Joseph v. Columbus Bank and Trust Company, No. 4:2009cv00157 - Document 33 (M.D. Ga. 2011)
Court Description: ORDER granting 25 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 4/1/2011. (jbo)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION DYNESHIA D. JOSEPH, * Plaintiff, * vs. * COLUMBUS BANK AND TRUST COMPANY, * CASE NO. 4:09–CV-157 (CDL) * Defendant. * O R D E R Plaintiff, Defendant, Dyneshia Columbus D. Bank Joseph and (“Joseph”), Trust alleges Company that (“CB&T”), discriminated against her because of her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).1 CB&T responds that it did any not discriminate against Joseph in way and that it terminated Joseph s employment because she failed to adequately perform her job. CB&T seeks summary judgment as to Joseph s 1 Joseph s Complaint also alleged that CB&T discriminated against her based on her gender in violation of Title VII, Compl. ¶¶ 14-21, ECF No. 1, and that CB&T breached Joseph s employment contract, id. ¶¶ 2224. Joseph failed to address either claim in response to CB&T s motion for summary judgment. See generally, Pl. s Resp. to Def. s Mot. for Summ. J. Attach. 1, Pl. s Mem. of Law in Opp n to Def. s Mot. for Summ. J., ECF No. 30-1. Therefore, the Court deems Joseph s gender discrimination and breach of contract claims abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”). 1 claim. For the following reasons, CB&T s Motion for Summary Judgment (ECF No. 25) is granted. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Civ. P. 56(a). Fed. R. In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. FACTUAL BACKGROUND The evidence, viewed in the light most favorable to Joseph, reveals the following. CB&T is a state-chartered commercial bank with its main office and Georgia. as a eighteen banking locations in Columbus, CB&T hired Joseph, a black female, in September 2000 teller. action, branch Joseph Throughout was the employed time as 2 a period teller relevant at CB&T s to this Wynnton Branch. The Wynnton Branch is one of CB&T s smaller branches, typically housing nine to ten employees at any one time. I. Joseph’s Job Responsibilities at CB&T Joseph s title throughout her six-year tenure with CB&T was Teller I. Teller I is an entry-level position that involves providing face-to-face banking services to customers in both the bank lobby and drive-through banking stations. Joseph was required First, Joseph was to perform responsible two for As a Teller I, categories accurately of and functions. efficiently conducting routine transactions such as receiving and paying out money, cashing checks, accepting deposits and withdrawals, accepting various other payments, and issuing money orders and traveler s checks. Pl. s Resp. to Mot. for Summ. J. [hereinafter Pl. s Resp.] Attach. 2, Joseph Decl. [hereinafter Joseph Decl.] Ex. 3, Teller I Job Summary/Core Responsibilities, ECF No. 30-2. Second, Joseph was responsible for various sales referral functions such working knowledge of “[a]ssess[ing] customer as: (1) bank “[d]emonstrat[ing] products needs and and a solid services;” deliver[ing] services (2) or refer[ring] [customers] to other team members in accordance with bank sales strategy;” (3) “[a]ctively services and products, answer[ing] promot[ing] [CB&T s] questions, and direct[ing] customers to appropriate departments for specialized services with each bank transaction;” (4) 3 “[r]efer[ring] customers to other bank staff for product sales and advanced problem resolution;” and (5) “[m]eet[ing] customer referral goals as set by the Branch Manager.” II. Id. Joseph’s Early Tenure with CB&T CB&T contends that Joseph was never an easy employee to manage. Joseph s supervisors throughout her tenure with CB&T uniformly reported that Joseph was a complainer, who was subject to constant mood swings. Def. s Br. in Supp. of Mot. for Summ. J. [hereinafter Def. s Br.] Ex. 2, Takemoto Aff. ¶¶ 7-8, ECF No. 25-5 [hereinafter Takemoto Aff.]; Def. s Br. Ex. 3, Moore Aff. ¶¶ 8-11, 16, ECF No. 27-3 [hereinafter Moore Aff.]; Def. s Br. Ex. 4, Newby Aff. ¶ 6, ECF No. 25-7 [hereinafter Newby Aff.]