IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

___________________________________________

U.S. EQUAL EMPLOYMENT OPPORTUNITY ]

COMMISSION,

]

]

Plaintiff,

]

] CIVIL ACTION NO.:

VS.

]

]

AUTOZONE, INC.,

] COMPLAINT

]

Defendant.

] JURY TRIAL DEMAND

___________________________________________ ]

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of retaliation and to provide appropriate relief to Roderick Broughton who was adversely affected by such practices. As alleged with greater particularity below, the Commission alleges that AutoZone, Inc. (“Defendant” or “AutoZone”) discriminated against Roderick Broughton, an African-American, by retaliating against him after he opposed racial and sexually discriminatory employment practices.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to § 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(f)(1) and (3) (“Title VII”) and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Alabama.

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PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant AutoZone has continuously been a Nevada corporation doing business in the State of Alabama in the City of Mobile, and the County of Baldwin, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS
6. More than thirty days prior to the institution of this lawsuit, Roderick Broughton filed a charge with the Commission alleging violations of Title VII by AutoZone all conditions precedent to the institution of this lawsuit have been fulfilled.
7. Since at least November 2004, Defendant has engaged in unlawful employment practices at its Mobile and Baldwin County, Alabama locations, in violation of Section 703(a) and Section 704(a) of Title VII, 42 U.S.C. §§ 2000e-2(a)and 2000e-3(a). The practices include the discriminatory discharge of Roderick Broughton in retaliation for him having opposed race discrimination and sexual harassment in the workplace.
8. On or about March 26, 2001, AutoZone hired Roderick Broughton as parts manager at Respondent’s Smyrna, Georgia store. Mr. Broughton resigned his position in June 2001, but was rehired to Store #083 in Mobile, Alabama.
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9. On or about September 22, 2002, AutoZone promoted Roderick Broughton to store manager and transferred him to Store #0164 in Mobile, Alabama.
10. On or about November 13, 2003, Roderick Broughton voluntarily stepped down as store manager at Store #0164 and was replaced by David Walker.
11. Beginning as early as November 2003, Roderick Broughton complained about conduct he reasonably believed to be discriminatory on the bases of race and sex. He complained to AutoZone on numerous occasions thereafter, including reporting the conduct of his supervisor to AutoZone’s senior managers.
12. In January 2004, following Roderick Broughton’s complaints to AutoZone, AutoZone commenced an investigation of sexual harassment allegations. Roderick Broughton continued to oppose discriminatory practices and participated in the investigation, providing a statement that corroborated the sexual allegations. During the sexual harassment investigation, Roderick Broughton again complained about conduct he reasonably believed to be discriminatory on the bases of race.
13. On or about January 30, 2004, weeks after Roderick Broughton’s complaints to senior management, AutoZone terminated Roderick Broughton’s employment in retaliation for his complaints about the unlawful race and sex discrimination.
14. The effect of the practices complained of in Paragraphs seven (7) through thirteen (13) has been to deprive Roderick Broughton of equal employment opportunities and otherwise adversely affect his status as an employee in retaliation for his opposition to conduct prohibited by Title VII of the 1964 Civil rights Act, as amended.
15. The unlawful employment practices complained of in Paragraphs seven (7) through thirteen (13) above were intentional.
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16. The unlawful employment practices complained of in Paragraphs seven (7) through thirteen (13) were done with malice or with reckless indifference to the federally-protected rights of Roderick Broughton.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant AutoZone, its officers, successors,
assigns, and all persons in active concert or participation with it, from engaging in retaliation and any other employment practice which discriminates on the basis of race, sex or retaliation. B. Order Defendant AutoZone to institute and carry out policies, practices, and programs which provide equal employment opportunities for employees regardless of their race or sex and for those who oppose unlawful employment discrimination, and which policies, practices, and programs eradicate the effects of AutoZone’s past and present unlawful employment practices. C. Order Defendant AutoZone to make whole Roderick Broughton, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices including, but not limited to, rightful place reinstatement of Roderick Broughton or front pay in lieu thereof. D. Order Defendant AutoZone to make whole Roderick Broughton by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in Paragraph seven (7) through thirteen (13) including, out
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of pocket losses, job search expenses, and medical expenses in amounts to be determined at trial. E. Order Defendant AutoZone to make whole Roderick Broughton by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices complained of in Paragraphs seven (7) through thirteen (13) above including, but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial. F. Order Defendant AutoZone to pay Roderick Broughton punitive damages for the conduct described in Paragraphs seven (7) through thirteen (13), in amounts to be determined at trial. G. Grant such further relief as the Court deems necessary and proper in the public interest. H. Award the Commission its costs of this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
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RONALD COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel _\s\ C. Emanuel Smith __________ C. EMANUEL SMITH Regional Attorney Mississippi Bar #7473 __\s\ Mildred Byrd _____________ MILDRED BYRD Supervisory Trial Attorney Louisiana Bar # 03741 ___\s\ Valerie Hicks Powe _______ VALERIE HICKS POWE Senior Trial Attorney Alabama Bar # ASB-1127-W70V EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1130 – 22nd Street, South, Suite 2000 Birmingham, AL 35205 Tele: 205/212-2046 Fax: 205/212-2041
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 </s> Case 1:06-cv-00607-KD-C Document 84 Filed 10/30/07 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. AUTOZONE, INC.,
Defendants.

)

)

)

)

CIVIL ACTION NO. 06-00607-KD-C

)

)

JUDGMENT In accordance with the order entered this date, granting Defendant AutoZone’s Motion for Summary Judgment (Doc. 53), it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff's claims against Defendants be and hereby are DISMISSED with prejudice. Each party shall bear their own costs. DONE and ORDERED this the 30th day of October, 2007.

/s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE

 </s> Case 1:06-cv-00607-KD-C Document 83 Filed 10/30/07 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. AUTOZONE, INC.,
Defendants.

)

)

)

)

CIVIL ACTION NO. 06-00607-KD-C

)

)

MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendant’s Motion for Summary Judgment (Doc. 53), Plaintiff’s Response in Opposition (Doc. 70), Defendant’s Reply (Doc. 75), Defendant’s Motion to Strike Portions of Roderick Broughton’s Affidavit (Doc. 76), Plaintiff’s Response to Defendant’s Motion to Strike (Doc. 81), and all evidentiary materials offered in support thereof. For the reasons stated below, the Defendant’s Motion to Strike and Motion for Summary Judgment are due to be GRANTED. I. Factual Background and Procedural History Charging party Mr. Roderick Broughton was previously employed by Defendant AutoZone from March 2001 to January 30, 2004, with the exception of a few months in 2001. (Doc. 53, Broughton dep. at 38, 42-53). In early November 2003, Mr. Broughton voluntarily stepped down as Store Manager of Store #164 in Mobile, Alabama to assume a position as the Commercial Specialist. (Doc. 53, Broughton dep. at 63). Mr. David Walker then assumed the
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position of Store Manager. (Doc. 53, Broughton dep. at 87-88). Initially, the relationship between Mr. Broughton and Mr. Walker was amicable. (Doc. 53, Broughton dep. at 91-93). However, that apparently did not last.
During the period of early November, 2003 through January, 2004, Mr. Broughton alleges that Mr. Walker’s conduct and statements towards employees and customers were racially and sexually derogatory and harassing in nature.1 (See generally Doc. 1; Doc. 53, Broughton dep.). Initially, Mr. Broughton alleges that he approached Mr. Walker two weeks after he assumed the position of Store Manager, and attempted to help Mr. Walker by suggesting that he not use allegedly derogatory terms when speaking to the customers and employees. (Doc. 53, Broughton dep. at 111-116).
In late November 2003, Mr. Broughton claims he wrote a letter to District Manager Mr. Tommy Welch in which he made his first request for a transfer to another AutoZone store. (Doc. 53, Broughton dep. at 104-111). Mr. Broughton claims he did not have a personal conflict with Mr. Walker at that time, but rather wrote to Mr. Welch that employees and customers were offended by the alleged racial comments by Mr. Walker. (Doc. 53 at Broughton dep. at 104111). Mr. Walker then approached Mr. Broughton regarding the letter and was upset with Mr. Broughton that he “went over his head.” (Doc. 53, Broughton dep. at 118-19).
In early December 2003, Mr. Broughton claims he wrote a second letter to Mr. Welch, again requesting a transfer because of an “unsafe work environment, it was hostile, that it was racial.” (Doc. 53, Broughton dep. at 104-111, 125). Apparently, no action was taken regarding
1 The specific comments that Mr. Broughton alleges Mr. Walker made during this time period will be discussed in detail below.
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these transfer requests by Defendant. (Doc. 53, Broughton dep. at 129-30). Additionally, in the second week of January, 2004, Mr. Broughton claims that he visited Mr. Antonio Smith, AutoZone’s Regional Human Resources Manager, at Store #377 in Mobile. (Doc. 53, Broughton dep. at 131-32). Mr. Broughton claims he told Mr. Smith about all of the alleged comments and “harassment” by Mr. Walker. (Doc. 53, Broughton dep. at 133-35).
On January 21, 2004, Mr. Smith visited AutoZone Store #164 and took a statement from Mr. Broughton for the “harassment investigation” that he was conducting. (Defendant’s Exhibit 7 to Broughton dep.; Doc. 53, Broughton dep. at 169). Mr. Broughton was terminated by Defendant on January 30, 2004. (Doc. 53, Broughton dep. at 38). Mr. Broughton filed an Equal Employment Opportunity Commission (“EEOC”) charge of discrimination on June 28, 2004, alleging that he was discriminated against in violation of Title VII because he “participated in a sexual harassment investigation that involved an employee in management.” (Doc. 53, Defendant’s Exhibit 12 to Broughton dep.).
Plaintiff filed this Complaint on September 29, 2006 (Doc. 1), alleging that Defendant, in violation of Title VII of the Civil Rights Act of 1964, discriminated against charging party Mr. Broughton by retaliating against him after he “opposed racial and sexually discriminatory employment practices.” (Doc. 1 at 1). Defendant filed a Motion for Summary Judgment, alleging that because Mr. Broughton did not engage in protected activity under Title VII prior to his termination, he cannot maintain a retaliation cause of action and AutoZone is entitled to summary judgment as a matter of law. (Docs. 53; 53-2 at 1-3). Plaintiff filed a Response in Opposition to Defendant’s Motion, arguing that issues of material fact exist regarding whether Mr. Broughton engaged in protected activity, and thus precluding summary judgment. (Doc.
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70). In its reply, Defendant alleges that Plaintiff’s supporting affidavit of Mr. Broughton is inconsistent with his sworn deposition, but even if the Court considers it, Defendant is nevertheless entitled to summary judgment because Mr. Broughton did not engage in protected activity. (Doc. 75 at 1-5).
Defendant also filed a Motion to Strike Portions of Mr. Broughton’s Affidavit that contradict his prior sworn deposition testimony, or that are not based on personal knowledge, or are hearsay. (Doc. 76). Plaintiff filed a Response in Opposition to the Motion to Strike, arguing that the affidavit of Mr. Broughton should not be considered a “sham affidavit” because it is not inconsistent with his deposition, is not hearsay, and is based on personal knowledge. (Doc. 81). II. Applicable Standard
Summary judgment should be granted only if “there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).2 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 party seeking summary judgment always bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
2 Rule 56(c) of the Federal Rules of Civil Procedure, provides that summary judgment shall be granted:
[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
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interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
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. Celotex, 477 U.S. at 317. “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determination of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992), cert denied, 507 U.S. 911, 113 S.Ct. 1259, 122 L.Ed. 2d 657 (1993) (internal citations and quotations omitted). Thus, the court’s role at the summary judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of any factual dispute, however, will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004), cert denied, 534 U.S. 1081, 125 S.Ct. 869, 160 L.Ed.2d 825 (2005).
The Eleventh Circuit has expressly rejected the notion that summary judgment should be seldom used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to
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be placed on either side of the scale.” Id. at 1086 (citation omitted). III. Analysis
Title VII prohibits employers from retaliating against employees who “oppose” conduct made unlawful by Title VII or “participate” in a charge, investigation, or proceeding under Title VII. See 42 U.S.C.A. § 2000e-3(a) (2007); 29 U.S.C.A. § 623(d) (2007). To establish a cause of action for retaliation under Title VII, a plaintiff must prove that he or she: (1) participated in an activity protected by Title VII; (2) suffered an adverse employment action; and (3) there is a causal connection between the participation in the protected activity and the adverse employment decision. Gupta v. Fla. Board of Regents, 212 F.3d 571, 587 (11th Cir., 2000). There are two types of conduct that are statutorily protected from retaliation by employers: (1) when the employee makes a charge, testifies, assists, or participates in an investigation, proceeding, or hearing under Title VII; “the participation clause;” and (2) when the employee opposes a practice by the employer made unlawful by Title VII; “the opposition clause.” 42 U.S.C.A. § 2000e-3(a); Clover v. Total System Services, Inc., 176 F.3d 1346, 1350 (11th Cir., 1999).
A. “Participation Clause” The “participation clause” protects employees who participate in “proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer’s internal, in-house investigation, conducted apart from a formal charge with the EEOC.” Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir., 2000). Mr. Broughton cannot bring a retaliation cause of action under the “participation clause” because no EEOC proceeding was in progress when Mr. Broughton reported and was interviewed regarding Mr. Walker’s alleged
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statements and conduct, nor was there an EEOC proceeding prior to Broughton’s termination.3 (Doc. 53, Defendant’s Exhibit 7 to Broughton dep.; Doc. 53, Broughton dep. at 169; Doc. 53, Defendant’s Exhibit 12 to Broughton dep.).
B. “Opposition Clause” The “opposition clause” protects employees who oppose any practice by their employer made an unlawful employment practice under Title VII. 42 U.S.C.A. § 2000e-3(a); Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d at 1174. The employee must have a “good faith, reasonable belief that [the] employer has engaged in unlawful discrimination.” Clover, 176 F.3d at 1351. The employee must show both a subjective and an objective belief under this clause. Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956, 960 (11th Cir., 1997). Thus a plaintiff must show both that “he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Id. The plaintiff does not need to prove the underlying conduct was actually unlawful to overcome a motion for summary judgment, but that his belief was objectively reasonable. Id. Further, under this objectively reasonable belief requirement, a plaintiff is charged with knowing current law and his belief is “measured against existing substantive law.” Clover, 176 F.3d at 1351. In the present case, Mr. Broughton alleges that the conduct and statements of Mr. Walker
3 It appears that Plaintiff asks the Court to follow the dissenting opinion of Equal Employment Opportunity Commission v. Total System Services, Inc., 240 F.3d 899 (11th Cir., 2001), in which Circuit Judge Barkett reasoned that the “participation clause” includes an employer’s internal investigations. (Doc. 70 at 15-16). The Court rejects Plaintiff’s argument and refuses to improperly ignore Eleventh Circuit precedent to merely find in favor of Plaintiff’s individual case.
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created a racially and sexually hostile work environment, and that Defendant AutoZone was liable for such conduct. (Doc. 1 at 1-3). A violation of Title VII is established by proving that illegal discrimination created a hostile work environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986). In order to establish a hostile work environment claim under Title VII an employee must show: (1) that he or she belongs to a protected group; (2) that the harassment was “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment”; and (3) a basis for holding the employer liable.” Gupta, 212 F.3d at 582 (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999)). Harassment violates Title VII “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that it is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment .” ’ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
In evaluating the objective reasonableness of an employee's perception that conduct is severe and pervasive enough to alter the terms and conditions of employment, the Eleventh Circuit Court of Appeals has identified the following factors that should be considered: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.” Mendoza, 195 F.3d at 1246. Both the Supreme Court and the Eleventh Circuit Court of Appeals have held that the severity and pervasiveness of “harassing conduct” is judged “under the totality of the circumstances.”
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Dar Dar v. Associated Outdoor Club, Inc., 2006 WL 3006704 at *2; 201 Fed.Appx. 718 (11th

Cir., October 23, 2006) (citing Mendoza, 195 F.3d at 1246). The alleged conduct must be

“extreme” and the “standards for judging hostility are sufficiently demanding to ensure that Title

VII does not become a general civility code.” Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998).

