Case 4:21-cv-00333-RSB-CLR Document 54 Filed 01/31/24 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

JAMIE KENNEDY,

Plaintiff, CIVIL ACTION NO.: 4:21-cv-333

v.

LLOYD J. AUSTIN III, in his official capacity

as Secretary of the Department of Defense,

Defendant.

ORDER

Presently before the Court is Defendant Lloyd J. Austin III’s Motion to Dismiss Plaintiff

Jamie Kennedy’s Third Amended Complaint. (Doc. 46.) Plaintiff sued Defendant, the United

States Secretary of Defense, alleging that the Defense Commissary Agency (the “Agency”)—an

agency under Defendant’s authority—engaged in racially discriminatory employment practices in

violation of Title VII of the Civil Rights Act of 1974 (“Title VII”), 42 U.S.C. § 2000d et seq. (Doc.

1.) In her Third Amended Complaint, Plaintiff, who is white, alleges, among other things, that she

was subject to disparate treatment based on her race when she was wrongfully disciplined for

allegedly calling an African American co-worker a racial slur despite exculpatory evidence that

she did not use the slur. Defendant moves to dismiss Plaintiff’s claims pursuant to Federal Rule

of Civil Procedure 12(b)(6) on the grounds that Plaintiff has failed to state a claim of race

discrimination under Title VII. (Doc. 46.) For the reasons below, the Court GRANTS

Defendant’s Motion to Dismiss. (Id.)

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BACKGROUND

I. Factual Background

The following facts are alleged in the Third Amended Complaint, (doc. 45). At all relevant

times, Plaintiff was employed as a store worker within the Agency at Hunter Army Airfield (the

“Airfield”). (Id. at p. 2.) Defendant, in his capacity as Secretary of Defense, possesses authority

over the federal military installation at the Airfield, as well as all civilian personnel employed at

that installation, including Agency employees. (Id.) Plaintiff, who is Caucasian, began working

as a cashier at the commissary on the Airfield in May 2019, and was promoted to “Store Worker”

in March 2020. (Id. at p. 3.) At all relevant times, Vera Dunk was Plaintiff’s first line supervisor,

and Wade Broomfield was her second line supervisor. (Id.) Dunk is African American and

Broomfield is Caucasian. (Id.) From her hiring until sometime in Spring 2021, Plaintiff’s third

line supervisor was Marites Pennington, who was employed as “Store Manager.” (Id.) Pennington

is Filipina American. (Id.) Jovelyn Rountree took over as Store Manager in Spring 2021 and has

been Plaintiff’s third line supervisor since that time. (Id.) Rountree is African American. (Id.)

At all relevant times, Plaintiff was co-workers with Ellistina Redman, who also held the position

of Store Worker. (Id.) Redman is African American. (Id. at p. 4.)

In April 2020, Pennington commented to Plaintiff that Pennington had “only married [her

ex-husband] to get out of the Philippines,” and she “do[es]n’t even like white guys.” (Id.)

Additionally, during a separate instance in the spring of 2020, Redman expressed her displeasure

surrounding her son marrying a white woman and noted that she did not allow him to spend the

night at white friends’ homes growing up because she did not “trust white people to treat him

well.” (Id.)

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Sometime in early July 2020, Redman advised Plaintiff to “stay away from” Cassie

Alexander, a Caucasian co-worker, because Alexander was a “spy.” (Id. at p. 5.) Plaintiff relayed

Redman’s statements to Alexander, who complained to Pennington, who then addressed the issue

with Redman. (Id.) The next day, Redman told Plaintiff, “You got messy,” which Plaintiff

interpreted as referring to Plaintiff’s decision to share Redman’s “spy” comment with Alexander.

(Id.) A day or two later, Redman called Plaintiff a “motherf---ing b----,” among other profanity,

while on break outside the commissary. 1 Plaintiff did not report Redman’s language towards her

because this was the first negative incident between them, and she thought the issue would “blow

over.” (Id.) On July 16, 2020, Redman requested a meeting with Pennington, Broomfield, and

Plaintiff to discuss their ongoing tension. (Id.) During the meeting, Redman admitted to cursing

at Plaintiff and stated, in effect, that she wanted to slap Plaintiff and could have done so without

repercussions because she was on break. (Id.) Redman also told Broomfield outside of

Pennington’s presence that she believed Plaintiff was a racist. (Id. at pp. 5– 6.) After Broomfield

objected to Redman’s characterization, Redman responded that Plaintiff told her she supported

then-President Donald Trump. (Id. at p. 6.) Plaintiff alleges that she never discussed her political

affiliations or beliefs at work or via any public format, so Redman could not have known Plaintiff’s

political affiliations. (Id.)

