Barto Benjamin v. Chemtall Inc.

Filing

Opinion issued by court as to Appellant Barto P Benjamin. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-13218

Date Filed: 03/11/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13218
Non-Argument Calendar
________________________
D.C. Docket No. 4:13-cv-00088-BAE-GRS

BARTO P BENJAMIN,
Plaintiff-Appellant,
versus
SNF HOLDING COMPANY,
Defendant,
CHEMTALL INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 11, 2015)
Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:

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Plaintiff Barto Benjamin appeals pro se from the district court’s grant of
Defendant Chemtall Inc.’s motion for summary judgment on Benjamin’s race and
age employment-discrimination claims, brought under 42 U.S.C. § 1981, Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1). On appeal,
Benjamin contends that the evidence was sufficient for a jury to conclude that he
was fired because of his race or his age. 1 After careful review, we affirm.
I.
Benjamin, an African-American male, was hired by Chemtall in 2006 as a
warehouse manager at its facilities in Riceboro, Georgia. Benjamin was 53 years
old at the time. Chemtall is a manufacturer that produces and ships products used
to treat water.
As warehouse manager, Benjamin was responsible for the operations of the
1

Benjamin also appears to challenge an interlocutory magistrate judge order denying his
request to serve additional interrogatories, as well as the district court’s substitution of Chemtall
as the named defendant in place of SNF Holding Company, which Benjamin had named in his
complaint. Chemtall represented in its answer that it was a subsidiary of SNF Holding Company
and that it was Benjamin’s actual employer.
With regard to the discovery order, Benjamin did not appeal the order to the district
court, so he has waived his right to appeal that order to this Court. See Smith v. Sch. Bd. of
Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (“We have concluded that, where a party
fails to timely challenge a magistrate’s nondispositive order before the district court, the party
waived his right to appeal those orders in this Court.”); Fed. R. Civ. P. 72(a). With regard to the
substitution issue, even if any error had been committed by the district court, it would be
harmless because the court properly granted summary judgment on Benjamin’s claims. See Fed.
R. Civ. P. 61 (instructing reviewing courts to disregard all errors that do not affect the substantial
rights of the parties). We refer to the defendant as “Chemtall” throughout this opinion.
2

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Warehouse Department, which included processing and shipping customer orders
and developing standardized practices. In this capacity, Benjamin supervised over
thirty employees. His supervisory responsibilities included training, counseling,
and disciplining employees or recommending discipline for employees.
From February 2009 to April 2009, the Warehouse Department made a
series of shipping errors, some of which triggered customer complaints. Benjamin
does not dispute that the specific incidents occurred or that he ultimately was
responsible for the errors. Specifically, the Warehouse Department shipped (1) a
torn bag of product that had been repaired with duct tape; (2) a 59-drum order that
was 9 drums short; (3) the wrong containers of product to Brazil and Chile, which
caused the company to lose around $100,000 on additional shipping and tariff
costs; (4) off-spec pallets that were not included in the customer’s order; and (5) an
empty tote bin to Korea without inspecting the order beforehand. Joe McCullough,
Benjamin’s supervisor and the Production Planning Director, testified in a
deposition that the third incident in particular, involving shipping the wrong
containers to Brazil and Chile, “drew a lot of attention” to the Warehouse
Department from company management.
Based primarily on these shipping errors, McCullough placed Benjamin on a
thirty-day “Performance Improvement Plan” (“PIP”), and they met to discuss the
PIP on June 9, 2009.

A contemporaneous memorandum given to Benjamin
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regarding the PIP lists the five incidents described above and states, “You have not
been monitoring the work of your employees.

As a Warehouse Department

Manager, you are expected to lead your employees and to provide support and
direction to them in order to meet the objectives of the company. You have failed
to do this.”

The document advises Benjamin that he must “show immediate

improvement and consistent results” to avoid further disciplinary action, including
termination. McCullough met with Benjamin on a weekly basis during the thirtyday PIP to discuss Benjamin’s progress. Following Benjamin’s placement on the
PIP, the Warehouse Department received three additional customer complaints
concerning shipping errors similar to the earlier ones.
At a meeting on September 14, 2009, McCullough and a human-resources
representative discharged Benjamin.

According to McCullough’s deposition

testimony, he terminated Benjamin because his job performance was not
improving and McCullough did not believe that Benjamin could keep up with the
demands of the warehouse as the company continued to grow.

The human-

resources representative also stated in an affidavit that Benjamin did not make
improvements after being placed on the PIP and that McCullough and other
company management agreed that it would be in Chemtall’s best interest to hire a
new warehouse manager. In Benjamin’s termination letter, McCullough explained
that customer complaints continued to originate from the warehouse with no plan
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for improvement, and that Benjamin still was not holding his employees
accountable for their actions. Benjamin was replaced by Robert Jordan, who was
thirty-five years old and white.
After his termination, Benjamin filed a charge of discrimination with the
Equal Employment Opportunity Commission, and then filed suit in the United
States District Court for the Southern District of Georgia.2 Chemtall moved for
summary judgment on Benjamin’s race- and age-discrimination claims. Without
responding to Chemtall’s motion, Benjamin filed a motion for summary judgment
on his age-discrimination claim over a month after the deadline established in a
scheduling order.