1. Racial Harassment

Allegations of a racially hostile work environment cannot be “mere utterance[s]” of an

“epithet which engenders offensive feelings in an employee” but must be so severe and

pervasive as to alter the terms of employment and implicate Title VII. Harris, 510 U.S. at 21.

Additionally, “the statements and conduct must be of a [racial] nature . . . before they are

considered in determining whether the severe or pervasive requirement is met.” Washington v.

Kroger Co., 218 Fed. Appx. 822, 825 (11th Cir., 2007) (quoting Gupta, 212 F.3d at 583). In the

Eleventh Circuit the standard for severe and pervasive is quite high. See e.g. Barrow v. Ga.

Pacific Corp., 144 Fed. Appx. 54, 57-58 (11th Cir., 2005)4 (events occurring over a fourteen year

period including displays of the rebel flag and the letters “KKK,” a noose in another employee’s

locker, and the use of “nigger,” and “black ass” by a superintendent and a supervisor were not

sufficiently severe or pervasive to alter the terms of employment); Godoy v. Habersham Co., 211

Fed. Appx. 850, 854 (11th Cir., 2006) (holding that employee’s claims that supervisor told him

to “‘ [g]o back to his boat and sail to South America[ ] where he belongs,’” subjected him to

racial slurs “‘almost every shift,’” and received a threatening phone call, were not extreme and

did not objectively alter the terms or conditions of his employment). In Washington, an African

