Alexander v. Boral Brick, Inc. et al (MAG+)

Filing 57

AMENDED REPORT AND RECOMMENDATIONS of the Magistrate Judge that: (1) The 35 Motion for Summary Judgment be GRANTED; (2) That this action be DISMISSED with prejudice; (3) that 44 Motion to Strike Plaintiff's "Reply Brief" be DENIED as moot; (4) that the 48 Motion for Reconsideration be DENIED as moot as further set out; and (5) Any other outstanding motions be DENIED as moot. Objections to R&R due by 11/12/2008. Signed by Honorable Terry F. Moorer on 10/29/2008. (cb, ) Modified on 10/29/2008 to reflect that this is an amended R&R (cb, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION Q U I N C Y L. ALEXANDER, P la in tif f , v. B O R A L BRICK, INC., et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) C A S E NO. 3:07-cv-647-WHA-TFM [w o] A M E N D E D REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE P u r s u a n t to 28 U.S.C. 636(b)(1) this case was referred to the undersigned United S ta te s Magistrate Judge for review and submission of a report with recommended findings o f fact and conclusions of law (Doc. 4, filed July 19, 2007). Pending before the Court are D e fen d a n ts' Motion for Summary Judgment and supporting documentation (Docs. 35-37, f ile d July 10, 2008). Also pending are Defendants' Motion to Strike Plaintiff's "Reply B r ie f." (Doc. 44, filed August 22, 2008) and Plaintiff's Objection Reply to Report and R e c co m m e n d a tio n [sic] of the Magistrate Judge (Doc. 48, filed September 25, 2008).1 For g o o d cause, it is the Recommendation of the Magistrate Judge the Motion for Summary J u d g m e n t be granted, the Motion to Strike be denied as moot, and the Motion for R e c o n sid e ra tio n be denied as moot. The document was construed as a motion for reconsideration on September 30, 2008. See Doc. 50. Page 1 of 27 1 I. PARTIES Pro se plaintiff, Quincy Alexander ("Alexander" or "Plaintiff") is a resident of Phenix C ity in Russell County, Alabama, located in the Middle District of Alabama. Defendant Boral Bricks, Inc. ("Boral Bricks") is a Georgia corporation headquartered in Atlanta. Defendant Scott Thompson ("Thompson") is the Assistant Plant Manager at B o ra l Bricks's Phenix City plant and has been sued in his individual capacity. II. JURISDICTION T h e district court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. 1331 (federal question jurisdiction), 28 U.S.C. 1343 (civil rights), 42 U.S.C. 2000e-5 (Title VII), 42 U.S.C. 12111 (Americans with Disabilities Act), 42 U.S.C. 1 9 8 1 (Civil Rights Act of 1866, as amended), and 29 U.S.C. 206 (Equal Pay Act). The p a rties do not contest personal jurisdiction or venue, and there are adequate allegations to s u p p o rt both. III. NATURE OF THE CASE, MOTION FOR SUMMARY JUDGMENT, AND MOTION FOR R E C O N S ID E R A T I O N T h e underlying facts of this case are necessarily viewed in favor of the nonmovant pro s e Plaintiff. Alexander initiated this action on June 29, 2007. See Doc. 1. In his complaint, A le x a n d er clearly asserts claims pursuant to Title VII, 24 U.S.C. 2000e-5, the Americans w ith Disabilities Act, 42 U.S.C. 12111 ("ADA."), 42 U.S.C. 1981, 1983. Id. Alexander s p e c i f i c a l ly alleges he was terminated from his position at Boral Bricks and discriminated a g a in s t due to his race (African American), and gender (male). Page 2 of 27 From his additional p le a d in g s , it also appears Alexander attempts to assert a claim under the Equal Pay Act, 29 U .S .C . 206 ("EPA"). He brings claims against his former employer, Boral Bricks, and his f o rm e r supervisor, Scott Thompson. All claims against Thompson, with the exception of th e 1981 claim, were dismissed by the Court on December 5, 2007. See Doc. 31. Further, A le x a n d e r' s 1983 claims against both defendants were also dismissed. Id. The complaint provides minimal details as to the factual basis of his claims. A le x a n d e r, a black male, asserts claims related to his termination in January 2006. He w o rk e d for Boral Bricks as a Shapes Brick Maker. See Doc. 36 at p. 6 6.2 Alexander states T h o m p s o n told him he was being laid off because the product was not selling. See Doc. 1 a t p. 3 11. He alleges white and female employees with less seniority were retained and a w h ite female was moved from another department to fill his position. Id. Alexander alleges h is termination was discriminatory on the basis of race and disability. Id. at p. 3 13. A lexa n d er also makes a vague reference to the fact he was earning less money than others in similar positions. Id. at p. 3 9-10. O n July 10, 2008, Boral Bricks