. CB&T also contends that Joseph was excessively absent from work. Aff. ¶¶ 7-8. Takemoto Aff. ¶ 8; Moore Aff. ¶¶ 13-14; Newby For April 25, 2007, tardy to and example, Joseph was between late for January work 1, sixty-four Def. s Br. Ex. 5, Wyatt Aff. ¶ 15, ECF No. 25-8. same period, Joseph took over 156 exclusive of vacation and holidays. Joseph, employee. history of unsurprisingly, tardiness and of and times. During that paid time off, Id. denies Joseph Decl. ¶¶ 3-4. hours 2006 that she was a difficult Joseph also denies having a absenteeism. Id. ¶¶ 37-38. She explains that the Wynnton Branch was “really relaxed” and that “many of the employees might log in late from time to time.” 4 Id. ¶ 38. Joseph also contends that her absences were not a problem since “[a]ny time [she] was off work, [she] was either taking [her] earned leave or was excused by a doctor.” ¶ 52; see also id. ¶ 37 (stating Joseph had “sick Id. time” remaining when she left CB&T). III. CB&T’s Emphasis on Customer Referrals By 2006, CB&T had begun to put greater emphasis on customer referrals by its employees. ECF No. 27-2 [hereinafter Def. s Br. Ex. 1, Cardin Aff. ¶ 8, Cardin Aff.]; Takemoto Aff. ¶ 9. Tellers like Joseph were a particular focus of this emphasis since they customers. expected have daily, face-to-face contact with Cardin Aff. ¶ 8; Moore Aff. ¶ 12. to engage each customer numerous Tellers were personally, learn that customer s needs, and refer them to an appropriate person to meet those needs. As part implemented of an August 2006. ECF No. 30-2. Moore Aff. ¶ 12; Cardin Aff. ¶ 8. its emphasis incentive plan on customer (“Teller referrals, Incentive CB&T Plan”) in Joseph Decl. Ex. 2, 2006 Teller Incentive Plan 1, Under the Teller Incentive Plan, tellers like Joseph were expected to make sufficient referrals to result in at least four closed transactions per month. Id. Tellers who exceeded that minimum threshold were entitled to an additional monthly bonus. Id. at 1-2. 5 In late January 2007, Colby Cardin succeeded Tofinski as Manager of the Wynnton Branch. transition, Cardin, Tofinski, and Austin As part of the Assistant Branch Manager Josefina Takemoto met with each branch employee to allow Cardin to get to know them, and to discuss how Cardin intended to manage the branch. On January 30, 2007, Cardin, Tofinski, and Takemoto met with Joseph. During that meeting, Cardin told Joseph that CB&T had three primary expectations of her as a teller. Cardin transactions Aff. ¶ 15. flawlessly; First, second, knowledge of repeat customers services; and third, that she that that and look she handle cash she have personal provide extra customer for customer needs and demonstrate that CB&T offered numerous financial products which could help them be financially successful. Id. During that same meeting Joseph told Cardin that she had been a Teller I for over six years, that during that time she had taken on extra responsibilities, and that she wanted to be promoted to Teller II. Joseph Decl. Ex. 5, Joseph Right Steps Individual Performance & Development Plan 6, ECF No. 30-2. The job description for a Teller I and Teller II are very similar; a Teller II, however, “is required to refer and sell more than a Teller I.” Joseph Decl. ¶ 9. required have to “advanced” Specifically, a Teller II is knowledge of bank services, opposed to the “solid” knowledge a Teller I requires. 6 as Compare Joseph Decl. Ex. 3, Teller I Job Summary/Core Responsibilities with Joseph Decl. Ex. 4, Teller Responsibilities, ECF No. 30-2. II Job Summary/Core Likewise, a Teller II must meet “stretch” (i.e. higher) customer referral goals rather than the normal Teller I customer referral goals. Id. After reviewing the Teller II competencies, Cardin, Tofinski, and Takemoto told Joseph that the most pressing area where she needed improvement to increase customer her referral chances for efforts. promotion Joseph was Right increasing her Steps Individual Performance & Development Plan 6; Joseph Decl. ¶ 18. They noted that Joseph had only closed seven referrals over the past three years and that, therefore, her sales were too low to promote her to Teller II. Cardin Aff. ¶ 14; Joseph Right Steps Individual Performance & Development Plan 6. Joseph explained that because she frequently ran the drive through station alone and was also handling other duties, she did not have the opportunity to make customer referrals. IV. Joseph Decl. ¶¶ 16-17. Joseph’s Career Development Plan As a result of Joseph s desire for promotion, Cardin, Takemoto, and Joseph met again on February 9, 2007 to prepare an action plan for Joseph s development using CB&T s Right Steps Evaluation System (the “Development Plan”). 