4Pursuant to Eleventh Circuit Rule 36-2, “unpublished opinions are not considered binding precedent, but may be cited as persuasive authority.”
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American employee claimed, among other things, that his co-worker called him names such as “boy,” told him he was “nothing,” and allegedly hung a plastic figurine, meant to represent the employee, with a rope. 218 Fed. Appx. at 825. In affirming summary judgment for the defendant employer, the Eleventh Circuit held that the comments, “though demeaning, were not severe or extreme. Nor were they so pervasive that they altered Washington’s conditions of employment because Dean was one employee . . . who made the comments over a relatively short period of time.” Id. at 825.
Plaintiff alleges that Mr. Walker displayed “racial animus toward the store’s Black employees and customers” through alleged racial statements and conduct. (Doc. 70 at 2). The evidence before the Court reflects the following incidents:
First, Mr. Broughton alleges that Mr. Walker used the term “crack head” to refer to both employees and customers. (Doc. 53, Broughton dep. at 97). Second, Mr. Broughton alleges that following a disagreement with a customer, Mr. Walker stated that he (meaning Mr. Walker) was from the “wrong side of the tracks.” (Doc. 53, Broughton dep. at 113-15). These two statements are the only bases Mr. Broughton alleges during his deposition, when he was given at least fifteen opportunities to expand on any other incidents of a racial nature.5
5 Mr. Broughton was asked consistently if he remembered any other alleged racially charged or harassing statements by Mr. Walker and each time Mr. Broughton did not provide anything further: “What do you remember specifically that those employees complained to you about?” (Doc. 53, Broughton dep. at 97); “Is there anything else that you can remember specifically that Mr. Walker said to someone else that the employees complained to you about?” (Broughton dep. at 100); “What else can you remember other employees telling you about things Mr. Walker had said that they felt uncomfortable about or they didn’t like?” (Broughton dep. at 101); “Do you remember anything generally that they said to you about Mr. Walker. . . .” (Broughton dep. at 101); “Is there anything else you can remember?” (Broughton dep. at 102); “If you remember something else during the deposition will you tell me?” (Broughton dep. at 102); Question: “Are you talking about the crack head line?” Answer: “Just the crack head
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Plaintiff also provides the Court with an affidavit of Mr. Broughton (Doc. 71-2) that
contains additional alleged racially offensive comments from Mr. Walker, and other reasons for
Mr. Broughton’s belief that Mr. Walker’s conduct constituted racial harassment. In the affidavit,
Mr. Broughton alleges, among other things, that Mr. Walker also attributed:
[W]hat he described as negative behavior by some Blacks, their choice of certain cars, big automobile rims, wearing ‘flashy’ jewelry, to all Blacks; using the word ‘ghetto’ when referring to what he described as negative behaviors, customs, or preferences of Blacks; referring to a Black employee as ‘ghetto,’ and calling a Black employee a ‘thug’ because he was a young Black male who wore a Black ethnic hairstyle called ‘dreadlocks.’
(Doc. 71-2, Broughton Affidavit at ¶ 7). Defendant filed a Motion to Strike Portions of Mr.
Broughton’s Affidavit (Doc. 76), arguing, among other things, that the portions directly
contradict the unambiguous prior testimony in an “obvious effort to avoid summary judgment.”
(Doc. 76 at 1-2). Plaintiff filed a Response in Opposition to the Motion to Strike (Doc. 81),
arguing that Mr. Broughton’s affidavit did not contain any contradictions because among other
things, Mr. Broughton testified during his deposition that he could not remember all alleged
incidents. (Doc. 81 at 5).
lines, right.” (Broughton dep. at 110 (emphasis added)); Question: “And what terminology are you talking about?” Answer: “About the crack head comments.” (Broughton dep. at 112); “Do you remember him referring to anything else other than the crack head line?” (Broughton dep. at 115); “Aside from you discussion with him where he said he didn’t mean anything about the crack head comment, tell me everything you remember that happened between the time of the first letter and the second letter that made you think he had some sort of animosity towards you.” (Broughton dep. at 118). “And the comments, you’re talking about the crack head comments?” (Broughton dep. at 125); “Anything else comment-wise that you believe were related to race?” (Broughton dep. at 126); “And if you remember something during this deposition please tell me.” (Broughton dep. at 126); “Now, you said something about the way he was treating us. What do you mean by that? Well, tell me exactly what you said in the letter.” (Broughton dep. at 126); Question: “And racial terminology, are you referring to anything other than crack head?” Answer: “No.” (Broughton dep. at 180 (emphasis added)).
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A district court may disregard an affidavit that is submitted solely for the purpose of opposing a motion for summary judgment and is directly contradicted by prior deposition testimony. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir., 2003). “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir., 1984); See also Clay v. Equifax, Inc., 762 F.2d 952, 955 n.3 (11th Cir., 1985); Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir., 1986); Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 283-85 (S.D. Ala., 2006). In Van T. Junkins, “the fact that there was no condition attached to his purchasing the building was made crystal clear in three places in the deposition.” 736 F.2d at 657. However, in his affidavit, Junkins stated that a condition did exist involving an application for a dealership. Id. The Eleventh Circuit Court of Appeals held that this affidavit contradicted the prior deposition testimony without any valid explanation, and thus the district court could disregard the affidavit as a “sham”. Id. at 657-59.
As illustrated above, Mr. Broughton was given numerous opportunities to recall alleged racially offensive comments made by Mr. Walker. The additional comments that Mr. Broughton now alleges in his affidavit were never mentioned in his deposition or in any statement given to Mr. Smith during the internal investigation. (Doc. 53, Defendant’s Exhibits 7, 8 to Broughton dep.). Even if Mr. Broughton could not remember all alleged racially offensive comments by Mr. Walker, as Plaintiff argues, Mr. Broughton’s memory would presumably be most clear in 2004, at the time he gave statements to Mr. Smith. Additionally, Mr. Broughton testified in his
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sworn deposition that he “didn’t take it personally” when Mr. Walker asked him why “y’all put those big old wheels on those cars with those little tires?” (Doc. 53, Broughton dep. at 197-98). In direct contradiction to this testimony, Mr. Broughton alleges in his affidavit that he considered Mr. Walker’s “attributing what he described as negative behavior by some Blacks, their choice of certain cars, big automobile rims. . . to all Blacks,” racially offensive. (Doc. 71-2 at ¶ 7).6
Accordingly, the Court finds that the affidavit of Mr. Broughton filed by Plaintiff contradicts his prior sworn deposition testimony without any valid explanation. The affidavit of Mr. Broughton is therefore STRICKEN and will not be considered in this motion for summary judgment.
Returning to the two alleged comments by Mr. Walker of “crack head” and from “the wrong side of the tracks,” while they may be “offensive utterances” to Mr. Broughton, they do not appear to have unreasonably interfered with Mr. Broughton’s job performance or with the job performance of other employees. When compared to Eleventh Circuit precedent, these two alleged comments are not severe. Additionally, these comments were only allegedly made by Mr. Walker over a short period of time. See Washington, 218 Fed. Appx. at 825. Not only are the comments not severe and pervasive enough to support a hostile work environment claim, Mr. Broughton’s belief that they were is not objectively reasonable in light of the facts and
6 The Court also notes that in its pleadings, Plaintiff provides the Court with what appears to be incorrect citations and references. For example, on page one of Plaintiff’s Response in Opposition to the Motion for Summary Judgment, Plaintiff alleges that Mr. Walker “regularly used the term ‘nigger’” and refers the Court to the deposition of Mr. Walker. (Doc. 70 at 1). However, Mr. Walker testified in his deposition that “It’s not a common - - commonly used word. I hardly ever say it.” (Doc. 80, Walker dep. at 53).
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record presented.
2. Sexual Harassment Whether the conduct is sufficiently severe or pervasive is the requirement that “tests the mettle of most sexual harassment claims.” Gupta, 212 F.3d at 583. It is well settled in this circuit that not all allegedly derogatory or harassing behavior constitutes actionable sexual harassment. See Gillis v. Georgia Dept. of Corrections, 400 F.3d 883, 888 (11th Cir.2005) (recognizing that Title VII is “neither a general civility code nor a statute making actionable the ordinary tribulations of the workplace”). Although the conduct opposed need not “actually be sexual harassment . . . it must be close enough to support an objectively reasonable belief that it is.” Clover, 176 F.3d at 1351 (holding that the alleged conduct of making frequent visits without any “business purpose,” calls on personal beepers, and frequently asking an employee into the hall to talk, “misses the mark by a country mile.” (emphasis added)); See also Henderson v. Waffle House, Inc., 2007 WL 1841103, *4 (11th Cir., June 28, 2007) (affirming summary judgment because alleged comments by a co-worker such as calling the plaintiff “Dolly,” laughingly telling the plaintiff while looking at her new shirt “you just look like you’re going to burst,” telling the plaintiff they did not make aprons “big enough for people with boobs” like hers, telling the plaintiff not to stand to close to him because it made him nervous and “told her he would get in trouble if he said why,” and pulling the plaintiff’s hair and telling her it was greasy, were “insufficient to create a genuine issue of material fact as to whether harassment was sufficiently severe or pervasive so as to alter the terms and conditions of employment.”). In Mendoza, the alleged harasser told plaintiff that he was “getting fired up,” rubbed his
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hip against the plaintiff's hip while touching her shoulder and smiling, twice made a sniffing
sound while looking at the plaintiff's groin area and once made a sniffing sound without looking
at her groin, and constantly followed and stared at plaintiff in a “very obvious fashion.” 195 F.3d
at 1247. Similarly, in Gupta, the alleged harasser suggested lunch at Hooters, told the plaintiff
that she was “looking very beautiful,” called the plaintiff at her home, unbuckled his pants and
tucked in his shirt in front of her, stared at her twice, touched her ring and kept asking her to
lunch, placed his hand on her knee, and touched the hem of her dress. 212 F.3d at 584-86. In
each of these cases the Eleventh Circuit concluded that the allegations were insufficient to state a
prima facie case of harassment. Specifically, the court determined that the conduct about which
the plaintiffs complained was not severe and pervasive such that it altered the terms and
conditions of employment.
As an additional example of the standard in the Eleventh Circuit to be met for legally
actionable sexual harassment, in Mitchell v. Pope, 189 Fed. Appx. 911 (11th Cir., 2006) the
plaintiff alleged:
Plaintiff contends that Overbey: (1) tried to kiss her after the 1999 Sheriff's Department Christmas party and called her a “frigid bitch” when she refused, (2) showed up at places Plaintiff was “staking out” in December 1999 and told her “you must be working out” and “you sure do look fine,” (3) appeared several times in her driveway in January 2000, once drunk, when he told Plaintiff's son that he loved Plaintiff, (4) suggested she wear certain jeans and commented “your ass sure does look fine,” (5) told her “you can just walk into the room and I'd get an erection,” (6) stood on his tiptoes to look down her shirt, (7) rubbed up against her, whispered in her ear, and put his arm across her chest, (8) chased her around the CID office, (9) once picked her up over his head in the CID office, (10) asked her over the Sheriff's Department telephones if she was dressed or naked, (11) opened the door to the women's bathroom and turned the lights off and on when Plaintiff was inside, (12) simulated “humping” another female employee with that employee's consent, (13) made sexually derogatory remarks and gestures about a female magistrate judge, and (14) referred to Sheriff Pope as a “big eared pencil dick motherfucker.” In March 2000, Plaintiff and Overbey attended a conference
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in Alabama. Overbey told Plaintiff that the hotel had made a mistake and that they would have to share a room. Overbey slept on the floor. The next night, after Overbey got his own room, he tried to convince Plaintiff to go to the hotel hot tub with him and other conventioneers. He called her a “frigid bitch” when she refused; when she confronted him the next morning and threatened to tell the Sheriff if Overbey did not leave the conference, Overbey cried, promised he would be “good,” and left. And Plaintiff explained that, in June 2002, before she was scheduled to work security at a private golf tournament given by a strip club owner, Overbey told her and other officers about another golf tournament hosted by this owner where strippers acted as caddies. Overbey said that the owner directed the strippers to place golf balls into their vaginas and to squirt them onto the green.
Id. at 914, n. 3 In concluding that plaintiff failed to present a prima facie case of hostile
environment sexual harassment the Court opined, in part:
Although Overbey's reprehensible behavior only can be described as crass and juvenile, we accept that this behavior-given its relative infrequency-is not the kind of “severe” harassment necessary for liability to attach under Title VII. Overbey's conduct is more comparable to the conduct in Gupta v. Florida Bd. of Regents, 212 F.3d 571, 584-86 (11th Cir. 2000), and in Mendoza, 195 F.3d at 1247, which we concluded was not objectively severe or pervasive. And no evidence exists that Overbey's behavior unreasonably interfered with Plaintiff's job performance. To the contrary, the evidence indicates that Plaintiff's health problems were the greatest hindrance to her job performance and led to her ultimate confrontation with Pope and her subsequent resignation. In short, Plaintiff has not shown a claim of actionable hostile work environment under Title VII.
Id.
Here, Mr. Broughton alleges the following sexually harassing statements made by Mr.
Walker: (1) In early November, 2003, Mr. Walker allegedly told Mr. Broughton (not the female
employee) that Mr. Walker knew that Mr. Broughton hired female employee Adreia Locke
“because she has nice breasts.” (Doc. 53, Broughton dep. at 172; Doc. 53, Defendant’s Exhibit 7
to Broughton dep.); (2) The week before Christmas 2003, Mr. Walker allegedly observed female
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employee Erika Freeman bend over and stated “Wo! Looks like, a big head of cabbage.” (Doc. 53, Defendant’s Exhibit 7 to Broughton dep.; Doc. 53, Broughton dep. at 175); and (3) Mr. Broughton alleges that although he did not hear the statement, but rather Ms. Freeman reported it to him, Mr. Walker told Ms. Freeman, “I bet you wear sexy panties.” (Doc. 53, Defendant’s Exhibit 7 to Broughton dep.; Doc. 53, Broughton dep. at 177-78).
These comments would be categorized as “offhand comments” and “isolated incidents” that do “not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788. Thus, while these comments may be offensive to some, when compared to Eleventh Circuit precedent, the inevitable conclusion is that these comments are not “close enough” to support an objectively reasonable belief that they constitute sexual harassment. IV. Conclusion
Mr. Broughton has not shown that he possessed an objectively reasonable belief, measured against existing substantive law, that Defendant violated Title VII through an alleged racially and sexually discriminatory hostile work environment7. Thus, Mr. Broughton cannot show that he engaged in protected activity in order to sustain a retaliation cause of action against Defendant. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED and Defendant is entitled to judgment as a matter of law.
DONE this the 30th day of October, 2007.
7 Because the Court ultimately finds that Mr. Broughton did not possess the requisite objective belief that AutoZone violated Title VII and therefore cannot survive the Motion for Summary Judgment, the Court need not address whether Mr. Broughton possessed the requisite subjective, good faith belief.
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Case 1:06-cv-00607-KD-C Document 83 Filed 10/30/07 Page 18 of 18 /s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE
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 </s> Case: 1:06-cv-00607-KD-C As of: 10/15/2014 07:28 AM CDT 1 of 8
CLOSED2007,JURY,SCHEDO
U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:06−cv−00607−KD−C

