Case: 17-10075 Date Filed: 05/23/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10075 ________________________
D.C. Docket No. 2:12-cv-01088-BJR-SRW
MARIA N. VINSON,
Plaintiff - Appellant,
versus
KOCH FOODS OF ALABAMA, LLC, KOCH FOODS, LLC, DAVID BIRCHFIELD,
Defendants - Appellees.
________________________
Appeals from the United States District Court for the Middle District of Alabama ________________________
(May 23, 2018) Case: 17-10075 Date Filed: 05/23/2018 Page: 2 of 9
Before WILSON and JORDAN, Circuit Judges, and CONWAY,* 1District Judge.
PER CURIAM:
Maria Vinson, a Puerto Rican woman, sued her former employer, Koch
Foods of Alabama, LLC (Koch), and her former boss, David Birchfield, for race
and national origin discrimination under 42 U.S.C. § 1981 and Title VII. The
district court dismissed some of her claims, and later granted summary judgment
on the surviving claims. Vinson appeals both the dismissal and summary judgment
orders. After careful review of the briefs and the record, and having the benefit of
oral argument, we conclude that the district court erred in granting summary
judgment on Vinson’s discriminatory discipline and termination claims. We do
not find merit in Vinson’s challenge to the district court’s order of dismissal.
I. Facts
Koch operates facilities where it kills, processes, and packages chicken and
byproducts. Birchfield is the Complex Human Resource Manager and oversees
and manages the Montgomery facility, where Vinson worked. Birchfield hired
Vinson in early 2010 to work in the HR department as a new hire orientation clerk
and translator. Her duties included processing new hires; translating, issuing and
verifying identification cards and documents; completing federal forms for all
*Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.
2 Case: 17-10075 Date Filed: 05/23/2018 Page: 3 of 9
personnel; conducting personnel drug screening; maintaining personal attendance
records; and assisting with payroll.
On January 5, 2012, Vinson and her co-worker, Heather Bowen (a white
female), asked Mitsi James, the senior HR person in the department (also a white
female), if they could visit a co-worker in the hospital. James approved. Bowen
and Vinson left and went off property for about three hours. James also left at the
same time, leaving the HR office unattended. When they returned to the plant,
Birchfield suspended all three until further notice. James and Bowen returned to
work on January 11. Vinson did not return to work until the following day, but she
was paid for the same amount of hours that James and Bowen worked on January
11.
After the suspension, Birchfield changed Vinson’s job responsibilities.
Birchfield told Vinson that he wanted her to work with new hires on the production
floor. Her workstation in the HR office was removed, and she was required to
learn all of the production line duties, which included handling chicken carcasses
and operating machinery. Birchfield did not make similar changes to the duties of
James or Bowen. Vinson’s old job was filled by a Puerto Rican woman.
Birchfield fired Vinson in May 2012. She was told “that her position was
not producing sufficient feedback and productivity,” and that her position was
being eliminated. In reply to Vinson’s Charge of Discrimination filed with the
3 Case: 17-10075 Date Filed: 05/23/2018 Page: 4 of 9
EEOC, Birchfield stated that Vinson was fired because plant manager Johnny Gill
reported that Vinson was not doing her job, the company could not afford the
position, and Gill wanted the position eliminated. But Gill later testified that he
did not recommend that Birchfield terminate Vinson. Since Vinson’s termination,
Koch has not hired anyone to perform Vinson’s role on the production floor.
II. Standard of Review
We review de novo the district court’s grant of summary judgment, drawing
“all reasonable inferences in the light most favorable to” Vinson. See Owen v. I.C.
Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary judgment may be
granted only if “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986). A genuine issue
of material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248, 106 S. Ct. at 2510.
Summary judgment is appropriate only if a case is “so one-sided that one party
must prevail as a matter of law.” See id. at 251–52, 106 S. Ct. at 2512.
III. Discriminatory Discipline
Vinson can prevail on her discriminatory discipline claim by showing that
she engaged in misconduct similar to that of a person outside her protected class,
and that the disciplinary measures enforced against her were more severe than
4 Case: 17-10075 Date Filed: 05/23/2018 Page: 5 of 9
those enforced against that other person who engaged in similar misconduct. Jones
v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). She must also suffer an adverse
employment action. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238
(11th Cir. 2001). To prove an adverse employment action, Vinson “must show a
serious and material change in the terms, conditions, or privileges of employment.”
Id. at 1239 (emphasis omitted). Her “subjective view of the significance and
adversity of the employer’s action is not controlling; the employment action must
be materially adverse as viewed by a reasonable person in the circumstances.” Id.
The district court erred in granting summary judgment on the discriminatory
discipline claim. The district court found that Vinson did not suffer an adverse
employment action because she did not mind being on the production floor, she
eventually received a raise, and her duties did not change significantly. However,
her subjective view of the change is not controlling. And although she received a
pay raise a month before she was fired, this does not necessarily make an adverse
employment action favorable. Vinson presented evidence that her transfer moved
her out of the HR office to the refrigerated production floor. She lost her computer
access and her office. Her duties now included pulling guts from chicken
carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting
and removing damaged meat from chicken carcasses, using sealing machines for
packaging, and weighing boxes of meat. This was a significant change in duties.