Between July 16 and December 16, 2020, Redman frequently made eye contact with

Plaintiff and assumed a physically intimidating posture (i.e., “bow[ed] up”) toward Plaintiff when

they crossed paths at work. (Id.) Sometime during this period, while Plaintiff was using a

1
While the Court ordinarily states the allegations in an unvarnished manner, it need not sully the record at
this time. The precise profanity alleged is irrelevant to the Court’s determination that the Third Amended
Complaint fails to plausibly allege a Title VII racial discrimination claim. The Court has thus used dashes
to replace some letters in the expletives reproduced in this Order.

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motorized scooter at work because of a back injury, she overheard Redman state that Plaintiff was

“milking it.” (Id.) Redman also began complaining to other employees about Plaintiff’s work

performance and the cleanliness of her workstation while Plaintiff was in earshot. (Id.)

Plaintiff complained about Redman’s actions to Dunk three or four times between July 16

and August 18 but is unaware of any corrective actions taken in response to her complaints. (Id.)

Plaintiff alleges that she directed these complaints to Dunk instead of Pennington because

Pennington was unwilling to take any corrective action against Redman after the July 16 meeting.

(Id.) On August 12, Plaintiff initiated an Equal Employment Opportunity (“EEO”) complaint due

to Redman’s harassment, but later withdrew it out of “fear of reprisal.” (Id.) On August 18, after

Plaintiff complained to Dunk again that Redman was harassing her, Dunk promised to address the

issue with Redman. (Id. at p. 7.) Later that day, Dunk told Plaintiff that she had spoken with

Redman. (Id.) Even so, according to Plaintiff, the harassment continued. (Id.)

On December 16, 2020, Plaintiff was in the store’s administrative office filling out

paperwork when Redman came up behind her and demanded, in what Plaintiff describes as “an

overly aggressive tone,” that Plaintiff give her a certain key which opened several doors in the

warehouse, including the receiving office. (Id.) Plaintiff held out the key, and Redman snatched

it from Plaintiff’s hand. (Id.) Plaintiff then gathered her paperwork and moved towards the

receiving office to complete her paperwork. (Id. at p. 8.) Employees had to keep the receiving

office locked unless they were working in it, so Plaintiff knew that if Redman was not in the office,

she would have to retrieve the key from her to open the door. (Id.) Based on her prior encounters

with Redman, Plaintiff feared a potentially negative or violent encounter with Redman, so she

recorded a video of their potential encounter. (Id.) As Plaintiff approached the receiving office,

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Redman was standing inside the doorway. (Id.) The following verbal exchange took place and

was video recorded by Plaintiff:

Plaintiff: Pardon me.

Redman: What the f--- did you just say to me?

Plaintiff: I said pardon me. Pardon me.

Redman: Don’t play with me Jamie, I try not to say nothing to you. You already
know I can’t stand you. Here’s the keys. Don’t do that. Go ahead and tell
[Dunk] because I don’t care anymore.

Plaintiff: I said pardon me.

Redman: No, you did not.

Plaintiff: Yes I did. Then you should get your ears checked.

Redman: I don’t need my f---ing ears checked. But if you call me another
n-----, 2 it’s gonna be me and you, okay?

Plaintiff: What? Nobody said that.

Redman: That’s what you exactly said.

Plaintiff: No it is not. I’ve never called anybody that.

Redman: You just did.

Plaintiff: Uh, no I didn’t.

Redman: I’ll make sure you pay for it. See if I don’t do it. Telling you right now.
I don’t appreciate that, honey.

(Id. at pp. 8–9.) Plaintiff alleges that the video recording captures the entire exchange and that

neither Plaintiff nor anyone else uttered any words until the exchange began as transcribed above.

(Id. at p. 8 n.2.) Immediately after the incident, Redman told Hope Joseph, the store’s front-end

manager at the time, that Plaintiff called her the n-word. (Id. at p. 9.) Joseph then told Pennington

2
From this point, the Court will refer to this slur as the “n-word.”

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and Dunk about the incident. (Id.) Because Plaintiff was shaking and upset, she informed the

manager of the meat department, Mike Cobb, that she needed to go to lunch. (Id. at p. 9.) When

she returned, she told Cobb what happened, and Cobb stated that Joseph and Redman had come to

him to report that Plaintiff had called Redman the n-word. (Id.) Plaintiff then produced the

recording on her phone, and Cobb agreed that he did not hear her using that slur on the recording.

