Merriweather v. Charter Communications, LLC et al
MEMORANDUM OPINION AND ORDER as follows: 1. Mr. Merriweather's Objection (Docs. 46 , 49 ) is OVERRULED; 2. The 45 Recommendation of the Magistrate Judge is ADOPTED. 3. Charter's 24 Motion for Summary Judgment is GRANTED as further set out in the order. A separate judgment will be entered. Signed by Chief Judge William Keith Watkins on 2/25/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
LLC, et al.,
CASE NO. 2:13-CV-456-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Courtney Merriweather filed suit against Defendants Charter
Communications, LLC, Charter Communications Holding Company, LLC, and
Charter Communications, Inc.’s (collectively, “Charter”) for employment
discrimination. Upon referral (Doc. # 41), the Magistrate Judge recommended that
Charter’s motion for summary judgment be granted.
(Doc. # 45.)
Merriweather timely filed an Objection to the Recommendation (Docs. # 46, 49)
and Charter replied (Doc. # 50). After careful consideration of the record, the
parties’ briefs, applicable case law, and the Recommendation, the court finds that
Mr. Merriweather’s Objection is due to be overruled and the Recommendation
I. STANDARD OF REVIEW
The court reviews de novo “those portions of the . . . [R]ecommendation[ ]
to which objection is made.” 28 U.S.C. § 636(b)(1).
Mr. Merriweather, of African-American heritage, alleges that Charter
discriminated against him on the basis of his race by failing to promote him,
assigning him less desirable job duties, segregating its workforce, creating a hostile
work environment, and ultimately, constructively discharging him. Charter moved
for summary judgment (Doc. # 24), and the Magistrate Judge recommended that
Charter’s motion be granted and judgment entered in favor of Charter on all
claims. (Doc. # 45, at 48–49.)
Mr. Merriweather contends that the Recommendation should be rejected and
Charter’s motion for summary judgment denied. He argues that the Magistrate
Judge misapplied the summary judgment standard and improperly applied case law
with regard to four of Mr. Merriweather’s claims.
Failure to Promote
Mr. Merriweather’s first challenge is to the Recommendation’s resolution of
his failure-to-promote claim. The Recommendation found that Mr. Merriweather
failed to establish a prima facie claim of disparate treatment race discrimination
because he could not show that he had suffered an adverse employment action.
Specifically, the Magistrate Judge determined that becoming a CLI Technician
would have been a lateral move for Mr. Merriweather, at best. Mr. Merriweather
challenges the determination that the CLI Technician position would not constitute
a promotion, arguing that genuine disputes of material fact exist as to whether the
new assignment would have come with a pay raise, enabled future career
advancement, and allowed him to physically continue working for Charter.
As outlined in the Recommendation, a prima facie case of disparate
treatment race discrimination requires proof of four elements: (1) plaintiff is a
member of a protected class; (2) “he was subject to [an] adverse employment
action; (3) [defendant] treated similarly situated non-minority employees outside
his classification more favorably; and (4) he was qualified to do the job. Holifield
v. Reno, 115 F. 3d 1555, 1562 (11th Cir. 1997).
For purposes of Mr.
Merriweather’s failure to promote claim, the Recommendation found insufficiency
as to element two – whether Mr. Merriweather suffered an adverse employment
action. To constitute an adverse employment action, an employer’s conduct must
be more than subjectively adverse to the plaintiff; “[i]nstead, the employment
action must be materially adverse as viewed by a reasonable person in the
circumstances.” Hart v. U.S. Att’y Gen. 433 F. App’x 779, 781 (11th Cir. 2011);
Doe v. Dekalb Cnty. Sch. Dist., 145 F. 3d 1441, 1448–49 (11th Cir. 1998).
In his Objection, Mr. Merriweather argues that he “established evidence that
the CLI Technician job was a more prestigious job and that [Mr. Merriweather]
was informed it would be a pay raise and promotion for him if he received the
position.” (Doc. # 49.) A review of the record, however, makes clear that Mr.
