Calhoun v. McHugh (2 F. Supp. 3d 1217, 2014)

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

Introduction

The defendant (Secretary McHugh) has filed simultaneous motions to dismiss and for summary judgment. Doc. 26. The plaintiff (Mr. Calhoun) has responded, doc. 30, and Secretary McHugh has replied, doc. 44. Mr. Calhoun has also moved to strike some of the Secretary’s submitted evidence. Doc. 29. For the following reasons, the court will:

• treat Secretary McHugh’s motion as one for summary judgment;

• treat Mr. Calhoun’s Motion to Strike as an objection under Federal Rule of Civil Procedure 56(c)(2);

• GRANT in part and DENY in part Mr. Calhoun’s objection; and

• GRANT in part and DENY in part the Secretary’s motion.

As described below, the court will grant Secretary McHugh summary judgment as to Mr. Calhoun’s sexual harassment claim but will deny him such judgment as to Mr. Calhoun’s racial discrimination and retaliation claims.

Preliminary Matters

I. Motion to Dismiss vs. Motion for Summary Judgment

Before the court may assess the motion, it must first decide whether to treat the Secretary’s motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or as a motion for summary judgment under Rule 56(a). Compare Fed. R. Civ. 12(b)(6) with Fed.R.Civ.P. 56(a). When considering a Rule 12(b)(6) Motion, a district court is generally “constrained to review the allegations as contained within the four corners of the complaint.” Crowell v. Morgan, Stanley, Dean Witter Servs. Co., Inc., 87 F.Supp.2d 1287, 1290 (S.D.Fla.2000) (citations omitted). However, a court may consider documents attached to such a motion if they are (1) referred to in the complaint and are (2) central to the plaintiffs claim. Star-ship Enters, of Atlanta, Inc. v. Coweta County, Ga., 708 F.3d 1243, 1252 n. 13 (11th Cir.2013) (citation omitted). “When the court considers matters outside the pleadings, however, the Rule 12(b)(6) motion converts into a Rule 56 motion for summary judgment.” Id. (citation omitted).

Secretary McHugh attached twelve exhibits to his motion and later supplemented these with four more submissions. See Docs. 28, 43. These exhibits include depositions, hearing transcripts, administrative transcripts, and personal declarations. The plaintiff does not mention any of these documents in his Complaint. The court will consider the Secretary’s attached documents and thus treat his motion as one for summary judgment under Rule 56(a).

II. Motion to Strike

This conclusion segues into another antecedent issue — which extrinsic evidence to consider in examining the Secretary’s motion. Mr. Calhoun seeks to strike three of the motion’s evidentiary submissions. Specifically, he asks this court to remove the following from its consideration:

• Defendant’s Exhibit 7;

• Defendant’s Exhibit 8; and

• Paragraph 13 in the “Statement of Undisputed Material Facts” section of Defendant’s memorandum accompanying its motion.

Doc. 29 at l(citing Docs. 28-7, 28-8, 27 at 6). Rule 56(c)(2) allows a party to object to any material filed by another party on summary judgment on the basis that such material “cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Although Mr. Calhoun characterizes his filing as a Motion to Strike, the motion challenges the admissibility of the above-cited evidence. The court will thus treat his motion as an objection under Rule 56(c)(2). And, for the following reasons, the court will GRANT in part and DENY in part his objection.

A. Exhibit 7

Exhibit 7 is a declaration made by Charles Barclay, a representative with the local AFGE union at the Anniston Army Depot during the events at issue. Doc. 28-7 at 1-3. He allegedly made the statement to an Equal Employment Opportunity Commission (EEOC) investigator. Id. at 1. Mr. Calhoun complains that the declaration fails under Rule 56. Doc. 29 ¶¶ 2-6. This rule requires that such declarations:

• be made on personal knowledge;

• set out admissible facts; and

• show that the declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c)(4). Mr. Calhoun notes that Barclay’s declaration does not affirm that he is competent to testify or that he has direct knowledge of the asserted contents. Id. ¶¶ 3-4. Mr. Calhoun also observes that the declaration is both unsigned and undated—and thus cannot be authenticated. Id. ¶ 5. He finally claims that the document is impermissible hearsay. Id. ¶ 6.

In response, Secretary McHugh submits a supplemental exhibit containing a signed and dated version of the declaration affirming that Barclay can competently testify and has direct knowledge of what he declares. Doc. 45-4. The Secretary further argues that this court may still consider the declaration—even if hearsay— because it is reducible to an admissible form at trial. Doc. 40 at 2-3. That is, Mr. Barclay could testify at trial to the statements he made to the EEOC investigator, thus eliminating any hearsay problems. Id. at 3.

Although Secretary McHugh phrases his argument indelicately, the court finds it persuasive. Generally, a district court may not consider inadmissible hearsay on a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999) (citation and footnote omitted). An exception to this rule applies, however, if the hearsay “could be reduced to admissible evidence at trial” or “reduced to admissible form.” Id. at 1323 (citations omitted). That is, it “must be admissible at trial for some purpose.” Id. Federal Rule of Evidence 801 defines “hearsay” as any statement that (1) the declarant (i.e., the person who made the statement) does not make while testifying at the current trial or hearing; and that (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Fed.R.Evid. 801(b)-(c). Hearsay is not admissible at trial unless allowed by:

• a federal statute;

• the Federal Rules of Evidence; or

• other rules prescribed by the Supreme Court.

Id. 802.

Secretary McHugh correctly notes that he could “reduce” the declaration to admissible evidence at trial by having Mr. Barclay testify. Doc. 40 at 3. Such testimony would not be hearsay. The court will therefore consider Mr. Barclay’s declaration.

B. Exhibit 8

Exhibit 8 is the EEOC Investigator’s “Report of Investigation” (ROI). Doc. 28-8. Mr. Calhoun complains that this document also doesn’t comply with Rule 56 because the author has not affirmed that he has direct knowledge of its contents. Doc. 29 ¶ 9. Mr. Calhoun also claims that the document (1) contains inadmissible hearsay and (2) states an inadmissible legal conclusion that invades this court’s authority. Id. ¶¶ 10-11. Secretary McHugh responsively argues that the ROI would be admissible at trial under the “public records exception” to the hearsay rule. Doe. 40 at 3-4 (citing Fed. R. Ev. 803(8)).

