Opinion
CIVIL ACTION FILE NO. 1:17-CV-4793-MHC-LTW
2019-08-29
Catherine L. GUYETTE, Plaintiff, v. CHARTER COMMUNICATIONS, INC., Defendant.
ORDER
This action is before the Court on the Final Report and Recommendation of Magistrate Judge Linda T. Walker ("R&R") [Doc. 21] recommending that Defendant's Motion for Summary Judgment [Doc. 14] be granted. The Order for Service of the R&R [Doc. 22] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. In lieu of objections, Plaintiff filed a Notice of Consent to Entry of Summary Judgment indicating that she does not object to the R&R and "consents to the entry of summary judgment in favor of Defendant Charter Communications, Inc. pursuant to the R&R." Notice of Consent to Entry of Summ. J. [Doc. 23].
Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1). Based upon the absence of objections to the R&R, in accordance with 28 U.S.C. § 636(b)(1), the Court has reviewed the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). The Court finds no plain error and that the R&R is supported by law.
The Court APPROVES AND ADOPTS the Final Report and Recommendation [Doc. 21] as the judgment of the Court. It is hereby ORDERED that Defendant's Motion for Summary Judgment [Doc. 14] is GRANTED. The Clerk is DIRECTED to close the case.
IT IS SO ORDERED this 29th day of August, 2019.
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE This case is currently before the Court on a Motion for Summary Judgment filed by Defendant Charter Communications, Inc. ("Charter" or "Defendant"). (Doc. 14). For the reasons explained below, this Court RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED . (Doc. 14).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Catherine Guyette ("Plaintiff") alleges Charter terminated her employment on the basis of race in violation of the Civil Rights Act of 1871, 42 U.S.C. §§ 1981 and 1983 (" Section 1981"), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). (Compl., Doc. 1, at 1-2). Charter seeks dismissal of Plaintiff's Title VII claim alleging it is untimely. (Doc. 14-1, at 14-15). Charter also contends that Plaintiff has failed to make out a prima facie case of race discrimination, as she cannot show she was qualified to do the job or that she was treated differently from similarly-situated comparators. (Id. at 16-19). Even if Plaintiff could make out a prima facie case of race discrimination, Charter argues Plaintiff has not shown that its legitimate, non-discriminatory reason for terminating her was pretextual. (Id. at 20-25).
This Court must accept as admitted those facts in the moving party's statement that have not been specifically controverted with citation to the relevant portions of the record by the opposing party. LR 56.1B.2(2), (3), NDGa. Subjective perceptions, conclusory allegations, or allegations that are otherwise unsupported by record evidence do not create genuine issues of material fact in order to withstand summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1051 n.34 (11th Cir. 2000) (en banc); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) ; Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989). Thus, this Court will not consider any fact (1) not supported by citation to evidence (including a page or paragraph number); or (2) stated as an issue or legal conclusion. The Court will assess any objections to the admissibility of any evidence presented through affidavits, declarations, depositions, or any other method as part of its assessment of Motions for Summary Judgment. The Court will then rule on the evidence implicitly or explicitly in the consideration of the motions. See Linscheid v. Natus Med. Inc., No. 3:12-CV-67-TCB, 2015 WL 1470122, at *1 (N.D. Ga. Mar. 30, 2015) (considering objections when the challenged evidence became relevant to the decision on the motion); Smith v. Se. Stages, Inc., 479 F. Supp. 593, 594-95 (N.D. Ga. 1977).
A. Plaintiff's Employment
Charter initially hired Plaintiff as a Direct Sales Representative ("DSR") in November 2012 and then promoted her to a Direct Sales Supervisor ("DSS") within her first year of employment. (DSMF ¶ 5; Deposition of Plaintiff ("Pl.'s Dep."), Doc. 15-1, at 13:20-14:11, 60:1-10, Ex. 9). As a DSS, Plaintiff supervised teams of DSRs who went door to door selling Charter's services in Georgia. (DSMF ¶ 8). Plaintiff had eight DSRs under her supervision. (Pl.'s Dep. at 83:17-84:15). Robin Garland, who is Caucasian, was Plaintiff's manager from 2013 until 2015. (Pl.'s Dep. at 65:15-20, 66:14-15). Malcom Brooks, who is African American, then took over as Plaintiff's manager until her termination. (PSMF ¶ 2; Pl.'s Dep. at 65:21-22, 66:18-19, 68:10-12; Declaration of Stacia Erway ("Erway Decl."), Doc. 14-4, ¶ 13).
A. Roku Project Investigation
In early 2016, Plaintiff's team participated in a special project selling Roku streaming devices (the "Roku Project"). (DSMF ¶ 10). The Roku Project began on February 22, 2016. (Pl.'s Dep. at 96:23-25). The participating teams and their supervisors would receive commissions based on the number of customers they signed up for Roku services. (DSMF ¶ 12). Plaintiff's manager, Brooks, was on vacation at the beginning of the Roku Project, so Garland served as Plaintiff's acting manager during the Roku Project. (Pl.'s Dep. at 86:1-10, 93:8-9, 133:12-17).
