IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KENNEDY TODD, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0156-WS-M

 )

BI-LO HOLDINGS, etc., )

 )

Defendant. )

 ORDER

This matter is before the Court on the defendant’s motion for summary 

judgment. (Doc. 18). The parties have filed briefs and evidentiary materials in 

support of their respective positions, (Docs. 19, 20, 24, 25, 28), and the motion is 

ripe for resolution. After careful consideration, the Court concludes that the 

motion is due to be granted.

BACKGROUND

According to the complaint, (Doc. 1), the plaintiff was employed by the 

defendant as a produce manager at Store 572 until November 2013, when he was 

terminated. The plaintiff, who is African-American, alleges that the defendant 

discriminated against him based on his race, both in discipline and in termination. 

The plaintiff also alleges that the defendant terminated him in retaliation for 

complaining of race discrimination. The plaintiff’s claims are brought pursuant to 

42 U.S.C. § 1981. 

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

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Fed. R. Civ. P. 56(a). 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). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 

608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “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.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

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There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced.

Discrimination claims under Section 1981 and Title VII “have the same 

requirements of proof and use the same analytical framework.” Springer v. 

Convergys Customer Management Group, 509 F.3d 1344, 1347 n.1 (11th Cir. 

2007). The same is true for retaliation claims. Butler v. Alabama Department of 

Transportation, 536 F.3d 1209, 1212-13 (11th Cir. 2008); Davis v. Coca-Cola 

Bottling Co. Consolidated, 516 F.3d 955, 978 (11th Cir. 2008). The Court 

therefore applies Title VII cases in assessing the motion for summary judgment. 

Because the plaintiff does not rely on direct evidence of discrimination, the 

shifting burden appropriate for cases resting on circumstantial evidence applies. 

In Title VII cases alleging discrimination, the burden is first on the plaintiff to 

establish a prima facie case. If he succeeds, the employer must meet its burden of 

producing evidence of one or more legitimate, nondiscriminatory reasons for the 

adverse employment action. The burden then shifts back to the plaintiff to show 

that the employer’s proffered reasons are a mere pretext for illegal discrimination. 

E.g., Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002). 

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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The same burden-shifting paradigm applies to cases alleging retaliation under Title 

VII and Section 1981. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 

(11th Cir. 2008).

I. Discriminatory Discipline.

The complaint alleges that the plaintiff “was written up by the Store 

Manager, Jeremy McPherson, Caucasian, for out-of-date products in the Produce 

Department. However, on information and belief, Mr. McPherson did not write up 

similarly situated Caucasian Managers for similar infractions of company 

policies.” (Doc. 1 at 2). 

“To establish discrimination in discipline, ... a plaintiff must first make out 

a prima facie case demonstrating: 1) that he belongs to a protected class under 

Title VII; 2) that he was qualified for the job; and 3) that a similarly situated 

employee engaged in the same or similar misconduct but did not receive similar 

discipline.” Alexander v. Fulton County, 207 F.3d 1303, 1336 (11th Cir. 2000), 

overruled in part on other grounds, Manders v. Lee, 207 F.3d 1303, 1328 n.52 

(11th Cir. 2003); accord Rioux v. City of Atlanta, 520 F.3d 1269, 1275-76 (11th Cir. 

2008); Lathem v. Department of Children and Youth Services, 172 F.3d 786, 792 

(11th Cir. 1999). The defendant argues that the plaintiff cannot satisfy the third 

element of his prima facie case. (Doc. 19 at 19).2 

It is uncontroverted that, as produce manager, the plaintiff was responsible 

for ordering product, ensuring that product was fresh, checking the quality of 

product on the shelf, keeping out-of-date product off the shelf, and culling product

not marked with an expiration date several times a day. (Doc. 19 at 3-4; Doc. 25 

at 1). It is also uncontroverted that the plaintiff had chronic problems performing 

 2 The plaintiff proposes that the Court change the third element to read, “that the 

plaintiff was replaced with someone outside the protected class.” (Doc. 25 at 16). That 

is not possible, since the plaintiff in his discipline claim is complaining of being written 

up while employed, not of being discharged and replaced. 

