IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROSE PAGE, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0021-WS-M

 )

WINN-DIXIE MONTGOMERY, INC., )

et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on Defendants’ Joint Motion for Summary Judgment

(doc. 45) and Plaintiff’s Motion for Partial Summary Judgment (doc. 47). Both Motions have

been extensively briefed and are ripe for disposition.

I. Nature of the Action.

Plaintiff, Rose Page, brought this action for race discrimination and retaliation under 42

U.S.C. § 1981 against her employer, Winn-Dixie Montgomery, Inc. (“Winn-Dixie”), as well as a

§ 1981 race discrimination claim against her former supervisor, Brent Sellers. The Complaint

originates from an incident that occurred on December 20, 2006, at Winn-Dixie Store No. 578, a

food supermarket in Mobile, Alabama. At that time, company officials discovered that

approximately $1,000 was missing from the store safe. After investigation, Winn-Dixie took

disciplinary action against two African-American employees, Page and Markale Jackson, by

demoting them for failing to follow company cash-handling policies. Winn-Dixie took no

comparable action against the store manager and co-manager, both of whom are white, despite

Page’s contention that they were equally culpable for this loss.

Both Page and Jackson (who are represented by the same counsel) filed federal lawsuits

under § 1981 against Winn-Dixie, although Jackson’s preceded Page’s by a full year. This Court

granted Winn-Dixie’s motion for summary judgment in the Jackson matter less than two weeks

before Page filed her Complaint. See Jackson v. Winn-Dixie, Inc., 2008 WL 5435576 (S.D. Ala.

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1 Plaintiff’s filings in support of her Motion for Partial Summary Judgment contain

citations to declarations and other record materials from the Jackson matter. Yet plaintiff failed

to append copies of certain of those exhibits to her summary judgment filings here. The Jackson

exhibits which Page has cited but which she has not included in her evidentiary materials

pursuant to Local Rule 7.2(a) are not part of the record in this case.

2 The Court is mindful of its obligation under Rule 56 to construe the record,

including all evidence and factual inferences, in the light most favorable to the nonmoving party. 

See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, with respect to each

motion for summary judgment, the nonmovant’s evidence is taken as true and all justifiable

inferences are drawn in that party’s favor.

3 Before Rule 56 briefing commenced, this Court cautioned the parties that “[g]iven

the straightforward, finite factual allegations and legal theories identified in the Complaint, it is

unclear why this case would fall within the narrow class of circumstances” that might justify

expansion of established page limits for briefs. (Doc. 43, at 1.) This admonition fell on deaf

ears, inasmuch as both sides have engaged in excessive and repetitious treatment of narrowly

circumscribed legal and factual issues. The redundancies and irrelevancies that pockmark the

parties’ filings are unhelpful.

4 The Court’s review of the record has been hampered by defendants’ submission

of five complete deposition transcripts (doc. 44, at Exhs. A-E), numbering hundreds of pages,

and including numerous deposition exhibits, all in derogation of the Local Rules. See LR 5.5(c)

(“If discovery materials are germane to any motion or response, only the relevant portions of the

material shall be filed with the motion or response.”). This is not the first time that this Court

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Dec. 31, 2008), aff’d 2009 WL 3792361 (11th Cir. Nov. 13, 2009).1

 Although the record and

legal issues are not identical in the two cases, there is substantial overlap between Winn-Dixie’s

motion for summary judgment in the Jackson matter and defendants’ joint motion for summary

judgment here. In large part, the parties’ dueling Rule 56 motions in this case turn on the degree

to which the rulings in Jackson are applicable to Page.

II. Background Facts.2

Notwithstanding the parties’ verbose submissions (spanning more than 150 pages of

briefing in the aggregate), the relevant facts are largely undisputed and the relevant legal issues

are narrow.3

A. Management Structure and Page’s Duties.

During the time period in question, Page was employed at Winn-Dixie Store # 578 as the

In-Store Coordinator (“ISC”). (Page Dep., at 76-77.)4

 According to a Winn-Dixie job

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has alerted defense counsel to the provisions of Local Rule 5.5(c). See Rowell v. Winn Dixie,

2008 WL 4369003, *1 n.3 (S.D. Ala. Sept. 23, 2008) (pointing out Local Rule 5.5(c) requires

that only relevant excerpts, and not entire deposition transcripts, be filed). “[T]his Court will not

scour uncited portions of the parties’ evidentiary submissions for any scrap of evidence that may

advance their positions. ... Instead, review of the parties’ submissions is restricted to the portions

of the record they have cited ....” Id. (citations omitted). 

5 This formulation of the ISC role is echoed by Leanda Black, who replaced Page

as ISC at Store #578 in January 2007 following the transfer decision that is the subject of this

litigation. (Black Decl., ¶ 2.) Black explains that, “[a]s ISC [her] primary responsibility is to

oversee and manage the money in the office.” (Id., ¶ 3.)

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description, the ISC position includes the following duties: (i) to manage front end accounting

and cash media reconciliation in compliance with applicable law and company procedures; (ii) to

improve customers’ experience by providing fast service, a friendly atmosphere, and successful

resolution of customer concerns; and (iii) to lead, develop and supervise front end operations. 

(Page Dep., Exh. 8 at 1.) In the view of Irvin Landry, Winn-Dixie’s decision-maker in this case,

“[t]he ISC’s primary purpose is to oversee and manage the money in the safe and to ensure that

the accounting of the office is done in accordance with company policy.” (Landry Decl., ¶ 10.)5

Of course, Page was not the only Winn-Dixie employee with a measure of responsibility

for Store #578 as of December 2006. Among the relevant managerial personnel were the Store

Manager, Brent Sellers, who oversaw day-to-day operations at Store #578. (Sellers Decl., ¶¶ 1-

2.) Sellers reported directly to Landry, the District Manager, who oversaw operations of all

stores located in the 4-4 District, including Store #578. (Landry Decl., ¶¶ 5-6.) On site, there

was also a Co-Manager named Jeremy McPherson, who reported directly to Sellers and assisted

him in overseeing daily operations at Store #578. (McPherson Decl., ¶ 2.) And Store #578 had

an Assistant In-Store Coordinator (“AISC”), Markale Jackson, whose duties included performing

safe counts and other cash-handling responsibilities. See Jackson, 2008 WL 5435576, at *1.

Because this case is rooted in allegations of race discrimination, it bears noting that Landry,

Sellers and McPherson are white, while Page and Jackson are African-American.

B. Winn-Dixie Cash-Handling Policies and Procedures.

Like other Winn-Dixie locations, Store #578 has a store safe where money is secured. 

(Landry Decl., ¶ 7; Page Dep., at 103-05.) Among the items found in the safe at any given time

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6 There was only one key to the safe at Store #578. (Sellers Decl., ¶ 6.) The

manager on duty at Store #578 never held the safe key when the store was open; rather, that item

remained in the custody of the ISC on duty. (Id., ¶¶ 6-7.)

7 As Landry put it, “once that count is complete, the key to the safe is given to the

ISE [sic] and she or he is totally responsible and held accountable. That is the purpose of the

ISE [sic].” (Landry Dep., at 94.)

8 Typically, Markale Jackson would work the later shift and serve as the evening

ISC, such that he would perform the safe count with the manager on duty when the store closed

at night. (Page Dep., at 100-01.) At shift change, safe count would ordinarily be performed by

the morning ISC (Page) and the evening ISC (Jackson), without participation by a manager.

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are bundles of U.S. currency, sorted by denomination of the bills, with each bundle bound by a

strap on which the aggregate value of the currency is written. (Landry Decl., ¶ 8.)