Charter stopped the Roku Project after two or three weeks. (Pl.'s Dep. at 85:7-12). Not long after the Roku Project began, Charter began to suspect that some DSRs were fraudulently inflating their sales by signing customers up for Roku services without their authorization. (DSMF ¶ 13). Initially, Garland instructed the DSSs, including Plaintiff, to conduct in-field audits by contacting customers in person. (Garland Decl. ¶ 12). After receiving numerous customer complaints, Charter initiated a confidential Human Resources ("HR") investigation into the Roku Project. (DSMF ¶ 14, 50; Garland Decl. ¶ 15). The findings of the investigation, as they pertained to Plaintiff, were compiled in an Incident Investigation Report ("Report"). (Erway Decl. ¶ 17, Ex. 5).
1. Interference with Investigation
As part of the investigation, Charter interviewed Plaintiff's team of DSRs. (DSMF ¶ 18). Brooks and Stacia Erway of Human Resources, who is Caucasian, conducted the interviews. (Erway Decl. ¶ 1, Ex. 5, p. 7-8; Pl.'s Dep. at 139:16-25). DSR Kiara Pauldo, who is African-American, reported that Plaintiff told her that she was part of the investigation related to the Roku Project. (Erway Decl. Ex. 5, p. 7; Pl.'s Dep. at 84:18-19). Pauldo alleged that Plaintiff gave her a list of six questions that leadership might ask her during the investigation and sent her a text message coaching her on what to say. (Erway Decl. Ex. 5, p. 7). Pauldo provided the text message: (Id. p. 8). DSR Kerel Webley, who is African-American, also reported that Plaintiff discussed the pending investigation with him and guided him on how he should answer questions. (Erway Decl. Ex. 5, p. 8; Pl.'s Dep. at 84: 24-25).
All statements from DSRs are drawn from the Report. (Erway Decl. Ex. 5). Although hearsay, the statements in the Report are used for a non-hearsay purpose of showing Defendant's legitimate nondiscriminatory reason for firing Plaintiff. See Henderson v. FedEx Express, No. 5:09-CV-85 CAR, 2010 WL 4260534, at *1 (M.D. Ga. Oct. 20, 2010), aff'd sub nom. Henderson v. FedEx Express, 442 F. App'x 502 (11th Cir. 2011).
2. Instructions Provided to DSRs
DSR Casey Pilon, who is Caucasian, stated that Plaintiff provided "little direction" about the Roku Project. (Erway Decl. Ex. 5, p. 7; Pl.'s Dep. at 85:5-6). DSR Pauldo reported that Plaintiff instructed the DSRs to tell customers that they had been "pre-selected" for the Roku Service, but it was unclear what the DSRs were supposed to sell. (Erway Decl. Ex. 5, p. 8). DSR Pauldo also alleged she never saw the PowerPoint presentation about the Roku Project. (Id. ). According to Pauldo, Plaintiff said she would have a one-on-one conversation with him if there were any issues, which never happened although Pauldo was suspected of four fraudulent sales. (Id.; Erway Decl. ¶ 21 n.1). Similarly, DSR Pilon reported that Plaintiff told him that she was auditing his work but did not bring any concerns to his attention even though Pilon was suspected of five fraudulent sales. (Erway Decl. Ex. 5, p. 7). DSR Anthony Hicks, who is African-American, reported that Plaintiff failed to provide guidance when he approached her with concerns, instead Plaintiff pushed him to keep selling. (Erway Decl. Ex. 5, p. 7; Pl.'s Dep. at 85:3-4). DSR Hicks also stated that Plaintiff told him not to contact Brooks or escalate any concerns to leadership. (Id. ). DSR Webley also reported that Plaintiff told him not to contact Brooks about anything. (Erway Decl. Ex. 5, p. 8).
As part of the investigation, Brooks, Erway, and Lori Lucas of Human Resources interviewed Plaintiff. (Erway Decl. ¶ 22, Ex. 5, pp. 9-10). According to the Report, Plaintiff admitted that she did not provide her team with the attachments containing the PowerPoint or the Roku login information because she felt it was not helpful. (Erway Decl. Ex. 5, p. 9). In her deposition, however, Plaintiff claimed that she gave her team the PowerPoint and all other documents she was asked to give them. (Pl.'s Dep. at 83:2-6). The Report also includes a copy of an email Plaintiff sent to her team on February 29, 2016. (Erway Decl. Ex. 5, p. 3). In the email, Plaintiff states that, "a lot of people say they never ordered. SLOW down and make sure you are explain [sic] to the customer what they are signing up for. I cannot stress that enough ... This needs to be explained. We have a lot of eyes on this project." (Id. ). Plaintiff then wrote, "216 sales in one week is AWESOME and you all need to be very proud of yourselves!! Keep up the good work!" (Id. ).
Garland states that during the interviews she conducted, which were independent from the HR interviews, neither Hicks nor Pauldo reported improper supervision or insufficient training. (Garland Decl. ¶ 20). According to Garland, the employees making statements critical of Plaintiff were facing termination. (Garland Decl. ¶ 24). Garland also stated that she believed that the DSRs were adequately trained during a conference call that covered all the information and gave DSRs the opportunity to ask questions. (Garland Decl. ¶ 8).