and Thompson submitted their Motion for Summary J u d g m e n t and supporting documentation. See Docs. 35, 36, and 37. In the motion, Boral B ric k s asserts all the claims against it should be dismissed as there are no material facts at is s u e because Alexander fails to establish his prima facie cases for his respective claims With regard to the use page numbers in this opinion, the Court refers to the page number used on the docket printout, not the numbers used by the Defendants at the bottom of the page. Page 3 of 27 2 u n d e r Title VII, ADA, 1981, and EPA. Thompson also joins in the summary judgment m o t io n as to the outstanding 1981 claim against him. Defendants also assert, even if A le x a n d er does establish a prima facie case, he is unable to show that Defendants' proffered re a s o n s are pretextual. The Court issued a briefing schedule on July 11, 2008 wherein it ordered Alexander to file his response and evidentiary materials on or before August 1, 2008. See Doc. 38. On J u ly 17, 2008, Alexander filed a pleading entitled "Motion to Amend Summary Judgment." S e e Doc. 39. From the content of the document, the lack of any other responsive pleading, an d the fact Alexander had no motion for summary judgment of his own to amend, the Court c o n s tru ed the document as the response Defendants' motion for summary judgment. See D o c . 43. Prior to the order construing the document as responsive, Defendants also c o n c lu d e d the document was intended as a response to the summary judgment motion and p u rs u a n t to the briefing order, timely filed their reply. See Doc. 41. Alexander's two page re sp o n s e did little to address the specifics of the motion for summary judgment, but rather reitera ted the general allegations in his complaint. See Doc. 39. Defendants state in their rep ly that Alexander did not refute any of the allegations nor did he provide any evidentiary s u p p o rt as required under the Federal Rules of Civil Procedure. See Doc. 41. O n August 19, 2008, Alexander filed another document entitled "Reply Brief in F u r th e r Support of Plaintiff's Motion to Proceed." See Doc. 42. The clerk's office aptly d eterm ined the document to be a sur-reply to the motion for summary judgment. In the sur- Page 4 of 27 re p ly, Alexander makes slightly more detailed responses to the summary judgment requests a n d includes some purported evidentiary support. See id. As anticipated, Defendants filed a motion to strike the sur-reply on August 22, 2008. See Doc. 44. In their motion, D e f en d a n ts assert the sur-reply was not timely filed and in violation of the briefing order s in c e a motion for leave from the Court was not filed. Id. A response was filed by A lex a n d e r wherein he simply states he sent the information because it was necessary to a n s w e r Defendants' questions. See Doc. 45. Defendants filed their reply on September 5, 2 0 0 8 reiterating their request to strike the sur-reply. A report and recommendation was issued on September 12, 2008 wherein the Court re c o m m e n d e d the motion for summary judgment be granted in its entirety. See Doc. 47. On S e p tem b e r 25, 2008, Alexander filed his objections which contained evidentiary materials h e asserts raise a factual issue. See Doc. 48. Defendants filed a motion to strike wherein they request the Court strike Plaintiff's evidence as untimely and irrelevant. The Court d e n ie d the motion to strike. After a review of Alexander's submissions, the Court now issues this amended report and recommendation taking into consideration Alexander's submissions. I V . SUMMARY JUDGEMENT STANDARD A party in a lawsuit may move a court to enter summary judgment before trial. FED. R . CIV. P. 56(a) and (b). Summary judgment is appropriate when the moving party e sta b lish e s that there is no genuine issue of material fact and the moving party is entitled to ju d g m e n t as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, Page 5 of 27 3 2 2 -2 4 , 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gonzalez v. Lee County Housing Authority, 1 6 1 F.3d 1290, 1294 (11th Cir. 1998). "[T]he substantive law will identify which facts are m a te ria l." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L .E d .2 d 202 (1986). At the summary judgment juncture, the court does not "weigh the e v i d e n c e and determine the truth of the matter," but solely "determine[s] whether there is a g e n u in e issue for trial." Id. at 249. Only disputes about the material facts will preclude the g ra n tin g of summary judgment. Id. at 249. A material fact is one "that might affect the o u tc o m e of the suit under governing law," and a dispute about a material fact is "genuine" " if the evidence is such that a reasonable jury could return a verdict for the nonmoving p a rty." Id.; see also Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir. 2005) (q u o tin g Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir. 2003)) ("In d eterm ining whether an issue of fact is `genuine' for the purpose of defeating summary ju d g m e n t, we ask whether the evidence is `such that a reasonable jury could return a verdict f o r the nonmoving party.'"). Thus, the initial burden of proof rests on the movant. Celotex, 4 7 7 U.S. at 325, 106 S.Ct. at 2554; Gonzalez, 161 F.3d at 1294. This burden is satisfied w h e n the movant shows that if the evidentiary record were reduced to admissible evidence a t trial, it would be insufficient to permit the non-movant from carrying its burden of proof. C e lo te x , 477 U.S. at 322-23; 106 S.Ct. at 2552-53. The admissibility of evidence is subject to the same standards and rules that govern admissibility of evidence at trial. Clemons v. Page 6 of 27 D o u g h e rty County, Georgia, 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing Pan-Islamic T r a d e Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)). Once the movant meets its burden under Rule 56, the non-movant must designate s p e c if ic facts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Z e n ith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). C o n c lu s o ry assertions, unsupported by specific facts, presented in affidavits opposing the m o tio n for summary judgment are likewise insufficient to defeat a proper motion for s u m m a ry judgment. Lejaun v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 1 1 1 L.Ed.2d 695 (1990); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (c o n c lu s o ry assertions in absence of supporting evidence are insufficient to withstand su m m a ry judgment). The party opposing summary judgment must respond by setting forth s p e c if ic evidence in the record and articulating the precise manner in which that evidence s u p p o rts his or her claim, and my not rest upon the mere allegations or denials of the p le a d in g s . FED. R. CIV. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F .3 d 1234, 1264 (11th Cir. 2001). If the evidence is merely colorable or is not significantly p ro b a tiv e , summary judgment may be granted. See Anderson, 477 U.S. at 249-50, 106 S.Ct. a t 2511 (citations omitted). Thus, to avoid summary judgment, the nonmoving party "must d o more than simply show that there is some metaphysical doubt as to the material facts." M a t su s h i ta Elec. Indus., 475 U.S. at 586 106 S.Ct. at 1356 (citations omitted). Page 7 of 27 In determining whether a genuine issue for trial exists, the court must view all the e v id e n c e in the light most favorable to the nonmovant. McCormick v. City of Fort L a u d e rd a le , 333 F.3d 1234, 1243 (11th Cir. 2003); Johnson, 263 F.3d at 1242-43. Further, " a ll justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255; 1 0 6 S.Ct. at 2513; see also McCormick, 333 F.3d at 1243 (the evidence and all reasonable inf ere n ce s from the evidence must be viewed in the light most favorable to the nonmovant). If the non-moving party fails to make a showing sufficient to establish the existence of an elem en t essential to its case on which it will bear the burden of proof at trial, summary ju d g m e n t must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. In other w o rd s , summary judgment is proper after adequate time for discovery and upon motion a g a in s t a party who fails to make a showing sufficient to establish the existence of an element e s s e n tia l to that party's case. Id. at 322, 106 S.Ct. at 2552. In addition, all litigants, pro se or not, must comply with the Federal Rules of Civil P r o c e d u re . Although the court is required to liberally construe a pro se litigant's pleadings, th e court does not have "license to serve as de facto counsel for a party. . .or to rewrite an o th e rw is e deficient pleading in order to sustain an action." GJR Investments, Inc. v. County o f Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). V. DISCUSSION AND ANALYSIS A. T itle VII claims against Boral Bricks U n d e r Title VII, it is "an unlawful employment practice for an employer to fail or Page 8 of 27 r e f u se to hire or to discharge any individual, or otherwise to discriminate against any in d iv id u a l with respect to his compensation, terms, conditions, or privileges of employment, b e c