The Secretary is at least partially correct. Under Rule 803(8), a public office’s record or statement — although hearsay— is nevertheless admissible at trial if it sets out factual findings from a legally-authorized investigation in a civil case. Fed. R.Evid. 803(8)(A)(iii). This provision applies here. Every federal agency must conduct an impartial and appropriate investigation within 180 days after a party files an EEO discrimination complaint. 29 C.F.R. § 1614.106(e)(2). The EEOC — on behalf of the Army — did so here, and its product was the ROI. Because the ROI therefore contains factual findings from a legally-authorized investigation, it “could be reduced to admissible evidence at trial” under Rule 803(8).

However, the report also contains the investigator’s analytical conclusions. E.g., Doc. 28-8 at 7. Mr. Calhoun objects that these judgments are improperly legal. Doc. 29 ¶ 11. As a general matter, “this circuit considers EEOC determinations to be highly probative,” and “administrative findings assessing claims of employment discrimination are admissible under [Rule] 803(8)(C).” Barfield v. Orange County, 911 F.2d 644, 650 (11th Cir.1990) (citations omitted). That being said, “there may be circumstances in which that probative value [of such evidence] ... nevertheless is outweighed by the danger of creating unfair prejudice in the minds of a jury.” Id. (citation omitted). Accordingly, in determining “whether and what parts of EEOC determinations and reports should be admitted,” a district court may consider whether the reports:

• contain legal conclusions in addition to factual content;

• raise questions of trustworthiness under Rule 803(8)(B); or

• present Rule 403 problems.

Id. (internal citations omitted). On the first point, Rule 803(8)(A) “does not provide for the admissibility of the legal conclusions contained within an otherwise permissible public report.” Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir.1989). This is because “the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements underlying the legal conclusions, and, if not, whether the preparer might have a higher or lower standard than the law requires.” Id. at 303. However, “the amorphous line between ‘factual’ and ‘legal’ conclusions may obscure a practical analysis under this rubric.” Id.

This court need not decide now whether the investigator’s ROI determinations constitute factual or legal conclusions. At this stage, it may consider any evidence that could be presented in a form admissible at trial. See Fed.R.Civ.P. 56(c)(2). Because the ROI qualifies as such, the court will consider it in deciding the present motion.

C. Paragraph 13

Finally, Mr. Calhoun argues that Paragraph 13 in Secretary McHugh’s statement of undisputed facts relates inadmissible hearsay and should thus be struck. Doc. 29 ¶¶ 12-13. The statement reads, “Mr. O’Connor reported that Mr. Calhoun was sleeping on the job when Mr. O’Connor was Mr. Calhoun’s first line supervisor.” Doc. 27 at 6 (citation omitted). Mr. Calhoun suggests that Secretary McHugh is improperly offering this fact for the truth of the matter asserted. See Doc. 29 ¶ 13. The Secretary denies this interpretation. Instead, he asserts that “it’s proferred to show that Mr. O’Connor reported that Mr. Calhoun was sleeping on the job when Mr. O’Connor was [Mr. Calhoun’s] supervisor, not to show that [Mr. Calhoun] was sleeping on the job.” Doc. 40 at 5 (emphasis in original).

The Secretary does not explain this point further. He particularly fails to explain how he could reduce the fact that Mr. O’Connor made this specific report to admissible evidence at trial. Therefore, the Secretary has failed to adequately respond to Mr. Calhoun’s evidentiary arguments. The court will thus sustain Mr. Calhoun’s objection to Paragraph 13 and will not consider it in evaluating the Secretary’s motion for summary judgment.

Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[S]ummary judgment is proper if 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 a judgment as a matter of law.”) (internal quotation marks omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (citation omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the moving party’s evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505 (internal citations omitted).

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (citation omitted). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16 (citation omitted). First, the mov-ant may simply show that there is an absence of evidence to support the non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17 (citation omitted). When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (citation omitted). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

Statement of the Case

I. Factual Background

With this standard in mind, the court summarizes the following basic case facts. Mr. Calhoun is an African-American man. On December 18, 2006, he began his first term appointment as a “General Equipment Mechanic Helper” in the Tracked Systems Division of the Production Directorate at the Army Depot in Anniston, Alabama. His term was renewable and was initially scheduled to last until January 18, 2008. At the time of his hiring, his “first-line supervisor” was James McKinney — also an African-American man. Shortly afterward, Edgar O’Connor — an Asian-American man — replaced Mr. McKinney as Mr. Calhoun’s “first-line” supervisor. David Funderburg, the Tracked Systems Division Chief and an African-American man, was Mr. Calhoun’s “second-line” supervisor.

Mr. O’Connor’s line, which included Mr. Calhoun, worked on the M-88 tank. As a mechanic helper, Mr. Calhoun drove a forklift and “worked in suspension” of the M-88. This included putting on brakes, tires, and hubs. Sometime in 2007 — before Mr. Calhoun’s initial term had ended — Mr. O’Connor recommended that Mr. Calhoun’s term not be extended. After meeting with Mr. Calhoun and Mr. O’Connor, Mr. Funderburg decided to extend Mr. Calhoun’s term.

The Tracked System Division’s “Stryker line” included a Disassembly — or “tear down” — side and an Assembly — or “rebuild” — side. When Stryker tanks returned from a war zone, Disassembly workers stripped the tank down to the hull; Assembly workers rebuilt them. In January 2008, the Stryker line workload dramatically increased. To accommodate the increased production, management “borrowed” employees from other lines and recruited volunteers to transfer to the Stryker line. Mr. Calhoun volunteered, and his supervisors assigned him to the Stryker line as a mechanic helper. On that line, his first-line supervisor was Monroe Wood — an African-American — and William “Patrick” Webber — a Caucasian— was the “lead” person. His second-line supervisor remained Mr. Funderburg. In July 2008, Mr. McKinney became Mr. Calhoun’s second-line supervisor after Mr. Funderburg deployed abroad.

