Baldwin v. Hyundai Motor Manufacturing Alabama, LLC

Filing 52

MEMORANDUM OPINION AND ORDER as follows: (1) defendant's 18 Motion for Summary Judgment is granted; (2) all of plaintiff's claims are dismissed with prejudice; (3) defendant's 17 Motion to Dismiss, or in the alternative, for Sancti ons is denied as moot; (4) defendant's 38 Motion to Strike is denied as moot; (5) the trial and pretrial in this matter are cancelled; (6) the court will enter a separate final judgment in favor of defendants consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 4/10/09. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D E L V IN L. BALDWIN, P la in tif f , v. H Y U N D A I MOTOR M A N U F A C T U R IN G ALABAMA, LLC, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-13-MEF (W O )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION D e lv in L. Baldwin ("Plaintiff") filed a Complaint (Doc. #1) on January 3, 2008, b rin g in g claims of race discrimination, retaliation, and interference with FMLA rights a g a in s t Hyundai Motor Manufacturing Alabama, LLC ("Defendant") relating to his e m p lo ym e n t as a production line employee. Plaintiff also alleges race discrimination and re ta lia tio n pursuant to 42 U.S.C. § 2000e, et seq ("Title VII") and 42 U.S.C. § 1981 (" s e c tio n 1981"). Finally, Plaintiff alleges that Defendant violated the Family and M e d ic a l Leave Act of 1993 ("FMLA") pursuant to 29 U.S.C. § 2601, et seq. Plaintiff seeks declaratory relief, compensatory damages, punitive damages, e q u ita b le relief, costs, and attorneys' fees. This cause is before the Court on Defendant's M o tio n for Summary Judgment (Doc. # 18) filed on January 9, 2009. In this motion, D e f e n d a n t argues that it is entitled to summary judgment because Plaintiff cannot e s ta b lis h a prima facie case or meet his burden under the McDonnell Douglas framework

on any of his claims. The Court agrees that Plaintiff cannot meet his burden of proof and f in d s that the motion for summary judgment is due to be GRANTED for the reasons set f o rth in this Memorandum Opinion and Order. II. JURISDICTION AND VENUE J u ris d ic tio n over Plaintiff's federal claims is proper under 28 U.S.C. §§ 1331 (f e d e ra l question) and 1343 (civil rights). The parties do not contest personal jurisdiction o r venue, and the Court finds adequate allegations in support of both personal jurisdiction a n d venue. I II . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the b a s is for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it b e lie v e s demonstrate the absence of a genuine issue of material fact." Id. at 323. The m o v a n t can meet this burden by presenting evidence showing there is no dispute of m a te ria l fact, or by showing the non-moving party has failed to present evidence in

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support of some element of its case on which it bears the ultimate burden of proof. Id. at 3 2 2 -2 3 . O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving p a rty to go beyond the pleadings and by [its] own affidavits, or by the `depositions, a n s w e rs to interrogatories, and admissions on file,' designate `specific facts showing that th e re is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586 (1986). On the other hand, a court ruling on a motion for summary judgment m u s t believe the evidence of the non-movant and must draw all justifiable inferences f ro m the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 255 (1986). After the nonmoving party has responded to the motion for s u m m a ry judgment, the court must grant summary judgment if there is no genuine issue o f material fact and the moving party is entitled to judgment as a matter of law. See Fed. R . Civ. P. 56(c). I V . FACTS T h e Court has carefully considered all documents, declarations and affidavits s u b m itte d in support of and in opposition to the motion. The submissions of the parties, v ie w e d in the light most favorable to the non-moving party, establish the following facts: A . The Parties

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Plaintiff is an African American male. Defendant operates an automobile m a n u f a c tu rin g facility in Montgomery, Alabama that produces Hyundai Sonata and Santa F e automobiles. Defendant employed Plaintiff as a full-time Production Team Member o n May 9, 2005 and assigned Plaintiff to the Chassis Final Four Team. Plaintiff asserts n u m e ro u s claims against Defendant relating to his employment including race d is c rim in a tio n , retaliation, and interference with his FMLA rights. B. Defendant's Employee Hierarchy D e f e n d a n t's Assistant Manager of General Assembly supervises Group Leaders. Group Leaders supervise Chassis production teams and their Team Members. Team L e a d e rs also supervise Team Members. In this role, Team Leaders assign Team M e m b e rs to different tasks. In particular, a Team Leader may assign a Team Member to " f lo a te r" duties. A "floater" floats from station to station as needed to relieve or fill in for o th e r Team Members who are away from the production line. Team Members who serve a s "floaters" are not given addition pay or benefits. In addition, Defendant makes no d is tin c tio n with regard to status, rank, or other benefits between Team Members who s e rv e as "floaters" and those without "floater" duties. C. Plaintiff's Letters of Complaint to Defendant I . February 2006 Letter In February of 2006, Plaintiff submitted a letter to Defendant with the subject line " T ra n s f e r." In his letter, Plaintiff expressed concern that Defendant disciplined African