Equal Employment Opportunity Commission v. AutoZone , Inc Assigned to: Judge Kristi K. DuBose Referred to: Magistrate Judge William E. Cassady Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/29/2006 Date Terminated: 10/30/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by C. Emanuel Smith EEOC Birmingham District Office Ridge Park Place, Ste. 2000 1130 22nd Street South Birmingham, AL 35205 205−212−2131 Fax: 205−212−2041 Email: Emanuel.Smith@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Debra W. Hawes Crook Equal Employment Opportunity Commission 1130 22nd St. S., Ste. 2000 Birmingham, AL 35205−2881 205−731−0628 Email: debra.crook@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams 1801 L. Street, NW Washington, DC 20507 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L. Lee 1801 L. Street, NW Washington, DC 20507 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Bean 1130 22nd Street South, Suite 2000 Birmingham, AL 35205 205−212−2076 Email: julie.bean@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Cooper 1801 L. Street Northwest Washington, DC 20507 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Valerie Hicks Powe Equal Employment Opportunity Commission

Case: 1:06-cv-00607-KD-C As of: 10/15/2014 07:28 AM CDT 2 of 8
1130 22nd St. S., Ste. 2000 Birmingham, AL 35205−2881 205−212−2046 Email: valerie.powe@eeoc.gov TERMINATED: 09/25/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ermea Jackson Russell Russell Law Firm, PLLC P.O. Box 24561 Jackson, MS 39225 Email: erusslaw@aol.com TERMINATED: 09/25/2007 ATTORNEY TO BE NOTICED
Mason D. Barrett Equal Employment Opportunity Commission 1130 22nd St. S., Ste. 2000 Birmingham, AL 35205−2881 205−212−2047 Email: mason.barrett@eeoc.gov TERMINATED: 09/25/2007 ATTORNEY TO BE NOTICED

V. Defendant AutoZone , Inc

represented by Stuart D. Roberts Bressler, Amery &Ross, PC 420 20th Street North, Suite 2200 Birmingham, AL 35203 205−719−0400 Fax: 205−719−0500 Email: sroberts@bressler.com ATTORNEY TO BE NOTICED

Date Filed 09/29/2006
12/14/2006
01/09/2007 02/21/2007 02/26/2007
03/09/2007 04/02/2007 04/03/2007

# Docket Text
1 COMPLAINT against AutoZone, Inc, filed by Equal Employment Opportunity Commission.(Powe, Valerie) Additional attachment(s) added on 10/2/2006 (cmj, ). (Entered: 09/29/2006)
2 REQUEST FOR WAIVER of Service sent to The Corporation Company on 12/14/2006 by Equal Employment Opportunity Commission.Waiver of Service due by 1/16/2007. (Powe, Valerie) (Entered: 12/14/2006)
3 Summons Issued as to The Corporation Company to plaintiff's counsel for service (mca) (Entered: 01/09/2007)
4 ANSWER to Complaint by AutoZone, Inc. (mca) (Entered: 02/25/2007)
5 PRELIMINARY SCHEDULING ORDER entered.Rule 26 Meeting Report due by 4/12/2007.. Signed by Judge William E. Cassady on 2/26/07. (Attachments: # 1 Consent to Jurisdiction of Magistrate Judge) (mca) (Entered: 02/26/2007)
6 CONSENT to Jurisdiction by US Magistrate Judge by AutoZone, Inc. (SIGNED ONLY BY DEFENDANT) (cmj) (Entered: 03/09/2007)
7 REPORT of Rule 26(f) Planning Meeting. (Roberts, Stuart) (Entered: 04/02/2007)
REFERRAL OF 7 Report of Rule 26(f) Planning Meeting to Judge Cassady. (cmj) (Entered: 04/03/2007)

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04/03/2007 04/03/2007 04/03/2007 04/04/2007 04/06/2007
04/10/2007
05/29/2007 05/30/2007 05/31/2007 06/11/2007 06/11/2007 06/12/2007 06/13/2007
06/13/2007 06/14/2007 06/20/2007 06/21/2007 06/21/2007 06/21/2007 06/22/2007