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these and other duties over the years, both at Store 572 and in previous 

assignments. (Doc. 19 at 5-9; Doc. 25 at 2).3

McPherson arrived as manager of Store 572 in April 2011. (Doc. 19 at 9; 

Doc. 25 at 2). It is uncontroverted that, over the next 21⁄2 years, the plaintiff was 

repeatedly cited for failure to perform his duties as produce manager. In 

particular:

• In July 2011, an auditor found several products in a cooler that were 

out of date (some by over a month) and missing price signs. The 

African-American co-store manager (Jackson) issued the plaintiff a 

verbal warning as a result.4

• In June 2012, the district director visited Store 572 and found the 

produce department in an unacceptable condition, with poor quality 

leafy lettuce, leeks, black radishes, pole beans and more, and with 

the lettuce section not properly cleaned in several days. This 

incident resulted in verbal warning issued by McPherson.5

• In October 2012, McPherson issued the plaintiff a written warning 

based on several issues, including failing to work over 50 cases of 

juice in the cooler (resulting in holes in the display shelves), failing 

to ensure an associate was available for the closing shift, and failing 

to cull bad product.6

 3 The plaintiff admits the deficiencies chronicled by the defendant but disputes 

their relevance because they precede the arrival of McPherson as store manager. (Doc. 

25 at 2).

 

4 (Doc. 20-4 at 21).

5 (Doc. 20-4 at 22).

6 (Doc. 20-4 at 23).

 

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• In February 2013, Jackson issued the plaintiff a final written warning 

after finding 39 out-of-date products in the produce department.7

• In August 2013, McPherson issued the plaintiff another final written 

warning based on multiple out-of-date products, lack of culling, 

sanitation issues, and poor ordering/lack of product on ad items.

8

• In four separate incidents over a two-week period in September 

2013, McPherson found on display in the produce department: six 

cases of moldy raspberries; several bowls of cut fruit with no cover 

and no date markings; red pears with a code date of August 28; and 

almost an entire buggy’s worth of out-of-date product. The 

September incidents culminated in the issuance, on October 3, 2013,

of a third final written warning for poor department conditions; 

multiple out-of-dates; sanitation issues; failure to cull properly; and 

failure to respond to his over-ordering of product. 9

(Doc. 19 at 9-15; Doc. 25 at 2-3).

10

 7 (Doc. 20-4 at 24). 

8 (Doc. 20-4 at 25-26).

9 (Doc. 20-4 at 27-28). The plaintiff “disputes” that he received a written warning 

as a result of the September 2013 incidents, (Doc. 25 at 2), but he cites no evidence 

supporting his position. In his deposition, the plaintiff testified only that he does not 

recall seeing the warning previously but conceded he could have. (Doc. 25-2 at 36). The 

written warning is in the record, and it reflects that the plaintiff “refused to sign or write 

any notes on this document.” (Doc. 20-4 at 27-28). The plaintiff’s receipt of this 

warning is thus uncontroverted for present purposes.

10 The plaintiff denies that the situations of October 2012 and February 2013 were 

his fault, but he admits they occurred. (Doc. 25 at 2). And for purposes of discipline, 

both were his responsibility. The plaintiff attributes the October 2012 situation to the 

failure of produce employees to come to work and McPherson’s resistance to the plaintiff 

working overtime, but he admits he was responsible for scheduling his subordinates and 

finding replacements if they did not show, (Doc. 19 at 12), and the prohibition on 

overtime was real and dictated from above. (Doc. 20-1 at 5; Doc. 20-3 at 3). The 

plaintiff’s responsibility for the February 2013 incident is discussed infra note 16. 

 

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The plaintiff identifies two white comparators. (Doc. 25 at 10-12, 20-21).

