IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

DIONE A. FAVORS, )

 )

Plaintiff, ) 

 ) 

v. ) CIVIL ACTION 09-0045-WS-N 

 ) 

ALABAMA POWER COMPANY, ) 

 ) 

Defendant. )

ORDER

 This matter comes before the Court on defendant’s Motion for Summary Judgment (doc. 

28). The Motion has been briefed and is ripe for disposition at this time.1

 1

 Also pending are defendant’s Motion to Remove from the Public Record and File 

under Seal Plaintiff’s Memorandum (doc. 44), defendant’s Motion for Leave to File under Seal 

its Motion to Strike Portions of Dione Favors’ Declaration (also at doc. 44), and defendant’s 

Motion to Strike Portions of Dione Favors’ Declaration (doc. 44, at Exh. A). Defendant’s 

requests to place plaintiff’s summary judgment submissions (docs. 37 & 38) and its Motion to 

Strike under seal are animated solely by the fact that those materials disclose an Alabama Power 

settlement offer in a particular amount in this litigation. Certainly, defendant is correct that 

evidence of specific settlement offers or demands is generally inadmissible under Rule 408, 

Fed.R.Evid. However, that a fact is inadmissible does not, without more, necessitate removal 

from the public record of all documents containing that fact. Defendant has made no showing to 

justify this extraordinary measure. After all, “[t]he common-law right of access to judicial 

proceedings ... is instrumental in securing the integrity of the process” and unquestionably 

“includes the right to inspect and copy public records and documents.” Chicago Tribune Co. v. 

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001). “Material filed in connection 

with any substantive pretrial motion ... is subject to the common law right of access.” Romero v. 

Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007); see also Leucadia, Inc. v. Applied 

Extrusion Technologies, Inc., 998 F.2d, 157, 161-62 (3rd Cir. 1993) (recognizing “pervasive 

common law right to inspect and copy ... judicial records and documents,” as well as 

“presumption that the public has a right to inspect and copy judicial records”) (internal quotation 

marks and citations omitted). “The common law right of access may be overcome by a showing 

of good cause.” Romero, 480 F.3d at 1246; see also Dees v. Hydradry, Inc., --- F. Supp.2d ----, 

2010 WL 1539813, *12 (M.D. Fla. Apr. 19, 2010) (before sealing document, district court must 

identify overriding interest that seal “is essential to preserve higher values and is narrowly 

tailored to serve that interest”) (citation omitted). Defendant’s reliance on Rule 408 to show 

inadmissibility does not constitute good cause to overcome the presumption of public access; 

therefore, defendant’s Motion to Remove from the Public Record and Place Under Seal is 

(Continued) 

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I. Factual Background.2

 Plaintiff, Dione A. Favors, proceeding pro se, brought this employment discrimination 

action against defendant, Alabama Power Company, pursuant to Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. §§ 2000e et seq. Favors maintains that Alabama Power discriminated against 

her on the basis of her religion (Jehovah’s Witness) and retaliated against her for engaging in 

protected activity by disciplining and firing her. 

 A. Favors’ Employment at Alabama Power. 

 Favors commenced employment at Alabama Power in November 2007, when she 

accepted a full-time Customer Service Representative (“CSR”) position at defendant’s Prichard 

Business Office. (Favors Decl., ¶ 2.) Favors was one of four CSRs employed by Alabama 

Power at that location. (Favors Dep., at 73-74; Thomas Decl., ¶ 6.) In this capacity, Favors 

reported directly to Loretta Thomas, Manager of the Prichard office, who in turn reported to Sam 

Covert, Division Area Manager. (Thomas Decl., ¶ 1.) 

 In early February 2008, Thomas received a report that Favors was distributing religious 

literature and pamphlets to Alabama Power customers in the parking lot during work hours. 

(Thomas Decl., ¶ 10.) When Thomas questioned her about this allegation, Favors admitted its 

accuracy.3 Thomas instructed her to refrain from such conduct, and Favors complied. (Favors 

Decl., ¶¶ 4-5; Thomas Decl., ¶ 10.) Although Thomas denies it, Favors’ evidence is that Thomas 

 

denied, and its Motion for Leave to File Under Seal its Motion to Strike Portions of Declaration 

is likewise denied. Documents 37 and 38 will not be sealed, and the Clerk of Court is directed

to unseal document 44 and its exhibit. 

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, plaintiff’s evidence 

is taken as true and all justifiable inferences are drawn in her favor. 

3

 In Favors’ own words, when asked whether she was distributing religious 

pamphlets to customers, “I told her I was. I didn’t act as if I didn’t do it. I told her what I was 

doing.” (Favors Dep., at 115.) On summary judgment, Favors seeks to justify her conduct by 

stating that, as a Jehovah’s Witness, she feels an “obligation ... to preach and/or teach persons 

who welcome our positive message of hope and peace” and that she “use[s] any opportunity that 

presents itself to do so.” (Favors Decl., ¶ 3.) 

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also instructed her at this time to refrain from reading religious material in her car during lunch 

hour on workdays. (Johnson Decl., ¶ 18 & Exh. 7.)4

 

 There were no further issues, concerns or incidents with Favors handing out faith-based 

materials at or near the workplace. Thomas never discussed the issue with Favors again. (Doc. 

46, at C.1.b(v).) That said, Favors chafed at the restriction against engaging in her religious 

ministry during work hours. She requested a part-time schedule in March 2008 so that she could 

have more time to devote to religious ministry matters (although she does not allege that she told 

Alabama Power this was the reason for her request). (Favors Decl., ¶ 6.) She also claims that 

Thomas scheduled a team meeting for 5:40 p.m. one night, interfering with Favors’ evening 

ministry, and that one day in March 2008 Thomas asked if Favors had spent her vacation day 

engaging in her religious ministry. (Id.) However, Favors admits that Thomas, Covert, other 

Alabama Power managers, and her co-workers never made any negative or disparaging 

comments to her about her religion. (Favors Dep., at 320; doc. 46, at C.1.b(vi).) 