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American Team Members for leaving the work place without authorization but did not d is c ip lin e a Caucasian employee for similar behavior. Plaintiff himself was not involved in the incident. Plaintiff also requested a transfer from the Chassis Final Four Team to th e Pre-Delivery Inspection Team. Lastly, Plaintiff complained in the letter that he could n o t receive fair treatment because none of the managers in his department were African A m e r ic a n . A u d ie Swegman, Defendant's Team Relations Manager ("Swegman"), replied to P la in tif f 's concerns in a letter dated February 22, 2006. Swegman explained that he could n o t discuss the matter of Team Members leaving work without authorization without v io la tin g Team Member confidentiality. However, Swegman assured Plaintiff "that this m a tte r was handled appropriately in all respects." Swegman also explained to Plaintiff th a t he was not eligible for a transfer because there was no position open on the PreD e liv e ry Inspection team and because he was not eligible to transfer.1 In conclusion, S w e g m a n encouraged Plaintiff to report any specific complaints of discrimination. ii. May 2006 Letter On May 5, 2006 , Plaintiff submitted a second letter to Defendant with the subject lin e "Retaliation, Harassment, Discrimination in the Workplace." Plaintiff's letter c o n ta in e d several complaints: (1) Plaintiff was assigned to "float" in April 2006 but was th e n removed from that position in May 2006, (2) Plaintiff was not promoted to Team As required by Defendant's Transfer Policy, an employee is not eligible to transfer until he has worked for at least twelve months. 5
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Leader, (3) Team Member Gene Wilson, an African American male, was assigned a T e a m Leader position, (4) Plaintiff had not been transferred to Chassis Final Five Team, a n d (5) a Team Member had threatened Plaintiff. In response to Plaintiff's second letter, Shawn Flate and Stacye Jones of the Team R e la tio n s Department ("Flate and Jones") met with Plaintiff. Flate and Jones also met w ith Gene Wilson and the other Team Members that Plaintiff mentioned in his letter. After their meetings, Flate and Jones determined that Plaintiff has not been unfairly tre a te d , threatened, or discriminated against. On June 15, 2006, Flate sent Plaintiff a le tte r summarizing their conclusions. The letter stated: "On or about May 5, 2006 Team Relations received written complaint from yo u about a situation that you believed included acts of discrimination. Upon through [sic] investigation we were unable to confirm any acts of u n la w f u l discrimination. HMMA is committed to maintaining a work e n v iro n m e n t free from all forms of unlawful discrimination. Cases of such u n la w f u l harassment should be reported to your group leader/manager, team re la tio n s representative, or the team relations manager. These matters will b e promptly investigated and appropriate action taken in accordance with H M M A policy." T h e re a f te r, Defendant considered the investigation closed. iii. March 2007 Letter On March 21, 2007, Plaintiff requested a transfer to the Production Control D e p a rtm e n t in a third letter. In his request, Plaintiff complained that his Team Leader, S e d ric k Bowman ("Bowman"), harassed African American males. Bowman is also an A f ric a n American male. In response to Plaintiff's request, Defendant's Team Relations

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Department offered to reassign Plaintiff to the Chassis Final Two Team so that Plaintiff w o u ld no longer work with Bowman. Plaintiff agreed and planned to start at his new p o s itio n on Monday, March 26, 2007. D. Altercation with Bowman O n Friday, March 23, 2007, Plaintiff and Bowman had a verbal argument in the w o rk p la c e . Defendant and Plaintiff's descriptions of the argument vary, but the parties a g re e on two aspects of the fight: (1) shortly before the end of Plaintiff's shift, Bowman o rd e re d the Team Members to "build back five units" before leaving for the day, and (2) P la in tif f responded that "it was the end of the shift" and unfair to keep working. Subsequently, Plaintiff alleges that Bowman instigated their argument, threatened h im , and told Plaintiff that he could either "work or go home." Defendant contends that P la in tif f was the aggressor and told Bowman they should "take it outside." Defendant s u b m itte d statements from five other Team Members who witnessed the argument. Bowman reported the verbal dispute to his supervisors on Friday, March 23, 2007. Plaintiff reported the incident on Monday, March 26, 2007, when he reported to his new p o s itio n with the Chassis Final Two Team. E. Plaintiff's Application for Team Leader in January 2007 In January of 2007, Plaintiff and sixteen other Team Members applied for a Team L e a d e r position (collectively "candidates"). Defendant requires Team Leader applicants to undergo an extensive application process. This selection process includes a written

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assessment, interviews, and ranking by other employees. First, applicants complete a w ritte n assessment. This assessment asks each applicant to provide written answers to a s ta n d a rd iz e d set of questions. Defendant grades the applicants' answers and provides e a c h applicant with a numerical score. If an applicant's written assessment score is u n s a tis f a c to ry, then Defendant eliminates that applicant from the promotion process. P la in tif f 's written assessment score was 48 out of 100 points. Of seventeen c a n d id a te s, four candidates scored lower than Plaintiff. Defendant dropped the seven c a n d id a te s with the lowest written assessment scores, including Plaintiff, from c o n s id e ra tio n for Team Leader. Four of those seven were Caucasian employees and three w e re African American employees. Four Team Members were ultimately promoted to T e a m Leader positions. Two of the successful candidates were Caucasian employees and tw o were African American employees. F . Plaintiff's Application for FMLA Leave P la in tif f suffered an injury to his finger before working for Defendant. He rein ju re d that finger and did not work from March 9, 2007 until March 14, 2007. On M a rc h 12, 2007, Plaintiff requested FMLA leave. Defendant's medical leave c o o rd in a to r, Jane Ramsey ("Ramsey"), officially approved Plaintiff's request for FMLA in a letter dated April 12, 2007. Ramsey informed Plaintiff that he had been approved for F M L A leave March 9, 2007 though May 1, 2007. Plaintiff went on FMLA leave on M a rc h 29, 2007, before he had received Ramsey's letter and six days after the altercation

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with Bowman. G . Plaintiff's Employment Termination on April 10, 2007 M a rc u s Hannah ("Hannah"), a Specialist in Defendant's Team Relations D e p a rtm e n t, investigated the altercation between Plaintiff and Bowman. Hannah met w ith Plaintiff, Bowman, and the five Team Members who witnessed the incident. All p a rtie s submitted written statements to Hannah. Based on the statements and his in te rv ie w s , Hannah concluded that Plaintiff became angry when Bowman announced the T e a m had to finish five more units. Hannah also concluded that Plaintiff was the a g g re s s o r and had threatened Bowman. Hannah forwarded his conclusions to Defendant's Workplace Violence C o m m itte e . Wendy Warner ("Warner"), Manager of Defendant's Employment Section, w a s a member of the committee and determined that Plaintiff's employment should be te rm in a te d for violating Defendant's Work Place Violence Policy.2 Warner wrote a letter to Baldwin on April 10, 2007, informing him that his employment was terminated b e c a u s e he was "involved in a situation which, after investigation, was found to violate H M M A 's Work Place Violence Policy." (Doc. # 19, Ex. 20.) H. Charges of Discrimination O n October 6, 2006, Plaintiff signed a Charge of Discrimination against Defendant

Defendant's Work Place Violence Policy 3.1 states that "Threats, threatening behavior, or acts of violence against Team Members, vendors, contractors, visitors, or other individuals by anyone on HMMA property will not be tolerated." (Doc. #19, Ex. E.) 9