He has presented evidence that auditors twice found out-of-date product in the 

meat department managed by James Baumgartner and several times found out-ofdate product in the deli department managed by Mary Moore. (Doc. 20-2 at 8-10). 

He has also presented evidence from McPherson that neither Baumgartner nor 

Moore received a verbal or written warning as a result. (Doc. 20-5 at 7, 12-13). 

“When a plaintiff alleges discriminatory discipline, to determine whether 

employees are similarly situated, ... we require that the quantity and quality of the 

comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” 

Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006) (internal 

quotes omitted); accord McCann v. Tillman, 526 F.3d 1370, 1373-74 (11th Cir. 

2008).

11 “Though the comparators need not be the plaintiff’s doppelgangers, the 

‘nearly identical’ standard requires much more than a showing of surface-level 

resemblance.” Flowers v. Troup County School District, 803 F.3d 1327, 1340 

(11th Cir. 2015).12

McPherson13 first issued the plaintiff a verbal warning after the district 

director found the produce department to have “unacceptable conditions,” which 

included unculled product but also included lack of sanitation. McPherson next 

issued the plaintiff a written warning, not just for having out-of-date product but 

also for failing to keep the cooler supplied with juice and for failing to ensure 

proper staffing in the department. After Jackson issued the plaintiff a written 

 11Burke-Fowler invoked the “prior panel precedent” rule to select the “nearly 

identical” standard rather than the seemingly lower standard of “similar[ity]” articulated 

in some Eleventh Circuit opinions. 447 F.3d at 1323 n.2. 

12 The plaintiff concedes that the “nearly identical” standard applies. (Doc. 25 at 

19-20).

13 As noted, the plaintiff’s claim is limited to write-ups issued by McPherson. 

(Doc. 1 at 2). This eliminates from consideration the two warnings issued the plaintiff by 

Jackson.

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warning for out-of-date product, McPherson next issued the plaintiff another 

written warning, not just for having out-of-date product but also for sanitation 

issues and poor ordering. Finally, McPherson issued another written warning, not 

just for having out-of-date product but also for sanitation issues and poor ordering.

As this recitation reflects, McPherson never wrote up the plaintiff just for 

having out-of-date or unculled product. On all four occasions, the plaintiff’s 

conduct also included poor sanitation, poor ordering, and/or poor staffing. By the 

plaintiff’s own argument, in contrast, the only fault of Baumgartner and Moore 

was out-of-date product. (Doc. 25 at 20-21). Moreover, all of McPherson’s 

warnings were issued against a backdrop of previous discipline meted out against 

the plaintiff during McPherson’s tenure at Store 572 (including two warnings 

issued by another, African-American manager); by the plaintiff’s own argument, 

Baumgartner and Moore had no history of discipline, either by McPherson or by

Jackson. 

Because of these differences, the quantity and quality of the conduct of 

Baumgartner and Moore is not nearly identical to that of the plaintiff as to any of 

the four write-ups issued by McPherson. See, e.g., Burke-Fowler, 447 F.3d at 

1321-25 (comparators who were in romantic relationships with inmates, but which 

relationships began before incarceration, were not similarly situated to a plaintiff 

whose romantic relationship with an inmate began during incarceration); Knight v. 

Baptist Hospital, Inc., 330 F.3d 1313, 1316-17 (11th Cir. 2003) (comparator with 

similar history of problems with co-workers was not similarly situated to a 

plaintiff who also had performance and tardiness issues); Silvera v. Orange 

County School Board, 244 F.3d 1253, 1259 (11th Cir. 2001) (comparator with one 

or two arrests was not similarly situated to a plaintiff with four arrests); Maniccia 

v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999) (comparators with one policy 

violation were not similarly situated to a plaintiff with four violations). Because 

the plaintiff cannot satisfy the third element of his prima facie case of 

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discriminatory discipline, the defendant is entitled to summary judgment as to this 

claim.