Shortly after being assigned to the Stryker line in January 2008, Mr. Calhoun requested to work on the Assembly side. He asked Mr. Webber on one occasion and then asked Mr. Wood. Mr. Wood denied both requests. On or around March 7, 2008, Mr. Calhoun reported an on-the-job injury, and his supervisors placed him on “light” duty. He became dissatisfied with this work — which involved sweeping the work area — and he again asked Mr. Wood to let him work on the Assembly side. Mr. Wood again denied the request.

Mr. McKinney counseled Mr. Calhoun on leave and attendance issues when Mr. McKinney was Mr. Calhoun’s first-line supervisor on the M-88 line. When Mr. Calhoun joined the Stryker line, he experienced similar issues with his superiors. On March 19, 2008, Mr. Wood issued Mr. Calhoun a memorandum on “Instructions for Requesting Leave.” On March 24, 2008, Mr. Wood sent Mr. Calhoun to leave counseling. Beginning in May 2008, Mr. Wood charged Mr. Calhoun “absent without leave” (“AWOL”) on several occasions. Mr. Wood further asked that Mr. Calhoun be issued an official letter of leave instruction. Mr. Calhoun complained to his union in the spring or summer of 2008 regarding his workplace treatment. Relatedly, Mr. Judd Gedgoves — a Caucasian co-worker of Mr. Calhoun’s on the Stryker line— would also often “call in” late to report his absences.

Shortly after he returned to work in March 2008 following his work-related injury, Mr. Calhoun alleges that Mr. Wood made a serious of vulgar remarks to him. On July 16, 2008, Mr. Funderburg recommended that Mr. Calhoun’s term not be extended. On August 20, 2008, Mr. Wood notified Mr. Calhoun that his term would not be extended. On September 4, 2008, Mr. Calhoun reported to Mr. McKinney that Mr. Wood had made several inappropriate remarks to him during his time there. Mr. Calhoun reported the remarks to the Depot’s Equal Employment Opportunity (“EEO”) Office on the same day. In response, Mr. McKinney conducted an investigation on the matter and issued Mr. Wood a Letter of Warning on October 7, 2008. Mr. Calhoun’s term appointment expired on October 14, 2008.

II. Procedural History

On June 12, 2009, Mr. Calhoun filed a formal EEOC complaint, alleging race and gender discrimination and reprisal. Doc. 28-8 at 2. On December 8, 2011, he filed the Complaint in this case. Doc. 1. On February 14, 2012, Secretary McHugh filed a motion to dismiss Count IV of the Complaint (42 U.S.C. § 1983) and “Fictitious Parties A, B, and C” — as well as to strike the punitive damages request. Doc. 6. The court granted this motion on May 14, 2012. Doc. 12. Secretary McHugh filed the current motion on May 13, 2013. Doc. 26. Mr. Calhoun responded on June 3, doc. 30, and the Secretary replied on July 8, doc. 44.

Discussion

Because Secretary McHugh need not prove liability at trial, he can meet his burden here either by (1) showing an absence of evidence to support Mr. Calhoun’s case; or (2) offering affirmative evidence demonstrating that Mr. Calhoun will be unable to prove his case at trial. Fitzpatrick, 2 F.3d at 1115-17. Mr. Calhoun alleges four claims against Secretary McHugh that are presently relevant:

• Race Discrimination — Disparate Treatment;

• Race Discrimination — Discriminatory Discharge;

• Retaliation; and

• Sexual Harassment — Hostile Work Environment.

Doc. 1 at 7-12.

The court will grant Secretary McHugh partial summary judgment. The Secretary fails to meet his burden on Mr. Calhoun’s racial discrimination and retaliation claims, but he succeeds on Mr. Calhoun’s sexual harassment claim. Mr. Calhoun has evidentially supported a prima facie case as to his disparate treatment, discriminatory discharge, and retaliation claims. Moreover, he has presented evidence which rebuts the nondiseriminatory and nonretaliatory reasons that Secretary McHugh offers for the adverse actions taken against him. However, Mr. Calhoun cannot prove that the vulgar comments his supervisor directed at him were sufficiently severe and pervasive to alter his employment terms and conditions. Thus, his sexual harassment claim will not survive summary judgment.

I. Mr. Calhoun Has Identified Genuine Factual Issues Over Whether He Suffered Racial Discrimination.

A. Legal Framework

Title VII prohibits an employer from discriminating against an employee in the terms and conditions of his or her employment on the basis of race. 42 U.S.C. § 2000e-2(a)(l). Under this statute, a plaintiff like Mr. Calhoun must ultimately prove that his employer harbored discriminatory intent in treating him adversely during his employment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.”). The plaintiff can prove discriminatory intent through either direct or circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

Direct evidence of discriminatory intent is rare. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (“There will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.”). Such evidence may take the form of facially-discriminatory employment policies, job assignments, or employer statements. See, e.g., Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir.1999) (holding that telephone-marketing corporation’s pre-election campaign, in which African-American employees were assigned to call African-American voters using “black script,” while white employees called white voters using “white script,” was direct evidence of disparate treatment on basis of race).

When a plaintiff seeks to prove discriminatory intent through circumstantial evidence, a court usually evaluates the claim under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, the plaintiff first has the burden of proving a prima facie case by a preponderance of the evidence. In a racial discrimination claims such as Mr. Calhoun’s, the plaintiff makes such a case by evidence that:

• he is a member of a protected class;

• he was subjected to adverse employment action;

• his employer treated similarly-situated white employees more favorably; and

• he was qualified to do the job.

See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999) (citations omitted). Discharging this burden is not onerous. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff need only establish facts adequate to permit a discriminatory inference. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997).

Once the plaintiff has made out the elements of the prima facie case, the burden of production shifts to the employer to articulate a non-discriminatory basis for its employment action. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citation omitted). If the employer meets this burden, the discriminatory inference disappears, and the plaintiff must then show by a preponderance of the evidence that the proffered reasons were pretextual. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Where the plaintiff succeeds in discrediting the employer’s proffered reasons, the trier of fact may conclude that the employer intentionally discriminated. Reeves, 530 U.S. at 148, 120 S.Ct. 2097.