The parties agree that, during the relevant time frame, Winn-Dixie’s cash-handling

policies provided that certain money-counting procedures must be followed every morning at

store opening, every evening at store closing, and whenever the safe key is transferred from

morning ISC to evening ISC at shift change. (Doc. 48, at 2 ¶ 5; doc. 52, at 3.) These company

procedures required that, on each specified occasion, the money in the safe must be counted, its

contents recorded in writing, and the tallied amount reconciled with the store’s office cash

report. (Doc. 48, at 2 ¶ 5; doc. 52, at 3.) Thus, when the store opened each day, the morning

ISC (who may be either the ISC or the AISC) counted the money in the safe, recorded the tally

on a safe count sheet, and confirmed that the count was consistent with that reported for the

previous day’s store closing. (Page Dep., at 80, 108; Landry Decl., ¶ 11.) Then the manager on

duty (who was present in the office when the morning ISC opened the safe and counted the

money) also counted the money for verification purposes, and recorded that information on the

safe count sheet. (Page Dep., at 108-09; Landry Decl., ¶ 11.) The money was then placed back

in the safe, after which the safe was locked with a key. (Page Dep., at 110; Landry Decl., ¶ 12.)6

The morning ISC retained that key until the conclusion of his or her shift. (Landry Decl., ¶ 12.)7

At Store #578, Page typically worked the morning shift as of December 2006, and performed

these morning ISC functions, with Jeremy McPherson (the Co-Manager) often being the

manager on duty who verified the safe count. (Page Dep., at 99, 102-03.)8

The Winn-Dixie policy of paramount importance in this case involves the procedure for

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9 These bundles of cash did not remain in the safe at Store #578 for a protracted

period of time. According to Page, money was rotated out at least once a week, such that

bundles would not generally be kept on site for more than a week. (Page Dep., at 117-18, 221.)

10 Of course, the mere fact that these documents exist does not prove that the

relevant Winn-Dixie managers were familiar with them, or that Page’s discipline was motivated

by or connected to those documents. The evidence in the record is otherwise. Store Manager

Brent Sellers indicated that he had never seen the pages from the How-To Guide prior to this

litigation. (Sellers Decl., ¶ 19; Sellers Dep., at 19.) As for the Front End Guide, Sellers testified

that this document was part of a “binder which is available for employees to use if they have a

question about Front End operations.” (Sellers Decl., ¶ 19.) Sellers testified that he is familiar

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counting the safe’s contents. It is undisputed that, as of December 2006, Winn-Dixie cashhandling policies required that each time the money in the safe was counted, all bundles of cash

(with the exception of the bundles of $1 bills) must be broken open, recounted, and restrapped. 

(Landry Decl., ¶ 9; Landry Dep., at 62-63.)9 This policy applied equally to the morning ISC who

performed the initial count and to the manager on duty who verified that count. (Landry Dep., at

62-63.) It also applied to both ISCs who counted the safe at shift change.

With respect to these cash-handling policies, plaintiff relies heavily on four pages of

written materials produced by Winn-Dixie in discovery, in the form of a two-page excerpt from a

“Front End Reference Guide” (the “Front End Guide”) dated 1/13/06 and another two-page

document entitled “Store Director How-To Guide Cash Office Roles, Responsibilities, and

Processes” (the “How-To Guide”). (Doc. 48-1, at 11-14.) The Front End Guide stated that

keeping the store safe secure “is the responsibility of the Store Director, Store Co-Manager, and

ISC.” (Doc. 48-1, at 1.) The Front End Guide also recited the following features of safe counts,

as discussed supra: (a) safe counts must be performed every time the store opens or closes, or

when the safe key is transferred between employees at shift change; (b) double verification is

required for safe counts; (c) the manager on duty must be present during safe counts at opening

and closing; and (d) “[s]trapped money must be broken, counted, verified, dated, and initialed.” 

(Doc. 48-1, at 2.) The How-To Guide reinforced these points by providing that managers on

duty are “accountable for verifying key cash office processes” such as “opening and closing safe

counts.” (Doc. 48-1, at 3.) According to the How-To Guide, “the [Manager on Duty] is

responsible for verifying all opening and closing safe counts.” (Doc. 48-1, at 4.)10

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with that binder, but that he is “not familiar with its contents.” (Sellers Dep., at 16.) Similarly,

McPherson’s uncontroverted averment is that he is not aware of, and has not seen, the How-To

Guide, and that he has neither reviewed nor used the Front End Guide. (McPherson Decl., ¶¶

17-18.) And Landry indicated that the How-To Guide was “not something that I would

personally go through or have to view,” such that he could not shed any light on that document

or state whether store managers were ever given or ever reviewed it. (Landry Dep., at 56-57,

68.)

11 At that time, Sellers was “frequently absent from the store because of a medical

condition.” (McPherson Decl., ¶ 13.) In fact, Sellers was on a medical leave of absence from

October 2006 through April 2007, such that he “was not regularly at the store” during the

relevant time period. (Sellers Decl., ¶ 8.)

12 Sellers learned of the cash shortage when someone from the store contacted him

with that information. (Sellers Decl., ¶ 8.) It is apparent that he was not actually working on the

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C. The Cash Shortage and Ensuing Investigation.

The morning of December 20, 2006 began unremarkably at Store #578.11 Page (the

morning ISC) and McPherson (the manager on duty) reported for work as usual and performed a

count of the store safe’s contents at approximately 6:00 a.m., with Page conducting the initial

count and McPherson verifying it. (Page Dep., at 118-19, 121; McPherson Decl., ¶ 6.) Both

individuals filled out and signed a “Safe Count Sheet” documenting the cash on hand. (Page

Dep., at 119 & Exh. 10; McPherson Decl., ¶ 6.) Per their routine practice, the safe was locked

after the count was completed and Page held the only key in her possession for her entire shift. 

(Page Dep., at 121; McPherson Decl., ¶ 6.) At approximately 2:00 p.m., Jackson (the evening

ISC) arrived for shift change. (Page Dep., at 121-23; McPherson Decl., ¶ 6.) Page and Jackson

performed another safe count and filled out another Safe Count Sheet. (Page Dep., at 122-23 &

Exh. 11.) Upon completing the count and locking the safe, Page gave the safe key to Jackson

and left work for the day. (Page Dep., at 124.)

Later that afternoon, a problem was discovered. Jackson notified McPherson that he had

broken open one of the bundles in the safe to make change for a cashier, only to discover that the

bundle was missing $125. (McPherson Decl., ¶ 10.) McPherson and Jackson then checked the

other bundles and found a total cash shortage of approximately $1,000. (Id.) McPherson

reported the discrepancy to Landry, the District Manager, the next morning. (Id., ¶ 11; Landry

Dep., at 69-70.)12 Landry promptly sent a team of investigators to Store #578 to investigate the

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 6 of 28
day when the loss was discovered.

13 In that regard, Page confirmed that Sellers “sitting right there, did not say

anything” during the meeting. (Page Dep., at 135.)

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disappearance of the funds. (Landry Dep., at 71-72.) At the conclusion of their on-site inquiry,

the investigators notified Landry that the money was indeed missing and that proper procedures

had not been followed at the shift change safe count on December 20. (Id. at 73.) Landry never

was able to determine when the loss occurred. (Id. at 114.) In Landry’s view, the “problem”

was that company policy had not been followed at shift change, as a result of which it was

impossible to determine when the money went missing. (Id. at 76.)

More specifically, Landry found that the morning ISC and evening ISC had not counted

and verified all the money in the safe at shift change on December 20. (Landry Dep., at 113.) 

Landry’s view was that this omission was the root cause of the $1,000 cash shortage. (Id.) 

Simply put, in performing the December 20 shift change count, neither Page nor Jackson had

adhered to the requirement that bundled cash be recounted and restrapped during every safe

count. Instead, they had simply accepted as valid the numbers written on the straps for each

bundle, assuming rather than verifying those values. Because of that omission, there was no way

of ascertaining whether the shift change count and verification that Page and Jackson performed

on December 20 was accurate, or when the funds had disappeared from the safe.