(Id.) He then told Plaintiff she “had nothing to worry about” and advised her not to delete the

recording. (Id.)

In the following days, Plaintiff met with Pennington and Dunk twice to discuss the incident.

(Id. at pp. 9–10.) During the first meeting, Plaintiff offered her phone to Pennington and Dunk for

them to view the recording, but they both refused. (Id.) However, Pennington and Dunk listened

to the recording during the second meeting at the instruction of someone with human resources.

(Id. at p. 10.) Both stated later that they did not hear Plaintiff call Redman the n-word in the

recording. (Id.) Plaintiff alleges, however, that, during that same meeting, they accused her of

harassing Redman. (Id.)

According to Plaintiff, despite reviewing the recording, which showed Redman using

profanity, acting aggressively, and threatening Plaintiff, Pennington and Dunk issued Plaintiff a

“no-contact” order (“NCO”) on December 22, 2020. (Id.) The NCO specified that Plaintiff was

not to have any contact with Redman. (Id.) In accordance with the NCO, Plaintiff was moved

from the day shift to the evening shift. (Id.) Redman was not issued an NCO or instructed to stay

away from Plaintiff. (Id.) The NCO remained in effect until October 2022. (Id.)

At some point after the incident, Dunk consulted with Labor Management and Employee

Relations Specialist DeAnda Glass as to how to proceed with disciplinary action against Plaintiff.

(Id. at p. 11.) Glass told Dunk that she had a range of options, including a written warning, letter

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of reprimand, and suspension. (Id.) Dunk decided on a seven-day suspension and referred the

proposal to Pennington, who approved it. (Id.) The Notice of Proposed Suspension (the

“Proposal”) issued to Plaintiff on February 26, 2021, states that a seven-day suspension was

appropriate because Plaintiff: (1) called Redman the n-word on December 16; (2) had, in directing

a racial slur at Redman, racially harassed Redman; and (3) violated the Agency’s policy against

recording in the workplace by surreptitiously recording her interaction with Redman on December

16. (Id. at pp. 11–12.) On June 2, 2021, Rountree issued a decision letter which upheld the

Proposal’s seven-day suspension as well as the grounds supporting it. (Id. at pp. 12–13.)

II. Procedural Background

Plaintiff filed an informal EEO complaint on December 17, 2020, alleging racial

discrimination related to the December 16 incident as well as “long-standing unredressed

harassment and reprisal for prior complaints.” (Id. at p. 12.) Plaintiff received leave to file a

formal EEO complaint on February 1, 2021, which she did on February 9. (Id.) After the issuance

of the Notice of Proposed Suspension on February 26, 2021, Plaintiff amended her EEO Complaint

to include the suspension. (Id.) On August 23, 2021, the Agency’s director issued a “Final

Decision” on the first EEO complaint, denying Plaintiff’s claims for relief. 3 (Id. at p. 13.) Plaintiff

then initiated this action on November 21, 2021. (Doc. 1.)

Plaintiff’s Third Amended Complaint alleges in its sole substantive count that “employees

of the Agency, including managers, intentionally engaged in discriminatory employment practices

3
According to the Third Amended Complaint, Plaintiff filed a second EEO complaint, this time concerning
Rountree’s decision to uphold the proposed suspension and suspend her. (Doc. 45, p. 13.) On March 29,
2022, the Agency’s director issued a Final Decision on Plaintiff’s second EEO complaint, concluding that
Plaintiff’s suspension constituted “unlawful disparate treatment based on race.” (Id.) Plaintiff clarifies that
“all compensatory damages related to the decision to suspend [her] issued on June 2, 2021, are being
addressed in a separate administrative proceeding,” and thus she does not seek compensatory damages for
that decision in this case. (Id. at p. 13 n.3.)

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against [Plaintiff], thereby subjecting her to disparate treatment due to her race.” (Doc. 45, pp.

14–15.) Defendant then filed the at-issue Motion to Dismiss the Third Amended Complaint

pursuant to Rule 12(b)(6), generally arguing that the mere proposal of a suspension is not an

actionable adverse employment action and that Plaintiff failed to plausibly allege a causal link

between her race and the adverse employment actions. (Doc. 46.) Plaintiff filed a Response, (doc.