Merriweather provided little more than his own speculation and opinion as to the
anticipated benefits of becoming a CLI Technician.1
First, Mr. Merriweather argues that transitioning into the new role would
possibly have resulted in a pay increase because CLI Technicians could earn
anywhere from $10.95 to $16.45, while he was only earning $13.33 as a BBT II
(“Broadband Technician II”). This hope for a raise in compensation is objectively
unsupported, however, as the record shows that Mr. Merriweather’s earning
potential as a BBT II was $1.50 higher than that of the CLI Technician, having a
pay range of $12.05 to $18.05. Additionally, the individual hired to fill the CLI
Technician vacancy instead of Mr. Merriweather was paid at a rate of $11.50 an
hour, almost $2.00 less an hour than he was making as a BBT II. Lastly, Paige
Wilder, Charter’s Director of Human Resources, testified that, based on Charter’s
In his deposition, Mr. Merriweather does assert that a Charter Human Resources
Manager, Sue Johnston, told him that the position would “pay more” and be a promotion. (Doc.
# 32-1, at 126:21–127:12 & 135:8–14.) He also, however, confirms that he was told by his CLI
Technician interviewer that the position “would have been a lateral move” and that his pay may
even be decreased. (Doc. # 32-1, at 51:1–23.)
“promotional increase guidelines,” a lateral transition within the company would
not trigger a pay increase.2 (Doc. # 32-2, at 152.)
Aside from compensation, Mr. Merriweather argues that he considered the
CLI Technician position to be a promotion because it was a prestigious role that
would diversify his knowledge and experience of Charter, which would enable
This argument fails for two reasons.
Merriweather’s assertions supporting the CLI Technician position’s relative
prestige are attenuated at best. For example, his Objection references the fact that
a CLI Technician needed to be someone “with proven self-discipline and
dedication to completing tasks.” (Doc. # 49.) He does not argue, however, that
those same skills were not required of BBT IIs. Similarly, he highlights the fact
that Charter was seeking someone with BBT II certification or equivalent work
experience to fill the CLI Technician vacancy. The same certification or work
experience was requested of applicants to the BBT II role, however.
Second, Mr. Merriweather was unable to put forth any evidence indicating
that his belief in the value of holding various Charter positions stemmed from any
actual policy, whether formal or informal. As the Recommendation highlighted,
he did “not cite any legal authority for the proposition that an employee suffers an
While Mr. Merriweather was told by his interviewer that the CLI Technician would be a
position lateral to the BBT II position, Ms. Wilder testified that a CLI Technician is classified as
a N4 (entry-level position), while a BBT II has an N5 classification. (Doc. # 32-2, at 147:12–
adverse employment action if he is not offered an entry level job (one below his
current status level) that will allow the employee to learn a different set of skills
from those the employee uses in his present job position.” (Doc. # 45, at 34.)
While Mr. Merriweather notes that most members of Charter’s management team
started in an entry-level position and worked their way up, he fails to mention that
he already fits that mold, having started as an entry-level employee in 2001.
Lastly, Mr. Merriweather argues that the CLI Technician position constitutes
a promotion because it would have better suited his physical limitations stemming
from an earlier on-the-job injury. He contends that the Magistrate Judge erred
when determining that “Mr. Merriweather’s physical abilities are immaterial to the
issue of whether Mr. Merriweather was denied a promotion.” (Doc. # 45, at 34.)
This challenge also fails for two reasons. First, the Recommendation is correct in
its determination that Mr. Merriweather’s interest in a less physically demanding
job would not materially alter the analysis, so as to transform the CLI Technician
position into a promotion. As this court has explained, the “failure to transfer may
constitute an adverse employment action if the new position entails an increase in
pay, prestige, or responsibility.” Gaddis v. Russell Corp., 242 F. Supp. 2d 1123,
1145 (M.D. Ala. 2003). This standard arose in recognition of the fact that the
denial of a transfer can constitute an adverse employment action if the currently
held position is objectively less desirable than the one to which a plaintiff applied.
That scenario is not present here. In fact, had Mr. Merriweather been transferred
involuntarily to the CLI Technician position from the BBT II position by Charter, a
good argument exists that he would have suffered a decrease in “pay, prestige or
responsibility” sufficient to constitute an adverse employment action. See id.
Second, Mr. Merriweather failed to address the Magistrate Judge’s analysis
in its entirety.
The Recommendation highlighted that Mr. Merriweather was
basing his physical limitations argument on “facts not in evidence – i.e., that Mr.