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with the Equal Employment Opportunity Commission ("EEOC"). By signing the Charge o f Discrimination, Plaintiff declared under perjury that his statements in the charge were tru e and correct. In the charge, Plaintiff complained of discrimination on the basis of ra c e . Plaintiff stated that he had complained to Defendant in a letter that there were no b la c k managers in his department and that Defendant demoted Plaintiff from his "floater" p o s itio n once Defendant received his letter. Plaintiff also complained of retaliation. On April 20, 2007, Plaintiff signed a second Charge of Discrimination against D e f e n d a n t with the EEOC. In the charge, Plaintiff complained of race discrimination and re ta lia tio n relating to his letters to Defendant and his argument with Bowman. In p a rtic u la r, Plaintiff alleges that Swegman displayed "Klu Klux Klan" material on his v e h ic le and apparel and that Swegeman was unsympathetic to his complaints. I . Alleged Discriminatory Conduct, Retaliatory Conduct, and Interference with R ig h ts Protected by FMLA In this lawsuit, Plaintiff contends that he was discriminated against on the basis of h is race when he was demoted from his "floater" duties. He also alleges that Defendant d is c rim in a te d against him when Defendant did not promote him to Team Leader in J a n u a ry of 2007. Plaintiff also alleges that Defendant discriminated against him by te rm in a tin g his employment on April 10, 2007. Additionally, Plaintiff claims that Defendant unlawfully retaliated against him for c o m p la in in g of race discrimination and filing a Charge of Discrimination with the EEOC o n October 6, 2006. Furthermore, Plaintiff alleges that Defendant violated the FMLA by 10

interfering with his FMLA rights and retaliating against him for requesting FMLA leave. J . The Lawsuit O n January 3, 2008, Plaintiff filed suit in this Court. Plaintiff seeks declaratory a n d equitable relief as well as damages for alleged discrimination on the basis of race, re ta lia tio n , and violations of the FMLA. Plaintiff complained of the following acts of d is c rim in a tio n : (1) Defendant removed Plaintiff from "floater" duties in May of 2006 and d id not remove Caucasian employees, (2) Defendant did not promote him to Team Leader in January of 2007 and promoted less qualified Caucasian employees, and (3) Defendant te rm in a te d Plaintiff's employment on April 10, 2007 and did not terminate the e m p lo ym e n t of similarly situated Caucasian employees. Plaintiff also complained of F M L A retaliation and interference with FMLA rights. Plaintiffs sought a remedy for the a lle g e d race discrimination pursuant to section 1981 and Title VII. Plaintiff also sought re m e d y for retaliation pursuant to section 1981 and Title VII. Pursuant to the FMLA, P la in tif f sought remedy for interference with FMLA rights and retaliation. V . DISCUSSION P la in tif f seeks recovery pursuant to section 1981 and Title VII on his race d is c rim in a tio n and retaliation claims. Plaintiff also seeks recovery under the FMLA for re ta lia tio n and interference with his FMLA rights. The Court will first consider P la in tif f 's race discrimination claims. A. Alleged Discrimination

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Plaintiff argues he was discriminated against on three occasions: (1) Defendant re m o v e d Plaintiff from "floater" duties in May of 2006, (2) Defendant did not promote h im to Team Leader in January of 2007, and (3) Defendant terminated Plaintiff's e m p lo ym e n t on April 10, 2007. The Court concludes that no reasonable fact finder could f in d Plaintiff has established a prima facie case on his claims. Therefore, Defendant is d u e to be granted summary judgment on Plaintiff's race discrimination claims. P la in tif f seeks recovery pursuant to Title VII and section 1981. In this Circuit, T itle VII and section 1981 claims have the same legal elements when the claims are based o n the same set of facts. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164 (1 9 8 9 ); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008); see also R ic h a r d s o n v. Leeds Police Dep't, 71 F.3d 801, 805-806 (11th Cir. 1995). Because P la in tif f 's claims are based on the same facts, the Court's discussion of Plaintiff's d is c rim in a tio n claims are the same whether the Court is considering Plaintiffs claims p u rs u a n t to Title VII or section 1981. An employee bringing a claim under Title VII must initially establish a prima facie c a s e of discrimination through one of three methods: by presenting direct evidence of d is c rim in a to ry intent, presenting circumstantial evidence of discrimination by satisfying th e analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its p ro g e n y, or by introducing statistical evidence of discrimination. Walker v. NationsBank o f Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Because Plaintiff has presented

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neither appropriate statistical evidence, nor direct evidence, in support of his claims of d is c rim in a tio n , the Court will address only Plaintiffs' circumstantial evidence. To establish a discrimination claim by circumstantial evidence using the M c D o n n e ll Douglas framework, the employee has the initial burden of showing, by a p re p o n d e ra n c e of the evidence, a prima facie case of the proscribed practice. Young v. G e n e r a l Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1 9 8 9 ). The essence of the prima facie case is that the employee presents circumstantial e v id e n c e sufficient to generate a reasonable inference by the fact finder that the employer u s e d prohibited criteria in making an adverse decision about the employee. If established, th e prima facie case raises a rebuttable presumption that the employer is liable to the e m p lo ye e . Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff e s ta b lis h facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F .3 d 1555, 1562 (11th Cir. 1997). The Eleventh Circuit Court of Appeals has repeatedly emphasized that the re q u isite showings that make up a prima facie case are not meant to be rigid or inflexible. See, e.g., Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (collecting cases). In cases where the evidence does not fit neatly into the classic p rim a facie case formula, for example, [the Eleventh Circuit h a s ] stated that "[a] prima facie case of disparate treatment c a n be established by any `proof of actions taken by the e m p lo ye r from which we infer discriminatory animus because e x p e rie n c e has proved that in the absence of any other 13

explanation it is more likely than not that those actions were b o tto m e d on impermissible considerations.'" Id . at 1268 (citing Hill v. Metro. Atlanta Rapid Trans. Auth., 841 F.2d 1533 (11th Cir. 1 9 8 8 ), modified, 848 F.2d 1522 (11th Cir. 1988) (quoting Furnco Constr. Corp. v. W a te r s, 438 U.S. 567, 576 (1978))). Once a plaintiff establishes the requisite elements of the prima facie case, the d e f e n d a n t has the burden of producing a legitimate, non-discriminatory reason for the c h a lle n g e d employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing T e x a s Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is " e x c e e d in g ly light." Holifield, 115 F.3d at 1564. This burden is one of production, not p e rs u a s io n and consequently, the employer need only produce evidence that could allow a ra tio n a l fact-finder to conclude that the challenged employment action was not made for a d is c rim in a to ry reason. See, e.g., Davis v. Qualico Miscellaneous, Inc., 161 F. Supp. 2d 1 3 1 4 , 1321 (M.D. Ala. 2001). If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once th e employer articulates a legitimate, non-discriminatory reason, the burden returns to the e m p lo ye e to supply "evidence, including the previously produced evidence establishing th e prima facie case, sufficient to permit a reasonable fact-finder to conclude that the 14

reasons given by the employer were not the real reasons for the adverse employment d e c is io n ." Davis, 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1 0 2 4 (11th Cir. 2000) (en banc)). The plaintiff may seek to demonstrate that the p ro f f e re d reason was not the true reason for the employment decision "either directly by p e rs u a d in g the court that a discriminatory reason more likely motivated the employer or in d ire c tly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Combs, 106 F.3d at 1528. A plaintiff's prima facie case, c o m b in e d with sufficient evidence to find that the employer's asserted justification is f a ls e , may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). 1 . May 2006 Removal of "Floater" Duties P la in tif f argues Defendant unlawfully discriminated against him in May of 2006 w h e n Defendant removed him from his "floater" duties.3 Defendant, in response, argues th a t Plaintiff cannot establish a prima facie case of race discrimination. a . Prima facie case T o make out a prima facie case of racial discrimination under Title VII, a plaintiff