51), to which Defendant filed a Reply, (doc. 53).

STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must . . . state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). A claim

is facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating

a Rule 12(b)(6) motion to dismiss, a court must “accept[] the allegations in the complaint as true

and constru[e] them in the light most favorable to the plaintiff.” Belanger v. The Salvation Army,

556 F.3d 1153, 1155 (11th Cir. 2009). That said, this tenet “is inapplicable to legal conclusions.

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Iqbal, 556 U.S. at 678. Rather, “[a] complaint must state a facially plausible claim

for relief, and ‘[a] claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012) (quoting

Iqbal, 556 U.S. at 678).

“The plausibility standard is not akin to a probability requirement, but it asks for more than

a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of the line between possibility and

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plausibility of entitlement to relief” and dismissal is proper. Id. (internal quotation marks and

citation omitted). Dismissal under Rule 12(b)(6) is also permitted “when, on the basis of a

dispositive issue of law, no construction of the factual allegations will support the cause of action.”

Marshall Cnty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993); see

also Neitzke v. Williams, 490 U.S. 319, 326–27 (1989) (explaining that Rule 12 allows a court “to

dismiss a claim on the basis of a dispositive issue of law”).

DISCUSSION

In the Third Amended Complaint, Plaintiff asserts a single substantive claim of unlawful

disparate treatment based on race in violation of Title VII. (Doc. 45, pp. 14–16.) Under the United

States Supreme Court’s burden-shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–04 (1973), to make out a prima facie case of racial discrimination based

on disparate treatment, a plaintiff must show “(1) she belongs to a racial minority; (2) she was

subjected to adverse job action; (3) her employer treated similarly situated employees outside [her]

classification more favorably; and (4) she was qualified to do the job.” See Knight v. Baptist Hosp.

of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (alterations adopted). Defendant argues,

among other things, that Plaintiff cannot make a prima facie case of discrimination because the

Proposal was not an adverse employment action, 4 and Plaintiff did not plausibly allege a similarly

situated coworker outside her classification who was treated more favorably. (Doc. 46, pp. 8–

17.) 5

4
Defendant concedes that Plaintiff has alleged three potential adverse employment actions: “the NCO, [the]
shift reassignment, and [the Proposal],” (doc. 45, p. 13), but only argues that “[the Proposal] is not
actionable as an adverse employment action,” (doc. 46, pp. 9–10.) Because Defendant only seeks to dismiss
the claim to the extent that it is based on the Proposal, the Court will assume, arguendo, that the
unchallenged NCO and shift reassignment alleged by Plaintiff are actionable adverse employment actions.
5
Defendant also asks the Court to dismiss “any Claim under 42 U.S.C. § 1981 it might construe the third
amended complaint to allege.” (Doc. 46, pp. 17–18.). Plaintiff clarifies in her Response that she “is [n]ot

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A plaintiff “must ‘carry the initial burden under the statute of establishing a prima facie

case.’” Brush v. Sears Holdings Corp., 466 F. App’x 781, 785–86 (11th Cir. 2012) (quoting

McDonnell Douglas, 411 U.S. at 802). “However, . . . a plaintiff need not satisfy the McDonnell

Douglas framework at the pleading stage in order to state a discrimination or retaliation claim.”

Zachary v. Comprehensive Health Mgmt., Inc., No. 8:12-CV-530-T-33AEP, 2012 WL 3264899,

at *2 (M.D. Fla. Aug. 9, 2012) (citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 511 (2002)).

That said, “the ordinary rules for assessing the sufficiency of the complaint [still] apply.”

Swierkiewicz, 534 U.S. at 511. Thus, even though “a Title VII complaint need not allege facts

sufficient to make out a classic McDonnell Douglas prima facie case, it must provide enough

factual matter (taken as true) to suggest intentional race discrimination.” Davis v. Coca–Cola

Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (internal citations and quotations

omitted).