 As of late March 2008, Alabama Power regarded Favors as a strong performer in the 

Prichard office. A performance evaluation signed by Thomas on March 31, 2008 rated Favors as 

“Expectations Fully Met” and stated that Favors “is a very hard worker, and demonstrates 

courtesy, compassion and dependability.” (Favors Dep., Exh. 9.) The evaluation applauded 

Favors’ “expertise in handling customers” and her “leadership example in everything that she 

does.” (Id.) By all appearances, as of March 31, 2008, Alabama Power regarded Favors as a 

valued employee who was performing fine work in the Prichard office. The next day, however, 

a chain of problems, difficulties, and disputes commenced, ultimately culminating in Favors’ 

discharge a month later. 

B. Sick Leave and Part Time Issues. 

 On the morning of April 1, 2008, Favors left a message for Thomas calling in sick. 

(Favors Decl., ¶ 10.) Thomas called Favors back, explaining that another employee had also 

 4

 With respect to the reading of the Bible during lunch hour, it bears noting that 

Favors did not object to this alleged directive from Thomas at the time. Indeed, Favors did not 

report or complain about it to company officials until April 17, 2008, weeks after her initial 

complaint and some two and a half months after the directive was given. Even then, this concern 

was buried amidst pages of narrative by Favors documenting an array of dissatisfactions with 

Thomas. By all appearances, then, Favors did not subjectively regard Thomas’s purported 

restriction on her reading the Bible as being severe or pervasive. 

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called in sick and asking whether Favors might be able to come to work later that day. (Id.) 

Favors responded that she “would return if doctor gave me permission to do so.” (Id.) Favors 

never called Thomas back that day to advise of her status or intentions, and never came into 

work that day, either. (Thomas Decl., ¶ 15.)5

 Favors left another message for Thomas early on 

the morning of April 2 calling in sick. (Favors Decl., ¶ 11.) Thomas called her back later that 

morning, expressed dismay that she had not heard from Favors again on April 1, and asked when 

she was returning to work. (Favors Dep., at 160.) 

 Favors’ reaction to Thomas’s April 2 inquiry was to lodge an internal complaint against 

her. On the morning of April 2, while still out sick, Favors called Hugh Bryant, Manager of 

Alabama Power’s Ethics and Corporate Concerns Department, and complained about “being out 

sick and being told to come to work while sick.” (Favors Dep., at 161-62.) Favors also 

complained to Bryant that Thomas had improperly asked about her diagnosis and medications, 

and that a co-worker (Antoinette Madison) had tried to reach Favors on her cell phone on April 

1. (Bryant Decl., ¶ 5.)6

 Bryant opened a “Concern file” and assigned Steven Johnson to 

investigate. (Id., ¶ 6.) 

 Favors continued to call in sick on April 3, 4, and 7, but returned to work on April 8. 

(Favors Decl., ¶¶ 12-15.) At that time, Thomas informed Favors that her request to work parttime was still awaiting approval, and said that she knew Favors was looking forward to having 

more time to pursue her religious ministry. (Id., ¶ 15.) This information conflicted with 

Thomas’s statement to Favors on March 26 that Covert had approved her request to work part-

 5

 In her summary judgment materials, Favors explains that the earliest available 

doctor’s appointment was at 4:15 p.m., which made it too late for her return to work that day. 

(Favors Decl., ¶ 10.) But the point is not that Favors did not come to work, it is that she never 

called her supervisor back to explain these circumstances even though she knew Thomas was 

waiting to hear from her. 

6

 Favors speculated to Bryant that Madison’s call meant that Thomas must have 

divulged Favors’ confidential medical information to her. Of course, since Favors did not take 

the call, she had no actual knowledge of why Madison was trying to reach her, and had no basis 

in fact for accusing Thomas of improperly disclosing private medical information. (Bryant 

Decl., at Exh. 1.) 

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time. (Id. ¶¶ 7, 15.)7

 In any event, Thomas met with her boss, Sam Covert, that day to 

recommend that Favors’ part-time request be granted. (Covert Decl., ¶ 6.) However, Covert, in 

consultation with human resources officials, denied the request because of the cost increases 

associated with converting one full-time position into two part-time jobs (thanks to duplication 

of medical benefits, increased hiring and training costs, etc.). (Id.) Thomas notified Favors of 

that decision on April 10 and offered her cross-training in other work areas that might be more 

conducive to part-time work, in response to which Favors said she would consider those options 

and “thanked her for presenting my part-time request to Sam Covert.” (Favors Decl., ¶ 16; 

Thomas Decl., ¶¶ 20-21.) Favors admits that Thomas apologized to her for the denial of her 

part-time request and that Thomas had been supportive of the request. (Favors Decl., ¶¶ 15, 18.) 

C. Termination of Favors’ Employment.

 On April 14, 2008, Covert asked Thomas to nominate one of her employees to attend a 

Leadership Focus meeting in Mobile at 1:15 p.m. on April 16. (Thomas Decl., ¶ 22.) Thomas 

nominated Favors for this honor because Thomas “believed she was the strongest leadership 

candidate in the Prichard office,” and because Favors had expressed specific interest in moving 

into a management position. (Id.; Covert Decl., ¶ 9.) By nominating Favors, Thomas sought to 

help her achieve her stated career goals.8

 The next day, however, Favors told Thomas that she 

was not interested in attending the Leadership Focus meeting. (Favors Decl., ¶ 19.) Thomas 

balked at Favors’ decision, and eventually Covert and Favors spoke about the matter directly by 

telephone. (Thomas Decl., ¶¶ 23-24; Favors Decl., ¶ 19.) Covert’s recollection of that 

conversation is that he repeatedly, specifically directed her “that she was assigned to go to the 

meeting as the Prichard office representative.” (Covert Decl., ¶ 11.)9

 In her Declaration, Favors 

 7

 Thomas denies ever having told Favors that her part-time request had been 

approved. (Thomas Decl., ¶¶ 11, 12, 17.) For purposes of defendant’s Motion for Summary 

Judgment, however, the Court construes the facts in the light most favorable to Favors, and 

resolves all credibility disputes in her favor. 

8

 Favors recognized as much, as she thanked Thomas and told her that “you are the 

only person who has ever tried to help me.” (Thomas Decl., ¶ 24.) 