III. Discriminatory Termination.

“To prevail on a claim for discrimination under Title VII based on 

circumstantial evidence, [a dismissed plaintiff] must show that ... he was replaced 

by a person outside his protected class or was treated less favorably than a 

similarly-situated individual outside his protected class.” Maynard v. Board of 

Regents, 342 F.3d 1281, 1289 (11th Cir. 2003); accord Flowers, 803 F.3d at 1336. 

The plaintiff invokes the replacement option, (Doc. 25 at 16-17), and the 

defendant voices no objection. It is uncontroverted that the plaintiff was replaced 

by a white male. (Doc. 25 at 10). The defendant, by ignoring the issue in its reply 

brief, effectively concedes that the plaintiff can establish a prima facie case. 

To meet its intermediate burden, a defendant must articulate a reason 

“legally sufficient” to justify judgment in its favor and must support its articulated 

non-discriminatory reason “through the introduction of admissible evidence.” 

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981). 

The defendant “must present specific evidence regarding the decision-maker’s 

actual motivations with regard to each challenged employment decision.” Walker 

v. Mortham, 158 F.3d 1177, 1181 n.8 (11th Cir. 1998). Thus, “[t]he defendant 

cannot testify in abstract terms as to what might have motivated the decisionmaker ....” Id. Here, the defendant identifies its legitimate, non-discriminatory 

reason for firing the plaintiff as “a pattern of performance deficiencies involving 

his failure to effectively manage the Produce Department.” (Doc. 19 at 20). This 

is a legitimate reason for termination, and there is record evidence that it was the 

defendant’s actual reason. (Doc. 20-1 at 8).

“The inquiry into pretext requires the court to determine, in view of all the 

evidence, whether the plaintiff has cast sufficient doubt on the defendant’s 

proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude 

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that the employer’s proffered legitimate reasons were not what actually motivated 

its conduct” but “were a pretext for [discrimination].” Crawford v. Carroll, 529 

F.3d 961, 976 (11th Cir. 2008) (internal quotes omitted). The plaintiff’s burden is 

to “demonstrate weaknesses or implausibilities in the proffered legitimate reason 

so as to permit a rational jury to conclude that the explanation given was not the 

real reason, or that the reason stated was insufficient to warrant the adverse 

action.” Rioux 520 F.3d at 1279. However, “a reason is not pretext for 

discrimination unless it is shown both that the reason was false, and that 

discrimination was the real reason.” Springer v. Convergys Customer 

Management Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (emphasis in 

original) (internal quotes omitted). To make this showing, the plaintiff may resort 

to “all the evidence,” Crawford, 529 F.3d at 976, including “the evidence 

establishing the plaintiff’s prima facie case and inferences properly drawn 

therefrom.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 

(2000).

The plaintiff’s documented problems up to October 3, 2013 are identified in 

Part I. The final written warning issued that date required the plaintiff, over the 

next 30 days, to take specified steps to improve conditions in the produce 

department, which improvements “must be made immediately.” (Doc. 20-4 at 

27). It did not happen. Instead, the uncontroverted evidence shows that:

• On October 16, 2013, the plaintiff left holes in the displays because 

he had not ordered enough product for a three-day sale.

• On October 18, 2013, the district director visited and found multiple 

sanitation issues in the produce department.

• On October 22, 2013, an auditor shut down the produce 

department’s cut fruit process for lack of the plaintiff’s certification 

that his staff had been trained to follow proper procedures.

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• On November 4, 2013, a customer complained that rotten green 

beans were placed in the bottom of bags and covered with fresh 

green beans, a complaint McPherson visually confirmed as accurate.

• On November 7, 2013, the plaintiff and his department lead received 

overtime despite an instruction not to take overtime.

• On November 8, 2013, McPherson found multiple out-of-date 

products in the produce department, along with unculled produce 

and cut fruit without label or date.