I. Whether Plaintiff Has Plausibly Alleged a Similarly Situated Comparator

Defendant argues that Plaintiff cannot establish a prima facie case of discrimination

because she has not pled that a similarly situated comparator outside her classification was treated

more favorably. 6 (Doc. 46, pp. 10–17.) Though Plaintiff is not required to satisfy the burden-

[r]aising a [c]laim [u]nder 42 [] U.S.C. [§] 1981,” and she “seek[s] her claim solely under Title VII.” (Doc.
51, pp. 7–8.) Accordingly, the Court focuses exclusively on Title VII and dismisses any claims under 42
U.S.C. § 1981 to the degree they exist.
6
As part of this argument, Defendant more broadly challenges whether Title VII protects employees against
accusations of racism. (Doc. 46, pp. 15–16). Plaintiff argues that she was treated differently based on her
race because she was falsely accused of using a racial slur “that, when used by a Caucasian toward an
African-American, carries a greater weight and offensiveness than if used by any other racial group.” (Doc.
51, p. 7.) Several other courts around this country have held that “[f]or claims of race discrimination under
Title VII, allegations that an adverse action was taken against an employee because he was falsely accused
of being racist, rather than because of the employee’s own race, do not suffice to constitute race
discrimination.” Phillips v. Starbucks Corp., 624 F. Supp. 3d 530, 547 (D.N.J. 2022) (internal quotations
omitted); see also Lovelace v. Wash. Univ. Sch. of Med., 931 F.3d 698, 707 (8th Cir. 2019) (holding that
the plaintiff “misunderst[ood] what qualifies as racial discrimination by equating accusations of racist
behavior with racist behavior itself”); Lacontora v. Geno Enter., LLC, No. CV 21-03948, 2022 WL 856076,

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shifting McDonnell Douglas framework, the Eleventh Circuit has utilized the prima facie case

under McDonnell Douglas as a guide when evaluating whether a plaintiff has provided sufficient

factual allegations in the complaint to state a Title VII claim. See Smith v. CH2M Hill, Inc., 521

F. App’x 773, 775 (11th Cir. 2013); Hopkins v. Saint Lucie County School Bd., 399 F. App’x 563,

566-67 (11th Cir. 2010). Therefore, the Court will use the elements of the prima facie case as a

guide here. Under the McDonnell Douglas framework, “the plaintiff bears the initial burden of

establishing. . . that she was treated differently from another ‘similarly situated’ individual–in

court-speak, a ‘comparator.’” Lewis v. City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019)

(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981)). To be “similarly

situated,” Plaintiff and her proffered comparator must be “similarly situated in all material

respects.” Lewis, 918 F.3d at 1218. Ordinarily, this means a plaintiff’s comparator

will have engaged in the same basic conduct (or misconduct) as the plaintiff; will
have been subject to the same employment policy, guideline, or rule as the plaintiff;
will ordinarily (although not invariably) have been under the jurisdiction of the same
supervisor as the plaintiff; and will share the plaintiff’s employment or disciplinary
history.

Id. at 1227–28 (internal citations omitted). In short, when a plaintiff alleges discriminatory

discipline, “to determine whether employees are similarly situated, [a court must] evaluate whether

at *4 (E.D. Pa. Mar. 23, 2022) (“While . . . falsely accusing someone of being racist is morally wrong, it
cannot form the basis of a Title VII discrimination claim.”); Squitieri v. Piedmont Airlines, Inc., No.
3:17CV441, 2018 WL 934829, at *3 (W.D.N.C. Feb. 16, 2018) (“[S]tating that Plaintiff is ‘racist’ is not
racial on its face and is not related to [the p]laintiff’s race.”); Sasser v. Ala. Dep’t of Corr., 373 F. Supp. 2d
1276 (M.D. Ala. 2005) (“[T]he comments and actions of the African-American employees were not . . .
related to [the p]laintiff’s race at all, but alternatively were related to their perception of [the p]laintiff’s
attitude towards African-Americans.”); Bank v. Cmty. Coll. of Phila., No. CV 22-293, 2022 WL 2905243,
at *5 (E.D. Pa. July 22, 2022) (“[T]o hold that Title VII shields employees from being perceived as racist
or from being accused of racist conduct would turn Title VII on its head and impede employers in the
critical work of combatting racism in the workplace.”). Plaintiff offers no supporting case law or
compelling argument to contradict these persuasive authorities. The Court finds the reasoning and logic of
these decisions sound. Nevertheless, the Court will assume, arguendo, that this potential fundamental flaw
in Plaintiff’s claim does not preclude the traditional Title VII analysis.

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the employees are involved in or accused of the same or similar conduct and are disciplined in

different ways.” Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006).