3. Escalation of Complaints
Plaintiff received emails on March 1, 2016, March 4, 2016, and March 10, 2016, with reports that customers were complaining about being signed up for Roku services without their authorization. (Erway Decl. Ex. 5, pp. 4-7). Charter could not find any record of Plaintiff escalating the emails to management before Brooks received one of the emails directly on March 10, 2016. (Erway Decl. ¶ 24, Ex. 5, p. 6). Plaintiff printed copies of all the emails she forwarded to Garland regarding the alleged fraud but did not provide any emails she forwarded to leadership other than the one she forwarded to Garland on the evening of March 10, 2016. (Pl.'s Dep. 96:3-98:17, 99:11-19, 100:4-14, 144:15-18, Ex. 8).
Plaintiff stated in her HR interview that she did not contact Brooks about the Roku Project issues because she was told not to, but that she contacted Garland in a separate email. (Erway Decl. Ex. 5, p. 9). According to the Report, Garland said she was not approached by Plaintiff for escalation assistance and did not receive any escalation emails from Plaintiff, although Garland states in her Declaration that only Kerri Klein, another DSS, failed to timely escalate reports. (Compare Erway Decl. Ex. 5, p. 9 with Declaration of Robin Garland ("Garland Decl."), Doc. 16-4, ¶ 13). 4. Plaintiff's Veracity During HR Interview
In Plaintiff's deposition, she claimed to have called Brooks one time, but the call went straight to voicemail. (Pl.'s Dep. at 101:20-102:9).
Charter has strict policies that require its employees to behave ethically, which includes being truthful during HR investigations. (DSMF ¶ 3). Plaintiff acknowledged and agreed to abide by these policies. (DSMF ¶ 4). According to the Report, during Plaintiff's interview, Plaintiff was asked twice if she had discussed the pending investigation with any of her direct reports, and Plaintiff twice answered that she had not. (Erway Decl. Ex. 5, p. 9). When shown a copy of the text message provided by DSR Pauldo, the Report states that Plaintiff said the message "didn't count" because it was from her personal phone. (Id. p. 10). Plaintiff went on to argue that no one told her not to discuss the information. (Id. ). Plaintiff then admitted she also spoke to Hicks and Webley about the investigation, although Plaintiff denied providing them with questions. (Id. ).
Plaintiff recalled in her deposition that she initially denied texting with Pauldo during her interview, but then admitted it after being confronted with the text message. (Pl.'s Dep. at 131:13-23). In her deposition, however, Plaintiff claimed that she sent the text message to coach Pauldo about what to say if she were called on during one of their group conference calls. (Id. at 131:24-132:5).
C. Termination
On April 7, 2016, Charter terminated Plaintiff's employment. (Pl.'s Dep. Ex. 9). Based on the emails, text messages, and interviews gathered during the investigation, Plaintiff's managers determined that Plaintiff failed to properly supervise her team, failed to timely and properly escalate reports of fraudulent sales to management, improperly coached her subordinates in an attempt to interfere with an investigation, and attempted to mislead investigators during her interview. (Erway Decl. ¶ 25). The Director of Sales, Amanda Field, who is Caucasian, requested Plaintiff's termination. (Erway Decl. ¶ 26; Pl.'s Dep. 66:16-17, 39:10-21). Brooks was involved in the decision to terminate Plaintiff, but Garland was not. (PSMF ¶ 10; DSMF ¶ 36). According to the termination document Plaintiff received from Charter, she was terminated for violating "Charter's Business Ethics and Integrity Standards by condoning fraudulent activity related to the Stream Project." (Pl.'s Dep., Ex. 9).
Plaintiff suspects DSR Hicks orchestrated her termination because he was talking to Brooks three hours before Plaintiff was placed on paid leave. (Pl.'s Dep. at 1-9; 120:1-3). Plaintiff believes that Charter relied on false statements from Hicks, Pauldo, and Webley. (Pl.'s Dep. at 123:7-15; 128:12-16). Plaintiff believes those employees "ganged up" on her and made false statements to get Plaintiff fired and save their own jobs. (DSMF ¶41; Pl.'s Dep. at 140:11-22). Plaintiff, however, admitted that she does not have any evidence to support her theory. (Pl.'s Dep. at 140:23-141:6, 141:7-10).
Sam Bailey, who is African-American, was hired to fill Plaintiff's former position. (PSMF ¶ 22; Pl.'s Dep. at 153:13-15, 154:4-11, 155:16-17). Garland states that Brooks told her several times that he needed an open position to hire his friend, Sam Bailey. (Garland Decl. ¶ 26). Garland also observed that with one exception, all the DSRs Brooks hired were African American. (Garland Decl. ¶ 27).
Brooks' statement is admissible for the purpose of showing motive or as a statement of a party opponent. Fed. R. Evid. 803(3) ; Horne v. Turner Const. Co., 136 F. App'x 289, 292 (11th Cir. 2005) (holding that a statement made from one supervisor to another is about hiring employees in a protected class is an admission by a party opponent); Zaben v. Air Prod. & Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir. 1997) ("[S]tatements made by a supervisory official who plays some role in the decision making process are generally admissible.").