Merriweather could not continue to work at Charter unless he was hired as a CLI
Technician.” (Doc. # 45, 33–34.) The Magistrate Judge noted that prior to his
resignation, Mr. Merriweather had come back from leave and “was working as a
BBT II, and was seemingly able to continue in his position.” (Doc. # 45, at 34.)
While, Mr. Merriweather is correct when he points out that his “on the job injury
caused him to miss work, take medical leave, and relegated him to light duty work
tasks,” there is nothing in evidence suggesting that Mr. Merriweather failed to
return to a fully functioning BBT II after being released by his doctor. (Doc. # 49,
Disparate Job Assignments
Mr. Merriweather next contends that the Magistrate Judge misinterpreted
case law when determining that summary judgment was appropriate on his
disproportionate work assignment claims.
Mr. Merriweather claimed that he,
along with Charter’s other black BBT IIs, were “predominately and
disproportionately assigned to work in southern and western Montgomery
neighborhoods,” while white BBT IIs were given more favorable assignments to
eastern Montgomery neighborhoods. (Doc. # 49, at 7.) Mr. Merriweather alleged
that the disproportionate work assignments constituted an adverse employment
action sufficient to maintain a disparate treatment race discrimination claim
because the homes in the southern and western Montgomery neighborhoods were
older, requiring additional and more dangerous work.
Merriweather argued that his promotional opportunities, evaluations, and income
were adversely affected because he was continually forced to perform longer, more
dangerous installations in the poorer areas of Montgomery.
Mr. Merriweather asserts that the Magistrate Judge correctly determined that
a disproportionate assignment of work to southern and western Montgomery would
constitute an adverse employment action.
He contends, however, that the
Magistrate Judge erred when he determined that Mr. Merriweather had “failed to
show that he was treated less favorably than similarly situated [white] employees.”
(Doc. # 49, at 8.) The Magistrate Judge based this determination on this court’s
holding in Hunter v. Army Fleet Support, 530 F. Supp. 2d 1291 (M.D. Ala. 2007) –
the principle case relied upon by Mr. Merriweather. In Hunter, there was evidence
that an employer had entirely segregated its employees into two different aircraft8
technician crews, one consisting of all-white technicians and one consisting of allblack technicians. Id. at 1293. The employees then showed that the black crew
was given disproportionately more difficult assignments.
The Magistrate Judge, however, distinguished Mr. Merriweather’s claim
from the disproportionate work assignment claim presented in Hunter (which
survived summary judgment). The Magistrate Judge found that Mr. Merriweather
did not “meet his burden to produce evidence that only black BBT[ ]s were
assigned to work in south and west Montgomery and that only white employees
were assigned to work in east Montgomery.” (Doc. # 45, at 39.) In his Objection,
Mr. Merriweather argues that Hunter does not require a plaintiff to show that one
race was exclusively required to work difficult assignments while a different race
was exclusively assigned easier jobs.
Mr. Merriweather presents a good argument as to the proper interpretation of
Hunter, but fails to overcome the Magistrate Judge’s conclusion that Mr.
Merriweather was unable to show that black BBT IIs were treated less favorably
than white BBT IIs.
As the record makes clear, BBT IIs do not perform
assignments in groups, rather each BBT II is individually dispatched to various
installation and repair sites throughout the day. Daily assignments are dispatched
automatically to each BBT II through a system known as Workforce Express. This
automated system is operated and maintained by Charter’s workforce management
team based in Vestavia Hills, Alabama.3
The dispatched assignments of Mr. Merriweather – and all other BBT IIs –
were, however, minimally affected by the setting of start locations.
Charter’s BBT IIs are supervised by one of three Technical Operations
Supervisors. Each supervisor is responsible for monitoring the performance of a
group of BBT IIs.4
To allow the workforce management team to dispatch
geographically efficient assignments to BBT IIs, each of the supervisors provides
his BBT IIs with a set start location. M. P. Palmer, Mr. Merriweather’s supervisor
and Charter’s sole black Technical Operations Supervisor, testified that he and
another one of the supervisors together decided where to set the start locations.
Mr. Palmer chose to have his BBT II’s start locations set in the west and south
neighborhoods of Montgomery. Regardless of start location, however, Mr. Palmer
testified that a BBT II’s assignments and route were determined by “where the
work was” and the supervisors “still had to go away from having areas, because
everyone was still going different places.” (Doc. # 32-4, at 68–69.)
