavit does not state that he said to go down 75%. (Leonard Aff. ¶ 5.) In fact, Plaintiff concedes that she has no evidence that anybody had authority to sell chicken at such a bargain basement price. (Doc. No. 83 at 11 #12.) The court will not speculate on this matter, either. See Bowden v. Wal-Mart Stores, Inc., 124 F. Supp.2d 1228, 1236 (M.D. Ala. 2000) (pleadings are not evidence).
There is no real dispute that Montgomery believed that "it violates DECA regulations for an employee, or anyone else, to take or purchase out-of-date chicken." (Montgomery Aff. ¶ 7.) Hooks concedes that Montgomery "seldom came to the Meat area," (Hooks Aff. ¶ 3), and there is no evidence that Montgomery knew of any sales besides the one involving Hooks. Without such knowledge, there is no way to prove disparate treatment. "Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent." Silvera, 2001 WL 273853 at *7 Moreover, an employer may take actions against an employee based on "erroneous facts," such as a mistaken belief that chicken was being bought inappropriately. See Chapman, 229 F.3d at 1030 (quoting Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984)) ("[i]f an employer applies a rule differently to people it believes are differently situated, no discriminatory intent has been shown.")
Hooks tries to show discriminatory intent in several ways, but none are persuasive. First, Hooks complains that the rule against selling or purchasing frozen chicken after its sell-date is a local rule, rather than one mandated by the Defense Department. She also contends that the language of the DECA rules do not expressly prohibit the purchase of chicken, only the sale of it. This means little.
The Constitution does not prevent the Government from developing local rules regarding poultry sales. Employment decisions based on such rules are not pretextual absent concrete evidence that the rule was used as a mask for discrimination. See J.A. Beaver, Inc. v. Rayonier. Inc., 200 F.3d 723, 729 n. 2 (11th Cir. 1999) ("we decline to adopt a rule that a plaintiff can establish pretext merely by showing the employer did not place the reasons that factored into its termination decision in writing."); Stein v. National City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991) ("[w]hether a policy is written or unwritten has minimal probative value on the issue of pretext."); see also United Steelworkers of Am. v. Warrior Gulf Nav. Co., 363 U.S. 574, 582 (1960) (recognizing that most workplaces have some "common law of the shop").
There is no evidence that Montgomery called the police about Hooks purchasing out-of-date chicken (or chicken sold after the "sell by" date) but did not call the police about similar acts by similarly-situated white employees. Hooks does not respond to this fact. (Doc. No. 83 at 10 #11.) Her opposition to the Government's argument, therefore, is conceded.
Even if the written policy did not prohibit such sales, there is no evidence that Montgomery did not believe there was such a prohibition. A mistaken belief in a neutral reason is enough to defeat any inference of pretext. See Silvera, 2001 WL 273853 at *6 ("an employer who treats two employees differently because of a mistaken belief in the existence of a neutral reason does not violate Title VII."); Elrod v. Sears. Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Montgomery believed that Hooks violated DECA policy. Even if Montgomery had been able to get ahold of Nobles, and Nobles said that he authorized a markdown sale, this evidence would not have negated Montgomery's belief that a purchase was out of order. Buying and selling is not the same thing.
There is also the fact that Montgomery stated that she called the police because she feared for her safety. This is enough of a reason to carry a motion for summary judgment. Hooks's affidavit maintains that she never raised her voice, but Hooks cannot maintain that she did not frighten Montgomery. Hooks has no personal knowledge of Montgomery's mental processes. Nothing in the Fifth Amendment bars an employer from calling for help when needed. The cry of distress is the summons of relief. The chips fall where they may. See Payton v. Runyon, 990 F. Supp. 622, 627-28 (S.D. Ind. 1997) (fear of employee is legitimate reason for terminating him).
There are other insufficient reasons proffered by Plaintiff, which the court will discuss only briefly. First, Plaintiff tries to call into question all of Montgomery's proffered reasons by asserting that Montgomery treated Hooks differently from other white employees. Hooks says that Montgomery did not like talking with her, sometimes yelled at her, and did not give her keys to the storage room. (Montgomery Aff. 2d ¶¶ 3-4, 5.) Most of these trivial incidents were facially neutral. As for the others, the court finds that they do not rise to the level of adverse employment actions. Plaintiff does not credibly argue that the incidents made her work more difficult, and for these and other reasons they are not probative of pretext. See Hanley v. Sports Auth., 120 F. Supp.2d 1353, 1368 (S.D. Fla. 2000) (no adverse action when supervisor yelled at employee and told her to "shut up"); Malone v. K-Mart Corp., 51 F. Supp.2d 1287, 1308 (M.D. Ala. 1999) (same when employer refused to participate in evaluation of employee's performance).
The affidavit is misnumbered. These materials are in the second paragraphs numbered three and four.
For example, Hooks does not appear to have received negative employment evaluations, etc.