In early January 2007, Landry went to Store #578 and met with Page. (Page Dep., at

134; Landry Decl., ¶ 18.) Sellers, the Store Manager, was also present; however, he was there

solely as a witness, and did not speak during the meeting. (Landry Decl., ¶ 18; Sellers Dep., at

27-28.)13 According to Page, Landry accused her of not doing her job, in response to which she

insisted that she did do her job and that “we all didn’t follow company policy because we didn’t

verify the money.” (Page Dep., at 135, 137.) Page contends that she asked Landry about

McPherson’s role, implying that he was blameworthy as well, but that Landry refused to discuss

McPherson (who was not present at the meeting) with her. (Id.) The salient part of this

meeting, from Landry’s perspective, was that he and Page “discussed the counting of the safe,

verifying the bundles, and she admitted that she knew policy and procedure, and that she was not

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14 As Landry stated, “Ms. Page admitted to me that proper cash-handling procedures

were not followed on December 20th (the day the shortage was discovered) when she and AISC

Jackson counted the safe around 2:00 p.m.” (Landry Decl., ¶ 19.)

15 When Landry learned that Sellers had not followed company policy when

counting the safe, he counseled Sellers but did not otherwise discipline him. (Landry Dep., at

83, 88-89.) This counseling session consisted of Landry telling Sellers that he “needed to make

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following policy and procedure.” (Landry Dep., at 102.)14

There is abundant, undisputed record evidence that Page knowingly violated Winn-Dixie

cash-handling procedures by not breaking open and recounting the bundles at every safe count. 

By her own reckoning, Page was trained when she was still an assistant head cashier (in 2003 or

earlier) that bundles of cash were always to be recounted during safe counts. (Page Dep., at 74-

77.) Page admitted that, after she became the ISC for Store #578, she understood that during all

safe counts, she was supposed to break open the straps, count the bundled cash, and restrap the

bundles. (Id. at 83.) Page expressly understood that this Winn-Dixie policy applied to shift

change safe counts. (Id. at 115.) In light of these facts, Page freely acknowledges that she and

Jackson violated company policy at shift change on December 20 by not breaking open the

bundles and counting the money, such that the safe count’s accuracy was compromised. (Id. at

222.)

D. Winn-Dixie’s Challenged Personnel Decisions.

Following his meeting with Page in January 2007, Landry decided to remove her from

her position as ISC at Store #578 and to transfer her to another store. (Landry Decl., ¶ 21.) As a

result, Page was placed in Store #549 as a full-time cashier, a position she continues to hold

today. (Page Dep., at 142-44.) This was clearly a demotion, and was accompanied by a sizeable

reduction in Page’s hourly wage. (Id. at 145, 169.) Landry also demoted Jackson (the evening

ISC involved in the shift change count on December 20) to the position of Grocery Store

Associate. (Landry Decl., ¶ 21.) It is uncontroverted that Landry made these personnel

decisions as to Page and Jackson, and that Sellers neither made those decisions nor had the

authority to do so. (Id.; Sellers Decl., ¶¶ 9-10.) Landry did not demote or penalize Sellers or

McPherson for their roles in the cash shortage, although both received verbal counseling. 

(Landry Dep., at 83, 88-89; Sellers Dep., at 32; doc. 48-3, at 6.)15

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sure that the store’s employees were complying with all cash handling procedures.” (Sellers

Decl., ¶ 15; Sellers Dep., at 111.)

16 This theme is a recurring one in the record, such as where Page testified that, “just

like the rest of them, they was -- they should have been demoted or something should have been

-- they should have been -- the[y] violated company policy just like I violated company policy.” 

(Page Dep., at 219.) 

17 In the Jackson action, Sellers testified that it had essentially become “customary

procedure” at Store #578 not to count strapped cash during safe counts. (Doc. 48-2, at 5, 7.) 

Also in that case, McPherson agreed that it was a “commonly accepted practice” at Store #578

not to break down the bundled cash during safe counts. (Doc. 48-3, at 3.)

18 For example, Page’s testimony is that the Store #578 employees who performed

safe counts and routinely failed to count bundled cash included Leanda Black and Wanda

Lafayette, both of whom are African-American. (Page Dep., at 37, 125, 160-61.) According to

Page, Black was performing cash counts in December 2006, because her signature was on the

strapped bundles of cash in the safe on December 20. (Id. at 220-21.) Page testified that she

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Page maintains that her demotion was unfair because “we all didn’t follow company

policy. ... We all should have been accountable for that missing money.” (Page Dep., at 146.)16

The “we all” reference encompasses all Store #578 employees involved in safe counts. Indeed,

Page testified that no Winn-Dixie employees involved in counting money at Store #578 were

breaking down the bundles as of December 2006, such that all ISCs and managers at that

location who participated in safe counts were equally in violation of the same policy. (Id. at

156-60, 168.) There is support in the record for the proposition that Store #578 employees were

engaged in wholesale noncompliance with company policies concerning the counting of bundled

cash during safe counts in the relevant time period.17 Page asserts that she informed Landry of

these widespread, store-wide violations during their January 2007 meeting. (Page Dep., at 162-

63.) Thus, in the light most favorable to plaintiff, the record shows that Page told Landry that

“we all didn’t follow company policy” with regard to counting strapped and bundled cash during

safe counts, such that managers on duty and other rank-and-file employees were likewise

violating that policy. It is uncontroverted that, aside from his actions taken against Page and

Jackson, Landry “did not transfer any of the other office associates at Store No. 578 from their

positions either. Some of these employees are black and some of these employees are white.” 

(Landry Decl., ¶ 29.)18 This purported disparate treatment of violators of this policy lies at the

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informed Landry that numerous employees at Store #587 (including Black, Lafayette, Sellers,

McPherson and others) did not follow company policy concerning the breaking down of bundles

in safe counts. (Id. at 162-63.) Neither Black nor Lafayette was transferred or demoted after the

December 20 cash shortage incident. (Id. at 160-61.) Moreover, in her initial statement to the

EEOC, Page complained that she had been on vacation from December 16 through December

18, “and I would like to know why didn’t the persons, who work my shift on that day get in

trouble. Because Leanda Black work mornings sometimes and also Wanda whenever I take off.” 

(Page Dep., at 200 & Exh. 15 at 1.) Thus, Page staked herself to a position that Black and/or

Lafayette had performed morning safe counts on December 16, 17 and 18, and that they too

should have been disciplined when the cash shortage came to light on December 20. Black

confirmed that she performed opening and/or closing safe counts on days when Page was not

working. (Black Dep., at 10-11.)

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heart of Page’s claims in this action.

For his part, Landry explained his personnel decisions on the record. He reasoned that, in

his view, Page and Jackson were “primarily responsible for the loss because they had failed to

follow Winn-Dixie’s cash handling procedures, which was one of their primary job duties as ISC

and AISC,” because they were the only key-holders for the safe on the day the cash shortage was

discovered, and because they had received training in proper cash-handling procedures. (Landry

Decl., ¶ 22.) Landry echoed these points in his deposition, testifying that he decided to demote

Page because “she didn’t follow policy and procedure, her job responsibility.” (Landry Dep., at

91.) Landry testified that one of the primary duties of an ISC is to oversee the cash office and to

implement policies and procedures associated with that function. (Id. at 114.) And because

Page and Jackson did not follow “that policy and procedure, is the reason [Landry] acted because

we ended up with a $1,000 shortage.” (Id. at 113.) Landry also differentiated between the

shortcomings of Jackson and Page, on the one hand, and those of managers on duty, such as

McPherson or Sellers, on the other. In Landry’s view, when a manager on duty fails to perform

the count in accordance with Winn-Dixie policy, the proper recourse is counseling, not

demotion, because the ISC bears a heightened level of responsibility and accountability for the

safe that managers do not. (Id. at 91-93.) According to Landry, Page (as morning ISC) “was

totally responsible for the office” and the manager on duty’s verification of the morning count

essentially transferred accountability of the funds in the safe to Page for the duration of her shift. 

(Id. at 97.)

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19 This fact, coupled with his absence on December 20, implies that Sellers was out

the entire week of the cash shortage discovery, because he would “have chemo every two weeks,

and I’d work a week and I’d be off a week.” (Id.) 

