Thomas v. Kamtek, Inc.

• Decision Date: 28 October 2015
• Docket Number: CIVIL ACTION NO. 2:14-CV-0844-WMA
• Parties: Arthur C. Thomas, Plaintiff, v. Kamtek, Inc., Defendant.
• Court: U.S. District Court — Northern District of Alabama

143 F.Supp.3d 1179

Arthur C. Thomas, Plaintiff,

v.Kamtek, Inc., Defendant.

CIVIL ACTION NO. 2:14-CV-0844-WMA

United States District Court, N.D. Alabama, Southern Division.

Signed October 28, 2015

Charity Gilchrist-Davis, Law Office of Gilchrist-Davis LLC, Lee David Winston, Roderick T. Cooks, Winston Cooks, Birmingham, AL, for Plaintiff.

Warren B. Lightfoot, Jr., Tiffany Parrish Rainbolt, Maynard Cooper & Gale PC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION

WILLIAM M. ACKER, JR.

, UNITED STATES DISTRICT JUDGE

On May 12, 2015, the court ordered plaintiff Arthur C. Thomas, in light of its recent opinion in Savage v. Secure First Credit Union , 107 F.Supp.3d 1212, 2015 WL 2169135 (N.D.Ala. May 8, 2015)

, to show cause "why the court should not require him either to dismiss all his claims except that in Count One [race discrimination], or to pursue only one of the claims contained in Counts Two [age discrimination], Three [disability discrimination], and Four [retaliation], as the ‘but-for’ cause and dismiss all other claims." (Doc. 16). After granting Thomas an extension (Doc. 17 and Doc. 19), he filed his response on June 9, 2015 (Doc. 19). Rather than amend his complaint, Thomas took the position that he was not required to elect only one theory under "but for" causation and that "[p]laintiff can legally prevail on each—or all—of her [sic] claims." (Doc. 19 at 5).

With discovery almost complete and the dispositive motions deadline nearing on August 3, 2015, the court entered an order extending the deadline for any response by defendant Kamtek Inc. ("Kamtek") to run concurrently with the dispositive motions deadline. (Doc. 20). On August 3, 2015, Kamtek filed a motion for summary judgment on all four of Thomas' claims. (Doc. 21). Thomas filed his response to Kamtek's motion on September 8, 2015 (Doc. 26), and Kamtek filed a reply on September 21, 2015 (Doc. 28). Kamtek's motion is now under submission.

For the reasons stated below, Kamtek's motion for summary judgment will be denied as to Count I and granted as to all other counts.

"[C]onsidering all of the evidence and the inferences it may yield in the light most favorable to the nonmoving party... [s]ummary judgment is appropriate where the evidence shows ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Ellis v. England , 432 F.3d 1321, 1325 (11th Cir.2005)

(quoting Fed. R. Civ. Proc. 56(c) ) (citation omitted). "For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Id. at 1326 (citations omitted).

Count I

"Where, as here, there is no direct evidence of discrimination, a plaintiff may prove discrimination through circumstantial evidence, using the burden-shifting framework established in McDonnell Douglas

." McCann v. Tillman , 526 F.3d 1370, 1373 (11th Cir.2008).

A. Prima facie case

"Under the McDonnell Douglas

framework, [a plaintiff] must first make a prima facie case, which generally requires a showing that: 1) he belongs to a protected class; 2) he was qualified to do the job; 3) he was subjected to adverse employment action; and 4) and his employer treated similarly-situated employees outside his class more favorably." Humphrey v. Napolitano , 517 Fed.Appx. 705, 708 (11th Cir.2013) (citing Crawford v. Carroll , 529 F.3d 961, 970 (11th Cir.2008) ). It is undisputed that (1) Thomas is black and therefore in a protected class (Doc. 1 at 2; Doc. 7 at 2) and (2) was reasonably qualified for his position (Doc. 21 at 3; Doc. 26 at 3). However, Kamtek says that Thomas fails to meet the third and fourth prongs of a prima facie case (Doc. 21 at 21-24).

i. Adverse action

"[T]o prove adverse employment action in a case under Title VII's anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment ... [m]oreover, the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Davis v. Town of Lake Park, Fla. , 245 F.3d 1232, 1239 (11th Cir.2001)

.