Second, Plaintiff makes unsupported assertions, based on hearsay, about what she "heard" or "learned" that Montgomery did with respect to other black employees. (Id. ¶ 5.) Hooks also proffers her "feelings" that Montgomery disliked her because she is black. But these arguments fail. "[M]ere verification of a party's own conclusory allegations is not sufficient to oppose a motion for summary judgment," Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984), and courts must never rely on hearsay contained in an affidavit, see Macuba, 193 F.3d at 1323 ("the out-of-court statement made to the witness (the Rule 56(c) affiant or the deposition deponent) must be admissible at trial for some purpose.")
Moreover, Plaintiff never explained how such actions are tied to Montgomery's decision to call the police. Montgomery's prior acts may have been relevant if they were correlated to the incident at hand, but such an interrelationship is absent here. The way Montgomery treats employees at work does not cast doubt on her reasons for acting in the midst of a crisis. See Denney v. City of Albany, 247 F.3d 1172, (11th Cir. 2001) (courts "are reluctant to consider `prior bad acts' in this context where those acts do not relate directly to the plaintiffs."); Pelli v. Stone Savannah River Pulp Paper Corp., 878 F. Supp. 1559, 1566 (S.D. Ga. 1995) (disregarding other personnel decisions when plaintiff never "connected these decisions . . . with the decision not to hire her."); Harrison v. LaRue D. Carter Mem'l Hosp., 883 F. Supp. 328, 329 (S.D. Ind. 1994), aff'd, 61 F.3d 905 (7th Cir. 1995) (same).
Hooks spends part of her response contending that Montgomery's precise recollection of the events of the suspension differ from Hooks's. (Doc. No. 83 at 18-20.) She points to the dates listed on police reports and certain cash register receipts to bolster her claim. Even assuming that the receipts are admissible evidence, in order to prove the matters asserted, such minor discrepancies in testimony are not enough to create a dispute for trial.
The bottom line is that Montgomery believed that Hooks broke the rules by purchasing out-of-date chicken at a ridiculously low price, that Hooks raised Cain at the Commissary, and that Montgomery feared for her safety. Employment law is not a game of "Gotcha!" Muffed testimony can defeat a motion for summary judgment in rather limited situations, such as when an employer's proffered reasons are internally at war with one other, see Wisdom v. M.A. Hanna Co., 978 F. Supp. 1471, 1480 (ND. Ga. 1997) (discussing Howard v. BP Oil Co., 32 F.3d 520, 526-27 (11th Cir. 1994)), or when an employer proffers one reason, then completely abandons it for another one, see Stallworth v. E-Z Serve Convenience Stores. Inc., 2001 WL 125304 at *5 (M.D. Ala. 2001) (discussing Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995)). Otherwise, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Brown v. American Honda Motor Co., 939 F.2d 946, 953 (11th Cir. 1991) (quoting Anderson, 477 U.S. at 247-28) (emphasis in original). Plaintiff's evidence is simply not enough.
The court has been able to isolate nothing more than scattered pieces of circumstantial evidence, here and there, that are insufficient to allow a rational jury to find that Montgomery intended to violate Hooks's Fifth Amendment rights. Accordingly, Montgomery's Motion For Summary Judgment is due to be granted. See Matsushita, 475 U.S. at 586 (metaphysical doubt); Chapman, 229 F.3d at 1025 n. 11 (insufficient showing of pretext); Brown, 939 F.2d at 954 (scattered pieces of evidence).
2. Plaintiff's case against Sannino fails.
Plaintiff's case against Sannino also fails, and for many similar reasons. Plaintiff cannot raise an inference of discrimination, and she cannot rebut Sannino's legitimate race-neutral reasons for withholding the vendor badge.
First, the court finds that Plaintiff has failed to establish a prima facie case of discrimination. Plaintiff points to no comparators who avoided her fate, and there is no evidence that the vendor's badge went to a white employee. Plaintiff merely argues that EURPAC moved a white employee into the position of deli manager. There is no evidence that Sannino influenced this decision. Plaintiff's evidence, in the form of her declaration, is nothing more than conclusory statements that are not supported by personal knowledge. Such evidence is legally insufficient to create a dispute under Rule 56. See Fullman, 739 F.2d at 557.
Leonard is not a proper comparator because Leonard did not purchase the chicken, did not pitch a fit at the Commissary, and was not rumored to have violent proclivities. Neither is Nobles. Aside from the aforementioned reasons, Nobles just sold the chicken; he did not purchase it. There are other reasons, too, but the court will not chronicle them here. See Nix, 738 F.2d at 1187 ("[i]f an employer applies a rule differently to people it believes are differently situated, no discriminatory intent has been shown.")
Even assuming that Plaintiff has established a prima facie case, she cannot knock down Sannino's reasons for her decision. Sannino states that she withheld the badge because: (1) she heard about Hooks's behavior towards Montgomery; (2) she believed that Hooks had violated DECA policies about chicken purchases; and (3) Hooks showed no remorse about the incident.