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Landry also offered specific explanations for why Sellers and McPherson were not

subjected to disciplinary action more onerous than counseling as a result of the December 20

cash shortage. Indeed, Landry stated that he did not hold Sellers “primarily responsible for the

incident” because Sellers “was on medical leave from sometime in October 2006 until April

2007,” such that Sellers “was not present in the store when the $1,000 was reported missing.” 

(Landry Decl., ¶ 27.) These facts are corroborated in the record. Sellers was not “regularly” at

work in December 2006 because of his medical leave, and was “frequently absent” during that

time. (Sellers Decl., ¶ 8; McPherson Decl., ¶ 13.) He was not present at Store #578 on the day

that the Winn-Dixie team arrived to investigate the cash shortage, which would have been

December 21, 2006. (Sellers Dep., at 30.)19 For her part, Page does not recall ever performing

safe counts with Sellers in December 2006. (Page Dep., at 129.) During that period, Page

understood that Sellers was on medical leave, as a result of which he was “in and out” of the

store. (Id. at 129.) Sellers never opened the store during October 2006 to April 2007 period. 

(Doc. 48-3, at 5.) According to Page, the only times that she counted the safe with Sellers

occurred “before he got sick,” or prior to October 2006. (Page Dep., at 157.) 

Landry also elaborated on his reasons for not disciplining McPherson. They are twofold. 

First, Landry indicated that McPherson was not “primarily responsible” for the December 20

cash shortage “because overseeing the safe was not the managers’ primary duty,” such there

were differences in type and level of responsibility for the safe as between the ISC/AISC, on the

one hand, and the co-manager, on the other. (Landry Decl., ¶ 28.) Landry also exempted

McPherson from more serious discipline based on his understanding that McPherson had not

attended formal training on cash-handling procedures. (Id.) In fact, the record is clear that

McPherson had received no such training, and did not know about the company policy requiring

the unbundling and recounting of strapped cash during safe counts. McPherson did not count the

bundles when he verified Page’s figures at the opening safe count on December 20 “because that

was the customary way of doing things” at Store #578. (Doc. 48-2, at 7.) His unrebutted

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testimony is that, as of December 20, 2006, he “did not know that it was required under company

policy to count the money inside the bundles rather than just add up the value stated on the

straps,” that he had received neither training nor instruction in that procedure, and that

consequently he “did not count the bundles either.” (McPherson Decl., ¶¶ 8, 16.) The record

shows that the only training McPherson received on cash-handling policies was “[o]n-the-job

training” and that Winn-Dixie provided “no formal training for cash handling” for a person in

McPherson’s job title. (Landry Dep., at 45, 115-16.) In fact, McPherson had been verifying safe

counts without unstrapping bundled cash during the entire time that he was in management,

operating under four different store directors, without ever being told that he was not following

the proper procedure. (Doc. 48-3, at 2-3, 6.)

III. Summary Judgment Standard.

Summary judgment should be granted only if “there is no genuine issue as to any

material fact and ... the movant is entitled to judgment as a matter of law.” Rule 56(c),

Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district

court, by reference to materials on file, that there are no genuine issues of material fact that

should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). 

Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to

show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make

'a sufficient showing on an essential element of her case with respect to which she has the burden

of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.

Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party

has met its burden, the court must stop short of weighing the evidence and making credibility

determinations of the truth of the matter. Instead, the evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). 

“Summary judgment is justified only for those cases devoid of any need for factual

determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)

(citation omitted).

The Eleventh Circuit has expressly rejected the notion that summary judgment should

seldom be used in employment discrimination cases because they involve issues of motivation

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 12 of 28
20 See, e.g., Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1215 (11th Cir.

2008) (reciting identical standards for Title VII and § 1981 claims of discrimination); Goldsmith

v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (reciting identical standards for

retaliation claims under Title VII and § 1981); Springer v. Convergys Customer Management

Group Inc., 509 F.3d 1344, 1347 n.1 (11th Cir. 2007) (“Both Title VII and § 1981 have the same

requirements of proof and present the same analytical framework.”) (citation omitted).

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and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the

summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to

be placed on either side of the scale.” Id. at 1086 (citation omitted).

Furthermore, “[t]he applicable Rule 56 standard is not affected by the filing of crossmotions for summary judgment.” Murray v. Holiday Isle, LLC, 620 F. Supp.2d 1302, 1307 (S.D.

Ala. 2009) (citations omitted); see also Godard v. Alabama Pilot, Inc., 485 F. Supp.2d 1284,

1291 (S.D. Ala. 2007) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions

for summary judgment will not, in themselves, warrant the court in granting summary judgment

unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely

disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (citation omitted); see

also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983) (“the filing of cross

motions for summary judgment does not necessarily indicate that there is no dispute as to a

material fact, or have the effect of submitting the cause to a plenary determination on the

merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute

where they reflect general agreement by the parties as to the dispositive legal theories and

material facts.” Murray, 620 F. Supp.2d at 1307 (citations omitted); see also Godard, 485 F.

Supp.2d at 1291.

IV. Analysis.

A. The McDonnell Douglas Framework.

Although Page’s race discrimination and retaliation claims are brought pursuant to 42

U.S.C. § 1981, it is well established that § 1981 claims are governed by the same analytical

framework and requirements of proof as their Title VII counterparts.20 Therefore, as the parties

properly acknowledge, their respective summary judgment arguments on Page’s discrimination

and retaliation claims are properly evaluated under the time-honored McDonnell Douglas

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 13 of 28
21 Page’s burden of establishing a prima facie case is not heavy. See Crapp v. City

of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (“the prima facie requirement is not an

onerous one”). 

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standard. Absent direct evidence of discrimination or retaliation (which has not been presented

here), Page must make a showing of circumstantial evidence that satisfies the test set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 

Under this familiar burden-shifting analysis, plaintiff is required to make out a prima facie case

of race discrimination and/or retaliation.21 If she does so, that showing “creates a rebuttable

presumption that the employer acted illegally.” Underwood v. Perry County Com’n, 431 F.3d

788, 794 (11th Cir. 2005).

At that point, “the burden shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the adverse employment action. ... If the employer does this, the

burden shifts back to the plaintiff to show that the employer’s stated reason was a pretext for

discrimination.” Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (citations and internal

quotation marks omitted); see also Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)

(outlining similar procedure for Title VII retaliation claims). A plaintiff may establish pretext

“either directly by 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.” Brooks v. County Com'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir.

2006) (quotation omitted). Either way, “[i]f the proffered reason is one that might motivate a

reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it. ...

Quarreling with that reason is not sufficient.” Wilson, 376 F.3d at 1088; see also Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1278 (11th Cir. 2008) (“It is the plaintiff’s burden not merely to

raise a suspicion regarding an improper motive, but rather to demonstrate there is a genuine issue

of material fact that the employer’s proffered reason for his demotion was pretexual.”). “The

ultimate burden of persuading the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff.” Springer v. Convergys Customer

Management Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007). Thus, “[i]f the plaintiff does not

proffer sufficient evidence to create a genuine issue of material fact regarding whether each of

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 14 of 28
22 Importantly, “[a] plaintiff does not shift the burden to the defendant under

McDonnell Douglas merely by stating that he was fired or treated unfavorably. McDonnell

Douglas requires the plaintiff to establish a prima facie case which includes identifying an

individual who replaced him or was treated better than he was who was not a member of his

protected class.” Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005). The

applicable legal standard for the “similarly situated” element is as follows: “Where the racial

discrimination is alleged in the application of work rules to discipline an employee, and where

there is no claim that the employee did not violate the work rules, as here, then plaintiff must

show that he engaged in misconduct similar to that of a person outside the protected class, and ...

the disciplinary measures enforced against him were more severe than those enforced against the

other persons who engaged in similar misconduct.” Rioux, 520 F.3d at 1276 (internal quotes

omitted). To satisfy this threshold, “[t]he quantity and quality of the comparator’s misconduct

[must] be nearly identical” to that of the plaintiff. Id. at 280 (internal quotes omitted).