Mr. Calhoun seeks to prove Secretary McHugh’s discriminatory intent circumstantially. That is, he offers evidence from which (he claims) a fact-finder may infer that Secretary McHugh — though his subordinates — had a racially-discriminatory motive in (1) adversely treating him during his employment; and (2) not renewing his employment term when it completed. Mr. Calhoun makes his prima fa-cie case on both counts. In response, the Secretary offers legitimate, nondiscriminatory reasons for Mr. Calhoun’s adverse treatment. However, Mr. Calhoun rebuts these justifications by identifying several valid factual disputes over whether the justifications are pretextual.

B. Mr. Calhoun has made a prima facie case of racial discrimination because he was adversely treated when a similarly-situated white employee was not.

Secretary McHugh admits that Mr. Calhoun, as a black male, is a member of a protected class and was qualified for his position with the Army. Doc. 27 at 16. The Secretary denies, however, that Mr. Calhoun suffered adverse employment actions or that he can identify a legitimate white “comparator” who was treated differently. Id. Mr. Calhoun alleges three discrete adverse employment actions taken against him that (he claims) cumulatively imply a discriminatory motive on his superiors’ part. These alleged actions are:

• His supervisors denied him reassignment to the Stryker Assembly area;

• Monroe Wood, his first-line supervisor, improperly gave him AWOLs while he worked on the Stryker line; and

• His superiors did not renew his employment term.

Secretary McHugh challenges each action, although on different grounds. The court will address each challenge and then state these actions cumulatively satisfy Mr. Calhoun’s prima facie case.

1. Denial of Reassignment

Secretary McHugh maintains that denying Mr. Calhoun’s reassignment request did not qualify as an adverse employment action. Id. at 16. He argues that such a decision was not sufficiently material to render Mr. Calhoun’s prima facie claim actionable under the McDonnell Douglas scheme. Id. at 17-18. The Secretary is incorrect.

Of course, “not all conduct by an employer negatively affecting an employee constitutes adverse employment action.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir.2001) (citations omitted); see also Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000) (“Title VII is neither a general civility code nor a statute making actionable the ordinary tribulations of the workplace.”) (quotation and internal quotation marks omitted), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White (Burlington Northern), 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Burnette v. Northside Hosp., 342 F.Supp.2d 1128, 1137 (N.D.Ga.2004) (quoting Davis, 245 F.3d at 1239, 1244) (“[A] court should not act as ‘a super-personnel department’ by second-guessing an employer’s business judgment about where it assigns its employees.”). Rather, “to prove adverse employment action in a case under Title VII’s anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment.” Davis, 245 F.3d at 1239 (emphasis in original). Although this analysis “does not require proof of direct economic consequences in all cases, the asserted impact cannot be speculative and must at least have a tangible adverse effect on the plaintiffs employment.” Id. “Moreover, the employee’s 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. at 1239-40 (citation and footnote omitted). In short, the employment action must meet a “threshold level of substantiality” before it is cognizable. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998).

Mr. Wood’s denial of Mr. Calhoun’s reassignment requests meets this threshold. Mr. Calhoun testified in his deposition- that working in the Assembly area:

• involved greater responsibilities than Disassembly;

• improved one’s mechanical skills in a way that could not occur in Disas-sembly;

• had superior working conditions; and

• entitled one to higher employment grades and thus higher potential compensation.

Doc. 28-2 at 73 (“With rebuild, you know, you can get higher grades. You can make more money. The more you learn about a tank, the more money you’re eligible to make.”). Secretary McHugh does not directly dispute these claims. Instead, the Secretary argues that Mr. Calhoun’s reassignment denial cannot qualify as adverse because Mr. Calhoun cannot prove “that he would have experienced a change in pay or benefits had he been permitted to work in the assembly area.” Doc. 27 at 17.

Such a concrete change is not necessary. Under the prima facie analysis, it is sufficient that reassignment to Assembly would have given Mr. Calhoun greater prestige, greater responsibilities, cleaner work conditions, and — most importantly — eligibility for pay increases. See Akins v. Fulton County, Ga., 420 F.3d 1293, 1300-01 (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 ... Similarly, a transfer to a less desirable position in terms of pay or eligibility for pay increases is an adverse employment action because it is equivalent to a demotion.”) (citations omitted) (emphasis added); McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir.1994) (concluding that employee’s transfer to job that reduced her eligibility for salary increases — even though her salary had not decreased — still qualified as adverse employment action); see also Barnhart v. Wal-Mart Stores, Inc., 206 Fed.Appx. 890, 893 (11th Cir.2006) (unpublished) (“A lateral transfer that does not result in lesser pay, responsibilities, or prestige is not adverse. Likewise, the refusal to give an employee such a transfer cannot be an adverse employment action.”) (internal citation and quotation marks omitted).

2. Similarly-Situated Employees

Secretary McHugh next argues that Mr. Calhoun has not identified any suitable white comparators who were treated differently than he at the Anniston Depot. Doc. 27 at 18-19. The Secretary discounts Mr. Calhoun’s proffered comparator, Judd Gedgoves — a white man and Mr. Calhoun’s fellow employee on the Stryker line. Id. at 19. Mr. Calhoun asserts that, like himself, Gedgoves had attendance issues in the spring and summer of 2008. Doc. 1 ¶ 35. However, the Stryker line supervisors did not punish Gedgoves similarly. Id. In response, Secretary McHugh claims that Gedgoves was not “similarly situated” to Mr. Calhoun because Gedgoves’s conduct differed from Mr. Calhoun’s in several material respects. Doc. 27 at 19. These alleged differences include the following:

• although Gedgoves was frequently late, he would — unlike Calhoun — still call in to notify his superiors;

• unlike Calhoun, he was not issued a leave restriction letter; and

• unlike Calhoun, his attendance improved after being counseled.

Id. According to Secretary McHugh, because the “quantity and quality” of Ged-goves’s misconduct was not “nearly identical” to Mr. Calhoun’s, Gedgoves does not qualify as a suitable comparator under McDonnell Douglas. Id. at 18 (quoting Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir.2006)).