• On November 12, 2013, the produce department ran out of bagged 

potatoes during a three-day sale due to the plaintiff’s failure to notify 

management or take steps to rectify the situation.

(Doc. 19 at 15-17; Doc. 25 at 2-3).14 The plaintiff was thereafter terminated on 

November 20, 2013. (Doc. 20-1 at 8).

The plaintiff’s primary evidence of pretext is that Baumgartner and Moore 

were treated more favorably than he. (Doc. 25 at 19-21). A difference in 

treatment can be evidence of pretext, but only if the comparators are similarly 

situated to the plaintiff. E.g., Rioux, 529 F.3d at 1276, 1279-80. The plaintiff 

acknowledges that he must show his situation to be “nearly identical” to that of his 

comparators, but he stresses that “nearly” is not “exactly.” (Doc. 25 at 20). The 

plaintiff is correct, but the situation surrounding his termination is so vastly 

different from that of Baumgartner and Moore that their continued employment 

 14 The plaintiff denies that the situations of November 7 and 8 were his fault, but 

he admits they occurred. (Doc. 25 at 3). Moreover, for purposes of discipline they are 

his responsibility for reasons stated in note 10, supra. The plaintiff “disputes” the 

incidents of October 16 and 18, (Doc. 25 at 2), but he neither explains his dispute nor 

cites any evidence supporting it. In his deposition, the plaintiff testified that he recalled 

the district manager’s October 2013 visit and findings and simply was unsure of the 

precise date it occurred. (Doc. 20-3 at 1-2). As for the October 16 incident, the plaintiff 

testified only that he does not recall it, without denying it occurred. (Id.). McPherson’s 

declaration is evidence that the incident occurred, (Doc. 20-1 at 4), and the plaintiff has 

identified no contrary evidence, leaving the defendant’s version uncontroverted.

 

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could not furnish evidence of pretext even under a much lower standard of 

comparability. 

As noted, the plaintiff has evidence that Baumgartner twice, and Moore 

several times, had out-of-date product in their departments. The plaintiff, 

however, had out-of-date product in his department on thirty or more occasions by 

the time he was fired. (Doc. 20-5 at 12). That is not comparable.

Moreover, the plaintiff received six verbal and written warnings before he 

was terminated, while Baumgartner and Moore received none. The plaintiff 

argues they should have received warnings, but it is uncontroverted that 

McPherson did not apply a zero-tolerance policy on out-of-date product but 

handled situations involving only a few items with a verbal reminder to be careful. 

(Doc. 20-5 at 12). As to only one of the incidents involving Baumgartner and 

Moore does the plaintiff have any evidence that the amount of product at issue 

rose above McPherson’s threshold level for formal discipline. (Doc. 20-2 at 8-10; 

Doc. 24-2 at 2). So the best possible case for the plaintiff is six warnings for him, 

one for Baumgartner, and none for Moore. That is not comparable.

Third, as noted previously, the plaintiff’s failures extended far past out-ofdate issues, encompassing as well chronic issues in sanitation, ordering, stocking

and staffing. Baumgartner and Moore, in contrast, had no such issues. That is not 

comparable. 

While Baumgartner and Moore are not similarly situated to the plaintiff, 

Merle Jennings is. Jennings, who is white, was dairy manager until September 

2012, when McPherson fired him for poor conditions in the back cooler, not doing 

daily tasks, and not checking for out-of-date product. (Doc. 20-1 at 9; Doc. 20-5 

at 4). The plaintiff responds that Jennings’ “situation was worse than” the 

plaintiff’s, (Doc. 25 at 3), but without offering any evidence in support of his ipse 

dixit. McPherson’s termination of a white male for conduct similar to the 

plaintiff’s weighs strongly against pretext. 