Mr. Merriweather argues that it is this setting of start locations that led to
racially disparate work assignments. Specifically, he argues that Charter’s black
Mr. Merriweather did not identify or allege that anyone in Charter’s workforce
management team discriminated against him.
Mr. Merriweather’s supervisor, M. P. Palmer, referred to his group of BBT IIs as his
team. (Doc. # 32-4, at 62:1–13.)
BBT IIs were disproportionately assigned to be supervised by Mr. Palmer,
disproportionately black team was purposefully assigned the least desirable start
locations, leading to the most difficult assignments. Mr. Merriweather’s attenuated
argument is insufficient to establish a prima facie case of disparate treatment race
First, there is no evidence that Charter assigned BBT IIs to supervisors based
As the Recommendation explained, and as Mr. Merriweather
acknowledged, “during the last four years of his employment, 53% of the
employees under Mr. Palmer’s supervision” were black, while “72% of the white
employees were assigned to the other two supervisors.” (Doc. # 45, at 42.) Using
those figures, the Magistrate Judge concluded that “Mr. Palmer, as one out of a
total of three supervisors, supervised 47% of the white employees” and that “[t]he
other two teams . . . contained 28% of the black employees.” (Doc. # 45, at 42.)
Accordingly, the record shows that 47% of Charter’s white BBT IIs received
similar start locations to Mr. Merriweather. Meanwhile, 28% of Charter’s black
employees were given start locations in the more favorable east and north
Second, Mr. Merriweather is unable to offer specifics as to any white BBT
IIs work assignments. Mr. Merriweather relied entirely on his and two other black
BBT IIs testimony asserting that they worked more frequently in Montgomery’s
south and west neighborhoods than their white counterparts.
Merriweather admitted that he was not aware of the particular jobs each BBT II
was assigned to perform each day, and, as discussed above, 47% of Charter’s white
BBT IIs were assigned start locations similar to those of Mr. Merriweather.
Accordingly, the record supports the Magistrate Judge’s Recommendation
that Mr. Merriweather is unable to establish that Charter’s black BBT IIs were
treated less favorably than their white counterparts.
Disparate Team Assignments
Mr. Merriweather also argues that the Magistrate Judge misinterpreted case
law when he recommended that summary judgment was appropriate on Mr.
Merriweather’s disproportionate team assignment claims.
For the reasons
discussed above, Mr. Merriweather’s challenge to this aspect of the
Recommendation is overruled.
Lastly, Mr. Merriweather objects to the recommendation that summary
judgment be granted as to his constructive discharge claim. To prove that a
plaintiff was constructively discharged, he “must demonstrate that working
conditions were ‘so intolerable that a reasonable person in [his] position would not
have been compelled to resign.’” Griffin v. GTE Fla. Inc., 182 F.3d 1279, 1283–
84 (11th Cir. 1999) (citing Poole v. Country Club of Columbus, Inc., 129 F.3d 551,
553 (11th Cir. 1997)).
The Magistrate Judge determined that, because Mr.
Merriweather did not “present[ ] sufficient evidence to show a hostile work
environment” and testified under oath “that he was willing to return to work for
two weeks without any change to his work environment,” Mr. Merriweather could
not maintain a claim for constructive discharge.
Mr. Merriweather argues that he established evidence that he was denied
several promotions due to his race, endured discriminatory team and work
assignments, and endured racial remarks from fellow employees. These facts,
however, were not ignored by the Magistrate Judge. Taken as true, they fail as a
matter of law to rise to a level that would show the existence of a hostile work
environment, and the Eleventh Circuit has held that “[t]he standard for proving
constructive discharge is higher than the standard for proving a hostile work
environment.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir.
2001). Because no reasonable jury could conclude that the incidents complained
of rose to a level sufficient to make Mr. Merriweather’s working conditions
intolerable, this objection is overruled.
Based upon an independent and de novo review of the Recommendation to
which Mr. Merriweather has objected, it is ORDERED as follows:
Mr. Merriweather’s Objection (Docs. # 46, 49) is OVERRULED;
The Recommendation of the Magistrate Judge (Doc. # 45) is
Charter’s Motion for Summary Judgment (Doc. # 24) is GRANTED.
A separate judgment will be entered.
DONE this 25th day of February, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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