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the defendant employer’s articulated reasons is pretextual, the employer is entitled to summary

judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc).

B. Race Discrimination Claim against Winn-Dixie.

1. Plaintiff’s Prima Facie Case.

The parties agree that the elements Page must show to establish a prima facie case of race

discrimination based on her demotion and transfer consist of the following: (i) she belongs to a

racial minority; (ii) she was subjected to an adverse job action; (iii) Winn-Dixie treated similarly

situated employees outside her protected class more favorably than she was treated; and (iv) she

was qualified to do the job. See, e.g., Crawford, 529 F.3d at 970; Burke-Fowler v. Orange

County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Winn-Dixie does not contest Page’s ability

to establish the first, second or fourth prongs of that test, but does challenge her ability to satisfy

the third element.22

The only comparators that Page has identified are Sellers and McPherson. (Doc. 53, at 4

& 5 n.3.) The record shows that McPherson violated the same cash-handling policy for which

Page was disciplined on December 20, 2006, inasmuch as he failed to unstrap and recount

bundled cash during the morning safe count. Likewise, the record shows that Sellers, the store

manager, had routinely failed to count the bundles when he participated in safe counts at Store

#578. Winn-Dixie insists that Sellers and McPherson are not similarly situated to Page because

Sellers’ misconduct was not connected to the cash shortage, McPherson had no training in and

no knowledge of the bundle-counting rule, and Page’s responsibility for the funds was

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 15 of 28
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significantly different than that of Sellers and McPherson because of their differing job titles.

In advancing this “similarly situated” argument, Winn-Dixie ignores this Court’s

unfavorable analysis of this same issue under factually indistinguishable circumstances in the

Jackson case. Recall that Markele Jackson was the AISC who participated in the shift change

safe count with Page on December 20. Like Page, Jackson did not follow the bundle-counting

protocol, and was subsequently demoted. In his race discrimination action against Winn-Dixie,

Jackson likewise identified Sellers and McPherson as comparators, and Winn-Dixie proffered

many of the same arguments that it does here for why those individuals did not qualify as

“similarly situated” for purposes of the plaintiff’s prima facie case. Relying on the Eleventh

Circuit’s pronouncement that “[t]he relevant inquiry is not whether the employees hold the same

job titles, but whether the employer subjected them to different employment policies,” Lathem v.

Department of Children and Youth Services, 172 F.3d 786, 793 (11th Cir. 1999), this Court in

Jackson rejected Winn-Dixie’s argument that the differing job titles and duties of Jackson and

the proposed comparators prevented Jackson from satisfying the “similarly situated” prong of the

prima facie analysis. The Court reasoned, “[w]hile their responsibilities were not identical, both

the plaintiff and his comparators were subject to the same employment policy that bundles must

be broken open and counted with each safe count.” Jackson, 2008 WL 5435576, at *7. The

same holds true here. Winn-Dixie has not even attempted to rebut or distinguish this Court’s

ruling in Jackson on this point. Accordingly, the mere fact of Sellers’ and McPherson’s

differing duties and titles from those of Page in no way precludes them from being valid

comparators, in light of plaintiff’s showing that she, Sellers and McPherson were all subject to

(and all in violation of) the very same company policy.

The Jackson decision likewise addressed Winn-Dixie’s contention that Sellers is not a

proper comparator because his violation of cash handling policies did not result in a monetary

loss, whereas the plaintiff’s did. This Court wrote in Jackson that it could not accept this

argument in the absence of supporting authority or legal analysis because “[w]hat the Court is to

compare is ‘misconduct,’ not ‘the consequences of misconduct,’ as monetary loss from lax cashhandling procedures would appear to be.” Jackson, 2008 WL 5435576, at *7. Winn-Dixie has

not remedied the deficiencies in this argument in the case at bar, nor has it even acknowledged

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 16 of 28
23 At most, Winn-Dixie points to an unpublished district court opinion wherein the

plaintiff’s proposed comparator was deemed not similarly situated to the plaintiff because the

comparator’s “alleged violation did not result in a cash loss” while the plaintiff’s did. Key v.

Advance Auto Stores Co., 2005 WL 1026062, *4 (M.D. Fla. Apr. 25, 2005). In citing Key,

however, Winn-Dixie overlooks a critical fact in that case, namely that the applicable policy

provided that a “violation of a cash handling policy that results in a cash loss is grounds for

immediate termination.” 2005 WL 1026062, at *4 (emphasis added). A cash-handling violation

in Key was a ground for immediate termination only if that violation resulted in a cash loss;

therefore, the absence of a cash loss by the proposed Key comparator was a critical distinction. 

Here, by contrast, Winn-Dixie’s policies did not impose such a cash loss prerequisite before any

particular disciplinary action could be taken. Key is plainly distinguishable on its face, and does

not support the more general, broad reading advocated by Winn-Dixie.

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this aspect of the Jackson decision.23 On this record and with these briefs, then, the Court cannot

agree with Winn-Dixie that Sellers is not similarly situated to Page for purposes of her prima

facie case of discrimination.

Defendant’s only new “similarly situated” argument that was not addressed in Jackson is

that McPherson is not a viable comparator because he had not received formal training in cashhandling procedures, whereas Page had. The only authority that Winn-Dixie cites for this

proposition is an unpublished Eleventh Circuit decision, Mathis v. Wachovia Bank, 2007 WL

3357732 (11th Cir. Nov. 14, 2007). In Mathis, the panel found that a proposed comparator was

not similarly situated to the plaintiff, where the comparator was a new hire who had been with

the company for “only a short time,” while the plaintiff had worked there for three years. Id. at

*5. The Mathis court reasoned that “[b]ecause of this relevant difference in experience, [the

plaintiff] and [the comparator] were not similarly situated.” Id. In this case, however, Page and

McPherson were both experienced Winn-Dixie employees who had engaged in safe-counting

(Page) and safe-verification (McPherson) duties for an extended period of time. Both Page and

McPherson were subject to the same work rule. And both Page and McPherson violated that

rule by failing to count the bundles. Based on these record facts, the Court cannot agree with

Winn-Dixie that McPherson was not similarly situated to Page for purposes of satisfying her

light burden of establishing a prima facie case.

For all of these reasons, Page has come forward with sufficient evidence that McPherson

and Sellers were similarly situated to her to satisfy that element of the prima facie test. 

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 17 of 28
-18-

Inasmuch as there is no dispute that Page can establish the other three prongs, the Court finds

that plaintiff has made out a prima facie case of race discrimination in connection with her

demotion and transfer in January 2007.

2. Legitimate Nondiscriminatory Reason.

Plaintiff having established a prima facie case, the burden shifts to Winn-Dixie to “offer

legitimate, nondiscriminatory reasons for the employment action to rebut the presumption” of

race discrimination. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1331 (11th Cir. 1998);

see also Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (“To satisfy this

intermediate burden, the employer need only produce admissible evidence which would allow

the trier of fact rationally to conclude that the employment decision had not been motivated by

discriminatory animus.”) (citations omitted). This burden of production is exceedingly light. 

See Vessels v. Atlanta Independent School System, 408 F.3d 763, 769-70 (11th Cir. 2005) (burden

is satisfied as long as employer articulates clear and reasonably specific non-discriminatory basis

for its actions). 

To meet this intermediate burden, Winn-Dixie presents argument and evidence that it

“made the decision to demote plaintiff because she failed to follow Winn-Dixie’s cash handling

procedures, which was one of her primary job duties.” (Doc. 46, at 28.) In the companion

litigation in Jackson, this Court found that a similar explanation proffered by Winn-Dixie for

demoting Markele Jackson after the December 20 cash shortage was “on its face a legally

sufficient reason for its action,” and that the record contained “admissible evidence that this is

what actually motivated its decision.” Jackson, 2008 WL 5435576, at *8. The same conclusions

attach here, and plaintiff does not assert otherwise. Accordingly, the Court readily concludes

that Winn-Dixie has met its burden of production in coming forward with a legitimate

nondiscriminatory reason for the challenged demotion/transfer of Page. See Jackson v. Winn

Dixie, Inc., 2009 WL 3792361, *2 (11th Cir. Nov. 13, 2009) (“Jackson II”) (“We conclude from

the record that Jackson’s failure to follow established cash-handling procedures was a legitimate,

non-discriminatory reason for his job transfer, and it would reasonably motivate an employer to

transfer him to a position in which he does not exercise monetary oversight.”).