22. Joseph Decl. ¶¶ 20, The Development Plan was divided into six action items. Joseph Right Steps Individual Performance & Development Plan 6. 7 Step one was designed to increase Joseph s product knowledge, which would help her increase her referrals. Id. Joseph committed to learn about one specific financial product per week and then report on that product to Takemoto or Cardin, thereby making an effort to learn the details of each financial service CB&T offered. Id. Cardin and Takemoto committed to allow Joseph to rotate more frequently from the drive through teller station into the lobby and give her time off from her teller station to observe personal bankers so that she could decide whether that was a career direction she wished to pursue. Id. Joseph was asked to register and attend training classes offered by CB&T, and Cardin personally committed to sit with her at her teller station improve her interaction and to referrals with make suggestions based customers. on Id. his about how she observation Joseph was also might of urged her to develop a more positive attitude and to become more involved in group activities with other Team Members. Id. At the conclusion of the February 9 meeting, Joseph stated that she did not like having to make product referrals and that she wanted to find another job within CB&T for which she was better suited. Joseph Dep. 92:14-20, 94:21-24, ECF No. 23; Cardin Aff. Ex. B, Cardin February Sales Activity Report at 1, Feb. 9, 2007 entry, ECF No. 27-2 [hereinafter Cardin February Sales Activity Report]. Therefore, 8 Joseph asked Cardin and Takemoto to delay the implementation of the Development Plan for about a month, stating that if she was unable to locate another job within February that time, Sales they Activity could Report revisit at 1, the contends performance she he the Teller in improvement. that that Id. denied the I Cardin Feb. 9, 2007 Cardin, however, denied Joseph s request.2 Cardin plan. Cardin Aff. ¶ 20. request position because required Joseph s immediate Likewise, Joseph testified at her deposition immediately started work on her Development because she “knew that [she] had to keep [her] job.” Dep. 86:7-12. entry. Plan Joseph Now, however, Joseph contends that she “was never told that [she] needed to immediately improve [her] sales to keep [her] Teller I job.” Joseph Decl. ¶ 15. Joseph further contends that “[a]ll discussion/plans regarding increasing [her] referrals and sales were an effort to consider [her] for promotion, not to consider whether [she] should be terminated.” Id.; see also id. ¶ 22 (“I was told that in order to be promoted to Teller II my sales referrals would have to improve. However, this was not a condition for continued employment as a Teller 1.”); Joseph Right Steps Individual Performance & Development 2 Joseph now contends Cardin agreed to delay the implementation of the Development Plan for thirty days, Pl. s Resp. to Def. s Statement of Material Facts ¶ 34, ECF No. 30-3, but she has produced no evidence to support that assertion. Further, during her deposition Joseph clarified that Cardin and Takemoto did not agree to delay implementation of her Development Plan. Joseph Dep. 92:22-95:2-11. 9 Plan 6 (stating Joseph should “[e]ffectively meet her threshold of 4 referrals per month and more in order to be considered or recommended for future promotions”). V. The Follow-Up Four weeks later, on March 7, Cardin again met with Joseph as she had suggested. action items noted disappointing results. During that meeting, Cardin reviewed the in Joseph s Development Plan with Cardin Aff. ¶ 24. Over the past four weeks CB&T had offered Joseph multiple opportunities Stephanie for Barber improvement. had Wynnton instituted a greater access to lobby customers. Aff. ¶ 24. Branch rotation to Head Teller give Joseph Joseph Dep. 74:2-5; Cardin Joseph was also given an opportunity to observe a personal banker to determine whether she wanted to pursue that career. Joseph Dep. 74:7-10; Cardin Aff. ¶ 24. Finally, Cardin had observed Joseph in the teller line, but they had not met for a coaching session. Joseph Dep. 75:21-77:4 (acknowledging Cardin observed her at the drive through window but denying they met for coaching session); but see Cardin