The court tackles these reasons in tandem. "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 a discriminatory reason." Chapman, 229 F.3d at 1030. Sannino spoke to both Harris and Montgomery about Hooks's chicken purchases. Based on what she heard, Sannino believed that Hooks should have been remorseful about her behavior. Hooks was not. Instead of acquiescing to the re-check of her purchases, Hooks let loose that she was being victimized, and she declined to cooperate with the subsequent investigation about cheap chicken. Hooks may be fired for her aloofness alone. See id. at 1034 ("[t]raits such as `common sense, good judgment, originality, ambition, loyalty and tact' often must be assessed primarily in a subjective fashion") (quoting Watson v. Fort Worth Bank Trust, 487 U.S. 977, 991 (11th Cir. 1988)).
Counsel contends that Hooks was in Sannino's office for some thirty seconds, (Doc. No. 83 at 45 *56), but the duration of the meeting does not appear to be in evidence.
Hooks claims that Sannino did not articulate this reason with sufficient clarity to allow a meaningful attempt to show pretext. The court disagrees. An employer discharges its burden by proffering a reason that is not "devoid of any objective facts which, if false, can be contradicted by testimony or other evidence." Chapman, 229 F.3d at 1034 n. 25. Hooks could have attacked Sannino's reason by stating that she did, in fact, show some type of behavior that could be considered remorseful. Hooks, however, did not make such a showing. Moreover, even assuming that Hooks never understood Sannino to be looking for remorse, this would prove only that Sannino withheld the badge for a bad reason or a petty reason. Such a reason, however, is not based on race. Therefore, it insulates Sannino from liability. See id. at 1030 ("a good reason, a bad reason . . . or for no reason at all.")
But the court will not stop there. The court also finds that Hooks has not rebutted Sannino's belief that Hooks's purchase of chicken "clearly . . . violat[ed] Commissary and DECA policy." (Sannino Aff. ¶ 3.) "A plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by race." Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000). Plaintiff cannot do so.
All of Plaintiff's evidence of pretext can be addressed summarily. Plaintiff seeks a comparator in Leonard and Nobles. But different offenders may be treated differently, and the court finds that this troika is not similarly-situated. See Nix, 738 P.2d at 1186. Nor is it relevant that Sannino did not attend Montgomery's due process hearing and take in the evidence presented there. There is no evidence that Sannino attended such hearings ever before, and the Constitution does not saddle her with such a burden. All that Sannino has to do is act according to her best lights, and not on the basis of forbidden criteria. Even though the administrative law judge reinstated Hooks's base privileges, Sannino could have reasonably believed that the decision was erroneous. Moreover, there is no evidence that the hearing officer found that Hooks acted in the penitent way an employee should act after she has been suspected of stealing. Nor is it relevant that Sannino did not tell Hooks at the meeting that Hooks's lack of remorse was one of several reasons for her firing. "[A]n employer need not expatiate at length its reasons for an employment decision . . . in order to avoid later Title VII liability." Stone v. Galaxy Carpet Mills. Inc., 841 F. Supp. 1181, 1187 (N.D. Ga. 1993). For these and other reasons, Plaintiff has not shown that Sannino's proffered reasons are a pretextual cover for discrimination.
VI. CONCLUSION
Read in a light most favorable to the plaintiff, the record reflects that Carolyn P. Flak gave hearsay testimony that there was some snafu regarding the sale of chicken. Montgomery gave chase, seeking to determine the cause of the mishap. One thing led to another, and words were exchanged. Suspension followed. Sannino then exercised her business judgment and withheld Hooks's vendor badge permanently. That was it. On these facts, no rational jury could find that Jeanette T. Hooks was the victim of discrimination.
The court commends Plaintiff's counsel for his zealous advocacy and professionalism throughout this case. Devoted civil rights attorneys are often all that protect workers from economic lynching, particularly in non-union shops. But the court cannot bend the law; litigation is not this state's surrogate for the lotto. The court finds that Federal Defendants' Motion To Alter Or Amend Judgment is due to be granted, summary judgment is due to be granted, and this case is due to be dismissed.
VII. ORDER
It is hereby CONSIDERED and ORDERED that the Federal Defendants' Motion To Alter or Amend Judgment be and the same is hereby GRANTED. (Doc. No. 70.) The court's Memorandum Opinion and Order entered November 22, 2000 be and the same is hereby VACATED AND MODIFIED to the extent that it conflicts with this Order. The court' a Memorandum Opinion and Order entered October 24, 2000 be and the same is AFFIRMED.
Defendants' Motion To Dismiss, or In The Alternative, For Summary Judgment, which was filed August 7, 2000 and is construed as a Motion For Summary Judgment, be and the same is hereby GRANTED. (Doc. No. 34.)
All other outstanding Motions be and the same are hereby DENIED AS MOOT. The Clerk of Court is directed to close this case. A judgment follows.