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Also weighing against the plaintiff is his treatment by Jackson, the AfricanAmerican co-store manager. As noted, Jackson issued the plaintiff a verbal 

warning in July 2011 and a final written warning in February 2013.15 The plaintiff 

does not contend that Jackson was racially biased against him, yet Jackson dealt 

out the same kind of discipline, for the same problems, as did McPherson.16 

The plaintiff’s case at this point is thus well into negative territory. In a 

single paragraph, he lists several items he hopes will dig him out of this hole. 

They do not come close to doing so.

First, the plaintiff asserts that McPherson failed to support him by fully 

staffing his department with competent, well-trained employees, complained when 

he worked overtime in an effort to compensate for the understaffing (or noshows), and refused to write up his underperforming subordinates. (Doc. 25 at 

21). 

The plaintiff has presented evidence that the produce department was 

sometimes understaffed,17 but he has not presented evidence that McPherson did 

 15 As discussed infra note 19, Jackson also issued the plaintiff a verbal warning in 

August 2010, prior to McPherson’s arrival.

16 The February 2013 incident involved 39 out-of-date products. The plaintiff 

suggests Jackson should not have written him up because he (Jackson) inspected the 

displays early in the morning, before the plaintiff had an opportunity to update the 

product. (Doc. 25 at 2, 5-6). That argument might have some appeal if the oldest 

product Jackson found was out of date by only one day, but in fact all of the product was 

at least two days out of date, with some of it over a month out of date. (Doc. 20-4 at 24). 

This means that the product was already out of date the day before Jackson’s inspection. 

But even if Jackson was being overly harsh in writing up the plaintiff, he was being 

overly harsh with no discriminatory motivation, which continues to support the inference 

that McPherson’s similar treatment of the plaintiff likewise reflected no discriminatory 

motivation. 

17 The plaintiff in brief says understaffing was “perpetual,” (Doc. 25 at 4-5), but 

one of his supporting record citations does not exist, and the other says only that 

understaffing occurred “at times.” It is uncontroverted that the produce department was 

fully staffed in the months preceding the plaintiff’s termination. (Doc. 20-1 at 6; Doc. 

20-5 at 32). 

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nothing about the situation. The only cited evidence is that, whenever he knew the 

produce department was understaffed, McPherson worked to fill the vacancy. 

(Doc. 20-1 at 6; Doc. 20-2 at 36; Doc. 20-5 at 32). Nor has the plaintiff identified 

any evidence that McPherson worked harder to fill vacancies in departments with 

white managers; on the contrary, he cites evidence that Mary Moore’s deli 

department had worse turnover problems than did the produce department. (Id. at 

5). 

The plaintiff has presented evidence that, when produce employees did not 

show up for work and he could not borrow workers from other departments,18

McPherson would not allow him to work overtime to get everything done and 

would complain when the plaintiff did so anyway. However, the evidence is 

uncontroverted that the prohibition on overtime was real and dictated from above,

(Doc. 20-1 at 5; Doc. 20-3 at 3), and there is no evidence that McPherson 

authorized white department managers to incur overtime. 

The plaintiff has presented evidence that McPherson refused the plaintiff’s 

requests to write up his subordinates. The same evidence, however, reflects that 

McPherson refused because it was the department manager’s job, not his, to make 

sure the department’s employees did their jobs. (Doc. 20-3 at 13-14). Again, the 

plaintiff has no evidence that McPherson treated any white department manager 

differently. 

Next, the plaintiff asserts that McPherson treated him disrespectfully. 

(Doc. 25 at 21). He cites as his evidence the declaration of a co-employee, who 

states that McPherson: (1) “left a very unprofessional message” on the plaintiff’s 

answering machine; (2) “treated the plaintiff very unfairly” in store meetings; and 

(3) responded to the plaintiff’s request for time off “with a smart answer or 

comment in front [of] the other employees.” (Doc. 24-2 at 2-3). These incidents 

 18 The plaintiff admits it was his responsibility to schedule his subordinates for all 

necessary hours and to find someone to cover the shift of any subordinate that canceled 

or failed to show. (Doc. 20-2 at 27). 