D. Alleged Comparators
Plaintiff identified Kerri Klein and Darrea'l Smith, who were also DSSs, as her comparators. (DSMF ¶ 34). Klein is of Asian descent, and Smith is African-American. (PSMF ¶ 6). Klein and Smith both supervised DSRs who were accused of fraudulent sales. (Erway Decl. ¶ 27). Klein and Smith's manager was Garland, not Brooks. (Erway Decl ¶ 15). Klein and Smith were not terminated in connection with the Roku Project investigation. (PSMF ¶ 5). According to Erway, neither Klein nor Smith was accused of failing to properly instruct their teams about the Roku Project, encouraging their teams to push sales, discouraging their teams from reporting concerns to leadership, failing to escalate potential fraud to leadership, improperly coaching their teams about questions they might be asking during the investigation, or lying to HR about the same. (Erway Decl. ¶ 27). Garland, however, states that Klein was the only DSS who failed to escalate reports. (Garland Decl. ¶ 13).
It is unclear from the record whether the correct last name is Smith or Young. Stacia Erway's Declaration refers to Darrea'l Smith, but Robin Garland's Declaration refers to Darrea'l Young. (Compare Erway Decl. ¶ 15 with Garland Decl. ¶ 4). The Court assumes Darrea'l Smith and Darrea'l Young are the same person and will refer to that person as Darrea'l Smith or Smith for the sake of clarity.
LEGAL ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of asserting the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Apcoa, Inc. v. Fid. Nat'l Bank, 906 F.2d 610, 611 (11th Cir. 1990). The movant is not required, however, to negate its opponent's claim; the movant may discharge its burden by merely " ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the movant has carried its burden, the non-moving party is then required to "go beyond the pleadings" and present competent evidence designating specific facts showing that there is a genuine disputed issue for trial; the non-moving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like. Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e) ).
While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). A fact is material when it is identified as such by the controlling substantive law. Id. at 248, 106 S.Ct. 2505. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts ... [w]here 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. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Thus, the Federal Rules mandate the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
II. TIMELINESS OF TITLE VII CLAIM
A Title VII plaintiff must file a judicial complaint within ninety days of receiving notice that the EEOC dismissed the charge. 42 U.S.C. § 2000e-5(f)(1) ; Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000). The ninety days starts to run when a plaintiff has notice that the EEOC dismissed the charge, which is typically when the plaintiff receives the right to sue letter. Kerr v. McDonald's Corp., 427 F.3d 947, 951 (11th Cir. 2005) ; Stallworth v. Wells Fargo Armored Servs. Corp., 936 F.2d 522, 524 (11th Cir. 1991) ; Norris v. Fla. Dep't of Health and Rehabilitative Servs., 730 F.2d 682, 682 (11th Cir. 1984). The ninety-day deadline is strict, although it is non-jurisdictional and subject to equitable tolling in extraordinary circumstances. See Fort Bend Cty. v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1850, 204 L.Ed.2d 116 (2019) (holding that Title VII's charge-filing provisions are non-jurisdictional); Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 1342 (11th Cir. 2017) (holding that the timely-filing requirements of Title VII are non-jurisdictional and subject to equitable tolling in extraordinary circumstances beyond plaintiff's control); Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002) (dismissing complaint as untimely because it was filed ninety-seven days after the EEOC mailed the right to sue letter); Norris, 730 F.2d at 683 (rejecting as untimely a complaint filed ninety-one days after receiving notice of the right to sue). Once a defendant raises the issue of timeliness, the plaintiff has the burden of demonstrating that the filing was timely. Kerr, 427 F.3d 947 (citing Green, 281 F.3d at 1233-34 ).
Defendant argues Plaintiff's Title VII claim is untimely because it was not filed within 90 days of receiving the notice of the right to sue letter. (Doc. 14-1, at 14). Plaintiff's notice of the right to sue letter ("Notice") is dated August 23, 2017, but Plaintiff did not file suit until November 27, 2017. (Erway Decl. ¶ 29, Ex. 8; Compl., Doc. 1). After adding three days for mailing under Rule 6(e) of the Federal Rules of Civil Procedure, Defendant asserts that Plaintiff's deadline for filing was November 24, 2017. (Doc. 14-1, at 14). Defendant contends because Plaintiff's case was filed three days after the deadline ran, her Title VII claim should be dismissed on that basis. (Id. ).
In her responsive brief, Plaintiff argues the Notice was postmarked on August 24, 2017, which given the presumption of three days for mailing, not including Sundays, would make Monday, August 28, 2017, the date of receipt. (Doc. 16, at 2). Plaintiff states that ninety days from August 28, 2017, would fall on Sunday, November 26, 2017, so the filing deadline was Monday, November 27, 2017. (Id. ). Plaintiff's counsel asserts that his copy of the Notice reflects a receipt date of November 27, 2017. (Id. ) Plaintiff's counsel also states that Plaintiff learned about the Notice for the first time when counsel received it. (Id. ).
Plaintiff attached a copy of a Notice as Exhibit A, which indicates that the "date mailed" was August 23, 2017. (Doc. 16, Ex. A). In the top right corner of the Notice is a handwritten note that appears to read: "Received 8/28/2017" and the initials "ME" or "HE." (Id. ). Also included in Exhibit A is the front of an envelope from the EEOC addressed to Plaintiff's attorney, which shows as a postage date of August 23, 2017, and a postmark date of August 24, 2017. (Id. ). Defendant contends that the attached envelope and Plaintiff's counsel's assertion that Plaintiff received the Notice on August 28, 2017 are unauthenticated and inadmissible. (Doc. 18, at 14-15). Further, a postmark of August 24, 2017 is not inconsistent with a mailing date of August 23. (Id. at 15).