Defendant removed Plaintiff from his "floater" duties at Plaintiff's request. Plaintiff argues he asked to be relieved because he was not asked to fill in for the Team Leader while serving as a "floater." In some of his briefs, Plaintiff argues that Defendant's refusal to let him fill in for the Team Leader was discriminatory. However, in the month that Plaintiff's "floated," Gene Wilson, an African American male, filled in for the Team Leader. The Court, therefore, construes Plaintiff's argument as part of his claim that Defendant unlawfully discriminated against him by removing him from his "floaters" duties. 15

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must show (1) he belongs to a protected class; (2) he was qualified to do the job; (3) he w a s subjected to adverse employment action; and (4) his employer treated similarly s itu a te d employees outside his class more favorably. See Knight v. Baptist Hosp. of M ia m i, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). Defendants do not contend that P la in tif f is not a member of a protected class. Defendants argue that Plaintiff cannot e s ta b lis h a prima facie case of race discrimination because Plaintiff's removal from " f lo a te r" duties does not constitute an adverse employment action and Plaintiff cannot s h o w that Defendant treated similarly situated employees outside Plaintiff's class more f a v o ra b ly. The Court agrees. F o r the purposes of a Title VII discrimination claim, the Eleventh Circuit defines a n adverse employment action as an "ultimate employment decision" or some other s h o w in g of substantiality in the employment context. See Crawford v. Carroll, 529 F.3d 9 6 1 , 970 (11th Cir. 2008); Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th C ir. 2001). An ultimate employment decision includes termination, failure to hire, or d e m o tio n . Crawford, 529 F.3d at 970. More particularly, when defining the level of s u b s ta n tia lity required for a Title VII discrimination claim, the Eleventh Circuit requires a n employee to demonstrate he suffered "a serious and material change in the terms, c o n d itio n s , or privileges of employment" to show an adverse employment action. Davis, 2 4 5 F.3d at 1239. C o u rts have been reluctant to hold that job reassignments amount to adverse

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employment action when unaccompanied by any tangible harm. See, e.g., Kocsis v. M u lti-C a r e Mgmt., Inc., 79 F.3d 876, 885 (6th Cir. 1996) (finding that "reassignments w ith o u t salary or work hour changes do not ordinarily constitute adverse employment d e c is io n s in employment discrimination claims"); Mungin v. Katten Muchin & Zavis, 116 F .3 d 1549, 1557 (D.C. Cir. 1997) (agreeing with "other circuits [which] have held that c h a n g e s in assignments or work-related duties do not ordinarily constitute adverse e m p lo ym e n t decisions if unaccompanied by a decrease in salary or work hour changes"). In unusual instances, a change in work assignments may be so substantial and material th a t it alters the "terms, conditions, or privileges" of employment. Davis, 245 F.3d at 1 2 4 5 ; cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077-78 (11th Cir. 1996). However, the Eleventh Circuit has noted that "[i]n the vast majority of instances ... an e m p lo ye e alleging a loss of prestige on account of a change in work assignments, without a n y tangible harm, will be outside the protection afforded by Congress in Title VII's a n ti-d is c rim in a tio n clause." Id. at 1245; see also Davis, 245 F.3d at 1242 (quoting R o b in s o n v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) ("[T]he protections of T itle VII simply do not extend to `everything that makes an employee unhappy'")). T h e re f o re , for a removal of "floater" duties to constitute an adverse employment action w ith in the meaning of Title VII, the removal must result in a tangible harm. P la in tif f 's sole argument is that "floater" duties allow an employee to gain m a n a g e m e n t experience and additional hours. Plaintiff does not provide any evidence

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that he was demoted or that his removal from "floater" duties resulted in any tangible c h a n g e in his employment. Therefore, no reasonable fact finder could find that Plaintiff's re m o v a l from "floater" duties constitutes an adverse employment action. This claim fails to meet the prima facie requirements of a race discrimination claim. E v e n assuming, arguendo, that Plaintiff has established an adverse employment a c tio n , Plaintiff's claim still fails because he cannot show that Defendant treated similarly s itu a te d employees outside Plaintiffs' class more favorably. To be appropriate a c o m p a ra to r, the employee must be "similarly situated in all aspects." Holifield v. Reno, 1 1 5 F.3d 1555, 1563 (11th Cir. 1997); see also Texas Dep't of Cmty. Affairs v. Burdine, 4 5 0 U.S. 248, 258 (1981) ("McDonnell Douglas teaches that it is the plaintiff's task to d e m o n s tra te that similarly situated employees were not treated equally"). "The c o m p a ra to r must be nearly identical to the plaintiff to prevent courts from s e c o n d -g u e s s in g a reasonable decision by the employer." Wilson v. B/E Aerospace, Inc., 3 7 6 F.3d 1079, 1091 (11th Cir. 2004) (internal citations omitted). Plaintiff asserts that James Lenoir ("Lenoir") is a similarly situated comparator. Lenoir is a Caucasian male who Defendant assigned to "float" after Plaintiff was relieved o f "floater" duty.4 However, the Court questions whether Lenoir is similarly situated. D e f e n d a n t submitted evidence that Lenoir had superior communication skills, leadership
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Defendant later designated Lenoir to fill in for the Team Leader while "floating." Defendant also assigned Gene Wilson, an African American male, to fill in for the Team Leader while "floating." Three employees have served as "floaters" but did not fill in as Team Leader: Plaintiff, Josh Crenshaw, and Fred Paoletto. Josh Crenshaw and Fred Paoletto are Caucasian males. 18