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are so mild and so vague as to be valueless. Worse, there is no evidence that 

McPherson treated white employees more charitably and thus no inference that 

McPherson treated the plaintiff shabbily because of his race.

Finally, the plaintiff notes that he had been employed by the defendant as a 

produce manager since 1998 and had done just fine until McPherson came along 

in 2011. The implication, the plaintiff says, is that McPherson “targeted” him and 

did so because he is black. (Doc. 25 at 21-22). The plaintiff, however, has had 

documented performance problems since 2004, which accelerated in frequency 

over the years before McPherson arrived.

19 To the uncertain extent the plaintiff 

suggests (speculates) that McPherson cited him for conduct that previous 

supervisors would have let slide, “differences in treatment by different supervisors 

or decision makers can seldom be the basis for a viable claim of discrimination,” 

Silvera, 244 F.3d at 1261 n.5, for the sensible reason that “d]ifferent supervisors 

may have different management styles that ... could account for the disparate 

disciplinary treatment that employees experience.” Jones v. Bessemer Carraway 

Medical Center, 137 F.3d 1306, 1312 n.7 (11th Cir.), opinion stricken and 

superseded in unrelated part, 151 F.3d 1321 (11th Cir. 1998). 

 19 In November 2004, the plaintiff was verbally counseled about the condition of 

the produce department. (Doc. 20-4 at 11). In June 2005, he was written up after an 

audit gave the produce department a score of zero (out of 100). (Id.). In October 2006, 

the plaintiff was written up for leaving rotten pumpkins on the sidewalk despite 

instruction to remove them. (Id. at 12). In October 2007, the plaintiff was written up 

after an audit revealed critical violations in the produce department regarding the proper 

cooling of product and employees’ knowledge of proper cold holding procedures. (Id. at 

13-15). In March 2008, the plaintiff received a verbal warning for failure to cull on two 

separate dates. (Id. at 16). In December 2009, the plaintiff received a verbal warning 

after an audit revealed that mark-down coupons did not match the UPC. (Id. at 17). In 

August 2010, the plaintiff received (from Jackson) a verbal warning after an audit found 

three salads almost a month past their sell-by date. (Id. at 18). In February 2011, the 

plaintiff received a performance review form after the produce department received a low 

score, and one critical violation, on an audit. (Id. at 19). The form reminded the plaintiff 

that “it is his responsibility to insure all items in his department are in date” and 

instructing him to retrain his associates “on the importance of pulling close and out of 

date products.” (Id.). The plaintiff disputes the relevance of this material but not its 

accuracy. (Doc. 25 at 2). 

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The foregoing exhausts the plaintiff’s efforts to show pretext. As addressed 

above, the effort falls far short of casting doubt on the defendant’s explanation –

that it fired the plaintiff for chronic performance problems – sufficient to permit a 

reasonable jury to find that what really motivated McPherson was not those 

admitted performance issues but racial discrimination. The defendant is thus 

entitled to summary judgment as to the discriminatory termination claim.

III. Retaliatory Termination.

“A prima facie case of retaliation under Title VII requires the plaintiff to 

show that: (1) she engaged in an activity protected under Title VII; (2) she 

suffered an adverse employment action; and (3) there was a causal connection 

between the protected activity and the adverse employment action.” Crawford v. 

Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The defendant denies the plaintiff can 

establish the third element of his prima facie case. (Doc. 19 at 24-27).

“The burden of causation can be met by showing close temporal proximity 

between the statutorily protected activity and the adverse employment action.” 

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). The 

plaintiff invokes this rule. (Doc. 25 at 22-24).

The plaintiff identifies his protected activity as being three statements that 

McPherson was “racist against him.” The first statement was made to the district 

director in June 2012. The second statement was made to the district director (but 

overheard by McPherson) on August 13, 2013, and the third was made directly to 

McPherson on August 28, 2013, when McPherson issued a final written warning. 