9

 This account is bolstered by Thomas’s testimony that after the call ended, Favors 

told Thomas that Covert had said, “It’s an assignment,” in response to which Thomas reiterated, 

“you have to do it. It’s your assignment.” (Thomas Decl., ¶ 24.) It is further supported by 

(Continued) 

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does not specifically refute Covert’s testimony; rather, she merely indicates that Covert 

“expressed it being a good opportunity and anyone from the Prichard Business Office could 

attend.” (Favors Decl., ¶ 19.)10

 Favors did not attend the Leadership Focus meeting. (Favors Dep., at 200; Covert Decl., 

¶ 12.) Covert deemed this failure to be a serious matter, and determined that he “could not allow 

an employee to simply disregard a direct instruction without consequences.” (Covert Decl., ¶ 

12.) In Covert’s view, Favors’ conduct amounted to insubordination for which formal 

disciplinary action was warranted. (Id., ¶¶ 12-14.) Covert reached his decision to discipline 

Favors for this incident no later than April 17, 2008. (Id., ¶ 32.) 

 Covert and Carol Weaver (a human resources consultant at Alabama Power) convened a 

meeting with Favors on April 28, 2010 to discuss disciplinary action. (Covert Decl., ¶ 15; 

Favors Decl., ¶ 21.) At that meeting, Covert asked Favors to explain why she had failed to 

attend the Leadership Focus event. (Covert Decl., ¶ 15.) Favors’ reaction was one of “total 

shock” as she explained that she had interpreted Covert’s statement that “anyone from the 

Prichard Business Office could attend” as meaning that “it was optional” that she attend. (Favors 

 

Favors’ own typewritten notes appended to her Complaint, wherein she wrote that after she told 

Covert she was not interested in attending the meeting, “Sam ignored me stating I should be 

present tomorrow. ... (Loretta repeated called me into her office trying force me to attend the 

meeting).” (Complaint, Exh. B, at 3.) Also, two witnesses to the conversation on Covert’s end 

of the line specifically heard him instruct her to attend the meeting and tell her that she was 

assigned to be there. (Patterson Decl., ¶ 6; Robertson Decl., ¶ 5.) And Favors told Steven 

Johnson, the Alabama Power investigator, that Covert had instructed her to attend the meeting. 

(Johnson Decl., ¶ 9.) 

10 To the extent that Favors frames the facts differently in her summary judgment 

brief, that version will not be credited for purposes of identifying the facts in the light most 

favorable to her. Rather, only those factual allegations presented in affidavit or declaration form 

will be credited. Favors does not get to tell two different stories in her brief and declaration, then 

switch back and forth between them at her convenience. See generally Evans v. Stephens, 407 

F.3d 1272, 1278 (11th Cir. 2005) (“when conflicts arise between the facts evidenced by the 

parties, we credit the nonmoving party’s version. Our duty to read the record in the nonmovant’s 

favor stops short of not crediting the nonmovant’s testimony in whole or in part: the courts owe a 

nonmovant no duty to disbelieve his sworn testimony which he chooses to submit for use in the 

case to be decided.”). 

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Decl., ¶ 21.)11 According to Favors, Covert responded that this understanding was “incorrect” 

and that he had issued a “command to attend the focus group on April 16.” (Id.) Favors’ 

demeanor was defensive and argumentative. (Covert Decl., ¶ 20.) Ultimately, Covert told 

Favors that she was receiving level three discipline for this incident, meaning that she was not to 

report to work the following day, April 29, 2008, but she was to return on April 30 with a plan 

indicating how she would improve her performance. (Favors Dep., at 238-39.) Covert also told 

Favors during the April 28 meeting that “he knew [she] had called in an internal complaint,” but 

that this discipline was not retaliatory and had nothing to do with her report to the Concerns 

Group. (Favors Decl., ¶ 21.) 

 On April 30, 2008, Favors again met with Covert and informed him that she “could not 

formulate an improvement for performance” because she had not been insubordinate in the first 

place. (Favors Decl., ¶ 22.) Thus, Favors continued to insist that she had done nothing wrong 

and that the Leadership Focus meeting was not mandatory. Favors then requested a flurry of 

documentation, including copies of her 2007 performance plan, internal productivity records, and 

materials delineating which meetings required mandatory attendance. (Covert Decl., ¶ 24.) 

After handing Favors a copy of defendant’s Non-Punitive Discipline Policy and giving her a full 

opportunity to review it in private, Covert asked Favors whether she was willing to meet all 

expectations in the areas of safety, conduct, performance and attendance.12 Favors refused to 

answer. (Id., ¶¶ 23,25.) Covert then asked her whether she would follow directions, orders and 

assignments that were not illegal, immoral or unethical. Favors dodged the question. (Id., ¶ 26.) 

 11 Once again, plaintiff’s version of the facts diverges markedly from defendant’s on 

this point. While Favor’s evidence is that she told Covert at the April 28 meeting that she 

understood her participation at the Leadership Focus meeting to be optional, Alabama Power’s 

evidence is that Favors admitted on April 28 that Covert had told her it was an “assignment” for 

her to attend. (Covert Decl., ¶ 18.) For summary judgment purposes, plaintiff’s version of the 

facts is credited. 

12 In asking this question, Covert was adhering to the express requirements of 

Alabama Power’s Non-Punitive Discipline Policy, which provides that when an employee 

returns to work after a third-level notice suspension, “The employee is asked to announce his/her 

decision to remain employed and meet all performance expectations or to resign.” (Weaver 

Decl., ¶ 14 & Exh. 1, at 396.) Covert’s question was thus required by the terms of defendant’s 

discipline policy, which plaintiff must have known because she had received and reviewed a 

copy of that policy minutes before the question was posed to her. 

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Based on these exchanges, Covert placed Favors on contingency leave and instructed her not to 

return to work until asked to do so. (Id., ¶ 27.) 

 On May 1, 2008, Covert and Weaver met with Favors to give her one last opportunity to 

commit to meeting performance expectations. (Id., ¶ 29.) At that time, Covert provided her with 

some of the documents she had requested, including her 2007 performance plan, but told her that 

the productivity materials she sought were a management tool that would not be provided and 

that documents concerning mandatory meetings did not exist. (Id.) He then asked Favors 

whether she was willing to commit to meeting expectations in the areas of conduct, performance, 

safety and attendance. Once again, Favors refused to answer, and said she would not do so 

unless the requested documents were provided. (Id., ¶ 30.) Covert notified Favors at that time 

that her employment was being terminated, effective that day, for her repeated refusal to commit 

to meeting performance expectations and taking accountability and responsibility. (Id., ¶ 31.) 

D. Favors’ Internal Complaints.

 None of the above-described disciplinary and termination events happened in a vacuum. 