Plaintiff contends that she has sufficiently alleged that Redman is her similarly situated

comparator because they were engaged in a mutual altercation yet treated differently. (Doc. 51,

pp. 1–4.) Defendant argues that Redman cannot be a proper comparator because “none of the

conduct by Redman . . . [that was] report[ed] to supervisors is materially similar to [Plaintiff]’s

alleged misconduct.” 7 (Doc. 46, p. 14.) Defendant notes that Redman’s reported conduct focused

on her physical aggression and criticisms toward Plaintiff, which is dissimilar to Plaintiff’s

reported conduct of using a racial epithet. (Id. at 14–15.) Defendant also argues that only Plaintiff

“conceded [to] violating agency policy . . . by recording a coworker without consent.” (Id. at 16.)

In sum, Defendant argues that while the Third Amended Complaint alleges that Redman was

“assum[ing] a physically intimidating posture” and “complaining to other employees . . . about

[Plaintiff]’s work performance,” Plaintiff was reported for directing a racial epithet at a coworker

and violating agency policy by recording the December 16 altercation. (Doc. 45, pp. 6–10.)

Plaintiff has not plausibly alleged that Redman “engaged in the same basic conduct (or

misconduct) as . . . [P]laintiff.” Lewis, 918 F.3d at 1227. Plaintiff asserts only that “[b]oth

Pennington and Dunk were made aware of Redman’s harassment of [Plaintiff,] . . . including

7
When considering a claim for unlawful disparate treatment, employee conduct can only be relevant if
supervisors knew of it. See Vess v. MTD Consumer Grp., Inc., 755 F. App’x 404 (5th Cir. 2019) (an
employee was not similarly situated to co-workers who also used the n-word because co-workers’ alleged
use of the word was not reported). Otherwise, there would be no grounds on which to find disparate
treatment, since the acting authority did not know the employees had engaged in substantially similar
conduct. Here, though Plaintiff alleged Redman used the n-word in the workplace “on multiple occasions,”
Plaintiff did not allege that such use was ever reported to superiors, unlike Plaintiff’s purported use. (Doc.
45, p. 5.) As far as the Third Amended Complaint makes clear, the only time any superiors were informed
of Redman’s use of the n-word was when Pennington and Dunk heard the recording. (Id. at p. 10.) Even
so, in that instance, Redman was not directing the epithet at another but referencing what she believed
Plaintiff said. (Id.)

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calling [Plaintiff] a “motherf---ing b----.” (Doc. 51, p. 5.) However, physical posturing and threats

is not substantially similar to the racially charged harassment of which Plaintiff was accused. See

Crumpler v. Verizon Wireless, No. 1:15-cv-160, 2017 WL 779937, at *3 (S.D. Ga. Feb. 28, 2017)

(finding plaintiff’s proffered comparators insufficient where plaintiff was accused of racial

discrimination and the comparators were “accused of code-of-conduct violations unrelated to

racial discrimination”); see also Cooper v. Templeton, 629 F. Supp. 3d 223, 232 (S.D.N.Y.

2022), aff’d sub nom. Cooper v. Franklin Templeton Invs., No. 22-2763-CV, 2023 WL 3882977

(2d Cir. June 8, 2023) (finding plaintiff’s proposed comparators were not similarly situated to

plaintiff because plaintiff was accused of racism and the comparators were allegedly engaged in

conduct not comparable to racism, such as plagiarism, insider trading, and other felony

convictions); Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 904 (8th Cir. 2015) (finding

plaintiff’s proposed comparators were not similarly situated to plaintiff because plaintiff was

demoted for making racist comments while the comparators “did not make comments that were

racial in nature”).

Moreover, one of the Proposal’s supporting grounds was Plaintiff’s “violat[ion] . . . [of]

policy by surreptitiously recording [the altercation].” (Doc. 45, p. 12.) Plaintiff does not allege

that Redman engaged in similar conduct, nor does she allege that the policy against recording was

applied differently to any other employee. Thus, even if Plaintiff had sufficiently alleged that

Redman and Plaintiff were similarly situated in their mutual conflict, Plaintiff fails to explain why

the recording violation does not differentiate their conduct. “Treating different cases differently is

not discriminatory, let alone intentionally so.” Lewis, 918 F.3d at 1222–23.

In sum, the Third Amended Complaint alleges that Redman was “assum[ing] a physically

intimidating posture” and “complaining to other employees . . . about [Plaintiff]’s work

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performance,” while Plaintiff was reported for using a racial epithet and violating agency policy

by surreptitiously recording the altercation. (Doc. 45, pp. 6–10.) Plaintiff and Redman were

therefore not “engaged in the same basic conduct,” and, accordingly, the Court finds that Plaintiff

failed to plausibly allege a similarly situated comparator.