a u s e of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2 0 0 0 e -2 (a )(1 ). Alexander asserts a discriminatory discharge claim based on his race and g e n d e r in violation of Title VII. See Doc. 1 at 11 and 13. With regard to disparate tre a tm e n t claims under Title VII for improper termination, a plaintiff must prove that the d e f e n d a n t acted with discriminatory purpose. Williams v. Motorola, Inc., 303 F.3d 1284, 1 2 9 3 (11th Cir. 2002) (citation omitted). Specifically, a plaintiff must present either (1) s ta tis tic a l proof of a pattern of discrimination, (2) direct evidence of discrimination, which c o n sis ts of evidence which, if believed, would prove the existence of discrimination without in f e re n c e or presumption, or (3) circumstantial evidence of discriminatory intent using the f ra m e w o rk established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S .C t. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Holifield, 115 F.3d at 1561-62. In the case a t hand, there is no indication of statistical proof of a pattern of discrimination nor does A le x a n d e r present any direct evidence of discrimination. "Only the most blatant remarks, w h o s e intent could mean nothing other than to discriminate on the basis of some im p e rm is s ib le factor constitute direct evidence of discrimination." Wilson v. B/E Aerospace, In c ., 376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotations and citations omitted). "If th e alleged statement suggests, but does not prove, a discriminatory motive, then it is c irc u m s ta n tia l evidence." Id. (citations omitted). As a result, this circumstantial evidence Page 9 of 27 c a se proceeds under the burden-shifting framework of McDonnell Douglas and its progeny. F irs t, under McDonnell Douglas, a plaintiff must create an inference of discrimination b y establishing a prima facie case. Williams, 303 F.3d at 1293. Next, should the plaintiff e sta b lis h a prima facie case, the burden shifts to the defendant to present legitimate, n o n d is c rim in a to ry reasons for the employment action. Holifield, 115 F.3d at 1564. Although th e establishment of a prima facie case shifts the burden of production to the defendant, it d o e s not reallocate the burden of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 5 0 7 , 113 S.Ct. 2742, 2747,125 L.Ed.2d 407 (1993) (quoting Texas Dep't of Cmty Affairs v. B u r d in e , 450 U.S. 248, 253, 101 S.Ct.1089, 1093, 67 L.Ed.2d 207 (1981) ("The ultimate b u r d e n of persuading the trier of fact that the defendant intentionally discriminated against th e plaintiff remains at all times with the plaintiff.")). Once defendant has presented a leg itim a te, nondiscriminatory reason for its action, the burden shifts back to the plaintiff to p ro d u c e "sufficient evidence to find that the employer's asserted justification is false" and in reality, a pretext for unlawful intentional discrimination. Reeves v. Sanderson Plumbing P r o d s ., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). In other w o rd s, at the summary judgment stage, the plaintiff may survive by providing a prima facie c a se and evidence sufficient for a jury to find that the employer's proffered explanation is f a ls e . Reeves, 530 U.S. at 147-48, 120 S.Ct. at 2108-09. i. A le x a n d e r ' s Burden to Establish Prima Facie Case A g a in , under the McDonnell Douglas analysis, Plaintiff must first establish a prima Page 10 of 27 f a cie case by showing: (1) he was a member of a protected class; (2) was qualified for the j o b ; (3) suffered an adverse employment action; and (4) was replaced by someone outside th e protected class. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (c itin g McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824); Cuddleback v. Florida Bd. o f Educ., 381 F.3d 1230, 1235 (11th Cir. 2004). In a reduction in force case, the Eleventh C ir c u i t has adopted a variant of the McDonnell Douglas test. Earley v. Champion Int'l C o r p ., 907 F.2d 1077, 1082 (11th Cir. 1990). The modification is in the second element w h e re in the plaintiff must show he was qualified for his current position or to assume another p o s itio n at the time of discharge or demotion. Id. Further, "[w]here a particular job position is entirely eliminated for nondiscriminatory reasons, for plaintiff to prevail against his em p loyer he must show that he was qualified for another available job with that employer; q u a lif ic a tio n for his current position is not enough." Id. at 1083 (citations omitted). The b u rd e n to establish a prima facie case