Indeed, the internal complaint that Favors had called in on April 2 during her sick leave had 

expanded and proliferated throughout the month. Even as the issues concerning the Leadership 

Focus meeting swirled, Favors was moving forward with internal complaints directed primarily 

at Thomas. At lunchtime on June 16, shortly before the Leadership Focus meeting was to take 

place, Favors met with Steven Johnson, the Alabama Power investigator assigned to her 

complaint about sick leave. (Favors Decl., ¶ 20.) At that time, she voiced concerns to Johnson 

about the denial of her request for part-time work and the handling of her sick leave (including 

the phone calls from Thomas and Madison). (Johnson Decl., ¶ 8.) Favors told Johnson that she 

felt Thomas’s efforts to induce her to attend the Leadership Focus meeting amounted to 

harassment. (Id., ¶ 9.) In the wake of his meeting with Favors, Johnson scheduled witness 

interviews, at which time he notified Thomas and Covert of Favors’ internal complaints. (Id., ¶ 

10.) Indeed, the first time Thomas ever learned of Favors’ complaints against her was on the 

afternoon of June 16, after Favors had unequivocally stated that she would not attend the 

Leadership Focus meeting and after Thomas had notified Covert of that fact. (Thomas Decl., ¶ 

26.) 

On the afternoon of April 17, 2008, just one day after meeting with Johnson to discuss 

her complaints, Favors sent a lengthy e-mail to Johnson, purporting to be a blow-by-blow 

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narrative of work-related dissatisfactions, catalogued on a daily basis from February 4, 2008, 

through April 17, 2008. (Johnson Decl., ¶ 18 & Exh. 7.) Among the dozens of incidents of 

perceived slights reported in this e-mail was a single allegation that on one occasion in early 

February, Thomas had told Favors that she could not read religious material in her car during 

lunch hour while she was on company premises. (Id.) 

 On April 26, 2008, Favors provided additional details to Johnson concerning allegations 

of unfair treatment and religious discrimination.13 In particular, Favors revealed that after she 

had been interviewed and offered employment in October 2007 (some six months earlier), one of 

her Alabama Power interviewers, Ron Martin (who was the Customer Service Manager of the 

Hillcrest office), “asked her faith” and provided a “seemingly positive response” when she 

answered. (Favors Dep., Exh. 21, at 19.)14

 On April 30, 2008, Favors again contacted Johnson, this time to complain that she “was 

still being retaliated on with an attempt to falsely discipline me and eventually terminate me.” 

(Favors Decl., ¶ 22.) Favors indicated to Johnson that she would likely be fired that day for not 

responding to Covert’s question about improving in the areas of conduct, performance, safety 

 13 The timing of these specific allegations is murky. Johnson says Favors presented 

this information to him via e-mail on April 26, 2008 (Johnson Decl., ¶ 19); however, a legend at 

the bottom of the e-mail reads as follows: “This summary prepared by Steve Johnson (4-17-

2008) and provided to the submitter for review (4-18-2008).” (Favors Dep., Exh. 21, at 21.) It 

appears that the exhibit may constitute Favors’ April 26 markups to a summary prepared by 

Johnson on April 17, but it is difficult to discern precisely what information was provided when. 

Favors’ revisions/additions are not set off from the text of Johnson’s original e-mail. 

Nonetheless, Favors does not challenge or rebut Johnson’s contention that she provided this 

information to him in an April 26 e-mail; therefore, the Court will accept that fact for purposes of 

summary judgment. 

14 Viewed in the light most favorable to plaintiff, the facts surrounding this incident 

were as follows: Favors interviewed with Thomas and Martin for the CSR vacancy at Alabama 

Power. They offered her the job on the spot. (Favors Dep., at 65.) Thereafter, Thomas and 

Martin invited her to breakfast. (Id. at 66.) At breakfast, Martin inquired, “if you don’t mind me 

asking, you know, what religion are you.” (Id.) Favors was not offended and “didn’t think it 

was a problem” for Martin to ask such a question, given that she already had received the job 

offer, so she told Martin that she was a Jehovah’s Witness and asked him what his religion was. 

(Id. at 66-67.) Favors never spoke with Martin again about her (or his) religion and never had 

substantive work interaction with him, given that she did not work at the Hillcrest office where 

Martin was a supervisor. (Id. at 68; Martin Decl., ¶¶ 10-11.) 

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and attendance. (Johnson Decl., at Exh. 9.) After her termination, Favors complained further to 

Johnson about retaliation and the like. (Id., ¶ 21.) Upon investigation, Johnson concluded that 

none of her complaints were substantiated. (Id., ¶ 23.) 

II. 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 

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). Nor does Favors’ pro se

status materially alter the summary judgment analysis, or alleviate her burden of establishing 

genuine issues of material fact. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) 

(although “pro se complaints are entitled to a liberal interpretation by the courts, we hold that a 

pro se litigant does not escape the essential burden under summary judgment standards of 

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establishing that there is a genuine issue as to a fact material to his case in order to avert 

summary judgment”). 

III. Analysis. 

A. McDonnell Douglas Framework. 

 The parties’ respective summary judgment arguments on Favors’ discrimination and 

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

Absent direct evidence of discrimination or retaliation (which has not been presented here), 

Favors 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.2

 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 

 

2

 Favors’ 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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of material fact that the employer’s proffered reason ... was pretextual.”). “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 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. Religious Discrimination Claims.

 The pro se Complaint provides little definition of Favors’ Title VII religious 

discrimination claim, but merely mentions in vague terms “[a] complaint of religious 

discrimination” and “a complaint about religious discrimination practices.” (Doc. 1, ¶¶ 4, 5.)15 

From later filings as well as the parties’ summary judgment briefing, however, it is evident that 

Favors maintains she was subjected to religious harassment and disparate treatment on the basis 

of her Jehovah’s Witness faith. For example, in the Report of Parties’ Planning Meeting, Favors 

wrote, “I received unfair treatment because of my choice of religious affiliation along with 

consistent harassment solely from various individuals.” (Doc. 14, at 1-2.) Alabama Power does 

not contest, and indeed appears to agree, that the religious discrimination component of Favors’ 

Title VII cause of action includes both religious harassment and disparate treatment components. 

Each of these theories will be addressed separately. 