5 Case: 17-10075 Date Filed: 05/23/2018 Page: 6 of 9
See Akins v. Fulton County, Ga., 420 F.3d 1293, 1300 (11th Cir. 2005) (“[I]f an
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Case: 17-10075 Date Filed: 05/23/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10075 ________________________
D.C. Docket No. 2:12-cv-01088-BJR-SRW
MARIA N. VINSON,
Plaintiff - Appellant,
versus
KOCH FOODS OF ALABAMA, LLC, KOCH FOODS, LLC, DAVID BIRCHFIELD,
Defendants - Appellees.
________________________
Appeals from the United States District Court for the Middle District of Alabama ________________________
(May 23, 2018) Case: 17-10075 Date Filed: 05/23/2018 Page: 2 of 9
Before WILSON and JORDAN, Circuit Judges, and CONWAY,* 1District Judge.
PER CURIAM:
Maria Vinson, a Puerto Rican woman, sued her former employer, Koch
Foods of Alabama, LLC (Koch), and her former boss, David Birchfield, for race
and national origin discrimination under 42 U.S.C. § 1981 and Title VII. The
district court dismissed some of her claims, and later granted summary judgment
on the surviving claims. Vinson appeals both the dismissal and summary judgment
orders. After careful review of the briefs and the record, and having the benefit of
oral argument, we conclude that the district court erred in granting summary
judgment on Vinson’s discriminatory discipline and termination claims. We do
not find merit in Vinson’s challenge to the district court’s order of dismissal.
I. Facts
Koch operates facilities where it kills, processes, and packages chicken and
byproducts. Birchfield is the Complex Human Resource Manager and oversees
and manages the Montgomery facility, where Vinson worked. Birchfield hired
Vinson in early 2010 to work in the HR department as a new hire orientation clerk
and translator. Her duties included processing new hires; translating, issuing and
verifying identification cards and documents; completing federal forms for all
*Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.
2 Case: 17-10075 Date Filed: 05/23/2018 Page: 3 of 9
personnel; conducting personnel drug screening; maintaining personal attendance
records; and assisting with payroll.
On January 5, 2012, Vinson and her co-worker, Heather Bowen (a white
female), asked Mitsi James, the senior HR person in the department (also a white
female), if they could visit a co-worker in the hospital. James approved. Bowen
and Vinson left and went off property for about three hours. James also left at the
same time, leaving the HR office unattended. When they returned to the plant,
Birchfield suspended all three until further notice. James and Bowen returned to
work on January 11. Vinson did not return to work until the following day, but she
was paid for the same amount of hours that James and Bowen worked on January
11.
After the suspension, Birchfield changed Vinson’s job responsibilities.
Birchfield told Vinson that he wanted her to work with new hires on the production
floor. Her workstation in the HR office was removed, and she was required to
learn all of the production line duties, which included handling chicken carcasses
and operating machinery. Birchfield did not make similar changes to the duties of
James or Bowen. Vinson’s old job was filled by a Puerto Rican woman.
Birchfield fired Vinson in May 2012. She was told “that her position was
not producing sufficient feedback and productivity,” and that her position was
being eliminated. In reply to Vinson’s Charge of Discrimination filed with the
3 Case: 17-10075 Date Filed: 05/23/2018 Page: 4 of 9
EEOC, Birchfield stated that Vinson was fired because plant manager Johnny Gill
reported that Vinson was not doing her job, the company could not afford the
position, and Gill wanted the position eliminated. But Gill later testified that he
did not recommend that Birchfield terminate Vinson. Since Vinson’s termination,
Koch has not hired anyone to perform Vinson’s role on the production floor.
II. Standard of Review
We review de novo the district court’s grant of summary judgment, drawing
“all reasonable inferences in the light most favorable to” Vinson. See Owen v. I.C.
Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary judgment may be
granted only if “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986). A genuine issue
of material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248, 106 S. Ct. at 2510.
Summary judgment is appropriate only if a case is “so one-sided that one party
must prevail as a matter of law.” See id. at 251–52, 106 S. Ct. at 2512.
III. Discriminatory Discipline
Vinson can prevail on her discriminatory discipline claim by showing that
she engaged in misconduct similar to that of a person outside her protected class,
and that the disciplinary measures enforced against her were more severe than
4 Case: 17-10075 Date Filed: 05/23/2018 Page: 5 of 9
those enforced against that other person who engaged in similar misconduct. Jones
v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). She must also suffer an adverse
employment action. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238
(11th Cir. 2001). To prove an adverse employment action, Vinson “must show a
serious and material change in the terms, conditions, or privileges of employment.”
Id. at 1239 (emphasis omitted). Her “subjective view of the significance and
adversity of the employer’s action is not controlling; the employment action must
be materially adverse as viewed by a reasonable person in the circumstances.” Id.