3. Pretext.

Winn-Dixie having come forward with a legitimate nondiscriminatory reason for the

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 18 of 28
24 See also Rioux, 520 F.3d at 1278 (“The plaintiff must demonstrate weaknesses or

implausibilities in the employer’s proffered legitimate reasons for its action sufficient for a

reasonable factfinder to disbelieve the reasons.”); Jackson v. State of Alabama State Tenure

Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (to demonstrate pretext, a plaintiff must show that

the employer’s offered reason was not the true reason for its decision, “either directly by

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”).

25 Elsewhere, plaintiff frames this argument in the following terms: “[T]here can be

no legally justifiable reason to support defendant’s action against plaintiff without similar action

against Sellers and McPherson. Company policy dictates that plaintiff, her store director, and

her store co-manager were all responsible for the security of the store safe ...; in the instance of

any failure of store safe security, it stands to reason that all three would suffer equivalent

measures of discipline for equivalent neglect of job duties.” (Doc. 48, at 10.)

-19-

challenged action, it is incumbent on Page to show that this stated reason is a pretext for race

discrimination. See Brown v. Alabama Dep’t of Transp., --- F.3d ----, 2010 WL 605582, *7 (11th

Cir. Feb. 23, 2010) (once employer articulates reason, “the presumption of discrimination is

rebutted, and the burden of production shifts to the plaintiff to offer evidence that the alleged

reason ... is a pretext for illegal discrimination”) (citation omitted). To demonstrate pretext, the

plaintiff’s evidence “must reveal such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer’s proffered legitimate reasons for its actions that

a reasonable factfinder could find them unworthy of credence.” Vessels, 408 F.3d at 771

(quotation omitted).24

Plaintiff’s pretext argument hinges exclusively on the fact that Sellers and McPherson

were not subjected to disciplinary action comparable to that imposed on Page. She reasons that,

“[i]f plaintiff’s violation of defendant’s cash handling procedures were the true reason for her

demotion and transfer, then Sellers and McPherson would also have been demoted and

transferred.” (Doc. 53, at 8.)25 This pretext theory is substantively identical to that proffered by

the plaintiff in the Jackson matter. Indeed, Jackson asserted that the failure to discipline Sellers

and McPherson for their violation of cash-handling procedures demonstrated that Winn-Dixie’s

reliance on his violation of those policies as its reason for demoting him was pretextual. The

Eleventh Circuit was not impressed by this argument, and laid bare its flaws as follows:

“Although Winn-Dixie decided not to punish similarly two white employees who

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 19 of 28
26 In her sur-reply, plaintiff incorrectly states “that the Defendants make no mention

of the company’s ‘Store Director How-To Guide’ in their Reply - NOT ONE REFERENCE ....” 

(Doc. 59-1, at 3 n.2 (emphasis in original).) Page 9 of defendants’ reply explicitly addresses and

responds to plaintiff’s arguments concerning pages 362 and 364 of what Page calls the How-To

Guide. (Doc. 55, at 9.)

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violated the same procedures, their conduct was appreciably different from

Jackson’s, because: (i) one comparator [Sellers] was not present in the store for

the months before and after the monetary loss, and no evidence indicates he was

in any way connected to it; and (ii) unlike Jackson, the other comparator

[McPherson] had not been trained in the procedures, and his violations were

unwitting. Winn-Dixie’s decision not to transfer the white employees did not

establish that its stated reason for transferring Jackson was false or that the true

reason for doing so was racially discriminatory.”

Jackson II, 2009 WL 3792361, at *2.

In light of the Eleventh Circuit’s rejection in Jackson II of the same pretext argument that

Page advances, she cannot survive summary judgment unless she distinguishes her

circumstances from those of Markele Jackson, or otherwise offers some basis why the

Sellers/McPherson argument resonates differently with respect to Page than it did with respect to

Jackson. Plaintiff recognizes this obstacle, and seeks to differentiate this case from Jackson II

by relying on three pieces of evidence that she contends were “either not utilized or unavailable”

during the companion case. (Doc. 59-1, at 1.) The implications of each of these items for the

Jackson II pretext analysis will be considered in turn.

First, Page ascribes considerable weight to the terms of the Front End Guide and How-To

Guide, including language specifying that the security of the safe “is the responsibility of the

Store Director, Store Co-Manager, and ISC” and language that the manager on duty is

“accountable for verifying key cash office processes,” such as “opening and closing safe

counts.” (Doc. 53, at 8, 14-15; doc. 59-1, at 2, 8-9.)26 Plaintiff extrapolates from the first

provision that Winn-Dixie policy is that the store manager, co-manager and ISC bear equal

responsibility for any cash shortage, such that they must receive equal discipline for any cashhandling violation. But the cited pages of the Guides do not state that all three actors’

responsibility and accountability for cash-handling procedures is identical, and the

uncontroverted evidence in the record is that Winn-Dixie did not place store managers, coCase 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 20 of 28
27 For example, Landry testified that an ISC’s “primary purpose” is to oversee and

manage the money in the safe, whereas that is not the store manager or co-manager’s primary

role. Thus, Landry identified gradations of responsibility for the safe among the ISC, the store

manager, and the co-manager. This stance is in no way inconsistent with the Front End Guide

and How-To Guide pages. To state that security of the safe is the responsibility of the store

manager, co-manager and ISC is not to state that all three bear equal accountability in the event

that safe security is compromised. Plaintiff’s argument therefore reads more into the excerpts of

the Guides than their plain language can support.

28 Similarly, Sellers and McPherson testified that they were unfamiliar with the

contents of these exhibits and had never seen them before this litigation. The uncontroverted

evidence is that the How-To Guide and Front End Guide were musty documents sitting on office

shelves that Winn-Dixie managers did not consult in performing their job functions.

29 A final point about the Guide pages is that they do not present any material facts

that were not considered in Jackson. After all, the record in Jackson was clear that Sellers and

McPherson bore some measure of responsibility for cash-handling procedures at Store #578,

inasmuch as they verified safe counts and engaged in other activities to verify certain office cash

processes. In that regard, the Guide pages are not substantially new and different evidence, and

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managers, and ISCs on equal footing with regard to cash-handling violations.27 Likewise,

although the How-To Guide posits that a manager on duty is accountable for verifying safe

counts, that statement cannot reasonably be viewed as equating the manager on duty’s

verification responsibility with the ISC’s primary counting responsibility, much less mandating

that both be punished equally in the event of noncompliance.

More fundamentally, Page has failed to show that the Front End Guide or How-To Guide

had any bearing on the discipline imposed in this case. The undisputed evidence is that the

decision-maker (Landry) had never reviewed those Guides, and could not shed any light on their

contents.28 If Landry was not relying on those Guides in disciplining Page (which he plainly was

not), then plaintiff’s insistence that those Guides required Landry to discipline Sellers and

McPherson equally is a non sequitur. Simply put, there is no evidence that Landry ever

consulted, relied on or considered the Front End Guide or How-To Guide in any way in meting

out discipline to anyone. Nor is there any evidence that he was required to do so, or that those

Guides represented binding statements of policy at Winn-Dixie. Hence, the four pages from the

How-To Guide and Front End Guide on which Page relies do not raise an inference that WinnDixie’s stated reasons for disciplining her were a pretext for race discrimination.29

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 21 of 28
do not constitute game-changers that might transform the pretext analyses performed by this

Court in Jackson and by the Eleventh Circuit in Jackson II.