8 MOTION for Leave to File Amended Report of Parties Planning Meeting by Equal Employment Opportunity Commission. (Russell, Ermea) (Entered: 04/03/2007)
MOTIONS REFERRED: 8 MOTION for Leave to File Amended Report of Parties Planning Meeting Referred to Judge William E. Cassady. (cmj) (Entered: 04/03/2007)
9 Joinder in MOTION re 8 MOTION for Leave to File Amended Report of Parties Planning Meeting. (Roberts, Stuart) (Entered: 04/03/2007)
REFERRAL OF 9 Joinder in Motion to Judge Cassady. (cmj) (Entered: 04/04/2007)
10 SCHEDULING ORDER:Pretrial Conference set for 12/13/2007 11:30 AM in Chambers before Judge Kristi K. DuBose.,Amended Pleadings due by 6/8/2007.,Discovery cutoff 10/4/2007.,Motions due by 10/18/2007.,Bench Trial will be set at the final pretrial conference. Position Regarding Settlement due by 10/4/2007.. Signed by Judge William E. Cassady on 4/4/07. (Attachments: # 1 Standing Pretrial Order) (cmj) SEE DOC. 11 WHEREIN THIS IS CHANGED TO A JURY TRIAL) (Entered: 04/06/2007)
11 ORDER granting 8 Motion to Amend the report of parties to reflect that this is a jury case. The Scheduling Order is amended to state that jury selection sall be conducted 1/3/08. Signed by Judge William E. Cassady on 4/10/07. (cmj) (Entered: 04/10/2007)
12 MOTION to Substitute Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Granting Substitution of Counsel) (Russell, Ermea) (Entered: 05/29/2007)
MOTIONS REFERRED: 12 MOTION to Substitute Attorney Referred to Judge William E. Cassady. (cmj) (Entered: 05/30/2007)
13 ORDER granting 12 Motion to Substitute Attorney.. Signed by Judge William E. Cassady on 5/31/07. (cmj) (Entered: 05/31/2007)
14 MOTION for Leave to Appear Additional Counsel by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 06/11/2007)
15 MOTION to Quash Subpoenas by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A) (Barrett, Mason) (Entered: 06/11/2007)
MOTIONS REFERRED: 15 MOTION to Quash Subpoenas Referred to Judge William E. Cassady. (cmj) (Entered: 06/12/2007)
16 Order Setting Motion Deadline/Hearing re: 15 MOTION to Quash Subpoenas filed by Equal Employment Opportunity Commission Responses due by 6/25/2007 Motion to be taken under submission on 6/25/2007.. Signed by Judge William E. Cassady on 6/13/07. (cmj) (Entered: 06/13/2007)
17 RESPONSE in Opposition re 15 MOTION to Quash Subpoenas filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 06/13/2007)
REFERRAL OF 17 Response in Opposition to Motion to Judge Cassady. (cmj) (Entered: 06/14/2007)
18 REPLY to Response to Motion 15 to Quash Subpoenas filed by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 06/20/2007)
REFERRAL OF 18 Reply to Response to Motion to Judge Cassady. (cmj) (Entered: 06/21/2007)
19 MOTION to Strike 18 Reply to Response to Motion by AutoZone, Inc. (Roberts, Stuart) (Entered: 06/21/2007)
20 NOTICE by Equal Employment Opportunity Commission Debra Crook, Senior, Trial Attorney (Crook, Debra) (Entered: 06/21/2007)
MOTIONS REFERRED: 19 MOTION to Strike 18 Reply to Response to Motion Referred to Judge William E. Cassady. (cmj) (Entered: 06/22/2007)

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06/27/2007 06/28/2007 06/28/2007 07/10/2007 07/10/2007 07/18/2007 07/18/2007 07/18/2007 07/18/2007 07/18/2007 07/18/2007 07/18/2007 07/19/2007 07/19/2007 08/03/2007
08/08/2007 08/08/2007 08/13/2007 08/13/2007

21 RESPONSE in Opposition re 19 MOTION to Strike 18 Reply to Response to Motion filed by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 06/27/2007)
22 MOTION to Quash Subpoena by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A) (Barrett, Mason) (Entered: 06/28/2007)
23 NOTICE of Filing Exhibits to Motion to Quash Subpoena by Equal Employment Opportunity Commission re: 22 MOTION to Quash Subpoena (Barrett, Mason) (Entered: 06/28/2007)
MOTIONS REFERRED: 22 MOTION to Quash Subpoena Referred to Judge William E. Cassady. (cmj) (Entered: 07/10/2007)
REFERRAL OF 21 Response in Opposition to Motion, 23 Notice of Filing Exhibits to Judge Cassady. (cmj) (Entered: 07/10/2007)
24 NOTICE by Equal Employment Opportunity Commission of Service of 30(b)(6) Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
25 NOTICE by Equal Employment Opportunity Commission of Service of Darryl Demas Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
26 NOTICE by Equal Employment Opportunity Commission of Service of Erika Freeman Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
27 NOTICE by Equal Employment Opportunity Commission of Service of William Leytham Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
28 NOTICE by Equal Employment Opportunity Commission of Service of Antonio Smith Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
29 NOTICE by Equal Employment Opportunity Commission of Service of Robert Taylor Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
30 NOTICE by Equal Employment Opportunity Commission of Service of Thomas Welch Deposition Notice (Crook, Debra) (Entered: 07/18/2007)
31 NOTICE by Equal Employment Opportunity Commission of Service of Responses to Autozone, Inc.'s Second Interrogatories (Crook, Debra) (Entered: 07/19/2007)
32 NOTICE by Equal Employment Opportunity Commission of Service of Responses to Autozone, Inc.'s Second Requests for Production (Crook, Debra) (Entered: 07/19/2007)
33 ORDER re: 22 Motion to Quash 15 Motion to Quash; 19 Motion to Strike. The motion to strike 19 is moot. The Court grants plaintiff's motion to quash the subpoena issued by AutoZone to Monster, Inc. 22 . In addition the Court grants in part and denies in part plainiff's motion to quash the subpoenas issued by AutoZone to non−parties ATAdvance Auto Parts, Freds and the Alabama Department of Industrial Relations 15 . The motion to quash the subpoena directed to the ADIR is granted in its entirety. The motion to quash the identical subpoenas issued to ATAdvance Auto Parts and Freds is granted to the extent those subpoenas seek documents as noted regarding Roderick Broughton; it is denied to the extent same seek Broughton's applications for employment forms, payroll reocrds, evaluations and disciplinary action records.. Signed by Judge William E. Cassady on 8/2/07. (cmj) (Entered: 08/03/2007)
34 NOTICE by Equal Employment Opportunity Commission Attorney Debra Hawes Crook (Crook, Debra) (Entered: 08/08/2007)
35 Notice of Filing Plaintiff's 2nd Set of Request for Admissions to Defendant filed by Equal Employment Opportunity Commission. (Crook, Debra) (Entered: 08/08/2007)
36 NOTICE by Equal Employment Opportunity Commission Attorney Debra Hawes−Crook (Crook, Debra) (Entered: 08/13/2007)
37 NOTICE by AutoZone, Inc (Roberts, Stuart) (Entered: 08/13/2007)

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08/20/2007
08/20/2007 08/21/2007 08/21/2007 08/21/2007
08/21/2007 08/22/2007 08/22/2007 08/22/2007 08/22/2007 08/22/2007 08/24/2007 08/27/2007
08/27/2007 08/27/2007
08/28/2007