The Secretary has misstated the prevailing prima facie standard within this circuit. Gedgoves’s conduct did not have to be “nearly identical” to Mr. Calhoun’s. Instead, Gedgoves’s conduct only had to be “similar” to Mr. Calhoun’s to qualify as a comparator. See Holifield, 115 F.3d at 1562 (“In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.”) (emphasis added) (citation omitted). Still, a plaintiff must show that he and the identified comparator(s) are similarly situated in all relevant respects. Id. (citations omitted). This analysis involves comparing the nature of (1) the offenses committed, and (2) the punishments imposed. See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir.2008). If the plaintiff fails to prove a legitimate comparator exists, summary judgment is appropriate where no other discrimination evidence is present. Holifield, 115 F.3d at 1562.

Gedgoves engaged in sufficiently similar conduct as Mr. Calhoun to qualify as a comparator for Mr. Calhoun’s prima facie case. Mr. Calhoun claims that Gedgoves would — like Mr. Calhoun — frequently miss work or come in late during their time together on the Stryker line. However, according to Mr. Calhoun, Gedgoves:

• never called in;

• was never given AWOLs;

• was never required to bring in doctor’s excuses; and

• was never otherwise reprimanded for his similar conduct.

Doc. 28-1 at 37. Secretary McHugh admits that Gedgoves “was late a couple of times calling in to work when he was taking leave.” Doc. 44 at 12-13. The Secretary denies, on the other hand, that Gedgoves was never reprimanded. He instead maintains that Gedgoves “was written up and counseled for not calling in to work in a timely fashion, and, once counseled, Gedgoves corrected his behavior.” Id.

The Secretary also objects that whether Gedgoves was required to bring in doctor’s excuses is immaterial to the court’s analysis. Id. at 12. Mr. Wood’s “primary concern with Calhoun ... was Calhoun’s failure to properly request leave” — not whether he had doctor’s excuses for his absences. Id. Finally, Secretary McHugh acknowledges that Mr. Wood’s leave records for Gedgoves do not reflect an AWOL designation. Id. at 13. But, the Secretary once again objects that this fact is immaterial because Gedgoves was not similarly situated to Mr. Calhoun. Id. Unlike Mr. Calhoun, Gedgoves had “plenty of annual and sick leave to use,” and he corrected his behavior after counseling. Id.

Altogether, Mr. Calhoun has demonstrated that Gedgoves’s situation and conduct were sufficiently similar to Mr. Calhoun’s to qualify Gedgoves as a comparator. Like Mr. Calhoun, Gedgoves worked on the Stryker line. The Secretary admits Gedgoves had attendance problems — like Mr. Calhoun. The Secretary also acknowledges that Gedgoves was punished differently than Mr. Calhoun. Of course, Secretary McHugh maintains there are legitimate, nondiscriminatory reasons why Gedgoves was punished differently. However, the court is not concerned with such justifications at the pri-ma facie stage. Mr. Calhoun has revealed that he and Gedgoves occupied similar positions, committed similar offenses, and yet suffered different punishments. This is sufficient for Mr. Calhoun to meet his prima facie burden.

3. Nonrenewal

Finally, Secretary McHugh disputes that Mr. Calhoun was technically discharged from his position at the Anni-ston Army Depot. Doc. 27 at 19-20. The Secretary claims instead that Mr. Calhoun’s term appointment expired, and his superiors decided not to renew it. Id. at 20. According to the Secretary, this does not qualify as a termination, and thus Mr. Calhoun’s discriminatory discharge claim is not legally cognizable. Id.

Under the McDonnell Douglas scheme, this is a distinction without a difference. Although Mr. Calhoun characterizes his claim as a “discriminatory discharge” in his Complaint, the relevant issue — for pri-ma facie purposes — is not whether Mr. Calhoun was technically discharged. It is whether he suffered an “adverse employment action.” See, e.g., Davis, 245 F.3d at 1238 (“Courts have uniformly read this language to require a plaintiff suing under § 2000e-2(a) to establish, as part of his prima facie case, that he suffered so-called ‘adverse employment action.’ ”). The non-renewal of his term-employment contract qualifies as such an action. See Giles v. Daytona State Coll., Inc., 542 Fed.Appx. 869, 873 (11th Cir.2013) (unpublished) (“Although the 2010 nonrenewal of the annual contract was an adverse employment action, [the plaintiff] did not demonstrate that [the defendant] treated similarly situated employees more favorably.”); Saridakis v. S. Broward Hosp. Dist., 681 F.Supp.2d 1338, 1348-49 (S.D.Fla.2009) (finding non-renewal of contract to be adverse employment action for purposes of Title VII discrimination claim); Thomas v. Dade County Pub. Health Trust, 177 F.Supp.2d 1283, 1291 (S.D.Fla.2001) (observing that it was “undisputed” that a physician-plaintiff whose annual residency contract was not renewed was subjected to adverse action).

4. Cumulative Impact

So far, the court has individually assessed Mr. Calhoun’s adverse employment claims. However, the court must also consider whether these alleged actions are collectively adverse. See Akins, 420 F.3d at 1301 (citing Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002)) (“In deciding whether employment actions are adverse, we consider the employer’s acts both individually and collectively.”) (footnote omitted). The court finds that they do. Mr. Calhoun has shown that — in the space of several months—he was:

• repeatedly denied lateral reassignment to a position with superior conditions, greater responsibilities, and entitlement to pay grade increases;

• charged AWOLs that were permanently added to his records; and

• denied renewal of his employment contract.

Even if any of these actions were not discretely “adverse,” they are certainly so when evaluated cumulatively. See Shannon, 292 F.3d at 716 (“While the other actions of which [the plaintiff] complains might not have individually risen to the level of adverse employment action under Title VII, when those actions are considered collectively, the total weight of them does constitute an adverse employment action.”) (internal quotation marks and citation omitted). Moreover — as already discussed — Mr. Calhoun has identified a suitable white comparator who was treated differently than he was. He has thus made a prima facie case of disparate treatment.

C. Mr. Calhoun successfully rebuts Secretary McHugh’s stated reasons for treating him adversely during his employment at the Depot.