30 Plaintiff offers a pair of additional arguments on this point. Both are

unconvincing. Specifically, plaintiff questions the credibility of McPherson’s statement that he

did not know about the bundle-counting rule, and suggests that there is a jury issue on that point. 

But Landry’s testimony is that the only training McPherson would have received on cashhandling processes was “on-the-job training.” If (as Page’s testimony shows) no one in Store

#578 was following the bundle-counting rule for years before the December 2006 cash shortage,

then how could McPherson have learned about that rule simply from working in the store? 

Plaintiff does not answer that question, much less present non-speculative evidence that

McPherson was ever exposed to the bundle-counting rule at any time in the course of his on-thejob training. No genuine issue of material fact is presented here. Also, plaintiff suggests that

McPherson’s ignorance of, and lack of training as to, the bundle-counting rule is itself probative

of pretext, because it suggests that “Winn-Dixie has a rule that no one follows, and is only now

being selectively enforced.” (Doc. 59-1, at 6.) There is no evidence of selective enforcement. 

The record is quite clear that Winn-Dixie disciplined Page and Jackson not merely because they

violated a cash-handling policy, but because they violated a cash-handling policy that resulted in

a $1,000 loss. Plaintiff has adduced not one scintilla of evidence that Winn-Dixie has ever

refrained from taking disciplinary action when violation of cash-handling policies results in a

significant financial loss. These circumstances do not support an inference of selective

enforcement, much less of pretext. At most, plaintiff is quarreling with the wisdom of Winn-

-22-

Second, plaintiff would distinguish this case from Jackson by citing Landry’s testimony

as evidence that there is no divergence in training between McPherson and Page that might

justify the differences in their discipline for the cash shortage. The Eleventh Circuit noted in

Jackson II that, while Markele Jackson’s violation of the bundle-counting rule was knowing,

McPherson’s was unwitting, and that they had not been trained similarly, such that the

differential treatment of McPherson was not evidence of pretext. Landry’s testimony in this case

in no way changes that calculus. Landry did not indicate that McPherson had received formal

training in cash-handling procedures, whereas it is undisputed that Page had received such

training. Landry’s testimony was unequivocal that a person in McPherson’s position would

receive only on-the-job training, and not formal training, in cash-handling matters. Thus, even

taking into account Landry’s testimony, there remains a material and significant distinction

between McPherson (who had received no formal training and did not even know about the

bundle-counting rule) and Page (who had received formal training and was unquestionably

aware of that rule) for purposes of their culpability for the December 20 cash shortage.30 As

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 22 of 28
Dixie’s human resources and training practices (i.e., whether managers should receive formal

training, whether all cash-handling violations should be punished), but this Court cannot and will

not sit as a super-personnel department passing judgment on the desirability of Winn-Dixie’s

protocols in this regard. See, e.g., Wilson, 376 F.3d at 1092 (“The role of this Court is to prevent

unlawful hiring practices, not to act as a super personnel department that second-guesses

employers’ business judgments.”) (citation and internal quotation marks omitted).

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such, the fact that McPherson was not demoted for violating cash-handling policies does not

further plaintiff’s contention that Winn-Dixie’s stated reason for demoting Page is a pretext for

illegal discrimination.

Besides, even if Page were correct that a reasonable jury could find no difference in

training between Page and McPherson that could support Winn-Dixie’s failure to discipline them

identically for the December 20 cash shortage, that would not be sufficient to satisfy plaintiff’s

pretext burden. In this Circuit, there is a “well-established rule that a plaintiff must show pretext

as to each proffered reason.” Chapman, 229 F.3d at 1037 n.30; see also Crawford v. City of

Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007) (“By failing to rebut each of the legitimate,

nondiscriminatory reasons of the City, Crawford has failed to raise a genuine issue of material

fact about whether those reasons were pretext for discrimination.”); Bojd v. Golder Associates,

Inc., 2006 WL 3780645, *1 (11th Cir. Dec. 26, 2006) (“Where multiple reasons are advanced, the

plaintiff must show that each reason was a pretext.”). Winn-Dixie’s evidence is that it demoted

Page and not McPherson because (a) McPherson had not received formal training on cashhandling procedures, while Page had; and (b) oversight of the safe was the primary responsibility

of Page, not the manager on duty. So even if Page has effectively rebutted the first reason

(which she has not), she still has not shown the second to be pretextual, and therefore cannot

withstand summary judgment.

Third, Page contends that the facts in this case are distinguishable from Jackson because

of Sellers’ revelation here that, even though he was on sick leave from October 2006 through

April 2007, he was at work every other week as his chemotherapy schedule permitted. Based on

this evidence, plaintiff theorizes that “a reasonable jury could conclude that Sellers did in fact

work” during the relevant period, “and may have even performed an evening count.” (Doc. 59-

1, at 7.) This is sheer speculation. It is uncontroverted that Sellers was not at work on either

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Wednesday, December 20, 2006 (the day the cash shortage was discovered) or Thursday,

December 21, 2006 (the day the Winn-Dixie investigators visited Store #578). There is no

evidence placing Sellers in the workplace at any time during the week of the cash shortage’s

discovery. Plaintiff’s own testimony was that the only times she ever counted the safe with

Sellers were “before he got sick,” and therefore well before the cash shortage. The mere fact

that Sellers worked from time to time during his medical leave in no way undermines, belies, or

calls into question the veracity of Landry’s testimony that he did not hold Sellers primary

responsible for the cash shortage because Sellers “was on medical leave” and “was not present in

the store when the $1,000 was reported missing.” As such, Page has failed to distinguish this

case from that of Markele Jackson in a manner that might alter the Eleventh Circuit’s

determination in Jackson II that there is no evidence of pretext.

In light of the foregoing analysis, the Court perceives no legal or factual basis for

departing from the Jackson II pretext analysis, or for reaching a different outcome in this case. 

Furthermore, plaintiff’s pretext argument fails for the simple reason that her theory of liability

both sweeps far too broadly and amounts to little more than a protestation of unfairness. The

record in this case is striking for Page’s repeated insistence (to Landry, to the EEOC, to her

deposition interrogator, etc.) that her demotion was unfair because everyone else at Store #578

was committing the same cash-handling violations that she was, yet only Page and Jackson (both

of whom are black) were punished. As an initial matter, fairness has nothing to do with the §

1981 analysis. See, e.g., Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (“We are not

interested in whether the conclusion is a correct one, but whether it is an honest one. ... We are

not in the business of adjudging whether employment decisions are prudent or fair. Instead, our

sole concern is whether unlawful discriminatory animus motivates a challenged employment

decision.”).

More fundamentally, though, plaintiff’s underlying theory is that Page is a victim of race

discrimination because white employees who participated in safe counts in the days leading up to

the December 20 cash shortage and did not break the bundles were not demoted, but she and

Jackson were. But, taking Page’s testimony at face value, she and Jackson were not the only

African-American employees performing improper safe counts at Store #578 shortly before

December 20. For example, plaintiff indicated that Leanda Black or Wanda Lafayette (both of

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whom were African-American employees) performed the morning safe count in her absence on

December 16, 17 and 18, and that they did so without breaking the bundles. It is uncontroverted

that neither Black nor Lafayette was disciplined for creating or not detecting the December 20

cash shortage. If Page’s comparators are other Store #578 employees who participated in safe

counts in the days before the cash shortage was discovered but were not disciplined, then those

comparators necessarily include both black and white employees. She cannot pick and choose

the white violators treated differently than she was, but ignore the black violators treated

differently than she was, to make out a case of race discrimination. Yet that is precisely what

Page seeks to achieve. Ultimately, then, Page’s beef with Winn-Dixie is not that she was treated

differently than white employees, but that she was treated differently than other employees, some

of whom were white and some of whom were black. The record unambiguously establishes that,

to the extent Page was treated differently than others for her violation of Winn-Dixie’s cashhandling policies, that difference could not have been predicated on her race, even under Page’s

professed theory of liability.