The Court will not consider the testimony of counsel contained in Plaintiff's responsive pleading or the unauthenticated Exhibit A containing the envelope. "Evidence is properly authenticated when there is evidence sufficient to support a finding that the matter in question is what its proponent claims." United States v. Harris, 338 F. App'x 892, 894 (11th Cir. 2009) ; Fed. R. Evid. 901(a). Rule 901 requires presentation of sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be, and circumstantial evidence alone may be enough. Harris, 338 F. App'x at 895 ; United States v. Dadamuratov, 340 F. App'x 540, 547 (11th Cir. 2009) ; United States v. Singleton, 455 F. App'x 914, 916 (11th Cir. 2012). Generally, to be admissible at summary judgment, a document must be authenticated by and attached to an affidavit by a person through whom the document could be admitted into evidence. 28 U.S.C. § 1746 ; Fed. Trade Comm'n v. Williams, Scott & Assoc., LLC, 679 F. App'x 836 (11th Cir. 2017) (holding that the district court did not abuse its discretion in refusing to consider three unauthenticated documents claimed as business records but submitted without affidavits from qualified witnesses); Saunders v. Emory Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010) (stating that documents must be accompanied by an authenticating affidavit to be admissible at summary judgment).
Exhibit A is not accompanied by an affidavit or other evidence supporting Plaintiff's contention that the envelope contained the first Notice Plaintiff received from the EEOC. It is only referred to generally by Plaintiff's counsel as "(See exhibit A)" after the statement, "The undersigned states that the first time Plaintiff learned of the Notice of Rights was upon notification of counsel's receipt of the notice." (Doc. 16, at 2). The Court further observes that Plaintiff's counsel states that his copy of the Notice "reflects the date of receipt as August 28," but counsel does not explain how the Notice came to reflect that date or any other facts suggesting the date of receipt is accurate. Thus, it is unclear who, if anyone, has personal knowledge of the date the Notice was received by Plaintiff's counsel or can explain the process by which it was marked as received on August 28, 2017. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) ("The possibility that unknown witnesses will emerge to provide testimony on this point is insufficient to establish that the hearsay statement could be reduced to admissible evidence at trial.") Further, Plaintiff's counsel's assertion in a responsive brief that Plaintiff did not know about the dismissal of her charge before he received the Notice constitutes inadmissible hearsay. The general rule is that hearsay cannot be considered on a motion for summary judgment unless it could be reduced to admissible form. Macuba v. Deboer, 193 F.3d 1316, 1323-24 (11th Cir. 1999). The Court cannot surmise any justification for admitting Plaintiff's attorney's unsworn testimony as to when Plaintiff had knowledge of the Notice. Thus, the statement is inadmissible hearsay that should not be considered on summary judgment.
If receipt of the right to sue letter cannot be established or is disputed, Rule 6 of the Federal Rules of Civil Procedure creates a presumption that it was received three days after it was issued by the EEOC. Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (presuming that the right to sue letter was received three days after issuance); Phillips v. City of Atlanta, No. 1:15-cv-03616-TWT-RGV, 2016 WL 5429668, at *8 (N.D. Ga. July 29, 2016), report and recommendation adopted, 2016 WL 5394116 (Sept. 27, 2016). The Notice was issued by the EEOC on August 23, 2017, which gives rise to a presumption that Plaintiff received the notice on August 26, 2017. Thus, Plaintiff has failed to counteract this presumption with reliable, admissible evidence. See Green, 281 F.3d at 1234 (affirming the district court's application of the presumption of receipt on the mailing date plus three days where the plaintiff failed to present evidence of date of receipt). Accordingly, Plaintiff's Title VII claim is untimely. Even if the Court were to credit Plaintiff's counsel's testimony and the unauthenticated exhibits, however, Plaintiff's Title VII claim should still be dismissed on the merits.
III. RACE DISCRIMINATION
Title VII prohibits an employer from "discriminat[ing] 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. § 2000e-2(a)(1). " Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts." 42 U.S.C. § 1981(a) ; Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999) ; see also Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) (noting Section 1981 has been construed to forbid all racial discrimination in the making of contracts). For Plaintiff to prevail on her race discrimination claims, she must show that Defendant intentionally discriminated against her on the basis of her race using direct evidence, statistical evidence that shows a pattern or practice of discrimination, or circumstantial evidence based on the four-pronged test outlined in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Kilpatrick v. Tyson Foods, Inc., 268 F. App'x 860, 861 (11th Cir. 2008) ; Walker v. NationsBank of Fla., 53 F.3d 1548, 1555-56 (11th Cir. 1995) ; see also Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) ). Because Plaintiff has not provided any direct evidence or statistical evidence of a pattern or practice of discrimination, she must prove discrimination through circumstantial evidence utilizing the McDonnell Douglas burden-shifting analysis. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). Plaintiff's claims under Title VII and Section 1981 should be analyzed together using the same McDonnell Douglas burden-shifting framework. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) ; Richardson v. Leeds Police Dep't., 71 F.3d 801, 805 (11th Cir. 1995) (explaining that claims under Section 1981 utilize identical methods of proof as Title VII claims and are governed by the McDonnell Douglas framework); Howard v. B.P. Oil Co., 32 F.3d 520, 524 n.2 (11th Cir. 1994).