38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Motion to Compel# 2 Attachment to Motion of Legal Authority# 3 Motion to Compel Exhibit A# 4 Motion to Compel Exhibit B# 5 Motion to Compel Exhibit C) (Crook, Debra) (Entered: 08/20/2007)
39 NOTICE by Equal Employment Opportunity Commission Debra Hawes−Crook, Attorney (Crook, Debra) (Entered: 08/20/2007)
MOTIONS REFERRED: 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney Referred to Judge William E. Cassady. (cmj) (Entered: 08/21/2007)
REFERRAL OF 39 Notice to Judge Cassady. (cmj) (Entered: 08/21/2007)
40 ENDORSED ORDER taking under advisement 38 Motion to Compel Discovery. Any response to this motion to compel shall be filed not later than August 28, 2007. Signed by Judge William E. Cassady on 8/21/07. (Cassady, William) (Entered: 08/21/2007)
41 BRIEF in Support of MOTION to Compel Discovery (Doc. 38) Debra Hawes−Crook by Equal Employment Opportunity Commission. (Crook, Debra) Modified on 8/22/2007 (eec, ). (Entered: 08/21/2007)
42 Notice of Filing Notice of Deposition filed by Equal Employment Opportunity Commission. (Crook, Debra) (Entered: 08/22/2007)
43 Notice of Filing Notice of Deposition filed by Equal Employment Opportunity Commission. (Crook, Debra) (Entered: 08/22/2007)
44 Notice of Filing Notice of Deposition filed by Equal Employment Opportunity Commission. (Crook, Debra) (Entered: 08/22/2007)
45 Notice of Filing Notice of Deposition filed by Equal Employment Opportunity Commission. (Crook, Debra) (Entered: 08/22/2007)
REFERRAL OF 41 MOTION to Compel Discovery Debra Hawes−Crook to Judge Cassady. (cmj) (Entered: 08/22/2007)
46 MOTION to Supplement Plaintiff's Motion to Compel Defendant's Designation of a Rule 30(b)(6) Corporate Designee and Production of Associated Documents by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 08/24/2007)
MOTIONS REFERRED: 46 MOTION to Supplement Plaintiff's Motion to Compel Defendant's Designation of a Rule 30(b)(6) Corporate Designee and Production of Associated Documents Referred to Judge William E. Cassady. (cmj) (Entered: 08/27/2007)
47 Amended MOTION to Supplement Plaintiff's Motion to Compel Designation 0f 30(b)(6) Designee and for Production of Associated Documents by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 08/27/2007)
48 MOTION for Extension of Time to File Response/Reply as to 40 Order on Motion to Compel Discovery, 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney, 47 Amended MOTION to Supplement Plaintiff's Motion to Compel Designation 0f 30(b)(6) Designee and for Production of Associated Documents, 46 MOTION to Supplement Plaintiff's Motion to Compel Defendant's Designation of a Rule 30(b)(6) Corporate Designee and Production of Associated Documents by AutoZone, Inc. (Roberts, Stuart) (Entered: 08/27/2007)
MOTIONS REFERRED: 48 MOTION for Extension of Time to File Response/Reply as to 40 Order on Motion to Compel Discovery, 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney, 47 Amended MOTION to Supplement Plaintiff's Motion to Compel Designation MOTION for Extension of Time to File Response/Reply as to 40 Order on Motion to Compel Discovery, 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney, 47 Amended MOTION to Supplement Plaintiff's Motion to Compel Designation MOTION for Extension of Time to File Response/Reply as to 40 Order on Motion to Compel Discovery, 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney, 47

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08/28/2007 08/31/2007 08/31/2007 08/31/2007 08/31/2007
09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/06/2007 09/07/2007 09/07/2007
09/15/2007 09/15/2007

Amended MOTION to Supplement Plaintiff's Motion to Compel Designation, 47 Amended MOTION to Supplement Plaintiff's Motion to Compel Designation 0f 30(b)(6) Designee and for Production of Associated Documents Referred to Judge William E. Cassady. (cmj) (Entered: 08/28/2007)
49 ENDORSED ORDER granting 46 Motion to Supplement; granting 47 Motion to Supplement; granting 48 Motion for Extension of Time to File Response/Reply Responses due by 8/31/2007. Signed by Judge William E. Cassady on 8/28/07. (Cassady, William) (Entered: 08/28/2007)
50 NOTICE of Appearance by Stuart D. Roberts on behalf of AutoZone, Inc (Roberts, Stuart) (Entered: 08/31/2007)
51 RESPONSE to Motion re: 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 08/31/2007)
52 MOTION to Stay Proceedings by AutoZone, Inc. (Roberts, Stuart) (Entered: 08/31/2007)
53 MOTION for Summary Judgment by AutoZone, Inc. (Attachments: # 1 Brief in Support of AutoZone's Motion for Summary Judgment# 2 Evidentiary Submission in Support of Motion for Summary Judgment# 3 Determinations of Undisputed Fact and Conclusions of Law# 4 Proposed Order) (Roberts, Stuart) (Entered: 08/31/2007)
REFERRAL OF 51 Response to Motion to Judge Cassady. (cmj) (Entered: 09/05/2007)
MOTIONS REFERRED: 52 MOTION to Stay Proceedings, 53 MOTION for Summary Judgment to Judge DuBose (cmj) (Entered: 09/05/2007)
54 Order Setting Motion Deadline re: 53 MOTION for Summary Judgment filed by AutoZone, Inc Responses due by 9/20/2007 Replies due by 10/1/2007. Motion to be taken under submission on 10/11/2007.. Signed by Judge Kristi K. DuBose on 9/5/07. (cmj) (Entered: 09/05/2007)
55 Order entered re: 52 MOTION to Stay Proceedings filed by AutoZone, Inc. Any response to the motion should be filed on or before 9/14/07. Signed by Judge Kristi K. DuBose on 9/5/07. (mca) (Entered: 09/05/2007)
56 MOTION for Extension of Time to Reply to Defendant's Response to Plaintiff's Motion to Compel Designation of Corporate Representative by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/05/2007)
MOTIONS REFERRED: 56 MOTION for Extension of Time to Reply to Defendant's Response to Plaintiff's Motion to Compel Designation of Corporate Representative. Referred to Judge William E. Cassady. (mca) (Entered: 09/06/2007)
57 RESPONSE to Motion re: 56 MOTION for Extension of Time to Reply to Defendant's Response to Plaintiff's Motion to Compel Designation of Corporate Representative filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 09/07/2007)
58 ENDORSED ORDER granting 56 Motion for Extension of Time The reply is due by 9/14/2007.. After a review of the motion, defendant's response (Doc. 57) and the record, it is decided that giving the party that carries the burden of persuasion an opportunity to file a reply will not cause any harm or delay a ruling on the motion to compel, especially given that defendant has moved to stay which is pending before the trial judge. Signed by Judge William E. Cassady on 9/07/07. (Cassady, William) (Entered: 09/07/2007)
59 MOTION for Extension of Time to File Response/Reply to Opposition to Motion to Compel 30(b)(6) Deposition and to Motion to Stay by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/15/2007)
60 RESPONSE to Motion re: 52 MOTION to Stay Proceedings filed by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/15/2007)

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09/15/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/19/2007 09/20/2007 09/20/2007 09/20/2007 09/21/2007 09/21/2007 09/21/2007 09/22/2007
09/24/2007