For all of these reasons, the Court finds that Page has failed to meet her burden of

showing that Winn-Dixie’s stated reason for transferring and demoting her was false, or that the

true reason was racially discriminatory. As such, Winn-Dixie is entitled to summary judgment

on plaintiff’s § 1981 race discrimination cause of action.

C. Retaliation Claim against Winn-Dixie.

Plaintiff also brings a retaliation claim against Winn-Dixie. According to the Complaint,

Page maintains that her demotion and transfer constituted unlawful retaliation, in violation of 42

U.S.C. § 1981, because they were prompted by “her participation in the investigation of racial

misconduct on the job by defendant Sellers for bringing a hangmen [sic] noose to work and

using racial slurs in the store.” (Doc. 1, ¶ 12.) Winn-Dixie seeks entry of summary judgment in

its favor on this cause of action.

To establish a prima facie case of retaliation, Page must show that “(1) [s]he engaged in a

statutorily protected activity; (2) [s]he suffered an adverse employment action; and (3) [s]he

established a causal link between the protected activity and the adverse action.” Bryant v. Jones,

575 F.3d 1281, 1307-08 (11th Cir. 2009); see also Butler v. Alabama Dep’t of Transp., 536 F.3d

1209, 1212-13 (11th Cir. 2008) (“To establish a claim of retaliation under Title VII or section

Case 1:09-cv-00021-WS-M Document 67 Filed 03/18/10 Page 25 of 28
31 To be sure, plaintiff devoted approximately four pages of her opposition brief to

the retaliation cause of action, but she chose not to address Winn-Dixie’s contention that she did

not participate in protected activity. At most, Page states that (a) “an employee” complained in

the summer or fall of 1996 that Sellers had made racially discriminatory comments and brought a

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1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a

materially adverse action, and there was some causal relation between the two events.”) (citation

omitted). Winn-Dixie argues that Page has failed to satisfy the first element.

“To state a retaliation claim under § 1981, a plaintiff must allege a defendant retaliated

against him because the plaintiff engaged in statutorily protected activity. ... As with other

statutory retaliation claims, such a claim under § 1981 requires that the protected activity involve

the assertion of rights encompassed by the statute.” Jiminez v. Wellstar Health System, --- F.3d -

---, 2010 WL 550827, *4 (11th Cir. Feb. 18, 2010) (citations omitted). In the § 1981 context,

“[s]tatutorily protected expression includes complaining to superiors about harassment in the

work place, lodging complaints with the EEOC and participating in discrimination-based

lawsuits.” DeLeon v. ST Mobile Aerospace Engineering, Inc., --- F. Supp.2d ----, 2010 WL

500446, *18 (S.D. Ala. Feb. 9, 2010).

Winn-Dixie contends that Page did not engage in any protected activity prior to the

January 2007 demotion and transfer. There is no evidence that she had ever filed an EEOC

charge against Winn-Dixie prior to that personnel action, that she had ever complained to anyone

at Winn-Dixie about racially discriminatory treatment, or that she had ever participated in a

discrimination-based lawsuit against Winn-Dixie. To be sure, Page alleges in her Complaint that

she was disciplined for her “participation in the investigation of racial misconduct” against

Sellers based on complaints that he had brought a hangman’s noose to work and engaged in

racial slurs. But plaintiff’s testimony negates this avenue of protected activity. Indeed, Page

admitted that she “never participated in an investigation” about a noose or racial slurs. (Page

Dep., at 217.) Her testimony is crystal clear on this point. (Id. at 170.) According to Page, she

has never heard any manager make racial slurs and has never seen a noose at Winn-Dixie. (Id. at

163.) And she never told Landry or Sellers that she believed she was being singled out because

of a complaint about racial discrimination. (Id. at 239.) So where is the protected activity? 

Although Winn-Dixie raises this issue on summary judgment, plaintiff neglects to respond.31

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noose to work, and (b) Jackson (not Page) participated in the investigation of this anonymous

complaint. Plaintiff leaves unanswered the question of how she can bring a § 1981 retaliation

claim predicated on protected activity undertaken by someone else. She offers no legal support

for the proposition that a retaliation plaintiff can “take credit” for protected activity in which

another employee engaged, in the absence of personal participation in or ratification of that

protected activity by the plaintiff herself.

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The Court is thus left with no evidence (or even argument) by plaintiff on summary judgment

that she ever engaged in statutorily protected activity (i.e., that she ever took any action to

oppose race discrimination) for § 1981 retaliation purposes. In light of this glaring omission,

Page has failed to establish a prima facie case of retaliation under § 1981 and, consequently,

Winn-Dixie’s motion for summary judgment will be granted as to that claim.

D. Claims against Brent Sellers.

Lastly, defendant Sellers seeks summary judgment on Page’s § 1981 race discrimination

brought against him individually. The Complaint casts Sellers as the villain in plaintiff’s

demotion and transfer. In particular, Page alleges that he “set out to discriminate and retaliate

against the plaintiff after she participated in an investigation of Sellers relating to his bringing a

noose to work and the use of racial slurs on the job.” (Doc. 1, ¶ 3.) Of course, this theory is

predicated on Page’s participation in an investigation of Sellers, but the record squarely refutes

the notion that any such participation ever took place.

Unlike a Title VII claim, a § 1981 claim may be brought against an individual supervisor. 

See, e.g., Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1176 (11th Cir. 2003) (noting that §

1981 “provide[s] for individual liability”); Moss v. W & A Cleaners, 111 F. Supp.2d 1181, 1187

(M.D. Ala. 2000) (“Contrary to Title VII, individual employees can be held liable for

discrimination under § 1981.”) (citation and internal quotation marks omitted). Federal courts

have held that a claim for individual liability under § 1981 requires an affirmative showing

linking the individual defendant with the discriminatory action. See Schanfield v. Sojitz Corp. of

America, 663 F. Supp.2d 305, 344 (S.D.N.Y. 2009) (for personal liability to attach under § 1981,

“[i]t must be shown that the defendant has personal involvement in the allegedly discriminatory

conduct”); Wallace v. DM Customs, Inc., 2006 WL 2882715, *7 (M.D. Fla. Oct. 6, 2006) (“To

establish a claim for individual liability under § 1981, a plaintiff must demonstrate some

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32 In so concluding, the Court does not embrace Sellers’ reasoning that he is entitled

to summary judgment because he was not the decision-maker for the challenged personnel

action. There is authority for the proposition that the “personal involvement” requirement “may

be satisfied by proof that the individual had knowledge of the alleged acts of discrimination and

failed to remedy or prevent them.” Wallace, 2006 WL 2882715, at *7. Sellers’ acts of sitting

idly by and failing to speak out to corroborate Page’s remarks about the scope of the cashhandling violations at Store #578 while Landry demoted Page could arguably satisfy this

criterion and support individual liability, if in fact there was evidence that the demotion itself

was racially discriminatory. In the absence of such evidence, however, Page’s § 1981 claim

against Sellers is not cognizable.

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affirmative link to causally connect the actor with the discriminatory action [and] ... [t]he claim

must be predicated on the actor’s personal involvement.”) (citations and internal quotation marks

omitted). Plaintiff presents no argument that her § 1981 claims against Sellers can survive

summary judgment. As discussed supra, Page has failed to come forward with sufficient

evidence to create a triable issue as to whether she was subjected to racially discriminatory

treatment at all; therefore, her § 1981 race discrimination claims against Sellers fail for the same

reasons that her claims against Winn-Dixie do.32 There is simply no jury question presented on

plaintiff’s theory that her January 2007 transfer and demotion was animated by unlawful race

discrimination by anyone.

V. Conclusion.

For all of the foregoing reasons, Defendants’ Joint Motion for Summary Judgment (doc.

45) is granted and Plaintiff’s Motion for Partial Summary Judgment (doc. 47) is denied. 

Accordingly, this action is dismissed with prejudice. A separate judgment will enter.

DONE and ORDERED this 18th day of March, 2010.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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