Under the McDonnell Douglas framework, the plaintiff first has the burden of establishing a prima facie case of discrimination on the basis of race. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 ; Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If the plaintiff meets this burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 ; Burdine, 450 U.S. at 254, 101 S.Ct. 1089 ; Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). This burden is one of production, not persuasion, and is "exceedingly light." Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994) ; Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1141 (11th Cir. 1983). Then plaintiff will be given an opportunity to show that the defendant's proffered nondiscriminatory reason was merely a pretext for discriminatory intent. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 ; Chapman, 229 F.3d at 1024.
A. Prima Facie Case
To establish a prima facie case of disparate treatment based on circumstantial evidence under Title VII, Plaintiff must show that: (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside her protected class more favorably or she was replaced by a person from outside her protected class. Howard v. Oregon Television, Inc., 276 F. App'x 940, 942 (11th Cir. 2008) ; Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F. 3d 1281, 1289 (11th Cir. 2003). The prima facie case as set forth above is not rigid; if the plaintiff fails to show the existence of a similarly-situated employee, for instance, the plaintiff may put forward some other evidence showing a relationship between her race and the adverse action. Vega v. Invsco Grp., Ltd., 432 F. App'x 867, 870 (11th Cir. 2011) ; Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) ("If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present."). Here, Charter argues Plaintiff cannot establish a prima facie case of discrimination because Plaintiff did not show that she was qualified for the job or identify any similarly-situated comparators. (Doc. 14-1, at 16-19).
1. Plaintiff's Qualifications for DSS Position
According to Charter, Plaintiff failed to adequately and appropriately supervise the DSRs on her team and was therefore not qualified to be a supervisor. (Doc. 14-1, at 16-17). Clearly, Plaintiff contests the findings of the Report. (Doc. 16, at 8-9). According to Plaintiff, Garland's declaration shows that her DSRs were properly trained, and Plaintiff testified that she provided all the Roku Project materials to her sales representatives. (Doc. 16, at 9). Plaintiff argues she could not have prepared her DSRs for the HR investigation questions because she was not involved in the investigation and did not know the specific questions that would be asked. (Id. ). Plaintiff has also relies on Garland's declaration to support her contention that she was a competent supervisor. (Garland Decl. ¶ 23 (opining that Plaintiff was a better supervisor than the two DSSs who retained their jobs)).
Whether a plaintiff is qualified for a position is based on whether the plaintiff satisfied the employer's objective qualifications. Vessels v. Atlanta Indep. School Sys., 408 F.3d 763, 769 (11th Cir. 2005). Some courts have held that in cases of performance-based terminations, the court does not need to address a plaintiff's qualifications at the prima facie stage because the inquiry shifts to whether the performance issues were pretext for discriminatory intent. See Andrade v. Morse Operations, Inc., 946 F. Supp. 979, 983 (M.D. Fla. 1996). Even if Plaintiff was required to show she was qualified for her position at the prima facie stage, the Court finds sufficient evidence to support such an inference. Plaintiff had worked in sales since 2004, except for three years she managed insurance documents, and left her previous positions voluntarily. (Pl.'s Dep. at 9:15-14:11). In her job that immediately preceded Charter, Plaintiff rose to the level of director's assistant in a small advertising agency school. (Pl.'s Dep. at 12:4-10). After only eight months at Charter, Plaintiff was promoted from a sales role to a supervisor, a role Plaintiff held for two years before her termination. (Pl.'s Dep. at 14:23-15:1). In West v. AM/NS Calvert, 350 F. Supp.3d 1227 (S.D. Ala. 2018), the plaintiff argued his alleged poor performance was based on subjective judgments about specific incidents as opposed to a failure to meet the objective requirements of the position. Id. at 1241. The court ultimately determined that plaintiff met the second prong of the prima facie by inferring that he was qualified because he held the position for more than two years. Id. The instant case is sufficiently similar because Plaintiff was in her supervisory role for approximately two years and was terminated based on her employer's judgment that she violated the company's ethical standards as opposed to failing to meet the objective requirements for the position. Viewing all evidence in a light most favorable to Plaintiff, the Court finds Plaintiff has provided just enough facts from which a reasonable jury could conclude that she was qualified for the position.
2. Similarly-Situated Comparators
Charter next contends that Plaintiff's prima facie case fails because Plaintiff did not show that she was treated less favorably than similarly-situated comparators. (Doc. 14-1, at 17-19). Because Plaintiff alleges that she was terminated based on her race, Plaintiff may make out a prima facie case by showing either that she was replaced by someone outside her protected class or treated less favorably than similarly-situated individuals outside her protected class. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003). There is no dispute that Sam Bailey, who is African-American, was hired to fill Plaintiff's former position. (PSMF ¶ 22). Thus, Plaintiff has alleged that she was replaced by someone outside her protected class, which is all that is necessary for a prima facie case. See Addison v. Fla. Dep't of Corr., 683 F. App'x 770, 774 (11th Cir. 2017) (holding that the plaintiff established a prima facie case of discriminatory termination under Title VII because he was replaced by someone outside his protected class); Robinson v. Colquitt EMC, 651 F. App'x 891, 894 (11th Cir. 2016) (same); Jiann Min Chang v. Alabama Agric. & Mech. Univ., 355 F. App'x 250, 251-52 (11th Cir. 2009) (same).