Aff. ¶ 24 (contending coaching session occurred). Over that same period, however, Joseph made only minimal effort. Joseph had not made any weekly reports about new CB&T financial products she had learned about and had not asked for help on product knowledge from 10 either Cardin or Takemoto. Joseph Dep. 69:6-71:25. work, Joseph position. any reported After observing personal bankers at that Id. at 74:12-21. training classes she was not interested in that Joseph had also failed to complete offered by CB&T. Id. at 77:13-78:1. Cardin was concerned that Joseph s attitude had not improved, and he knew that she had been absent multiple days in the few weeks since their last meeting. Joseph s referrals had not Cardin Aff. ¶ 24. improved as of the date Finally, of this meeting, and Cardin believed that she was not making any serious effort to improve. Cardin Aff. ¶ 24. During the meeting Joseph informed Cardin that “sales were not for her.” Cardin Aff. ¶ 23. When he asked her why, she responded that she had a hard time asking people to consider products and services that she did not herself have or believe in, such as credit cards. Id. Joseph also told Cardin that she did not like to sell because she did not like to hear “no.” After the March 7 efforts briefly improved. meeting, Joseph s customer Id. referral Joseph closed one referral that very day and two more on March 9. The Wynnton Branch management believed that this result showed what Joseph was capable of if she made the effort and, consequently, recognized her for her improvement. Cardin Aff. ¶ 26. 11 VI. Joseph Throws In the Towel About two weeks later, on March 19, Takemoto and Head Teller Barber met with Joseph to give her an update on her “Over and Short (cash accounting)” report. Takemoto Aff. ¶ 23. During this conference, Takemoto told Joseph that she needed to be more consistent in her sales efforts. Id. Joseph responded by saying that she had been doing this for years, that sales were not for her, and that she was going to come to work, wait on her customers, and go home. 107:2-108:6. Takemoto Aff. ¶ 24; Joseph Dep. Joseph also told Takemoto that “I am throwing in the towel,” Takemoto Aff. ¶ 24; Joseph Dep. 108:8-12, and that “I am just waiting to move on to other opportunities,” Takemoto Aff. ¶ 25; Joseph Dep. 114:10-12. Takemoto made sure she understood Joseph by asking: (1) “This means you do not want to be trained for anything?” To which Joseph responded: “I do not.” Takemoto Aff. ¶ 25; Joseph Dep. 113:9-19. (2) “You do not want to be considered for any upcoming opportunities?” which Joseph responded: “I do not.” 114:1-4. “Yes.” (3) “This isn t for you?” To Takemoto ¶ 25; Joseph Dep. To which Joseph responded Takemoto Aff. ¶ 25; Joseph Dep. 114:6-8.3 3 Joseph s deposition and Takemoto s affidavit differ slightly on the exact words used during the Takemoto-Joseph exchange. Compare Takemoto Aff. ¶ 25 (“„This is it for you? Ms. Joseph responded „Yes. ”) with Joseph Dep. 114:6-8 (“Q. . . . she asked, This isn't for you, and you said, Yes? A. Yes, because I was trying to post out.”). The Court construes this immaterial difference in the light most favorable to Joseph. 12 VII. Joseph’s Final Warning When Takemoto reported to Cardin what Joseph said during the March 19 counseling, he became very concerned and called his supervisor, Community/Regional Cardin Aff. ¶ 30. Executive II Cissy Giglio. On March 22, Giglio, Takemoto, and Cardin met with Joseph for a coaching session. During that meeting, they reviewed Joseph s referral activities and noted that although Joseph s closed referrals briefly rose after the meeting, since then, her referrals had stopped.4 30. March 7 Cardin Aff. ¶ They talked about the importance of consistency, stating that the minimum was just a goal, and that she should always be pursuing referrals. Activity Report at Cardin 1, Mar. Aff. 23, Ex. 2007 C, Cardin entry, March ECF Sales No. 27-2 [hereinafter Cardin March Sales Activity Report]; Cardin Aff. ¶ 30. They emphasized that CB&T wanted to address every customer s needs, and was not just asking its tellers to talk to a few people as needed to meet a quota. Cardin Aff. ¶ 30. Joseph stated that she understood, and would endeavor to be more consistent. Cardin March Sales Activity Report at 1, Mar. 23, 2007 entry; Cardin Aff. ¶ 30. 