1. Religious Harassment.

 Federal appeals courts that have addressed the issue have employed the same analytical 

framework for Title VII claims of religious harassment as for claims of sexual or racial 

harassment. Thus, to survive summary judgment on a claim of religious harassment, a Title VII 

 15 Such conclusory pleading appears to fall well short of the Twombly / Iqbal

pleading standard. See, e.g., Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) 

(to survive a motion to dismiss, “[a] complaint must state a plausible claim for relief,” meaning 

that the plaintiff must “plead[] factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged”) (citations omitted). At a 

minimum, Alabama Power could have filed a motion for more definite statement under Rule 

12(e), Fed.R.Civ.P., to force Favors to add clarity and specificity to her claims. No such 

elaboration having been demanded or provided, the Court and litigants have little choice now but 

to play the Complaint as it lies. 

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plaintiff must show “(1) intentional harassment because of religion, that (2) was severe or 

pervasive, and (3) detrimentally affected [her], and (4) would detrimentally affect a reasonable 

person of the same religion in that position, and (5) the existence of respondeat superior 

liability.” Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3rd Cir. 2009).16

 Favors admits that none of her managers, supervisors or co-workers ever made negative 

or insulting comments to her about her religious beliefs. Nonetheless, she attempts to construct a 

religious harassment claim from offhand references by Thomas and others to her religion from 

time to time. Viewing the summary judgment record in the light most favorable to Favors, the 

sum total of religious harassment to which she was subjected consisted of the following: (a) 

Martin made an isolated inquiry after she had been offered the job as to her religion, but she 

never worked with Martin or discussed religion with him again; (b) Thomas told Favors on one 

occasion not to distribute Jehovah’s Witness literature on company property or during working 

hours, and not to read her Bible on her lunch hour;17 (c) one evening, Thomas rescheduled a 

team meeting for 5:40 p.m., which interfered with Favors’ evening ministry; (d) after a day off, 

Favors was asked by Thomas whether she had spent her day engaging in her religious ministry; 

 16 The Eleventh Circuit applied the same standard to a religious discrimination case 

in MackMuhammad v. Cagles Inc., 2010 WL 1896355, *3 (11th Cir. May 12, 2010). See also 

E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 313 (4th Cir. 2008) (hostile work environment 

claim based on religion requires showing that “harassment was (1) unwelcome, (2) because of 

religion, (3) sufficiently severe or pervasive to alter the conditions of employment and create an 

abusive atmosphere, and (4) imputable to the employer”); Cohen-Breen v. Gray Television 

Group, Inc., 661 F. Supp.2d 1158 (D. Nev. 2009) (to state an actionable hostile work 

environment claim, plaintiff must show that “(1) she was subjected to verbal or physical conduct 

based on her religion; (2) the conduct was unwelcome; and (3) the conduct was sufficiently 

severe or pervasive to alter the conditions of her employment and create an abusive working 

environment”); Wheeles v. Nelson’s Elec. Motor Services, 559 F. Supp.2d 1260, 1271 (M.D. Ala. 

2008) (noting that standards for claim of hostile work environment based on religion are 

identical to those for sexual harassment claim). 

17 On the surface, the instruction not to read the Bible may seem problematic. But 

there is no evidence that Thomas ever enforced or discussed this directive with Favors again, that 

Favors complained about it to anyone within a reasonable time, or that it visited any material 

hardship on Favors. There is not even evidence that Favors wanted to read her Bible during 

lunch hour, or that she would have done so were it not for Thomas’s edict. As such, neither the 

subjective nor the objective detriment requirements appear satisfied here. 

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and (e) on another occasion, Thomas indicated to Favors that she knew Favors was looking 

forward to having more time to pursue her religious ministry. 

 Such incidents, viewed cumulatively and under the totality of the circumstances, are far 

too innocuous and benign to satisfy the “severe or pervasive” prerequisite for a hostile work 

environment claim. “Title VII is neither a general civility code nor a statute making actionable 

the ordinary tribulations of the workplace.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 

1239 (11th Cir. 2001) (citations omitted). Rather, “Title VII is only implicated in the case of a 

workplace that is permeated with discriminatory intimidation, ridicule and insult, not where there 

is the mere utterance of an ... epithet.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 

1276-77 (11th Cir. 2002) (citation and internal quotation marks omitted). This criterion is plainly 

not satisfied here. Favors has pointed to nothing more than isolated incidents that were 

infrequent and mild, that were in no way threatening or humiliating, and are in large part mere 

acknowledgments by her supervisor of awareness of the importance of Favors’ faith to her daily 

life. See generally McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (for purposes of 

“severe or pervasive” inquiry, courts consider totality of circumstances, including “the frequency 

of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 

a mere offensive utterance; and whether it unreasonably interferes with an employee’s work 

performance”) (citations omitted). That is simply not enough, and courts have consistently 

dismissed religious hostile work environment claims for similar infirmities of proof.18

 18 See, e.g., MackMuhammad, 2010 WL 1896355, at *3 (Muslim employee was not 

subjected to religious harassment where manager referred to him as “Bin Laden” or 

“Muhammad-man” over company radio and intercom, and where supervisors asked him about 

his religion and made comments about his religious dietary restrictions, because such comments 

were at most insensitive and rude, and did not rise to level of severe and pervasive harassment); 

Richardson v. Dougherty County, Ga., 2006 WL 1526064, *5 (11th Cir. June 5, 2006) (rejecting 

Title VII hostile work environment claim where supervisor referred to plaintiff more than 50 

times as “preacher man” and made comments about his religion and request for accommodation, 

where such conduct was not objectively severe or pervasive); Jones v. United Space Alliance, 

L.L.C., 2006 WL 250761, *4 (11th Cir. Feb. 3, 2006) (dismissing hostile environment claim 

because complained-of conduct was not objectively severe or pervasive, where manager made 

derogatory remarks based on plaintiff’s religion, co-worker removed flyer advertising plaintiff’s 

church events, manager told him to remove lanyard with name “Jesus” on it, manager told him 

not to leave his Bible on his desk, and he was asked to turn down religious music played at 

work); Wheeles, 559 F. Supp.2d at 1272 (dismissing religious harassment claim where plaintiff 

failed to satisfy “severe or pervasive” requirement and complained-of conduct was nothing more 

(Continued) 

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 As such, the Court finds as a matter of law that the incidents of harassment to which 

Favors objects are not actionable under Title VII because they were not “sufficiently severe or 

pervasive to alter the conditions of the victim’s employment and create an abusive working 

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 

295 (1993). Defendant’s Motion for Summary Judgment is granted with respect to the religious 

harassment claim.19

2. Disparate Treatment. 

 

than “slightly insulting”); Hodson v. Alpine Manor, Inc., 512 F. Supp.2d 373, 387-88 (W.D. Pa. 