abilities, and knowledge of each production line station. In addition, Team Members c o m p la in e d repeatedly to management about Plaintiff's performance and did not c o m p la in about Lenoir's performance. The record, therefore, is undisputed that Lenoir a n d Plaintiff possessed different abilities and relationships with other Team Members. Because Lenoir and Plaintiff had significantly different skills and relationships, no re a s o n a b le fact finder could conclude that Plaintiff has demonstrated that Defendant tre a te d similarly situated employees outside his class more favorably. Accordingly, P la in tif f has not established a prima facie case of discrimination. 2. January 2007 Team Leader Application P la in tif f argues Defendant unlawfully discriminated against him in January of 2 0 0 7 when Defendant did not promote him to the position of Team Leader. Defendant, in re s p o n s e , argues that Plaintiff cannot establish a prima facie case of race discrimination. a . Prima facie case T o make out a prima facie case of racial discrimination in promotion under Title V II, a plaintiff must show (1) he belongs to a protected class; (2) he was qualified and a p p lie d for the promotion; (3) he was rejected despite his qualifications; and (4) his e m p lo ye r promoted equally or less qualified employees outside his class. See Wilson v. B /E / Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). The parties do not dispute th a t Plaintiff is a member of a protected class and that Defendant rejected Plaintiff's a p p lic a tio n for the Team Leader position. To establish a prima facie case, therefore,

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Plaintiff must demonstrate that he was qualified for the Team Leader position and that D e f e n d a n t promoted an equally or less qualified employee outside his class. The Court f in d s that no reasonable fact finder could conclude Plaintiff has met his burden. Courts focus on the employer's requirements when considering whether an in d iv id u a l is qualified for the promotion at issue. See e.g., Combs v. Plantation Patterns, 1 0 6 F.3d 1519, 1543 (11th Cir. 1997) (stating "federal courts do not sit to second-guess th e business judgment of employers"); Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1 1 8 1 , 1187 (11th Cir. 1984) (holding an "employer may fire an employee for a good re a s o n , a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason"). An employee's expectations do not e s ta b lis h requisite qualifications. Lee v. GTE Florida, Inc., 226 F.3d 1249, 1255 (11th C ir. 2000) (finding that employee's opinion that she is more qualified that other candidate " is insufficient to raise a genuine issue of fact"); Holifield v. Reno, 115 F.3d 1555, 1564 (1 1 th Cir. 1997) (explaining that a plaintiff's "opinion, without more, is not enough to e s ta b lis h a prima facie case" of discrimination); Brooks v. County Comm'n of Jefferson C o u n ty , Ala., 446 F.3d 1160, 1165 (11th Cir. 2006) (noting that the plaintiff's beliefs that h is qualifications were superior are insufficient). Defendant required Team Leader applicants to undergo an extensive application p ro c e s s that included a written assessment, interview, and a ranking by other employees. Seventeen employees applied for a Team Leader position. Plaintiff's written assessment

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score was 48 out of 100 points. Four applicants scored lower than Plaintiff on the written a s s e s sm e n t. Defendant dropped the seven applicants with the lowest written assessment s c o re s from the application process, including Plaintiff. While Plaintiff was eligible to sit f o r the Team Leader written assessment, he was not qualified for the position because his w ritte n assessment score was among the lowest. Therefore, no reasonable fact finder c o u ld find that Plaintiff was qualified for the position. E v e n assuming that Plaintiff was qualified to be a Team Leader, he cannot e s ta b lis h the fourth element of a prima facie case because he cannot show that Defendant p ro m o te d an equally or less qualified employee outside his class. To demonstrate this e le m e n t, a plaintiff must show that the disparities in qualifications are of "such weight a n d significance that no reasonable person, in the exercise of impartial judgment, could h a v e chosen the candidate selected over the plaintiff for the job in question." See Cooper v . Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), overruled on other grounds by Ash v . Tyson Foods, Inc., 546 U.S. 454 (2006) (per curiam). In other words, a comparator is a n employee "similarly situated [to the plaintiff] `in all relevant respects.'" Wilson, 376 F .3 d at 1091. Here, four Caucasian employees were among the seven applicants that Defendant d ro p p e d from the application process due to their low written assessment scores. Like P la in tif f , the Caucasian employees with low scores were not selected for a Team Leader p o s itio n . Defendant ultimately promoted four employees to Team Leader positions. Two

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of the successful applicants were Caucasian and two were African American. Therefore, P la in tif f has not identified any comparator for the Team Leader promotion. Plaintiff also f a ile d to present evidence that no reasonable person could have selected Defendant's c h o ic e s for Team Leader over Plaintiff. Because Plaintiff did not demonstrate he was q u a lif ie d and did not identify a similarly situated comparator, no reasonable fact finder c o u ld find that Plaintiff has established a prima facie case of race discrimination.5 3 . April 10, 2007 Employment Termination P la in tif f argues Defendant unlawfully discriminated against him on April 10, 2007, w h e n Defendant terminated his employment. Defendant contends that Plaintiff cannot e s ta b lis h a prima facie case of discrimination and that is has a legitimate, nond is c rim in a to ry reason for terminating Plaintiff's employment. Defendant argues it d is c h a rg e d Plaintiff because he violated Defendant's Work Place Violence Policy. a . Prima facie case T o make out a prima facie case of race discrimination under Title VII, a plaintiff m u s t show (1) he is a member of a protected class; (2) he was subjected to an adverse e m p lo ym e n t action; (3) his employer treated similarly situated employees outside of his p ro te c te d class more favorably than he was treated; and (4) he was qualified to do the job. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1322 (11th Cir. 2006). Defendant

Defendant has also presented evidence that it had a legitimate, non-discriminatory reason for not promoting Plaintiff to Team Leader: Plaintiff's written assessment score was 48 out of 100 points. 22