II. Whether Plaintiff Has Plausibly Alleged a Convincing Mosaic of Circumstantial

Evidence Sufficient to Infer Discrimination

“[A] prima facie case of disparate treatment does not always depend on the existence of a

similarly situated comparator . . . . Thus, a failure to specifically name such a comparator in a

disparate treatment complaint is not grounds for its dismissal.” Baines v. City of Atlanta, No.

1:19-CV-0279-TWT-JSA, 2020 WL 10058116, at *6 (N.D. Ga. Mar. 10, 2020), report and

recommendation adopted, 1:19-CV-279-TWT, 2020 WL 10070276 (N.D. Ga. Apr. 6, 2020). As

an alternative to the similarly situated comparator method, which may not always be available, a

plaintiff subject to unlawful discrimination can present “a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination.” Lewis v. City of Union City,

934 F.3d 1169, 1185 (11th Cir. 2019) (“Lewis II”). “A convincing mosaic may be shown by

evidence that demonstrates, among other things, (1) suspicious timing, ambiguous statements . . .,

and other bits and pieces from which an inference of discriminatory intent might be drawn, (2)

systematically better treatment of similarly situated employees, and (3) that the employer’s

justification is pretextual.” Id. (internal quotations omitted).

A. Whether Plaintiff Pled Facts Sufficient to Infer Discriminatory Intent

In support of her argument that she has established a prima facie case of disparate treatment

by a convincing mosaic, Plaintiff alleges that Redman and Pennington had made comments about

Caucasians. (Doc. 51, pp. 5–6.) Firstly, any prior prejudicial comments by Redman are irrelevant

to the action taken against Plaintiff since Redman was not a decision maker regarding any adverse

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employment action suffered by Plaintiff. See Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th

Cir. 2003) (“Although a decision maker’s [comments] . . . can serve as evidence of discrimination,

‘statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional

process’ at issue will not satisfy the employee’s burden.”) (quoting Price Waterhouse v. Hopkins,

490 U.S. 228, 277 (1989) (O’Connor, J., concurring). This leaves only Pennington’s April 2020

comment that she “only married [her ex-husband] to get out of the Philippines,” and she “do[es]n’t

even like white guys.” (Doc. 45, p. 4.) Not only is this comment “unrelated to the decisional

process,” Price Waterhouse, 490 U.S. at 277, Pennington’s comment about her personal romantic

history and preferences, which was said around eight months before Plaintiff’s altercation, is

insufficient to plausibly infer discriminatory intent in the decision-making process. The

comment’s relationship to the events at hand is too attenuated in both time and substance.

Next, Plaintiff relies generally on the disparate treatment between herself and Redman.

(Doc. 51, pp. 5–6.) Plaintiff contends that “[b]oth Pennington and Dunk were made aware of

Redman’s harassment of [Plaintiff] for months prior to December 16, 2020, but chose not to act to

protect [Plaintiff], nor was any disciplinary action taken against Redman for conduct to which

Redman admitted, including calling Kennedy a “[motherf---ing b----].” (Id. at 5.) Yet there is no

indication from the Third Amended Complaint that any of Redman’s conduct of which her

superiors were made aware had any racial motivation. (See generally doc. 45.) That is to say,

Plaintiff never reported to Pennington or Dunk that Redman was harassing her due to her race.

(Id.) For much the same reasons that Redman cannot plausibly be considered a similarly situated

comparator to Plaintiff, the alleged differences between the treatment of Plaintiff and the treatment

of Redman—particularly considering the differences in the alleged underlying conduct by each of

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them—are insufficient on their own to create a convincing mosaic from which an inference of

discriminatory intent might be drawn.

B. Whether Plaintiff Pled Facts Sufficient to Show the Justification for the
Proposal of her Suspension was Pretextual

The Proposal included several justifications for proposing Plaintiff’s suspension, one of

which was Plaintiff’s violation of Agency policy “by surreptitiously recording her interaction with

Redman.” (Doc. 45, p. 12.) If an employer is able to articulate “some legitimate,

nondiscriminatory reason” for an employment action, then the plaintiff must show that the stated

reasons “were not its true reasons, but were a pretext for discrimination.” Texas Dep’t of Cmty.