The district court erred in granting summary judgment on the discriminatory
discipline claim. The district court found that Vinson did not suffer an adverse
employment action because she did not mind being on the production floor, she
eventually received a raise, and her duties did not change significantly. However,
her subjective view of the change is not controlling. And although she received a
pay raise a month before she was fired, this does not necessarily make an adverse
employment action favorable. Vinson presented evidence that her transfer moved
her out of the HR office to the refrigerated production floor. She lost her computer
access and her office. Her duties now included pulling guts from chicken
carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting
and removing damaged meat from chicken carcasses, using sealing machines for
packaging, and weighing boxes of meat. This was a significant change in duties.
5 Case: 17-10075 Date Filed: 05/23/2018 Page: 6 of 9
See Akins v. Fulton County, Ga., 420 F.3d 1293, 1300 (11th Cir. 2005) (“[I]f an
employer’s conduct negatively affects an employee’s salary, title, position, or job
duties, that conduct constitutes an adverse employment action.”) (emphasis added).
Neither James nor Bowen underwent such a change after the suspension. Because
a reasonable person in the circumstances could view Vinson’s transfer as adverse,
Vinson successfully stated a prima facie case.
Further, Vinson presented sufficient evidence to permit a rational jury to
conclude that Birchfield’s reason for the transfer was pretext. Birchfield explained
that he wanted Vinson to interact more with production floor employees and assist
in training them in their new job responsibilities. But the evidence shows that it
was never clear what her new job actually entailed. She was never provided a job
description despite asking multiple times. The position does not exist on any
organizational chart or at any of the other processing plants. Gill did not know
what Vinson was doing on the production floor. And no one filled the position
after Vinson was fired. A reasonable jury could conclude that Birchfield created
this position for Vinson specifically because it was unnecessary, and, ultimately, it
gave him a reason to fire her.
IV. Discriminatory Termination
Vinson stated a mixed-motive theory for her discriminatory termination
claim. The appropriate framework for examining mixed-motive claims at
6 Case: 17-10075 Date Filed: 05/23/2018 Page: 7 of 9
summary judgment requires a court to determine only whether a plaintiff has
offered “evidence sufficient to convince a jury that: (1) the defendant took an
adverse employment action against the plaintiff; and (2) a protected characteristic
was a motivating factor for the defendant’s adverse employment action.” Quigg v.
Thomas Cty. Sch. Dist., 814 F.3d 1227, 1232–33 (11th Cir. 2016) (alteration
adopted).
The district court granted summary judgment on Vinson’s discriminatory
termination claim for three reasons. First, the district court concluded that the
record did not discredit the defendants’ reasons for firing Vinson, ostensibly
requiring Vinson to show pretext. But pretext has no place in a motivating factor
analysis. See id. at 1237–38. Vinson did not need to discredit the defendant’s
reasons. She only needed to demonstrate a genuine issue of material fact as to
whether race or national-origin was a motivating factor in the decision to terminate
her. Even so, Vinson did present evidence that Birchfield’s reasons for firing her
were not the real reasons. Gill did not recall ever telling Birchfield that Vinson
was not doing her job or that he could not afford to keep the position. And Gill did
not recommend that Birchfield terminate Vinson.
Second, the district court concluded that Birchfield’s hiring of a Puerto
Rican woman to replace Vinson in the HR office belies his alleged discriminatory
animus toward Hispanics. But there is no rule that requires Vinson to show that
7 Case: 17-10075 Date Filed: 05/23/2018 Page: 8 of 9
her replacement does not share her protected attribute. See Howard v. Roadway
Express, Inc., 726 F.2d 1529, 1534–36 (11th Cir. 1984); see also Stella v. Mineta,
284 F.3d 135, 145–46 (D.C. Cir. 2002); Perry v. Woodward, 199 F.3d 1126, 1136–
41 (10th Cir. 1999).
Third, the district court concluded that Vinson “can point to nothing that
suggests that [her] race and/or national origin was a motivating factor in her
termination.” But she did offer evidence of Birchfield’s discriminatory animus.
For example, Patrick Rinn, the union representative for the Montgomery facility at
the time, observed Birchfield disciplining Hispanics more harshly than white
people. This evidence, along with the competing evidence surrounding
Birchfield’s explanation for Vinson’s termination, establishes a jury issue as to
whether race or national-origin was a motivating factor in the decision to terminate
her.
We conclude that the district court erred in granting summary judgment on
Vinson’s discriminatory discipline and termination claims. The district court did
8 Case: 17-10075 Date Filed: 05/23/2018 Page: 9 of 9
not err in its disposition of any other claims. 2 Thus, we affirm in part, reverse in
part, and remand for proceedings consistent with this opinion.3
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
2 We also reject Birchfield’s alternative argument that he was not properly named in the complaint as being sued in his individual capacity and was not properly served. He raised this argument for the first time in his reply brief in support of his motion for summary judgment. Thus, he waived the argument. See Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008). 3 Because we reverse the district court in part, we need not decide whether the district court abused its discretion by not awarding costs to the defendants.