The magistrate judge recommended granting Chemtall’s

summary-judgment motion and terminating as a nullity Benjamin’s untimely
motion. According to the magistrate judge, Benjamin did not establish a prima
facie case of discrimination and, even if he had, he failed to show that Chemtall’s
reasons for his discharge—“his poor leadership, lack of supervisory skills, and
failure to perform at the level expected of a warehouse manager”—were pretextual.
The district court adopted the magistrate judge’s recommendation, and this appeal
followed.
II.
2

In addition to his race- and age-discrimination claims under § 1981, Title VII, and the
ADEA, Benjamin alleged claims under the Fair Labor Standards Act and 42 U.S.C. §§ 1983,
1985, and 1986. He does not challenge the disposition of those claims on appeal. Accordingly,
those matters have been abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party. Schwarz v. City
of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). Summary judgment is
appropriate if the movant shows that there is no genuine dispute of material fact
and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Even
where, as here, summary judgment is unopposed, the district court must still
consider the merits of the motion. Reese v. Herbert, 527 F.3d 1253, 1269 (11th
Cir. 2008).

To that end, the court must, at the least, review all evidentiary

materials submitted in support of the motion to determine whether they establish
the absence of a genuine issue of material fact. Id. But the court need not conduct
a sua sponte review of the entire record. Id.
III.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
to discharge or otherwise discriminate against an employee because of his race. 42
U.S.C. § 2000e-2(a)(1). Similarly, 42 U.S.C. § 1981 prohibits race discrimination
in employment by providing that all persons shall have the same right to make and
enforce contracts as white citizens. 42 U.S.C. § 1981(a). In the employment
context, the elements of a race-discrimination claim under § 1981 are the same as
those in a Title VII disparate-treatment claim.
Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000).
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Rice-Lamar v. City of Fort

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The ADEA, in turn, makes it unlawful for an employer to discharge or
otherwise discriminate against an employee because of his age.

29 U.S.C.

§ 623(a)(1). Specifically, the ADEA prohibits employment discrimination against
individuals who are at least 40 years of age. Id. § 631(a).
Where, as here, a plaintiff puts forth only circumstantial evidence in support
of his discrimination claims, we generally apply the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). EEOC
v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002); see Sims v.
MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013) (ADEA); Smith v. LockheedMartin, 644 F.3d 1321, 1325 & n.14 (11th Cir. 2011) (Title VII and § 1981).
Under this framework, the plaintiff bears the initial burden of establishing a prima
facie case of discrimination.3 Joe’s Stone Crabs, Inc., 296 F.3d at 1272. If the
plaintiff establishes a prima facie case, he creates a rebuttable presumption that the
employer unlawfully discriminated against him. Id. The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the challenged
employment action. Id. If the employer satisfies this burden of production, the
burden shifts back to the plaintiff to demonstrate that the proffered reason is
merely a pretext for unlawful discrimination. Id. at 1272-73. Although the burden
3

Generally, in a case alleging discriminatory discharge, the prima facie case is
composed of the following elements: (1) the plaintiff is a member of a protected group; (2) he
was qualified for the job; (3) he was discharged; and (4) he was replaced by someone outside the
protected group. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en
banc) (ADEA); Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982) (Title VII).
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of production shifts back and forth, the ultimate burden of persuasion always
remains with the plaintiff. Id. at 1273.
We affirm the district court’s grant of summary judgment because the court
properly found that Benjamin failed to demonstrate that Chemtall’s reasons for
terminating his employment were pretextual. For that reason, we need not address
whether the court erred in finding that Benjamin did not make out his prima facie
case of discrimination.
Here, Chemtall proffered a legitimate, nondiscriminatory reason for
discharging Benjamin: poor job performance in managing the Warehouse
Department. According to the evidence presented by Chemtall, which is recounted
above, Benjamin’s poor job performance consisted of failures to keep up with the
increasing shipping demands of the growing company, to hold employees
accountable, and to develop plans for improvement. In order to defeat summary
judgment, Benjamin must create a genuine issue of material fact that the
employer’s articulated reasons were merely a pretext for discrimination. Chapman
v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc). We conclude
that Benjamin has not done so.
Benjamin contends that his work performance was not deficient because he
instituted several cost-saving measures during his tenure that saved the company
money on shipping. He also points out that he received raises in the years prior to
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2009. 4 But Benjamin does not deny that the errors identified in the PIP occurred or
that he was ultimately responsible for those errors. And the fact that he received
raises in 2007 and 2008, even if they were performance based, has little relevance
to events occurring in 2009 leading up to his discharge. Therefore, this evidence is
insufficient to show pretext because it does not meet Chemtall’s reason “head on
and rebut it.” Chandler, 229 F.3d at 1030. Benjamin cannot succeed by merely
“quarreling with the wisdom” of Chemtall’s reasons. Id.
Nor has Benjamin presented or identified any evidence to show that
Chemtall was motivated by discriminatory animus. Benjamin did not contest that
his replacement was qualified, and he admitted in his deposition that none of
Chemtall’s managers made any reference to his age or race. Benjamin also stated
that he believed he was terminated due to corruption within the company and
because he did not fit in with McCullough’s personal agenda, undermining his
assertions that he was terminated because of his race and age. And even bad
reasons for discharge, so long as they are not discriminatory, are not actionable
under federal employment-discrimination laws. See id. While Benjamin asserts
that other white managers at Chemtall had more complaints than he but were not
4

Chemtall contends that we should disregard certain facts relied on by Benjamin in his
appellate brief because they were not introduced as evidence before the district court. See
Chapman, 229 F.3d at 1026 (“The rule is that a federal appellate court may examine only the
evidence which was before the district court when the latter decided the motion for summary
judgment.” (internal quotation marks omitted)). We discuss the facts in any event because they
do not show that summary judgment was improper.
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also fired, he has not shown that these other managers were similarly situated for
purposes of comparison. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091
(11th Cir. 2004) (stating that a comparator must be “nearly identical to the plaintiff
to prevent courts from second-guessing a reasonable decision by the employer”).
Because Benjamin has failed to establish a genuine issue of material fact that
Chemtall’s proffered explanation for his termination is pretext for discrimination,
the district court did not err in granting summary judgment on his discrimination
claims. We, therefore, affirm.
AFFIRMED.

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