2007) (granting summary judgment for employer on religious harassment claim where plaintiff, 

who was evangelical Christian, alleged that co-workers made isolated comments about “laying 

hands on” patients to “heal” them, thus mocking her beliefs, but such comments were, at most, 

offensive utterances insufficient to create a hostile work environment). 

19 In reaching this conclusion, three other points should be noted. First, the Court 

understands that Favors labeled certain other conduct by defendant as “harassment,” including 

for example Thomas’s efforts to persuade Favors to attend the Leadership Focus meeting, the 

denial of Favors’ request for part-time work, the handling of Favors’ sick days in late March, and 

the like. Even if plaintiff subjectively perceived these events to be harassing, she has not made 

any showing that such harassment is “based on a protected characteristic of the employee,” 

McCann, 526 F.3d at 1378 (citation omitted), as is required to establish a hostile work 

environment claim under Title VII. There are simply no record facts to link these incidents to 

her religion. Second, while certain facts relate to Favors’ desire to perform her religious ministry 

on and off company property during on- and off-duty hours, plaintiff does not contend that she is 

bringing a claim for failure to provide religious accommodation; therefore, the Court has not 

examined and will not examine the sufficiency of the record facts to support a cognizable claim 

on that theory. Third, to the extent that Favors’ claim is that Thomas sought to push her out of 

Alabama Power once she learned that Favors was a Jehovah’s Witness, that contention is 

irreconcilable with the abundant, undisputed evidence that Thomas evaluated Favors’ 

performance favorably, helped her identify and pursue cross-training opportunities, told Alabama 

Power management that Favors was a tremendous asset to the Prichard office, advocated in 

support of Favors’ part-time request, and sought to assist her in achieving her stated goal of 

obtaining a leadership role within the company. For example, Favors admits that Thomas gave 

her an “excellent performance review” and invited her to lunch with the mayor of Prichard in late 

March 2008, as a reward. (Favors Decl., ¶ 9.) Favors further admits that Thomas told Covert 

“what an asset [Favors] was to the Prichard Business Office” and that Thomas worked to find 

ways that Favors might be able to work part-time. (Id., ¶ 16.) Company officials report that 

Thomas “spoke highly of” Favors to them. (Weaver Decl., ¶ 5.) These and other record facts 

cannot be squared with Favors’ apparent theory that Thomas was “out to get her” as soon as she 

learned back in October 2007 (before Favors had even begun working at Alabama Power) that 

Favors is a Jehovah’s Witness. 

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 In general, to establish a prima facie case of disparate treatment under Title VII, a 

plaintiff must show that “(1) she belongs to a protected class; (2) she was qualified to do the job; 

(3) she was subjected to adverse employment action; and (4) her employer treated similarly 

situated employees outside her class more favorably.” Crawford, 529 F.3d at 970. This standard 

applies equally in the religious discrimination context. See Dixon v. Palm Beach County Parks 

and Recreation Dep’t, 2009 WL 2707539, *1 (11th Cir. Aug. 31, 2009) (prima facie case of 

religious discrimination requires showing of membership in protected class, adverse employment 

action, more favorable treatment of similarly situated employees outside of protected class, and 

qualification for job or benefit). 

 Plaintiff’s Complaint does not specify precisely which employment actions by Alabama 

Power are within the ambit of her disparate treatment claim; however, a fair reading of her 

filings is that she is bringing Title VII disparate treatment claims based on the denial of her 

request for a part-time job assignment, the imposition of third-level discipline, and the 

termination of her employment. (Doc. 37, at 6-7.)20

 Favors has failed to establish a prima facie case of religious discrimination with regard to 

the part-time job denial, the discipline, or the discharge for at least two independent reasons. 

First, the law of this Circuit explains that an additional prima facie element is that the plaintiff 

must “demonstrate[] the challenged employment decision was made by someone who was aware 

of the plaintiff’s religion. ... [A]n employer cannot intentionally discriminate against an 

individual based on his religion unless the employer knows the individual’s religion.” Lubetsky 

v. Applied Card Systems, Inc., 296 F.3d 1301, 1305-06 (11th Cir. 2002). Simply put, “[i]t is 

 20 To the extent that Favors seeks to pursue a disparate treatment claim based on the 

scheduling of a meeting for 5:40 p.m. rather than 5:05 p.m., and the granting of her vacation day 

for March 28 rather than March 27 (see doc. 37, at 6-7), such trifling, workaday, run-of-the-mill 

slights plainly do not rise to the level of “adverse employment actions” necessary to state a prima 

facie case of discrimination under Title VII. See Howard v. Walgreen Co., 605 F.3d 1239, 1245 

(11th Cir. 2010) (reaffirming that “only those employment actions that result in a serious and 

material change in the terms, conditions, or privileges of employment will suffice” to satisfy the 

“adverse employment action” requirement for a Title VII discrimination claim) (citations and 

internal quotation marks omitted). Favors’ unhappiness that she was forced to attend a meeting 

35 minutes later than she wished, and that she was given a vacation day one day later than the 

day she wanted, do not come anywhere close to the necessary level of materiality to be 

actionable under Title VII disparate treatment principles. 

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necessary for a plaintiff attempting to establish a prima facie case of intentional religious 

discrimination under Title VII to demonstrate the challenged employment decision was made by 

someone who had knowledge of the plaintiff’s religion.” Id. at 1307 (granting summary 

judgment for defendant where plaintiff failed to establish that person responsible for adverse 

employment action knew about his religion). Here, the record evidence is clear and undisputed 

that Covert was the decision maker for the contested decisions not to create a new part-time 

position for Favors, to discipline her for not attending the Leadership Focus meeting, and to 

terminate her employment for refusing to commit to performance expectations. But there is no 

evidence that Covert was aware of Favors’ religious faith. Common sense dictates that Covert 

could not have been discriminating against Favors for being a Jehovah’s Witness if he did not 

know she was a Jehovah’s Witness, and there is no indication and no evidence in the record that 

he possessed such knowledge. Accordingly, just as in Lubetsky, the dearth of record evidence 

that the decision maker knew of Favors’ religious beliefs prevents her from establishing a prima 

facie case and warrants entry of summary judgment in Alabama Power’s favor on plaintiff’s 

disparate treatment cause of action. 