4 After the March 7 meeting, Joseph closed one referral that very day and two more on March 9, ultimately closing five referrals by March 22. Cardin Aff. Ex. C, Cardin March Sales Activity Report at 1, Mar. 23, 2007 entry, ECF No. 27-2. 13 On the day after the March 22 meeting, Joseph had five closed referrals. Cardin Aff. ¶ 31. Subsequently, however, Joseph had no other referrals until April 19, when she had one closed referral. March 22 meeting, Id. Further, Joseph missed during nine the working month after days, the including four days of vacation time and five days at home with sick children. placed a Cardin Aff. ¶ 32; Joseph Decl. ¶ 53. hardship on the including its management. VIII. small team at the Those absences Wynnton Branch, Cardin Aff. ¶ 32; Takemoto Aff. ¶ 28. Joseph’s Termination As a result of her absenteeism and continuing failure to consistently perform the customer referral aspect of her job, the Wynnton Branch leadership removed Joseph as an active teller and placed her on administrative April 26, 2007 through May 30, 2007. leave with pay from Joseph was encouraged to seek other employment with CB&T during that period. Cardin Aff. ¶ 32; Cardin Aff. Ex. D, Note to Supervisor File from C. Cardin 1, Apr. 25, 2007, ECF No. 25-4 [hereinafter Termination Notice]. When Joseph had not located another May 30, 2007, she was terminated. position with Cardin Aff. ¶ 33. CB&T by Joseph was told in writing three reasons for her termination: (1) lack of consistency in sales performance; (2) poor attendance; and (3) lack of teamwork. Termination Notice 1; Cardin Aff. ¶ 34. 14 IX. Joseph’s Replacement At approximately the same time Joseph was discharged, a second teller Takemoto Aff. position ¶ 31. came open Thirty-three at the Wynnton candidates were Branch. initially identified for the two positions and eleven were interviewed by a panel of offered managers, Felicia Aff. ¶ 33. hiring Jackson, Joseph s position, another job at CB&T. Id. including a but black she Takemoto. female, turned it Takemoto was initially down to take Ultimately, Phillip Rodgers, a white male, and Lacey McDonald, a white female, were selected by the panel to Branch. fill the two open teller positions at the Wynnton Id. DISCUSSION Joseph contends that she was discriminated against based on her race in violation of Title VII. Title VII makes it unlawful for an employer 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.” Where, as here, discriminatory a plaintiff intent, the 42 U.S.C. § 2000e-2(a)(1). presents plaintiff no may direct proceed evidence of under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). E.g., Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). 15 Under this framework, the plaintiff must discrimination. first establish a prima facie case of Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). “Once the plaintiff has made a prima facie case, a rebuttable presumption arises that the employer has acted illegally.” Id. “The employer can rebut that presumption by articulating one or more legitimate nondiscriminatory reasons for its action.” Id. “If it does so, the burden shifts back to the plaintiff to produce evidence that the employer s proffered discrimination.” Id. reasons are a pretext for “Despite these shifts in the burden of production, the ultimate burden of persuasion remains on the plaintiff to show that the defendant intentionally discriminated against her.” X. Id. Joseph’s Prima Facie Case “Presenting a prima facie case is not onerous as it requires only that the plaintiff establish facts adequate to permit an inference of discrimination.” Rioux v. Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir. 2008). City of Under the McDonnell Douglas framework, a plaintiff may establish a prima facie case by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside of her protected class or was treated less favorably than a similarly-situated individual outside of her 16 protected class. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). It is undisputed that Joseph, a black female, is a member of a protected class and that she suffered an adverse action when CB&T terminated her employment. employment The Court also finds that Joseph was qualified for her Teller I job at CB&T, as evidenced by her employment in that position for six and a half years.5 (11th See Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 Cir. 2001) (“[I]n cases where a plaintiff has held a position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima facie case can be inferred.” quotation marks omitted)). (alteration in original) (internal The question, therefore, is whether Joseph s evidence shows that she was replaced by someone outside of her protected class or was treated differently than similarly-situated employees. Joseph has failed to similarly-situated individuals more favorably. demonstrate outside of that CB&T treated her protected class In support of her prima facie case, Joseph 5 “Of course, the fact that [Joseph] was qualified to perform her job competently does not mean that she actually did so, an issue that is sharply contested by the parties.” Alvarez, 610 F.3d at 1265. “The qualifications and experience that get a candidate hired for a job and the performance that is satisfactory enough for her to keep it are two different things.” Id. Because Joseph s job performance is bound up in the inquiry into whether CB&T s proffered reason for firing her was a pretext for discrimination, the Court will consider it at the pretext stage of the analysis. Id. 17 contends outside that of Peggy her Kennon protected was a class similarly-situated who, like Joseph, employee failed to consistently perform the customer referral aspect of her job, but was not terminated. Kennon was a white female who, like Joseph, was a teller at CB&T s Wynnton Branch.6 Therefore, to the extent that she is outside Joseph s protected class and has similar job responsibilities, Kennon is a proper comparator to Joseph. Joseph must also show, however, that Kennon and Joseph were “involved in or accused of the same or similar conduct and [were] disciplined in different ways.” Maynard, 342 F.3d at 1289 (internal quotation marks omitted). Under this standard, the Court finds that Kennon is not a valid comparator. First, Kennon is not a valid comparator because she and Joseph were not “involved in or accused of the same or similar conduct.” contends Id. that (internal it quotation terminated Joseph marks omitted). because: (1) she CB&T was unwilling to consistently perform the sales aspect of her teller job; and (2) she had poor attendance. Termination Notice 1; Cardin Aff. ¶ 34. 6 Def. s Br. 13; accord Like Joseph, Kennon Kennon was a Teller II while Joseph was a Teller I. The job descriptions for a Teller I and Teller II, however, are “virtually identical.” Joseph Decl. ¶ 9; see also supra pages 6-7 (describing slight differences between Teller I and Teller II). Therefore, the Court assumes that Joseph and Kennon are proper comparators based on their job responsibilies. See Rioux, 520 F.3d at 1281 (“[D]ifferences in job ranks between a plaintiff and another employee are not, in and of themselves, dispositive as to whether the two individuals may be compared for purposes of evaluating a discrimination claim.”). 18 also failed to consistently perform the sales aspect of her teller position. Cardin February Sales Activity Report at 1, Feb. 9, 2007 entry (noting that Kennon s sales “slowed to a virtual halt”). Joseph, however, has pointed to no evidence that Kennon exhibited the poor attendance that CB&T contends plagued Joseph s tenure. Therefore, the Court finds that Joseph and Kennon were not “involved in or accused of the same or similar conduct,” Maynard, 342 F.3d at 1289 (internal quotation marks omitted), and consequently are not proper comparators, see Rioux, 520 F.3d at 1280 (“The quantity and quality of the comparator s misconduct [must] be nearly identical to prevent courts from second-guessing employers reasonable decisions and confusing apples with oranges.” (internal quotation marks omitted)). Kennon is also not a valid comparator Joseph were not treated differently. Joseph and Kennon responsibilities, opportunity to CB&T improve, were not banker position. fulfilling offered both including the personal banker their employees position, however, Joseph and opportunity was Dep. not sales the to same explore Kennon accepted made a successful transition to a Joseph, she After recognizing that transitioning to a personal banker position. CB&T s offer and because personal interested 74:12-21, and in a instead pursued a promotion to Teller II, a position that required even 19 more customer CB&T s efforts referrals. to Joseph help