While Kamtek argues at length that selection for a workplace drug test is not an adverse action,¹ it overlooks the reality that Thomas was terminated as a result of the drug test episode. "Termination is an adverse employment action." McCray v. Wal – Mart Stores, Inc. , 377 Fed.Appx. 921, 923 (11th Cir.2010)

. Therefore, Thomas satisfies the third prong of a prima facie case for racial discrimination.

ii. Similarly situated individuals

"In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir.1999)

. "Exact correlation is neither likely nor necessary, but the cases must be fair congeners ... [i]n other words, apples should be compared to apples." Silvera v. Orange Cnty. Sch. Bd. , 244 F.3d 1253, 1259 (11th Cir.2001) (quotes omitted)). "The relevant inquiry is not whether the employees hold the same job titles, but whether the employer subjected them to different employment policies." Lathem v. Dep't of Children & Youth Servs. , 172 F.3d 786, 793 (11th Cir.1999).

Thomas provides William Phillips, Charles McBride, and Robin Embry as similarly situated white Kamtek employees who were treated differently than he in respect to their drug tests. (Doc. 26 at 9-12). While it is undisputed by the parties that Phillips received more than two hours to produce urine during his drug test (Doc. 21 at 28-29; Doc. 26 at 9-10), Phillips is not a fair congener because Kamtek offers undisputed testimony that Phillips was a different situation under Kamtek policy being tested following treatment after he came forward and requested treatment for a drug problem. (Doc. 22-1 at 7; Doc. 27-2 at 6, 55).

Yet, while Phillips is dissimilar, McBride and Embry were both drug tested under the same two hour policy as Thomas (Doc. 28 at 11-12; Doc. 26 at 10-11), and the parties offer conflicting testimony on whether that two hour time limit was applied preferentially. First, Shannon Hendon, an employee of PSI, the temporary staffing company providing drug screening services for Kamtek, administered the drug test to McBride and testified that when McBride "still couldn't provide enough urine [ ][a]fter about an hour," he phoned Kamtek HR manager Charman Meador who then told Hendon to give McBride three hours. (Doc. 22-4 at 9-10). While Hendon testified "I don't know the exact amount of time [it took McBride to provide his urine sample]", she also testified that after the phone call with Meador, McBride did not produce the sample "pretty quickly" but instead he had to drink more water and they both "had to sit in the cafeteria for a while." (Doc. 22-4 at 10). In fact, Kamtek admits that "Meador agreed that additional time could be given if necessary." (Doc. 21 at 15). Arguing in the alternative, Kamtek tries to distinguish McBride on the basis that he asked for more time during his drug test whereas Thomas did not. (Doc. 21 at 30). Aside from the disputed fact that Thomas did implicitly request more time when being escorted off the Kamtek premises (Doc. 22-2 at 31-32), Kamtek's distinction is irrelevant given the undisputed testimony that Kamtek's two-hour policy was inflexible

(Doc. 21 at 7, 11, Doc. 22-1 at 5; Doc. 22-2 at 18, 25; Doc. 22-4 at 6-7; Doc. 27-1 at 54-59; Doc. 27-3 at 32, 82-85). Next, Nancy Crowder-Deed, an employee of PSI who administered the drug test to Embry, testified that when Embry got upset in the course of the drug test, HR manager Meador got involved, reprimanded Crowder-Deed for not having the "right attitude," and then Embry was allowed "two and a half hours" to produce her urine sample. (Doc. 27-3 at 83-84).

Therefore, when viewed in the light most favorable to Thomas, there is more than enough evidence for a prima facie case that during his drug test Thomas was not treated similarly to McBride and Embry.

B. Pretext

"When a plaintiff has established a prima facie case of discrimination, the burden of production then shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse employment action ... [and] [i]f the defendant is able to do so, the burden shifts back to the plaintiff to show that this reason is really a pretext for unlawful discrimination" Winborn v. Supreme Beverage Co. Inc. , 572 Fed.Appx. 672, 674–75 (11th Cir.2014)

(citing E.E.O.C. v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1272 (11th Cir.2002) ). To show pretext, the plaintiff must "come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Floyd v. Fed. Exp. Corp. , 423 Fed.Appx. 924, 931 (11th Cir.2011). Specifically, "in cases involving alleged racial bias in the application of discipline for violation of work rules, the plaintiff ... must show either (a) that he did not violate the work rule, or (b) that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar misconduct." Jones v. Gerwens , 874 F.2d 1534, 1540 (11th Cir.1989)

.

While Kamtek offers Thomas' work-rule violation of failing to produce a urine sample during his drug test as its legitimate, nondiscriminatory reason for terminating him (Doc 21 at 6-9, 31-33), the record contains sufficient evidence to create a genuine issue of material...