Affs. v. Burdine, 450 U.S. 248, 253 (1981); Crawford v. City of Fairburn, 482 F.3d 1305, 1308

(11th Cir. 2007). Plaintiff admits that the Proposal’s stated reason of violating the recording policy

is an “arguably legitimate ground for disciplinary action” but contends that this justification was

“purely pretextual.” (Doc. 51, p. 6.) The Eleventh Circuit has held that

[a] plaintiff can show pretext by: (i) casting sufficient doubt on the defendant’s
proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude
that the employer’s proffered reasons were not what actually motivated its conduct,
(ii) showing that the employer’s articulated reason is false and that the false reason
hid discrimination, or (iii) establishing that the employer has failed to clearly
articulate and follow its formal policies.

Lewis II, 934 F.3d at 1185.

Even accepting Plaintiff’s allegations as true, the Proposal’s justification for proposing

suspension based on Plaintiff’s policy violation was a legitimate, nondiscriminatory reason. See

Howard v. Hyundai Motor Mfg. Ala., 754 F. App’x 798, 808 (11th Cir. 2018) (finding employer

“articulated and produced evidence of a legitimate, nondiscriminatory reason for its termination

of [the employee]” based on his violation of workplace policies). Plaintiff alleges nothing to even

insinuate that her employer failed to clearly articulate or follow its formal policies, nor does she

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allege that she did not violate the policy by recording the altercation. Instead, Plaintiff argues that

the recording infraction was a “technical violation of policy,” but that “[n]o one who was not

already looking for a reason to punish [Plaintiff] and to spare Redman would have blamed

[Plaintiff] for recording.” (Doc. 51, p. 6.) Plaintiff cites no authority to support her position and

simply relies on her contention that she was “forced” to record her interaction with Redman due

to her employer’s inactions, making this “the very definition of pretext.” (Doc. 51, p. 6.) The

Court disagrees.

Plaintiff does not challenge the policy itself, nor does she argue that some exception applied

or attempt to show that the policy was selectively enforced in other contexts. Her only argument

is her own subjective perception that the policy should not have been enforced in this context

because of her history with Redman. While she may feel justified in her actions, that does not give

the Court authority to override an employer’s enforcement of its own policies. See Chapman v.

AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (“A plaintiff is not allowed to recast

an employer’s proffered nondiscriminatory reasons or substitute [her] business judgment for that

of the employer.”); Parrott v. PNC Bank, Nat. Ass’n, 986 F. Supp. 2d 1263, 1284–85 (N.D. Ala.

2013) (finding plaintiff’s admitted violation of her employer’s policy provided sufficient

justification for employment action regardless of plaintiff’s purported justifications); Perry v.

Batesville Casket Co., 551 F. App’x 987, 990 (11th Cir. 2014) (finding plaintiff’s allegation of

“suspicious timing” insufficient to rebut employer’s explanation that he was fired for violating

timesheet policy).

Plaintiff’s conclusory statement that the recording violation is “the very definition of

pretext,” (doc. 51, p. 6), does not plausibly allege that the real motivation for her punishment was

her race. Though Plaintiff insists that the recording was only a “technical violation,” (id.), she

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offers no law for the proposition that technical violations of a policy are somehow not “legitimate,

nondiscriminatory reason[s]” for punishment. Crawford, 482 F.3d at 1308. Plaintiff has not plead

anything to plausibly illustrate that her discipline was motivated by anything besides what the

Proposal claimed to have happened during the altercation or that her employer is lying to cover up

a racially discriminatory motivation. Plaintiff failed to plead facts sufficient to show that her

violation of the no-recording policy was a pretextual basis for the Proposal or that the Proposal

was otherwise the result of discrimination. Accordingly, Plaintiff has not presented a convincing

mosaic of circumstantial evidence sufficient to infer discrimination.

CONCLUSION

Based on the above, the Court finds that Plaintiff’s Third Amended Complaint fails to

plausibly allege that Plaintiff was treated differently from another similarly situated comparator

and it likewise fails to plausibly allege a convincing mosaic of circumstantial evidence sufficient

to infer discrimination. Without any allegations sufficient to infer causation between Plaintiff’s

race and the purported adverse employment actions, the Court GRANTS Defendant’s Motion to

Dismiss Plaintiff’s Third Amended Complaint. (Doc. 46.) The Court DIRECTS the Clerk of

Court to ENTER the appropriate judgment of dismissal and to CLOSE this case.

SO ORDERED, this 31st day of January, 2024.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

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