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contends that Plaintiff cannot demonstrate that it treated a similarly situated employee o u ts id e his protected class more favorably. The Court agrees. To determine whether employees are similarly situated, the court evaluates " w h e th e r the employees are involved in or accused of the same or similar conduct and are d is c ip lin e d in different ways." Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th C ir. 2008) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). A c o m p a ra to r is an employee "similarly situated [to the plaintiff] `in all relevant respects.'" Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (quoting Holifield v. R e n o , 115 F.3d 1555, 1562 (11th Cir. 1997)). The "`quantity and quality of the c o m p a ra to r's misconduct [must] be nearly identical to prevent courts from s e c o n d -g u e s s in g employers' reasonable decisions and confusing apples with oranges.'" Burke-Fowler, 447 F.3d at 1323. Misconduct merely "similar" to the misconduct of the d is c ip lin e d plaintiff is insufficient. Id. at n.2. Therefore, "the plaintiff must show that the c o m p a ra to r employees are involved in or accused of the same or similar conduct yet are d is c ip lin e d in a different, more favorable manner." Anderson v. WBMG-42, Parker C o m m c 'n s, Inc., et al., 253 F.3d 561, 564 (11th Cir. 2001). Plaintiff identified two comparators in his Complaint: Jay Farrior ("Farrior") and D re w Pierce ("Pierce")6 . Farrior is a Caucasian male. In June of 2006, Farrior and a
6

In Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment (Doc. #35), Plaintiff identifies two other comparators: Min Ho Lee and "a Korean Hyundai employee." Plaintiff has not submitted any evidence that these alleged comparators are similarly situated in all relevant aspects. 23

temporary female employee ("Pierson") were on a work break. Pierson struck Farrior on th e head with her hand. Farrior struck back. Both were laughing. Defendant's Team R e la tio n s Department investigated the incident by interviewing and obtaining statements f ro m witnesses.7 The Team Relations Department concluded that (1) Farrior was the not a g g re s s o r, and (2) the incident was horseplay and not actual violence. The Team R e la tio n s Department forwarded its conclusion to the Workplace Violence Committee, w h ic h suspended Farrior for three days and issued a disciplinary memorandum. Defendant released Pierson back to her employer. Defendant argues that Farrior's incident differs from Plaintiff's because Farrior w a s the not aggressor and Defendant's Team Relations Department determined that the in c id e n t was horseplay. The Court agrees that Plaintiff and Farrior are not sufficiently s im ila rly situated. In Plaintiff's case, Defendant's Team Relations Department d e te rm in e d that the altercation between Plaintiff and Bowman contained serious threats a n d that Plaintiff was the aggressor. Plaintiff also identified Drew Pierce as a comparator (" P ie rc e " ) in his Complaint. Plaintiff alleges that Pierce lunged at him in a threatening m a n n e r and that Defendant did not discipline Pierce. Pierce is an African American male

In Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment (Doc. #35), Plaintiff contends that he personally observed Farrior choking Pierson. Plaintiff did not submit any evidence that he told Defendant his observations during Defendant's investigation. Regardless, Defendant investigated Farrior's altercation and Plaintiff's altercation and came to different conclusions. Plaintiff has not submitted any evidence that Defendant's investigations were done in bad faith. See Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (stating that a court should "not sit as a super-personnel department"to examine an employer's management decisions) (internal citations omitted). 24

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and therefore not an appropriate comparator. No reasonable fact finder could find that P la in tif f has established a prima facie case of retaliation with respect to his employment te rm in a tio n because Plaintiff did not offer any evidence that employees outside his class w e re involved in the same or similar conduct yet disciplined in a different, more favorable m a n n e r. B . Plaintiff's Claim of Alleged Retaliation In his Complaint, Plaintiff alleges that Defendant unlawfully retaliated against him f o r opposing unlawful employment practices pursuant to Title VII and section 1981. Retaliation claims also require analysis under the McDonnell Douglas shifting f ra m e w o rk . See Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001). Under this framework, the plaintiff has the initial burden of showing, by a preponderance o f the evidence, a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 9 7 3 ). Once the plaintiff establishes a prima facie case, the defendant has the burden of p ro d u c in g a legitimate, non-discriminatory reason for the challenged employment action. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). If the defendant p ro d u c e s such a reason, then the plaintiff has the ultimate burden of proving the reason to b e a pretext for unlawful retaliation. Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2 0 0 8 ).

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1. May 2006 Removal of "Floater" Duties a . Prima facie case P la in tif f alleges that Defendant unlawfully removed him from his "floater" duties in May of 2006 because he had written several letters complaining of race discrimination. Plaintiff wrote letters complaining of race discrimination in February of 2006 and May of 2 0 0 6 . To prevail on a Title VII retaliation claim, a plaintiff must show: (1) he engaged in p ro te c te d opposition to discrimination; (2) a reasonable employee would have found the c h a lle n g e d action materially adverse; and (3) a causal connection exists between the p ro te c te d activity and the materially adverse action. See Burlington N. & Santa Fe Ry. C o . v. White, 548 U.S. 53, 54 (2006); Grimsley v. Marshalls of MA, Inc., 284 Fed. Appx. 6 0 4 , 608 (11th Cir. 2008) (recognizing that the new Burlington standard applies to Title V II's anti-retaliation provision but does not apply to substantive claims of d is c rim in a tio n ); Reis v. Uni. City Dev. Partners, Ltd., 422 F. Supp. 2d. 1238, 1253 (M.D. F la . 2006) (applying objective "reasonable employee" standard to Title VII retaliation c la im ). Defendant contends that Plaintiff cannot establish the second two elements of a p r im a facie case. The Court agrees that Plaintiff cannot demonstrate the third prima facie e le m e n t. In Burlington Northern & Santa Fe Ry. Co. v. White, the United States Supreme C o u rt discussed how harmful an act of retaliatory discrimination must be in order to fall w ith in the prohibition of Title VII. 548 U.S. 53, 54 (2006). While answering this

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question, the Court held that "a plaintiff must show that a reasonable employee would h a v e found the challenged action materially adverse, which in this context means it well m ig h t have dissuaded a reasonable worker from making or supporting a charge of d is c rim in a tio n ." Id. The Court emphasized that such adversity must be material as the s ta tu te does not protect employees from "those petty slights or minor annoyances that o f te n take place at work." Id. The Court also stressed the objective nature of this s ta n d a rd and the necessity of applying its general terms in the context of each case. Id. Applying the Burlington standard to the undisputed facts of this case, there is a s u f f ic ie n t evidentiary basis for a fact finder to conclude that a removal of "floater" duties is materially adverse to a reasonable employee. Although a "floater" does not receive a d d itio n a l pay or benefits, Plaintiff submitted evidence that "floating" duties carry some p re s tig e among co-workers. Therefore, a fact finder could conclude that a reasonable w o rk e r would be dissuaded from writing letters complaining of race discrimination if it re s u lte d in his removal from "floating." T o establish a prima facie case, however, Plaintiff must also demonstrate a causal c o n n e c tio n between his letters of complaint and his removal from "floater" duties. "The causal link element is construed broadly so that `a plaintiff merely has to prove that th e protected activity and the negative employment action are not completely unrelated.'" Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (citations o m itte d ). One common method of establishing the causal link element with