B. Legitimate, Non-Discriminatory Reason for Plaintiff's Termination
Charter may rebut the presumption of discrimination by providing a legitimate, non-discriminatory reason for Plaintiff's termination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Charter is not required to persuade the Court that the proffered reason was actually the reason for Plaintiff's termination; Charter is only required to provide a legally-sufficient explanation supported by admissible evidence. See id. Plaintiff contends that Charter did not meet its burden because it has only provided non-specific reasons, such as "condoning fraudulent conduct." (Doc. 16, at 13-14). The Court disagrees. Despite Plaintiff's contention, Charter has proffered evidence showing that it terminated Plaintiff for numerous ethical violations related to the Roku Project, including poor supervision, interference with the investigation, and lying to investigators. (Doc. 14-1, at 20-21; see Erway Decl. Ex. 5; Pl.'s Dep. Ex. 9). Unethical conduct in violation of company policy is a reasonable basis for termination. See e.g. Robinson v. Colquitt EMC, 651 F. App'x 891, 894 (11th Cir. 2016) ; (violating company safety policies and general procedures); Carson v. Metro. Atlanta Rapid Transit Auth. (MARTA), 572 F. App'x 964, 967 (11th Cir. 2014) (violating company rules and policies); Lawson v. KFH Indus., Inc., 767 F. Supp.2d 1233, 1242 (M.D. Ala. 2011) (failing to follow instructions and attempting to conceal misconduct).
C. Evidence of Pretext
Because Charter presented a nondiscriminatory explanation for Plaintiff's termination, the burden switches to Plaintiff to establish pretext. Vira v. Crowley Liner Servs., 723 F. App'x 888, 894 (11th Cir. 2018) ; Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). A plaintiff raises a genuine issue of material fact concerning pretext if the plaintiff casts sufficient doubt on the defendant's proffered non-discriminatory reasons to permit a reasonable factfinder to conclude that the proffered reasons were not actually what motivated its conduct. Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1162-63 (11th Cir. 2004). This may be accomplished either by directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. In doing so, the court evaluates whether the plaintiff has demonstrated "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs v. Plantation Patterns, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997). The plaintiff must meet the employer's legitimate reasons "head on" and not simply quarrel with the wisdom of the reasons. Chapman v. Al Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
In this case, Charter contends that Plaintiff cannot show that the reasons Charter gave for terminating her were pretext for race discrimination. (Doc. 14-1, at 20-25). According to Charter, Plaintiff's theory that three African-American DSRs teamed up against her to save their jobs fails to show pretext for three reasons: the record evidence refutes it, the theory does not suggest discrimination on the basis of race, and there is no evidence that Charter's decisionmakers were aware of any such conspiracy or had any other reason to disbelieve reports that Plaintiff engaged in misconduct. (Id. at 22-35). In response, Plaintiff relies on the "cat's paw theory," which permits a plaintiff to show discriminatory animus where the decisionmaker followed a biased recommendation without conducting an independent investigation. (Doc. 16, at 14-16). Plaintiff appears to contend that Charter took Brooks' recommendation to terminate Plaintiff at face value. (Id. at 15-17). Plaintiff suggests that Brooks displayed racial animus because he allegedly wanted to make a position available for his friend, an African American, and because, according to Garland, all but one of the DSRs hired by Brooks were African-American. (Id. ).
The Court finds this statement of limited probative value, as Garland does not provide the number of DSRs Brooks hired during his tenure. (Garland Decl. ¶ 27).
In its reply, Charter argues Plaintiff failed to dispute that she lied to investigators, which alone justifies her termination. (Doc. 18, at 3-4). Further, Garland's declaration, which Plaintiff heavily relies upon, does not support Plaintiff's assertion that Charter acted with discriminatory intent. (Id. at 6-8). Charter notes that Plaintiff did not identify any potential comparators who engaged in the same alleged misconduct, and Plaintiff's allegation that Brooks wanted to replace her with his friend alleges nepotism, not race discrimination. (Id. at 7, 10-11).
Charter further argues Plaintiff's failure to show Brooks acted with discriminatory animus is fatal to Plaintiff's cat's paw theory. (Id. at 11-12). Plaintiff has not provided any reason for Brooks to suspect that the DSR's accusations were either false or based on race; indeed, Plaintiff speculates that the DSRs lied to protect themselves, not because of her race. (Id. at 12). The evidence of Plaintiff's misconduct severs any connection between discriminatory intent and Plaintiff's termination. (Id. at 12-13). Finally, Charter argues Brooks' recommendation was not "rubber stamped," because Field, the Director of Sales, requested Plaintiff's termination, and there is no evidence that Brooks had undue influence over her. (Id. at 14).
This Court finds that Plaintiff has failed to put forward evidence showing that Charter's proffered reason for her termination was pretext for race discrimination. A plaintiff can overcome an employer's assertion that plaintiff was fired for violating a work rule by submitting evidence that: "(1) that she did not violate the cited work rule, or (2) that if she did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated." Bush v. Houston Cty. Comm'n, 414 F. App'x 264, 267 (11th Cir. 2011) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999). Plaintiff has failed to make a showing under either option.