(Doc. 25 at 8-9). The plaintiff invokes the close-temporal-proximity test of 

causation only with respect to the last of these complaints, and he does not seek to 

support the causation element as to his other two statements. (Id. at 23). The 

Court therefore concludes that the plaintiff cannot establish a prima facie case of 

retaliation with respect to his first two complaints of racism.

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The plaintiff was fired on November 20, 2013. (Doc. 20-1 at 8). From 

August 28 to November 20 is 84 days, or one week shy of three months. The 

plaintiff asserts that, under Eleventh Circuit law, a delay of “a little more than 2 

months” between protected activity and termination satisfies the close-temporalproximity measure of causation. (Doc. 25 at 3-4). The cases he cites, however, do 

not support that proposition. At any rate, the gap here is almost three months, not 

barely two months, and “[a] three to four month disparity between the statutorily 

protected expression and the adverse employment action is not enough” to 

constitute close temporal proximity. Thomas, 506 F.3d at 1364; accord Higdon v. 

Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004) (“By itself, the three month period 

between [the protected expression and the adverse action] does not allow a 

reasonable inference of a causal relation between the protected expression and the 

adverse action.”).

To shrink the gap between protected activity and adverse action, the 

plaintiff asserts that the decision to fire him was made before November 20. (Doc. 

25 at 23). The plaintiff may be correct, but he identifies no evidence from which 

any inference can be drawn as to when the decision was made relative to 

November 20.

The plaintiff points out that he received a written warning on October 3, 

2013, approximately five weeks after he complained to McPherson of racism. 

(Doc. 25 at 23). As the plaintiff argues, this means there is close temporal 

proximity between his complaint and the warning. But the plaintiff has not sued 

for retaliatory discipline, only for retaliatory termination; the relevant adverse 

action for purposes of causation is not the warning but the termination.

Ultimately, it does not matter whether the plaintiff can establish a prima 

facie case. The defendant’s legitimate, non-discriminatory reasons for the 

plaintiff’s termination are the same as those given in Part II, (Doc. 19 at 20, 27-

28), and the plaintiff admits his evidence of pretext is the same for retaliation as it 

is for discrimination. (Doc. 25 at 24). But the plaintiff has identified no evidence 

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that his indicia of retaliatory motive – understaffing, denial of overtime, refusal to 

discipline subordinates, disrespect, warnings, and more favorable treatment of 

white department managers – began or worsened after August 28. That is, the 

plaintiff has no evidence that McPherson’s treatment of him became any harsher 

after he complained of racism. There is thus nothing in the plaintiff’s evidence to 

suggest that McPherson retaliated against him in any of these particulars and thus 

no inference that McPherson also retaliated against him in terminating his 

employment. 

“Title VII’s anti-retaliation provisions do not allow employees who are 

already on thin ice to insulate themselves against termination or discipline by 

preemptively making a discrimination complaint.” Alvarez v. Royal Atlantic 

Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010). In particular, a plaintiff 

“cannot insulate herself against termination by making a discrimination complaint 

in response to being placed on probation for the same inadequate work that 

ultimately led to her discharge.” Hawkins v. BBVA Compass Bancshares, Inc., 

613 Fed. Appx. 831, 839 (11th Cir. 2015). The plaintiff accused McPherson of 

being racist when McPherson issued him a final written warning for admitted, 

chronic performance problems. He could not thereby insulate himself from 

termination when those performance problems admittedly continued and worsened 

over the next three months. 

Because the plaintiff has cast no doubt on the defendant’s explanation 

sufficient to permit a reasonable jury to find that what really motivated McPherson 

was not the plaintiff’s admitted performance issues but retaliation, the defendant is 

entitled to summary judgment as to the retaliatory termination claim.

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CONCLUSION

For the reasons set forth above, the defendant’s motion for summary 

judgment is granted. Judgment shall be entered accordingly by separate order.

DONE and ORDERED this 24th day of May, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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