her also improve failed her to customer respond to referrals, eventually telling her managers that “sales were not for her,” Cardin Aff. ¶ 23, that she was “throwing in the towel,” and that she was “just Takemoto Aff. waiting ¶¶ to move 24-25; on Joseph to Dep. other opportunities,” 108:8-12, 114:10-12. Because both Kennon and Joseph were given the same opportunity to improve, which Kennon accepted but Joseph rejected, the Court finds that they were not treated differently by CB&T and thus, are not proper comparators. See Holifield v. Reno, 115 F.3d 1555, 1562-63 (11th Cir. 1997) (per curiam) (finding comparator not treated more favorably when transferred because employer attempted to transfer the plaintiff but no transfer opportunity was available). For the foregoing reasons, the Court finds that Joseph has failed to demonstrate individuals outside Joseph still, may that of her however, CB&T treated protected establish similarly-situated class a more prima favorably. facie case of discrimination by demonstrating that CB&T replaced her with a person outside of her protected class. 1289. black Maynard, 342 F.3d at Although CB&T initially offered Joseph s position to a female, thereby casting doubt upon any inference of discrimination, it is undisputed that CB&T eventually replaced Joseph with a white male. Takemoto Aff. ¶ 33. 20 Therefore, for purposes of Joseph s prima facie case, where her burden is “not onerous,” Rioux, 520 F.3d at 1275, the Court will assume that Joseph s eventual replacement by a white male is sufficient to establish a prima facie case of discrimination. the burden shifts to CB&T to articulate a Accordingly, legitimate, non- discriminatory reason for Joseph s termination. XI. CB&T’s Legitimate, Non-Discriminatory Reason An employer s discrimination reasons for by its burden to presenting employment rebut an legitimate, action is inference of non-discriminatory “exceedingly light.” Holifield, 115 F.3d at 1564 (internal quotation marks omitted). The employer “need not persuade the court that it was actually motivated by evidence raising discriminated 1265. the proffered a genuine against the reason, issue but of fact plaintiff.” need as only to Alvarez, present whether 610 F.3d it at CB&T has consistently asserted that it terminated Joseph because: (1) she was unwilling to consistently perform the sales aspect of her teller job; and (2) she had poor attendance. Def. s Br. 13; accord Termination Notice 1; Cardin Aff. ¶ 34. These reasons are not discriminatory and thus, satisfy CB&T s burden. The burden, therefore, shifts back to Joseph to present evidence that CB&T s reasons are pretext for discrimination. 21 XII. Pretext Joseph may satisfy her burden of showing pretext “either by offering evidence that [CB&T] more likely than not acted with a discriminatory motive, or by showing that its proffered reasons are not credible.” Joseph “must Alvarez, 610 F.3d at 1265. demonstrate inconsistencies, such incoherencies, weaknesses, or To show pretext, implausibilities, contradictions in the employer s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy Id. (internal quotation marks omitted). of credence.” Joseph, however, “is not allowed to recast an employer s proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer.” that the Id. (internal quotation marks omitted). proffered reason is one that might “Provided motivate a reasonable employer, an employee must meet that reason head on and rebut it, and [she] cannot succeed by simply quarreling with the wisdom of that reason.” marks omitted). Id. at 1265-66 (internal quotation A reason is not pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006). Here, Joseph contends that CB&T s proffered reasons for her termination are inconsistent and therefore unworthy of credence. Pl. s Resp. Attach. 1, Pl. s Mem. of Law in Opp n to Def. s Mot. 22 for Summ. J. 14-15, ECF No. 30-1 [hereinafter Pl. s Mem.]