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circumstantial evidence is close temporal proximity between the adverse employment a c tio n and the protected activity. However, where there is significant delay between the p ro te c te d conduct and the allegedly retaliatory acts, the timing of the events does not c o n s titu te circumstantial evidence of causation. See, e.g., Clark County Sch. Dist. v. B re e d e n , 532 U.S. 268, 273-74 (2001) (citing with approval several court of appeals d e c is io n s for the proposition that a three to four month gap is insufficient to establish the c a u s a l relation prong in a retaliation case); Wascura v. City of South Miami, 257 F.3d 1 2 3 8 , 1244-45 (11th Cir. 2001) (While a close temporal proximity between two events m a y support a finding of a causal connection between those two events, the three and o n e -h a lf month period between plaintiff's protected conduct and the adverse employment a c tio n challenged does not, standing alone, establish a causal connection); Keel v. United S ta te s Dep't of Air Force, 256 F. Supp. 2d 1269, 1291 (M.D. Ala. 2003) (more than seven m o n th gap between protected conduct and allegedly retaliatory conduct was insufficient a s a matter of law to establish the causation element of the prima facie case of re ta lia tio n ); Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1146-47 (M.D. Ala.), aff'd w ith o u t opinion, 88 Fed. App. 385 (11th Cir. 2003) (granting employer summary ju d g m e n t on three of plaintiff's retaliation claims because plaintiff was unable to e s ta b lis h the requisite causal connection between her protected conduct and her adverse e m p lo ym e n t actions where lapses of time six months or longer existed between the p ro te c te d conduct and the adverse employment actions). In addition to temporal

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proximity, a plaintiff must also establish that the defendant was actually aware of the p ro te c te d expression at the time the defendant took the adverse employment action to s a tis f y the "causal link" prong of a prima facie retaliation case. Raney v. Vinson Guard S e r v ., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (citing Goldsmith v. City of Atmore, 996 F .2 d 1155, 1163 (11th Cir. 1993)). Plaintiff has established sufficient temporal proximity between the protected a c tiv ity and the materially adverse action. Plaintiff wrote the letters of complaint in F e b ru a ry and May of 2006, and Defendant removed Plaintiff from his "floater" duties in M a y of 2006. However, Plaintiff did not offer any evidence that those who decided to re m o v e him from "floater" duties were actually aware that he had written letters of c o m p la in t. Indeed, Plaintiff did not submit any evidence identifying those who made the d e c is io n to remove him from "floater" duties. Therefore, no reasonable fact finder could f in d that Plaintiff has met the prima facie requirements of retaliation.8 2 . January 2007 Team Leader Application a . Prima facie case P la in tif f also alleges that Defendant unlawfully denied him the position of Team L e a d e r in January of 2007 because he filed a Charge of Discrimination with the EEOC on

In addition, Defendant has submitted evidence of a legitimate, non-discriminatory reason for removing Plaintiff from "floater" duties. Plaintiff had asked to be relieved and several Team Members had complained of Plaintiff's performance. Plaintiff did not offer any evidence of pretext. Therefore, even assuming, arguendo, that Plaintiff could establish a prima facie case, Defendant is still entitled to summary judgment on this claim. 29

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October 6, 2006. Defendant does not dispute that Plaintiff's filing constitutes protected a c tiv ity and that Plaintiff suffered an adverse employment action. Defendant argues that P la in tif f has not established the third element of the prima facie case ­ the causal link b e tw e e n the protected activity and the adverse employment action. H e re , Plaintiff did not offer any evidence that those making the Team Leader d e c is io n were aware in January of 2007 that he had made a complaint to the EEOC in O c to b e r of 2006. Therefore, no reasonable fact finder could find that Plaintiff has e s ta b lis h e d a prima facie case of retaliation with respect to the Team Leader promotion. b . Legitimate Non-Discriminatory Reason A s su m in g , arguendo, that Plaintiff has satisfied the elements of a prima facie re ta lia tio n case with respect to the Team Leader promotion, Plaintiff's claim still fails u n d e r the McDonnell Douglas framework. Once a plaintiff has established a prima facie c a s e of retaliation, the defendant then has the burden of producing a legitimate, nond is c rim in a to ry reason. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1 9 9 7 ). Defendant has presented evidence of a legitimate non-discriminatory reason for d e n yin g Plaintiff the position of Team Leader in January of 2007: Plaintiff did not p e rf o rm satisfactorily on the written assessment. All other employees that Defendant p ro m o te d had scored higher on the written assessment than Plaintiff, and two employees w h o became Team Leaders were African American males. Because Plaintiff hasn't s h o w n that Defendant's legitimate, non-discriminatory reason to be a pretext, Defendant

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is entitled to summary judgment. 3 . April 10, 2007 Employment Termination a . Prima facie case P la in tif f also alleges that Defendant unlawfully terminated his employment on A p ril 10, 2007 because he filed a Charge of Discrimination with the EEOC on October 6, 2 0 0 6 . Defendant argues that Plaintiff has not established the causal link element of the p r im a facie case. The Court agrees. O v e r six months elapsed between Plaintiff's filing and Defendant's decision to te rm in a te his employment. This time period is insufficient to establish the temporal p ro x im ity requirement of the causal relation element. See supra Section V.B.1.a. Plaintiff also did not offer any evidence that Warner, who decided to terminate his e m p lo ym e n t, was aware that Plaintiff had made a complaint to the EEOC. Therefore, no re a s o n a b le fact finder could find Plaintiff had demonstrated a prima facie case of r e ta lia tio n .9 C . Plaintiff's FMLA Claims of Interference and Retaliation C o n g re s s enacted the FMLA to create job security for employees who have serious h e a lth conditions that prevent them from working for temporary periods. See 29 U.S.C. § 2 6 0 1 (a )(4 ). Among the substantive rights granted by the FMLA to eligible employees are th e right to "12 work weeks of leave during any 12-month period .... [b]ecause of a Defendant also offered evidence of a legitimate, non-discriminatory reason for terminating Plaintiff's employment: Plaintiff violated Defendant's Work Place Violence Policy. 31
9