 Favors has also failed to meet her burden of establishing a prima facie case of religious 

discrimination by neither arguing, nor showing, that employees outside of her protected class 

were treated more favorably than she. There is no evidence, for example, that similarly situated 

non-Jehovah’s Witnesses at Alabama Power were granted part-time status upon request, that 

they were not disciplined for failing to attend meetings,21 or that they were not discharged for 

repeatedly refusing to commit to meeting performance expectations. This omission is fatal to 

Favors’ Title VII religious discrimination claims predicated on a disparate treatment theory. See, 

e.g., MackMuhammad v. Cagle’s, Inc., 2010 WL 1896355, *2 (11th Cir. May 12, 2010) (plaintiff 

 21 The Court recognizes that Favors included an allegation in her EEOC Charge that 

“Cynthia Tatum did not attend a meeting in March 2008, but her employment was not 

terminated.” (Favors Dep., at Exh. 26.) But by Favors’ own admission, Tatum was not a 

similarly situated employee. Favors testified that Tatum skipped a meeting because “we were 

working short ... or we were really busy,” such that Tatum “couldn’t attend her meeting.” 

(Favors Dep., at 305.) In contrast to Tatum, who could not attend a meeting because pressing 

work responsibilities prevented her from doing so, Favors did not attend a meeting for the sole 

reason that she did not want to go. These circumstances are in no way analogous, and Tatum is 

not similarly situated to Favors. 

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failed to establish a prima facie case of religious discrimination where he did not argue, much 

less show, “that he had been treated more harshly than similarly-situated employees, and did not 

identify any comparable employee”).22

 Even if Favors had made a prima facie showing of religious discrimination, Alabama 

Power has come forward with legitimate non-discriminatory reasons for each of the challenged 

personnel actions. Alabama Power’s evidence shows the following: (a) Favors was denied a 

part-time assignment because of the increased costs (benefits, hiring, training) associated with 

converting her existing full-time job into two part-time jobs (Weaver Decl., ¶ 6); (b) Favors was 

disciplined for missing the Leadership Focus meeting because Covert’s recollection was that he 

had specifically directed her to attend it, such that her failure to do so amounted to 

insubordination (Covert Decl., ¶¶ 11-12); and (c) Favors was discharged because she steadfastly 

refused to agree to meet performance expectations after returning from her one-day suspension, 

as required by Alabama Power policy (id., ¶¶ 28, 30-31). 

 Defendant having come forward with legitimate nondiscriminatory reasons for each of 

the challenged actions, it is incumbent on Favors to show that these stated reasons are a pretext 

for religious discrimination. See Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1174 (11th

Cir. 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 

 22 See also Thompson v. Carrier Corp., 2009 WL 4980425, *3 (11th Cir. Dec. 23, 

2009) (in religious discrimination case, “Thompson did not prove a prima facie case of 

discrimination as she did not produce evidence showing that she was treated less favorably than 

a similarly-situated individual outside of her protected class”); Postell v. Green County Hosp. 

Authority, 2008 WL 427963, *1 (11th Cir. Feb. 19, 2008) (plaintiff failed to make prima facie

showing of religious discrimination “as she cannot show that she ... suffered any other adverse 

employment action in contrast with similarly situated employees”); Richardson, 2006 WL 

1526064, at *4 (denying plaintiff’s Title VII claim of religious discrimination based on disparate 

treatment, where plaintiff failed to present evidence that employees outside protected class were 

treated more favorably than he) . 

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factfinder could find them unworthy of credence.” Vessels v. Atlanta Independent School 

System, 408 F.3d 763, 771 (11th Cir. 2005) (quotation omitted).23

 Plaintiff advances no arguments and presents no facts tending to cast doubt on Alabama 

Power’s stated justification for denying her part-time work. With regard to her discipline and 

termination, Favors’ only argument is that there were no rules requiring Customer Service 

Representatives to attend the Leadership Focus meeting, such that the facts “transparently show 

false claims of insubordination regarding an optional attendance at a Leadership Focus Group.” 

(Doc. 37, at 7.) 

 Construing plaintiff’s filings generously, she is apparently contending that the company’s 

stated reasons for her discipline and discharge were pretextual because her attendance at the 

Leadership Focus meeting was optional. Even accepting plaintiff’s version of the facts as 

correct, however, at best this evidence would show that she misunderstood what Covert was 

telling her. Again, Favors’ evidence is that the Leadership Group meeting “was discussed as an 

optional event as [Covert] stated on April 15, 2008, anyone in the Prichard Business Office could 

attend.” (Favors Decl., ¶ 21.) In other words, Favors’ version of the facts is that she interpreted 

Covert’s statement that “anyone could attend” as meaning that her attendance was optional. But 

Covert’s recollection was quite clear that he directed her to attend as a job requirement. 

Moreover, it is undisputed that Favors acknowledged at the June 28 discussion with Covert that 

he had used the word “assignment” (Covert Decl., ¶ 17), and Favors wrote in her notes that “Sam 

ignored me stating I should be present tomorrow. ... (Loretta repeated called me into her office 

trying force me to attend the meeting).” (Complaint, Exh. B, at 3.) Favors’ own writings 

demonstrate that she understood that she was supposed to be present at the meeting, yet she did 

not go for the sole reason that she did not want to attend. She cannot create a genuine issue of 

material fact now by contradicting herself. Even if Favors misunderstood Covert’s directive to 

go to the meeting, on this record it cannot be questioned that Covert reasonably believed Favors 

 23 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”). 

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to have been guilty of insubordination. See generally Elrod v. Sears, Roebuck and Co., 939 F.2d 

1466, 1470-71 (11th Cir. 1991) (no pretext where plaintiff did not present evidence that 

employer’s stated belief in allegations of misconduct was unworthy of credence, even if the 

allegations themselves were untrue). 