. present record refutes Joseph s argument. The CB&T s reasons for Joseph s termination have been consistent and are certainly nondiscriminatory. Moreover, Joseph has produced no evidence which casts any doubt upon them. Joseph first contends that her sporadic bursts of customer referral effort demonstrate that her termination based on her sales record performance reveals was that pretextual. Ms. Joseph See doubled March[] 2007, but was fired anyway.”). Pl. s the Mem. sales 15 (“The quota for Joseph s evidence of brief and temporary improvement, however, does nothing to rebut CB&T s unwavering contention that she was terminated because of her inconsistent sales performance. see also Cardin Aff. ¶ 34 See Termination Notice 1; (stating CB&T terminated Joseph because of her lack of consistency in sales performance); Def. s Br. 13 (stating CB&T discharged Joseph because of her failure to consistently perform the sales aspect of the teller job). Further, Joseph s evidence that she met her customer referral quota during material fact one as month to the does not true raise reason a she genuine was issue fired. of CB&T contends that it terminated Joseph because she was unwilling to consistently perform the sales aspect of her teller job. Br. 13. CB&T contends that it believed Joseph Def. s would not consistently perform the sales aspect of her teller job for two 23 reasons: (1) she expressly told them so on multiple occasions; and (2) her inconsistent sales performance demonstrated that although she was capable of meeting her sales goal, she was not interested in doing so. Def. s Reply Br. 7, ECF No. 32. Therefore, Joseph s evidence that she met her customer referral quota during one month is not inconsistent with CB&T s belief, based on Joseph s own statements and other performance, that she was unwilling to consistently perform the sales aspect of her teller job. See Alvarez, 610 F.3d at 1266 (“The inquiry into pretext centers on the employer s beliefs, not the employee s beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker s head.”). Joseph also contends that CB&T s complaints regarding her attendance are contrived. According to Joseph, “there is no evidence of negative information or counseling for tardiness or absenteeism noted in all of [her] personnel file.” 16. Again, the record refutes Joseph s argument. Pl. s Mem. As early as December 2003, Joseph s supervisor at CB&T s St. Mary s Branch verbally counseled her regarding her tardiness and absenteeism. See Newby Aff. Ex. A, Employee Counseling Record 1, Dec. 22, 2003, ECF No. 25-7; see also Newby Aff. ¶ 7 (“Joseph was not dependable and was often late.”). Joseph s subsequent supervisors throughout her tenure at CB&T consistently echoed the same concerns. Moore Aff. ¶ 13 (stating that there was a 24 “continuing problem with Ms. Joseph s attendance”); Takemoto Aff. ¶¶ 8, 23, 28 (stating she initially noticed that Joseph “miss[ed] a good bit of work,” that “her progress was being threatened by a somewhat alarming rate of absenteeism,” and that she was terminated ¶¶ 24, 27, 32 absenteeism,” somewhat (stating that alarming terminated because of her Joseph “her progress rate of because of her absenteeism); had was Cardin “multiple being absenteeism,” Aff. days threatened and that In light by she of absenteeism). of a was this evidence, Joseph s own opinion that her attendance was “not a problem” is not sufficient to raise a genuine issue of material fact as to the true reason she was fired. See Holifield, 115 F.3d at 1565 (“[W]here the employer produces performance reviews and other documentary evidence of misconduct and insubordination that demonstrate poor performance, an employee s assertions of his own good performance are insufficient to defeat summary judgment, in the absence of other evidence.”). Joseph evidence finally that contends that she treated her less CB&T similarly-situated employees. Joseph to has failed As demonstrate can show favorably explained that CB&T pretext with than other above, treated however, her any differently than a similarly-situated employee outside of her protected class such that a reasonable factfinder could conclude that CB&T terminated Joseph because of her race. 25 In summary, the Court finds that Joseph has failed to produce any evidence from which a reasonable factfinder could conclude that CB&T s articulated legitimate, non-discriminatory reasons were pretext for discrimination. Accordingly, CB&T is entitled Joseph s to summary judgment as to Title VII discrimination claims. CONCLUSION For the foregoing reasons, CB&T s Motion for Summary Judgment (ECF No. 25) is granted. IT IS SO ORDERED, this 1st day of April, 2011. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 26
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