serious health condition that makes the employee unable to perform the functions of the p o s itio n of such employee" and the right following leave "to be restored by the employer to the position of employment held by the employee when the leave commenced" or to an e q u iv a le n t position. 29 U.S.C. § 2614(a)(1). To preserve these rights and enforce them, th e FMLA creates two types of claims: interference claims and retaliation claims. Strickland v. Water Works & Sewer Bd. Of City of Birmingham, 293 F.3d 1199, 1206 (1 1 th Cir. 2001). 1 . Interference T o state an interference claim, an employee must demonstrate that he was entitled to but denied a substantive right under the FMLA. O'Connor v. PCA Family Health Plan, In c ., 200 F.3d 1349, 1353-54 (11th Cir. 2000). An employer, however, may present an a f f irm a tiv e defense and deny a substantive right "if it can demonstrate that it would have d is c h a rg e d the employee had it not been on FMLA leave." Strickland, 239 F.3d at 1206. For example, the "FMLA does not insulate an employee who has requested medical leave f ro m being terminated for poor performance." Gamba v. City of Sunrise, 157 Fed. Appx. 1 1 2 , 112 (11th Cir. 2005) (stating that "[s]o long as the employer would have taken the s a m e action it did regardless of the request for leave, there is no statutory violation"). D e f e n d a n t argues as an affirmative defense that it would have terminated P la in tif f 's employment irregardless of whether he had requested FMLA leave. The re c o rd shows that Defendant discharged Plaintiff because of his altercation with Bowman

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and that Wagner was not aware of Plaintiff's FMLA status. In his response to D e f e n d a n t's argument, Plaintiff "relies on [his] argument stated herein to demonstrate th a t the record does not establish beyond dispute that Hyundai would have discharged B a ld w in had he not taken his FMLA leave." (Doc. #35. pg. 20). On a motion for s u m m a ry judgment, the Court deals with undisputed facts and with the application of the la w to those facts. Plaintiff's burden at summary judgment to "go beyond the pleadings a n d by [her] own affidavits or by the `depositions, answers to interrogatories, and a d m is sio n s on file' designate `specific facts showing that there is a genuine issue for tria l.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citation omitted). Here, D e f e n d a n t has submitted several pieces of evidence that it discharged Plaintiff because of h is altercation with Bowman. Plaintiff has not submitted any evidence from which a re a s o n a b le fact finder could find that Defendant would not have terminated his e m p lo ym e n t had he not requested FMLA leave. Accordingly, the Court has carefully c o n s id e re d the submissions of the parties to find that no fact finder could find Plaintiff h a s established a FMLA interference claim. 2 . Retaliation T o succeed on a claim of retaliation under the FMLA, an employee must d e m o n s tra te that (1) he engaged in a statutorily protected activity; (2) he suffered an a d v e rs e employment decision; and (3) the decision was causally related to the protected a c tiv ity. Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir. 2000).

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Unlike a FMLA interference claim, a retaliation claim carries the burden of showing that th e employer's actions were motivated by an impermissible retaliatory or discriminatory a n im u s . Strickland, 293 F.3d at 1207. When an employee asserts a claim of retaliation u n d e r the FMLA, in the absence of direct evidence of the employer's intent, the Eleventh C irc u it applies the McDonnell Douglas burden-shifting framework. Id. D e f e n d a n t argues that Plaintiff cannot establish the third element of a prima facie c a s e ­ that Warner fired him for engaging in a protected activity. Plaintiff contends that th e short time lapse between his FMLA leave and Warner's decision to fire him c o n s titu te s sufficient circumstantial evidence to demonstrate that Defendant was re ta lia tin g against him for seeking FMLA protection. The Eleventh Circuit has held that " [ a ] decision maker cannot have been motivated to retaliate by something unknown to h im ." Brungart v. BellSouth Telecomm. Inc., 231 F.3d 791, 799 (11th Cir. 2000). Evidence of a short time lapse between an employee's leave and an employer's decision to fire the employee cannot satisfy the causation element of an FMLA retaliation claim a lo n e . Strickland, 293 F.3d at 1208 (finding that nine days between FMLA leave and e m p lo ye r's decision to fire plaintiff insufficient to satisfy causally related element); S p a n n v. DynCorp Technical Servs., LLC, 2006 WL 1667294 at *3 (11th Cir. 2006) (f in d in g that "temporal proximity ... alone is not sufficient to establish pretext"). P la in tif f has presented no evidence that Warner knew about Plaintiff's request to ta k e FMLA leave. Defendant has presented the Court with Warner's declaration where

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she states, under penalty of perjury, that she had no knowledge of Plaintiff's FMLA re q u e s t at the time she decided to terminate his employment. Therefore, no reasonable f a c t finder could Plaintiff has demonstrated a prima facie case of FMLA retaliation.10 D . Defendant's Motion to Dismiss, or in the Alternative, for Sanctions A ls o before the Court is Defendant's Motion to Dismiss, or in the Alternative, for S a n c tio n s (Doc. # 17), filed on February 11, 2009. Defendant argues that Plaintiff p re ju d ic e d Defendant by engaging in a pattern of deceit, presenting false and misleading te s tim o n y, and obstructing the discovery process. Because Defendant is due to be granted s u m m a ry judgment on all of Plaintiff's claims, Defendant's Motion to Dismiss is due to b e DENIED AS MOOT. E . Defendant's Motion to Strike D e f e n d a n t's Motion to Strike Material from Plaintiff's Evidentiary Submission (D o c . # 38) presently before this Court is due to be DENIED AS MOOT due to the fact th a t whether or not any of the evidence at issue was stricken would not alter this Court's r u lin g . V I . CONCLUSION F o r the reasons set forth in this Memorandum Opinion and Order, the Court finds th a t Defendants are entitled to summary judgment on all of Plaintiffs' claims.

In addition, Defendant has presented a legitimate, non-discriminatory reason for terminating Plaintiff's employment: Plaintiff's altercation with Bowman. Plaintiff has not presented any evidence of pretext. 35

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Accordingly, it is hereby ORDERED as follows: (1) Defendant's Motion for Summary Judgment (Doc. # 18) is GRANTED; (2) All of Plaintiff's claims are DISMISSED WITH PREJUDICE; (3 ) Defendant's Motion to Dismiss, or in the Alternative, for Sanctions (Doc. # 17) is DENIED as moot; (4) Defendant's Motion to Strike (Doc. #38) is DENIED as moot; (5 ) The trial and pretrial in this matter are CANCELLED; (6) The Court will enter a separate final judgment in favor of Defendants c o n s is te n t with this Memorandum Opinion and Order. DONE this the 10th day of April, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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