In response to Mr. Calhoun’s prima fa-cie claims, Secretary McHugh offers performance-based reasons why each adverse action taken against Mr. Calhoun was made. With the burden reverting back to him, Mr. Calhoun produces triable issues over whether these reasons were simply pretext for racial discrimination. The court will examine the parties’ respective arguments on each point.

1. Legal Framework

In order to rebut an employee’s prima facie case successfully, an employer must “clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection.” Burdine, 450 U.S. at 255, 101 S.Ct. 1089 (footnote omitted). The employer must be sufficiently specific so as to give the plaintiff “a full and fair opportunity to demonstrate pretext.” Id. at 255-56, 101 S.Ct. 1089. The employer need not prove, however, “that it was actually motivated by the proffered reasons.” Id. at 254, 101 S.Ct. 1089 (citation omitted). Rather, it need only produce evidence of its nondiseriminatory termination rationale sufficient to raise a genuine factual issue as to whether it discriminated against the plaintiff. Id. (footnote omitted). If it does so, it has rebutted the employee’s case.

Once the employer meets its burden to produce a nondiseriminatory reason for its actions, the presumption of discrimination disappears. Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (citations omitted). To survive summary judgment, the employee must come forward with evidence sufficient to permit a reasonable fact-finder to conclude that the legitimate reasons given by the employer were not its true reasons, but were instead a pretext for discrimination. Id. at 143, 120 S.Ct. 2097. “A plaintiff can demonstrate pretext either directly by persuading the court that a discriminatory or retaliatory reason ‘more likely motivated the employer,’ or indirectly by showing ‘the employer’s proffered explanation is unworthy of credence.’” Wiggins v. Sec’y, Dep’t of Army, 520 Fed.Appx. 799, 800-01 (11th Cir.2013) (unpublished) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089).

How the plaintiff meets this burden alters when his or her employer offers multiple nondiseriminatory reasons for their termination. Generally, “if the plaintiff cannot create a genuine issue of material fact regarding whether each of the defendant employer’s articulated reasons is pretextual, the employer is entitled to summary judgment.” Moore v. Jefferson County Dep’t of Human Res., 277 Fed.Appx. 857, 859 (11th Cir.2008) (unpublished) (emphasis added) (citing Cooper v. S. Com., 390 F.3d 695, 725 (11th Cir.2004)). Whether this injunction applies, however, depends on whether the employer’s articulated reasons qualify as independent bases for termination. There are cases where “the multiple grounds offered by the defendant are not truly independent but are so intertwined that the taint by an issue of fact as to one such reason undermines the other reasons as well.” Strickland v. Prime Care of Dothan, 108 F.Supp.2d 1329, 1334-35 (M.D.Ala.2000) (citing Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995)) (internal quotation marks omitted).

2. Denial of Reassignment

Secretary McHugh adequately rebuts Mr. Calhoun’s prima facie case on the denial of his transfer request. The Secretary argues that Mr. Calhoun did not have the requisite electrical experience to work on the Assembly area when he arrived on the Stryker line in January 2008. Doc. 27 at 26-27. In support, the Secretary cites Mr. Webber’s testimony at the Administrative Fact-Finding Conference on August 19, 2009. Id. at 28. Mr. Webber was the “lead man” on the Stryker line’s second shift with Mr. Calhoun in January 2008. Doc 28-2 at 199-200. As lead man at that time, he was involved in assigning incoming workers to either Assembly or Disassembly. Id. at 205. Webber testified that his decision-making as to these assignments operated in the following manner:

First, we would look at if they had any electrical experience beforehand, because that was really the major items that we needed, was the doing the drive compartment. And if none of them had that, then what we did, we’d bring everybody in on the disassembly ... Then they had the opportunity, after they learned the vehicle and they wanted to move to a different part, the assembly part, then they were able to move to a different part of the assembly part.

Id. at 202. Because Mr. Calhoun lacked electrical experience — a substantive prerequisite for the job — Webber assigned him to Disassembly. See id.

Secretary McHugh adds another nondis-eriminatory rationale for Mr. Calhoun’s treatment in this regard: his physical limitations. Doc. 27 at 27. The Secretary emphasizes that Mr. Calhoun was injured two months into his time on the Stryker line and placed on “light duty.” Id. After that time — according to the Secretary— Mr. Calhoun could not have sustained the rigorous Assembly-line duties. See id. Mr. Webber seconded this judgment in his conference testimony. According to Web-ber, Mr. Calhoun’s injury-related restrictions prevented him from getting inside vehicles and lifting anything heavy — both requirements for Assembly work. Doc. 28-2 at 204-05. Consequently, Mr. Calhoun could only sweep and clean up around the work area. Id. at 205.

Mr. Calhoun vigorously disputes this account, and he argues that the Secretary’s supposed justifications instead acted as a pretext for segregating black workers like himself in Disassembly. Contrary to the Secretary’s assertions otherwise, Mr. Calhoun maintains that he indeed had relevant prior experience for Assembly work. Doc. 28-1 at 30. Specifically, he claims he did rebuild-type work during his previous experience on the M-88 line. Id. This work included putting on brakes, tires, hubs — “basically anything dealing with the suspension of the tanker gear.” Id. Mr. Calhoun emphasizes that this rebuild experience was all that was needed for assignment to Stryker Assembly. Doc. 30 at 6-7. According to Mr. Calhoun, no one arriving on the Stryker line with him in early 2008 had specialized experience with the Stryker vehicle. Id. In his account, everyone needed training — regardless of electrical experience.

Mr. Calhoun essentially argues that his experience — or lack thereof — had nothing to do with the refusal of his transfer request. Instead, he claims his supervisors placed him (and kept him) in Disassembly because of his race. He points foremost to the racial distribution of work assignments on the Stryker line:

Eight employees, including Calhoun, came to the Stryker vehicle at the same time. Four of those employees were white males who were placed in rebuild. Three black males were placed in tear down. One black female was placed in parts. All employees had to be trained on the job.

Id. at 7 (internal citations omitted). Further, Mr. Calhoun claims Mr. Wood relied exclusively on Mr. Webber — a white male — in making these assignment decisions. Id.