is not intended to be "onerous," but requires only that th e plaintiff establish adequate facts to permit an inference of discrimination. Holifield, 115 F .3 d at 1562 (citations omitted). It is undisputed that Alexander's race and gender/sex would be protected under Title V II and that he was adversely impacted by an employment decision. Thus, elements one and th re e are satisfied. Elements two (as modified for reduction in force cases) and four are in d is p u te . In this reduction in force case, for element two Alexander must first show he was q u a lif ie d for his current position. There is no doubt or dispute that Alexander was qualified Page 11 of 27 f o r his current position of Shapes Maker. Therefore the Court looks to whether the position o f Shapes Maker was eliminated entirely. In the motion for summary judgment, Boral Bricks a lle g e s it implemented a reduction in force in Plant 1 Shapes in February 2006. See Doc. 36 a t p. 7 8. Boral Bricks states it made a business decision to eliminate the three Shapes e m p lo ye e s with the least amount of seniority, which included Alexander. Id. at 9. Taken in the light most favorable to Alexander, this does not establish for the purposes of summary j u d g m e n t that all Shapes positions were eliminated. Thus Boral Bricks cannot show the p o s itio n of Shapes Maker was eliminated entirely, and consequently, Alexander is not o b lig e d to establish he was qualified for another available open position. In other words, q u a lif ic a tio n for his current position is sufficient to establish element two for the purposes o f summary judgment. Therefore, elements one through three of the prima facie case have b e e n met. A s to element four, Alexander must show he was replaced by someone outside the p ro te c te d class. The establishment of a prima facie case is not meant to be an onerous b u rd e n . See Holifield, 115 F.3d at 1562. Alexander avers he was replaced by Angela Curley w h o is a white female. Therefore, the court will assume Alexander has established all four e le m e n ts of the prima facie case of discrimination. ii. D e fe n d a n t 's Burden to Show Legitimate Reason for Termination A le x a n d er's prima facie case raises an inference of discrimination, so the burden of p ro d u c tio n shifts to Boral Bricks to articulate a legitimate and nondiscriminatory reason for Page 12 of 27 h a v in g terminated Alexander. See Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th C ir. 2003); Schweers v. Montgomery Public Schools, 511 F.Supp.2d 1128, 1137 (M.D. Ala. 2 0 0 7 ). The employer's burden is "exceedingly light." Schweers, 511 F.Supp.2d at 1137 (q u o tin g Holifield, 115 F.3d at 1564). The employer "need only produce evidence that could allo w a rational fact finder to conclude that [the employee's] discharge was not made for a d is c rim in a to ry reason." Id. (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (1 1 th Cir. 1998)). Boral Brick easily meets their burden when it asserts Alexander was laid off because o f a work force reduction. A reduction in force is a legitimate, non-retaliatory reason to te rm in a te an employee. See Standard, 161 F.3d at 1331-32; Tidwell v. Carter Products, 135 F .3 d 1422, 1426 (11th Cir. 1998). iii. A le x a n d e r 's Burden to Show Pretext T h e reduction in force is sufficient to shift the burden back to Alexander to prove that th e proffered reasons are pretextual for intentionally terminating her because of her age. See S c h w e e r, 511 F.Supp.2d at 1137. "Because the plaintiff bears the burden of establishing p retex t, he must present `significantly probative' evidence on the issue to avoid summary ju d g m e n t." Young v. Gen. Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988). Fed. R. Civ. P . 56(e)(2) states "an opposing party may not rely merely on allegations or denials in its own p le a d in g ; rather, its response must - by affidavits or as otherwise provided in this rule - set o u t specific facts showing a genuine issue for trial." Page 13 of 27 In this case, the defendant's proffered legitimate business concerns including the re d u c tio n in force as the reason to terminate Alexander. In his response Alexander states he h a s witnesses who will attest to Angela Curley getting the position and also showing that the re p la c e m e n t for her prior position was a white male. See Doc. 39 at p. 1. He also states Ms. C u rle y's position was not posted on the job board. Id. "[C]onclusory allegations of d is c rim in a tio n , without more, are not sufficient to raise an inference of pretext or intentional d