1. Charter's Reasonable Belief Plaintiff Committed Ethical Violations
To make a showing under the first option, the ultimate issue is whether the decisionmaker believed that the employee violated the rule, not whether the employee actually violated the rule. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Plaintiff has not provided any evidence calling into question Charter's reasonable belief that Plaintiff committed ethical violations. A confidential HR investigation, conducted by Brooks and two Caucasian HR professionals, concluded that Plaintiff committed several ethical violations. (See Erway Decl., Ex. 5). Plaintiff admitted in her deposition that she had no evidence to support her theory that three DSRs conspired to lie about her conduct in order to save their own jobs. (Pl.'s Dep. at 140:14-141:10). Nor could Plaintiff articulate any reason why Charter would not credit the statements the DSRs gave during the investigation, other than to make a credibility determination in Plaintiff's favor. (Pl.'s Dep. at 127:14-128:11). Despite testifying that she saved all of her emails related to the Roku Project, Plaintiff did not provide copies of any emails showing that she immediately forwarded emails she received about customer complaints to leadership. (Pl.'s Dep. at 100:17-101:4, 144:15-18, Ex. 8). As Charter points out, Plaintiff does not dispute that Charter reasonably believed that she initially lied in her interview about her text messages with Pauldo. Indeed, Plaintiff admitted in her deposition that the text messages were inappropriate, and she understood how they could be interpreted as not reflecting well on her. (Pl.'s Dep. at 135:18-136:9).
Terminating an employee based on an honest belief that the employee violated company policy is not an adverse employment action based on race. Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11th Cir. 1987). Federal courts will not sit as a "super-personnel department" that re-examines a company's business decisions. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988). The Court's inquiry "is limited to whether the employer gave an honest explanation of its behavior." Id. "An employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984).
2. Differential Treatment of Comparators Outside Protected Category
Nor has Plaintiff shown that other employees who committed similar acts were not terminated. Although Plaintiff argues DSS Smith and DSS Klein are appropriate comparators because they both supervised teams investigated for fraud during the Roku Project, there is no evidence that either of them lied to investigators, interfered with the investigation, or failed to adequately instruct and supervise the DSRs on their teams. Although Garland stated that Klein failed to escalate complaints, that is insufficient evidence to permit a jury to reasonably conclude that Klein should have been subject to the same disciplinary action as Plaintiff. Even if Klein failed to escalate complaints, there is no evidence that Klein lied to investigators, interfered with the HR investigation, and failed to adequately instruct and supervise the DSRs on her team. Therefore, Plaintiff cannot show pretext through differential treatment.
3. Cat's Paw Theory
Plaintiff argues her claims should survive summary judgment under the "cat's paw" theory. The cat's paw theory allows a plaintiff to show causation where the decisionmaker followed a biased recommendation without independent investigation. Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). Thus, the superior carrying out the adverse action acts as the "cat's paw" for the person with the discriminatory animus. Hankins v. AirTran Airways, Inc., 237 F. App'x 513, 521 n.5 (11th Cir. 2007). Here, however, Plaintiff has not shown either that Brooks bore discriminatory animus toward her or that Charter simply rubber stamped his recommendation. Plaintiff's termination was based on an HR investigation conducted by Brooks and two HR professionals, and requested by Amanda Fields, the Director of Sales. (Erway Decl. ¶ 26, Ex. 5). Plaintiff has put forward no evidence that Fields merely relied on the Brooks' recommendation and did not independently assess the evidence of Plaintiff's misconduct. Further, Plaintiff has not supported her contention that Brooks recommended terminating her because of her race. On the contrary, Plaintiff testified that her conflict with Brooks was based on their history of competing for the same position, Plaintiff's refusal to switch to a difference geographic area, and Brooks' desire to open a position for his friend. (Pl.'s Dep. at 136:22-137:19; Garland Decl. ¶ 26). None of the motivations Plaintiff imputes to Brooks are rooted in racial animus. See Powell v. Am. Remediation & Envtl., Inc., 618 F. App'x 974, 977 (11th Cir. 2015) (holding that alleged nepotism is not actionable under Title VII or Section 1981, and if anything, weakens plaintiff's contention that the adverse action was based on racism).
Essentially, Plaintiff alleges racial bias without any factual support. Such conclusory allegations of bias are insufficient to create a genuine issue of material fact as to whether Charter's stated reason for terminating Plaintiff was pretext for race discrimination. McCurdy v. Alabama Disability Determination Serv., 753 F. App'x 784, 793-94 (11th Cir. 2018) (granting summary judgment for defendant because conclusory allegations of bias were insufficient to withstand summary judgment). Even if Plaintiff had evidence to support the theories she advanced – that the DSRs lied to protect their jobs and Brooks did not like her and sought to replace her with his friend – the theories themselves do not suggest racial animus. Carson v. Metro. Atlanta Rapid Transit Auth. (MARTA), 572 F. App'x 964, 967 (11th Cir. 2014) (holding that "even if the Plaintiffs had shown that the Defendants' proffered reason for the termination had been false, they failed to establish that racial discrimination was the real reason for his firing."). A reasonable jury could not find that Charter's reason for terminating Plaintiff was pretext for racial discrimination; accordingly, Charter is entitled to summary judgment.
CONCLUSION
For the reasons discussed above, this Court RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED . (Doc. 14). As this is a final Report and Recommendation and there are no other matters pending before this Court, the Clerk is directed to terminate the reference to the undersigned.
SO REPORTED AND RECOMMENDED this 14 day of August, 2019.