In his administrative conference testimony, Mr. Wood acknowledged the possible accuracy of Mr. Calhoun’s racial distribution estimate. Doc. 28-2 at 53-54. Wood also admits relying on Webber in making assignment decisions because he had “no knowledge of how the tank or vehicle operated or whatever.” Id. at 91. But, Wood claimed the numbers turned out that way because only those who had “mechanical experience on previous combat-type vehicles” could work on Assembly. Id. at 54. According to Wood, Mr. Calhoun had mostly driven a forklift on the M-88 line. Id. at 55. Mr. Calhoun contested this description in his own conference testimony. He alleged Wood knew that he had proper mechanical experience on the M-88 line because Wood worked as a supervisor right next to him during that time. Id. at 78.

Mr. Calhoun has identified several factual disputes regarding his supervisors’ refusal to place him in Assembly. These disputes encompass legitimate arguments over:

• the degree and sufficiency of his mechanical experience;

• whether Assembly specifically required electrical experience (or whether general mechanical experience was adequate);

• whether any of those workers assigned to Assembly already had the supposedly-required electrical experience;

• the degree to which Wood relied on Webber in making assignment decisions;

• what Calhoun’s physical limitations were after his injury;

• whether they prevented him from performing Assembly duties; and

• what the racial allocation was between Assembly and Disassembly in early 2008.

These disputes are sufficiently material to allow Mr. Calhoun’s disparate treatment claim to survive summary judgment. They credibly undermine Secretary McHugh’s rationale for denying his transfer request, and they plausibly reveal a pretextual motive to racially discriminate against him in doing so. This is enough to submit the matter to a jury. See Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1349 (11th Cir.2007) (“[A] reason is not pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was the real reason.’”) (emphasis in original) (quotation omitted).

3. AWOLs

A similar dynamic unfolds regarding Mr. Calhoun’s complaints that his supervisors improperly charged him AWOL during his time on the Stryker line. The Secretary counters that the charges occurred because Mr. Calhoun refused to follow established leave procedures. Doc. 27 at 27. Specifically, the Secretary claims that Wood punished Mr. Calhoun with AWOL on May 13, May 27, and June 9-11, 2008, because Mr. Calhoun repeatedly failed to request permission for unscheduled leave he was taking. Doc. 44 at 32.

Violations of work rules are legitimate, nondiscriminatory reasons to treat an employee adversely. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.1999). However, an employer’s claim that this defense applies is “arguably pretextual” when the employee submits evidence that:

• he did not violate the cited work rule; or

• if he did violate the rule, other employees outside the protected class, who engaged in similar acts, were not similarly treated.

Bush v. Houston County Comm’n, 414 Fed.Appx. 264, 267 (11th Cir.2011) (unpublished) (quoting Damon, 196 F.3d at 1363). If the employee argues that he did not violate the cited work rule, “the ultimate issue is whether the decisionmaker believed that the employee violated the rule, not whether the employee actually violated the rule.” Id. (citing Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)). That is, “an employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct.” Smith v. Int’l Paper Co., 160 F.Supp.2d 1335, 1346 (M.D.Ala.2001) (citing Damon, 196 F.3d at 1363 n. 3). Eather, “the employee must point to evidence which raises a question as to whether the decisionmaker, in fact, knew that the violation did not occur and, despite this knowledge, fired the employee based upon the false premise of an alleged work rule violation.” Sweeney v. Ala. Alcoholic Beverage Control Bd., 117 F.Supp.2d 1266, 1273 (M.D.Ala.2000).

In response to the Secretary’s claims, Mr. Calhoun both disputes that he violated the leave-request policies and highlights the disparate treatment Mr. Gedgoves received for similar conduct. On the first front, he admits the following facts:

• On March 19, 2008, Mr. Wood issued him a memorandum of instructions for requesting leave;

• On March 24, 2008, Mr. Wood sent him to leave counseling;

• In May 2008, Mr. Wood charged him with AWOL; and

• Mr. Wood requested that he be issued an official letter of leave instruction.

Doc. 30 at 9-10. However, Mr. Calhoun still claims that he followed leave-procedure instructions by calling or telling Mr. Wood “each and every time” he was absent. Id. at 9. He underscores certain admissions Mr. Wood made in his deposition testimony that undermine Wood’s criticisms of his attendance conduct. Id. Specifically, Wood admitted that:

• he was “always” aware when Calhoun was having a doctor’s appointment;

• he did not notify Calhoun beforehand of the class Calhoun missed on June 9-11, 2008 (for which Wood charged him AWOL); and

• there were discrepancies in his notes from that period, including that they were not chronologically-ordered and that they might not have been his original copies.

Id. Mr. Calhoun further notes that Wood had to remove some of his original AWOL charges after Mr. Calhoun complained to his union that they were unjustified. Id. Mr. Calhoun therefore suggests that Wood punished him with AWOL even though he knew Mr. Calhoun was following the rules.

In reply, Secretary McHugh admits that (1) Wood acknowledged certain inconsistencies in his records from the time in question and that (2) Wood had to remove (or otherwise change) certain AWOL charges he had originally given Mr. Calhoun. Doc. 44 at 15. But, the Secretary reiterates that Mr. Wood charged Mr. Calhoun with AWOL because Mr. Calhoun did not call in on May 13, May 27, and June 9-11, 2008. Id. at 32. He cites Mr. Webber’s testimony at the fact-finding conference that “Calhoun continued to fail to call in despite being repeatedly counseled.” Id.

Mr. Calhoun also contrasts his treatment in this arena with that accorded Mr. Gedgoves. As noted above, Gedgoves was a white employee who worked on the Stryker line with Mr. Calhoun during the relevant time period. Mr. Calhoun asserts that “Gedgoves would fail to call in or come in late weekly and sporadically, and was never given AWOLs or reprimanded for his identical conduct as Calhoun’s alleged conduct.” Doc. 30 at 32. In his testimony, Mr. Calhoun elaborated in the following manner:

[TJhere [were] a lot of times I was out due to doctor’s excuse or me going to the doctor and I was placed on AWOL, but in the same breath, [Gedgoves] was out, he didn’t have no doctor’s excuse, none of that, and he wasn’t placed on AWOL; white male, black male.