61 REPLY to 51 Response to Motion Defendant's Opposition to Plaintiff's Motion to Compel Designation of Corporate Designee filed by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/15/2007)
MOTIONS REFERRED: 59 MOTION for Extension of Time to File Response/Reply to Opposition to Motion to Compel 30(b)(6) Deposition and to Motion to Stay Referred to Judge William E. Cassady. (cmj) (Entered: 09/17/2007)
REFERRAL OF 60 Response to Motion to Judge DuBose. (cmj) (Entered: 09/17/2007)
REFERRAL OF 61 Reply to Judge Cassady. (cmj) (Entered: 09/17/2007)
62 Notice of Filing Response to Second Request for Admissions filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 09/17/2007)
63 ORDER entered granting 59 Plaintiff's Motion for a one−day extension of time to file its reply to the defendant's opposition to its motion to compel designation of a corporate designee and to respond to defendant's request for stay of discovery. Signed by Judge William E. Cassady on 9/17/07. (mca) (Entered: 09/17/2007)
64 ORDER denying 52 Motion to Stay as set out.. Signed by Judge Kristi K. DuBose on 9/18/07. (cmj) (Entered: 09/19/2007)
65 MOTION for Extension of Time to Complete Discovery by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/20/2007)
66 MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/20/2007)
67 NOTICE by Equal Employment Opportunity Commission re 66 MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment (Lee, Julie) (Entered: 09/20/2007)
68 ENDORSED ORDER granting 66 plaintiff's Motion for Extension of Time to File Response to defendants motion for summary judgment. Response due by 9/21/2007. Signed by Judge Kristi K. DuBose on 9/21/07. (kpn, ) (Entered: 09/21/2007)
69 REPLY to Response to Motion 38 filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 09/21/2007)
70 RESPONSE in Opposition re 53 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/21/2007)
71 NOTICE of Filing Exhibits for Plaintiff's Response to Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit A: Declaration of Roderick Broughton# 2 Exhibit Exhibit B−1: Deposition Transcript of Roderick Broughton# 3 Exhibit Exhibit B−2: Deposition Transcript of Roderick Broughton# 4 Exhibit Exhibit B−3: Deposition Transcript of Roderick Broughton# 5 Exhibit Exhibit B−4: Deposition Transcript of Roderick Broughton# 6 Exhibit Exhibit B−5: Deposition Transcript of Roderick Broughton# 7 Exhibit Exhibit B−6: Deposition Transcript of Roderick Broughton# 8 Exhibit Exhibit B−7: Deposition Transcript of Roderick Broughton# 9 Exhibit Exhibit C−1: Deposition Transcript of David Walker# 10 Exhibit Exhibit C−2: Deposition Transcript of David Walker# 11 Exhibit Exhibit C−3: Deposition Transcript of David Walker# 12 Exhibit Exhibit C−5: Deposition Transcript of David Walker# 13 Exhibit Exhibit C−6: Deposition Transcript of David Walker# 14 Exhibit Exhibit C−7: Deposition Transcript of David Walker# 15 Exhibit Exhibit C−7: Deposition Transcript of David Walker# 16 Exhibit Exhibit D−1: Deposition Transcript of Antonio Smith# 17 Exhibit Exhibit D−2: Deposition Transcript of Antonio Smith# 18 Exhibit Exhibit E: Statement of Materially Disputed Facts) (Lee, Julie) (Entered: 09/22/2007)
72 Order re: 38 MOTION to Compel Discovery Debra Hawes−Crook, Attorney filed by Equal Employment Opportunity Commission and 69 reply to reponse − the parties are ORDERED to file no further pleadings addressed to this issue. Should

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09/24/2007 09/25/2007 10/01/2007 10/01/2007 10/04/2007 10/04/2007 10/04/2007 10/10/2007
10/10/2007
10/17/2007 10/30/2007 10/30/2007

any such pleading be filed, it will be stricken from the record. Signed by Judge William E. Cassady on 9/24/07. (cmj) (Entered: 09/24/2007)
73 MOTION for E.J. Russell, Esquire, Valerie Powe, Esquire, Mason Barrett, Esquire to Withdraw as Attorney of Record by Equal Employment Opportunity Commission. (Lee, Julie) (Entered: 09/24/2007)
74 ORDER granting 73 Motion for Mason Barnett, Valerie Powe and EJ Russell to Withdraw as Attorneys.. Signed by Judge William E. Cassady on 9/25/07. (cmj) (Entered: 09/25/2007)
75 REPLY Brief filed by Defendant AutoZone, Inc re: 70 Response in Opposition to Motion, 53 MOTION for Summary Judgment filed by AutoZone, Inc. (Roberts, Stuart) (Entered: 10/01/2007)
76 MOTION to Strike Portions of Roderick Broughton's Affidavit by AutoZone, Inc. (Roberts, Stuart) (Entered: 10/01/2007)
77 MOTION to Supplement Evidentiary Submission in Support of Motion for Summary Judgment and Motion to Strike by AutoZone, Inc. (Roberts, Stuart) (Entered: 10/04/2007)
78 Order Setting Motion Deadline/Hearing re: 76 MOTION to Strike Portions of Roderick Broughton's Affidavit filed by AutoZone, Inc Responses due by 10/10/2007. Signed by Judge Kristi K. DuBose on 10/4/07. (cmj) (Entered: 10/04/2007)
79 ENDORSED ORDER granting 77 Motion to Supplement. Signed by Judge Kristi K. DuBose on 10/4/07. (kpn, ) (Entered: 10/04/2007)
80 MOTION to Correct Exhibits Filed With Plainitff's Opposition to Defendant's Summary Judgment Motion by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Corrected Exhibit 1# 2 Exhibit Corrected Exhibit C−2# 3 Exhibit Corrected Exhibit C−2# 4 Exhibit Corrected Exhibit C−3# 5 Exhibit Corrected Exhibit C−5# 6 Exhibit Correted Exhibit C−6# 7 Exhibit Corrected Exhibit C−7# 8 Exhibit Corrected Exhibit C−8# 9 Exhibit Corrected Exhibit C−9) (Lee, Julie) (Entered: 10/10/2007)
81 RESPONSE to Motion re: 76 MOTION to Strike Portions of Roderick Broughton's Affidavit filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit A − Broughton's Deposition Testimony# 2 Exhibit Exhibit B − Walker's Deposition Testimony# 3 Exhibit Broughton's Statement to EEOC − Exhibit C) (Lee, Julie) (Entered: 10/10/2007)
82 ORDER STAYING CASE until further order of the court. Signed by Judge Kristi K. DuBose on 10/17/07. (cmj) (Entered: 10/17/2007)
83 ORDER granting 53 Defendant's Motion for Summary Judgment. Signed by Judge Kristi K. DuBose on 10/30/07. (cmj) (Entered: 10/30/2007)
84 JUDGMENT entered that plaintiff's claims against defendant be dismissed with prejudice. Signed by Judge Kristi K. DuBose on 10/30/07. (cmj) (Entered: 10/30/2007)


[CONTENT] September 2006 | EEOC | AutoZone, Inc. | the U.S. District Court | the Southern District | Alabama | 42 | U.S.C | 2000e ||| Autozone ||| EEOC | AutoZone | AutoZone | AutoZone ||| 2003 ||| AutoZone | AutoZone ||| Autozone ||| AutoZone | 2004 ||| October 30, 2007 | the District Court | Kristi DuBose | AutoZone | 1 | AutoZone | EEOC | 2 ||| The District Court | AutoZone | EEOC [SUMMARY] In September 2006, the EEOC brought this suit against AutoZone, Inc. in the U.S. District Court for the Southern District of Alabama, under title VII of 42 U.S.C § 2000e. In this case, it is alleged that Autozone discharged an employee who worked in a store because he opposed discriminatory conduct of his supervisor (store manager) on the basis of race and sex. The EEOC asked for (a) a permanent injunction enjoining AutoZone from engaging in retaliating or any other employment discrimination practice on the basis of race, sex or retaliation; (b) an order for AutoZone to institute and carry out policies, practices and programs which provide equal employment opportunities; (c) an order for AutoZone to provide backpay and compensate to a discharged employee; and (d) punitive damages. 

In 2003, the employee recognized that his supervisor's conduct and statements towards employees and customers were racially and sexually derogatory and harassing in nature. The employee suggested his supervisor refrain from such behavior, wrote a letter to AutoZone's district manager about the supervisor's behavior, and visited AutoZone's regional human resources manager to report harassment by the supervisor. Autozone did not take any action about the reported behavior. The employee was then discharged by AutoZone in 2004.

On October 30, 2007, the District Court (Judge Kristi DuBose) granted AutoZone's motion for summary judgment stating that (1) AutoZone's discharge of him did not constitute retaliation against him after the involvement of EEOC; and (2) the supervisor's actions did not rise to the standard of racial harassment and sexual harassment, which are requirement of protection under title VII.  The District Court entered judgment for AutoZone and dismissed the EEOC's claim with prejudice .