 Also, recall that Favors was discharged not for missing a meeting, but for repeatedly 

refusing to affirm that she was committed to meeting performance expectations, as she was 

required to do under Alabama Power’s written disciplinary policy. Plaintiff has offered no 

argument, evidence or reasoning for rejecting this stated reason as pretextual, nor has she 

otherwise attempted to justify or explain her behavior of April 30 and May 1, 2008. With full 

knowledge that she could be fired for not responding, Favors refused to answer Covert’s simple 

question as to whether she would commit to meeting performance expectations, as required 

under a company policy of which she possessed actual knowledge. 

 For all of the foregoing reasons, defendant’s Motion for Summary Judgment is granted

as to plaintiff’s disparate treatment claims. She has failed to establish a prima facie case of 

discrimination, or to demonstrate that Alabama Power’s stated non-discriminatory reasons for 

the challenged actions were pretextual. 

C. Retaliation Claims. 

 The parties agree that Favors has also asserted a claim against Alabama Power for 

retaliation under Title VII, alleging that she was disciplined and fired for having complained 

internally of religious discrimination. 

 To establish a prima facie case of retaliation, Favors 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 

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). Alabama Power does not challenge Favors’ ability to satisfy the first two prongs of the 

prima facie case; however, it insists that there is no evidence of the requisite causal connection. 

 On the surface, Alabama Power’s causation argument appears doomed to failure, given 

the well-established principle that “close temporal proximity may be sufficient to show that the 

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protected activity and the adverse action were not wholly unrelated.” McCann, 526 F.3d at 1376 

(internal quotation marks and citations omitted). It is rare to find much closer temporal 

proximity than is present here. After all, the record shows that Favors complained internally of 

religious discrimination on April 17, 2008, disclosed further details of alleged religious 

discrimination on April 26, 2008, received level three discipline on April 28, and was fired on 

May 1. 

 But close temporal proximity, by itself, is not enough to satisfy the “causal connection” 

element of a retaliation cause of action. To the contrary, the law is crystal clear that “[t]o 

establish a causal connection, a plaintiff must show that the decision-makers were aware of the 

protected conduct.” Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 716 (11th

Cir. 2002).24 On summary judgment, Alabama Power challenges plaintiff’s ability to show that 

Covert, the decision maker who disciplined and fired Favors, was aware of her protected activity. 

In response, plaintiff admits that “Covert acted without awareness of Favors being involved in 

protected activity regarding her internal complaint,” and characterizes this fact as “unfortunate.” 

(Doc. 37, at 8.) It is more than that. Indeed, her admission that Covert was unaware of her 

protected activity is, by itself, fatal to Favors’ ability to establish a prima facie case of retaliation 

and defeats this cause of action, as a matter of law. 

 That said, in deference to Favors’ pro se status, the Court independently reviews the 

record and finds evidence that Covert (the undisputed decision maker) was in fact aware of 

Favors’ protected conduct as of May 1, 2008, when he terminated her employment. In 

particular, Covert admits that Johnson notified him of Favors’ complaints concerning distribution 

of religious literature and reading the Bible on April 25, 2008, nearly a week before the 

discharge decision was made. (Covert Decl., ¶ 32.)25 On that basis, the Court finds that Favors 

 24 See also Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008) 

(“In order to show the two things were not entirely unrelated, the plaintiff must generally show 

that the decision maker was aware of the protected conduct at the time of the adverse 

employment action.”) (citations omitted); Morris v. Potter, 2007 WL 3051744, *2 (11th Cir. Oct. 

22, 2007) (affirming grant of summary judgment on Title VII retaliation claim where plaintiff 

did not establish that supervisors had knowledge of her protected expression). 

25 This fact provides the requisite causal connection only with respect to the 

discharge action taken on May 1, not the level three discipline action taken on April 28. 

Although Covert was aware of Favors’ protected activity when the discipline was imposed, the 

(Continued) 

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can satisfy the causal connection element of her prima facie case of retaliatory discharge because 

the record reflects that the decision maker was aware that Favors had recently made internal 

complaints of religious discrimination as of the time he decided to terminate her employment. 

 As discussed supra, Alabama Power has unquestionably met its modest burden of 

articulating a legitimate non-retaliatory reason for Favors’ discharge, to-wit: Her repeated 

refusal to agree to meet performance expectations when asked over a period of days to do so. 

Plaintiff has failed to come forward with any evidence of pretext. Plaintiff’s evidence does not 

reveal any weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the 

employer’s proffered reason for discharging her. To the contrary, the record establishes that 

Covert asked her a simple question, namely, whether she was willing to meet company 

performance expectations. This question was required by Alabama Power policy for employees 

who had been placed on level three discipline. All Favors had to do was answer the question 

affirmatively and she would have been restored to work without incident. Yet she stubbornly, 

repeatedly refused to answer. Favors knew full well that this course of conduct would expose 

her to termination; indeed, she called Johnson on April 30 and told him that she would probably 

be fired that day for not answering Covert’s question. (Johnson Decl., ¶ 20 & Exh. 9.). There is 

no inference of pretext presented by these facts, viewed in the light most favorable to plaintiff, 

and Favors has articulated no argument that would support a finding on this record that Alabama 

Power’s stated reason for terminating her employment was a pretext for unlawful retaliation. 

Accordingly, Alabama Power is entitled to entry of summary judgment in its favor on the Title 

VII retaliation cause of action for lack of proof of pretext. 

IV. Conclusion.

 For all of the foregoing reasons it is ordered as follows: 

1. Defendant’s Motion to Remove from the Public Record and Place Under Seal 

(doc. 44) is denied, and its Motion for Leave to File Under Seal its Motion to 

Strike Portions of Declaration (also at doc. 44) is likewise denied. Documents 37 

 

uncontroverted record evidence is that he had actually made the decision to discipline Favors 

back on April 17, at which time he had no knowledge that she had ever complained of religious 

discrimination. (Covert Decl., ¶ 32.) 

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and 38 will not be sealed, and the Clerk of Court is directed to unseal document 

44 and its exhibit; 

2. Defendant’s Motion for Summary Judgment (doc. 28) is granted, and this action 

is dismissed with prejudice; 

3. Defendant’s Motion to Strike (doc. 44-1) is moot; and 

4. A separate judgment will enter. 

DONE and ORDERED this 9th day of July, 2010. 

 s/ WILLIAM H. STEELE 

 CHIEF UNITED STATES DISTRICT JUDGE 

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