Doc. 28-1 at 53. Mr. Calhoun further observes that, although Wood claimed in his deposition that he gave Gedgoves AWOLs for this conduct, there is no documentary evidence of such during the time they worked together. Doc. 30 at 9.

In reply, the Secretary admits that Ged-goves “was late a couple times calling in to work when he was taking leave.” Doc. 44 at 12. As detailed above, however, the Secretary denies that Gedgoves was similarly situated to Mr. Calhoun. In the Secretary’s account, “Gedgoves was written up and counseled for not calling in to work in a timely fashion, and once counseled, Gedgoves corrected his behavior. In contrast, Calhoun, once counseled, did not correct his behavior.” Id. at 12-13. The Secretary also highlights the fact that Gedgoves, as a veteran, had more annual leave and sick leave to use per pay period than Mr. Calhoun did. Id. at 13. Finally, the Secretary admits that the record does not reflect Gedgoves being charged with AWOL. Id. However, he notes that Mr. Calhoun admitted in his opposition brief that Gedgoves received an AWOL in October 2008 after Mr. Calhoun left the Depot. Id. at 13-14.

For the reasons summarized in the previous section, the court concludes as a matter of law that Mr. Gedgoves may act as Mr. Calhoun’s comparator. See supra pp. 25-29. Given this conclusion, Mr. Calhoun has identified several genuine areas of material factual dispute bearing on whether the Secretary’s justifications for Mr. Calhoun’s AWOL charges are pretextual. These areas include:

• whether Calhoun followed proper leave procedures after his March 2008 injury;

• relatedly, whether Calhoun — and to what degree — Calhoun informed Wood when these absences occurred (or were to occur);

• how much available scheduled leave Calhoun had obtained by that point;

• whether Calhoun’s supervisors imposed different leave-request requirements on him than on Ged-goves;

• on what grounds Wood punished Calhoun for his absences in spring 2008 — i.e. whether it was for failing to call in (either ahead of time or contemporaneously) or whether it was for failing to bring in doctor’s excuses; and

• how and why certain AWOL charges on Calhoun’s record were removed.

In other words, Mr. Calhoun has marshaled evidence plausibly suggesting that his employer penalized him for a work-rule violation that he did not commit — and which his employer knew he did not commit. Moreover, Mr. Calhoun has identified a legitimate white comparator who was handled differently, despite committing arguably-similar violations.

4. Nonrenewal

Secretary McHugh cites similar performance concerns in justifying Mr. Calhoun’s nonrenewal. He claims that “Mr. Funderburg based his recommendation not to extend [Mr. Calhoun’s] term on [his] work record, attendance and performance, including sleeping on the job, as documented by all of Mr. Calhoun’s first-line supervisors.” Doc. 27 at 28. The Secretary emphasizes that Mr. Calhoun’s work issues predated his arrival on the Stryker line. He notes that (1) Mr. McKinney counseled Mr. Calhoun on leave and attendance issues when McKinney was his first-line supervisor on the M-88 line and (2) Mr. O’Connor had recommended that Mr. Calhoun’s original term not be extended. Id. at 29. The Secretary argues that the court should grant him summary judgment on the issue because Mr. Calhoun “cannot show that the Army’s reasons for not extending his term appointment were unworthy of credence or more than likely motivated by race.” Id. at 30.

In response, Mr. Calhoun again challenges these reasons as mere pretext for racial discrimination. He maintains that Funderburg relied solely on Wood’s documentation in declining to renew his term. Doc. 30 at 13. Wood’s records reflected that Mr. Calhoun was “not staying on the job, not coming to work, not reporting to work on time, not calling in.” Id. According to Mr. Calhoun, it was this diagnosis— infected by racial discrimination — that actually accounted for his nonrenewal. See id.

Further, Mr. Calhoun denies having any attendance problems before his injury. He stresses Wood’s deposition admission that he did not have problems with Mr. Calhoun’s attendance before giving him the leave instruction letter on March 18, 2008. Doc. 30 at 33. Mr. Calhoun further claims that Mr. O’Connor recommended nonrenewal of his original term in 2007 because Mr. Calhoun had complained about the disparate racial composition of the M-88 line. Id. at 14. In a larger sense, Mr. Calhoun maintains his superiors purposely altered his records and otherwise fabricated performance issues in order to create a “stated reason” for nonre-newal. Doc. 30 at 34.

In his deposition testimony, Mr. Funder-burg corroborated many of Mr. Calhoun’s assertions. Funderburg acknowledged that Mr. Calhoun had complained to him about the racial configuration of the M-88 line. Doc. 28-8 at 10-11. Indeed, he implicitly admits that there were racial disparities on the line — but found that the black employees wanted to stay where they were. Id. at 11. Funderburg also admits that he relied on Mr. Wood’s documentation in declining to recommend Mr. Calhoun for renewal. Id. at 13, 18-19.

Other parts of the record support Mr. Calhoun’s claims. Wood testified in his deposition that he “didn’t have a problem” with Mr. Calhoun’s attendance prior to his injury. Doc. 28-6 at 18. Moreover, Mr. O’Connor — who had supposedly recommended that Mr. Calhoun not be renewed — reported to the EEOC investigator that he was “unaware” of any attendance problems by Mr. Calhoun prior to March 2008. Doc. 28-8 at 17.

These facts undercut Secretary McHugh’s narrative that Mr. Calhoun had continuous attendance and performance issues from the beginning of his employment at the Anniston Army Depot. Mr. Calhoun has, in turn, marshaled considerable evidence that there were disparities in the treatment of black and white employees at the Depot. Moreover, he has offered individualized evidence that his superiors punished him differently for similar conduct as a white counterpart — a white counterpart whose term was ultimately renewed. Considering this evidence altogether, the court finds that a reasonable fact-finder could agree with Mr. Calhoun that his Army supervisors used his supposed performance issues as a pretext for racially discriminating against him.

II. Mr. Calhoun Has Identified Genuine Factual Issues Over Whether He Suffered Illegal Retaliation.

A. Legal Framework

Under Title VII, it is illegal for an employer to discriminate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As with a disparate treatment claim, a plaintiff alleging a Title VI