is c rim in a tio n where [an employer] has offered . . . extensive evidence of legitimate, nond is c rim in a to ry reasons for its actions." Young, 840 F.2d at 830 (quoting Grigsby v. Reynolds M e ta ls Co., 821 F.2d 590, 597 (11th Cir. 1987)); accord Earley v. Champion Int'l Corp., 907 F .2 d 1077, 1081 (11th Cir. 1990); Schweers, 511 F.Supp.2d at 1138. In his attachments to the Objections and Motion for Reconsideration, Alexander a tta c h es the affidavit of Robert Thompson, a white male employee who was also laid off as a result of the reduction in force. In the affidavit Robert Thompson states he was contacted b y David Hay, the Regional Human Resources Manager at Boral Bricks, to interview for a w a re h o u s e management position. Robert Thompson stated Alexander said he was not c o n ta c te d about this position. F irs t, Robert Thompson is the same gender as Alexander which does not have an e f f e c t on Alexander's obligation to show pretext as to the gender discrimination claim. As to the race discrimination claim, evidence submitted by Boral Bricks shows that Alexander w a s contacted about several open positions and invited to interview. See Doc. 37, Exhibit Page 14 of 27 B , Affidavit of David Hay. Alexander did not contest the evidence in his response or his o b je c tio n s . Further, Alexander testified in his deposition that he did not check for job p o s tin g s , inquire about open positions, or apply for any other positions. See Doc. 37, Exhibit A , Deposition of Plaintiff at p. 158 line 18 through p. 159 line 3 and p. 160 line 18 through p . 161 line 15. Alexander provides little evidence beyond his conclusory statements to rebut B o ra l Brick's nondiscriminatory reasons for his termination. As a result, the Court does not f in d Alexander's evidentiary assertions to be sufficiently probative of pretext to withstand a motion for summary judgment. B. 1981 Claims of Discrimination A le x a n d er also asserts claims under 42 U.S.C. 1981 (" 1981) against Thompson a n d Boral Bricks. 1981 only prohibits discrimination on the basis of race, and thus is solely a p p lic a b le to Alexander's racial discrimination claims. See CBOCS West, Inc. v. Humphries, -- U.S. -- , 128 S.Ct. 1951, 1962 (2008) (United States Supreme Court specifically denies th a t 1981 encompasses any other kind of discrimination and holds " 1981 is violated only w h en racial discrimination impairs the right to make and enforce contracts."); Ferrill v. P a r k e r Group, Inc., 168 F.3d 468, 473 (11th Cir. 1999) (" 1981 proscribes discrimination so lely on the basis of race."); see also Tucker v. Talladega City Schools, 171 Fed. Appx. 289, 2 9 5 (11th Cir. 2006) (unpublished) (" 1981, unlike Title VII, is directed exclusively toward ra c ia l discrimination."). Any other claims for discrimination asserted by Alexander under 1981 are due dismissal and only 1981 racial discrimination claims need be addressed Page 15 of 27 h e re . i. 1981 Race Discrimination Claims Against Boral Bricks T h e same McDonnell Douglas analysis applies to 1981 claims for discrimination. S e e Alexander v. Fulton County, Ga., 207 F.3d 1303, 1314 n. 6 (11th Cir. 2000) (quoting S t a n d a r d , 161 F.3d at 1330) ("Both [Title VII and 1981] have the same requirements of p ro o f and use the same analytical framework, therefore we shall explicitly address the Title V II claim with the understanding that the analysis applies to the 1981 claim as well."); see a ls o Burstein v. Emtel, Inc., 137 Fed. Appx. 205, 208 (11th Cir. 2005) (unpublished) ("In c a se s involving circumstantial evidence of discrimination or retaliation under Title VII and 1981, courts use the analytical framework set forth in McDonnell Douglas."). The Court co n clud es supra that the Title VII claims against Boral Bricks cannot survive summary jud g m en t, and the same is true for the 1981 claims against Boral Bricks. Thus, the Court n ee d to address them further. ii. 1981 Claims of Race Discrimination Against Scott Thompson In the case at hand, as with the claims against Boral Bricks, the same McDonnell D o u g l a s analysis applies to the 1981 claims against Thompson. As previously noted, the C o u rt does not find Alexander's evidentiary assertions to be sufficiently probative of pretext to withstand a motion for summary judgment. A le x a n d er's 1981 claims against Thompson also fail because Alexander cannot sh o w Thompson was involved in the decision to terminate him. Contrary to Title VII, Page 16 of 27 " in d iv id u a l employees can be held liable for discrimination under 1981." Leige v. Capitol C h e v ro le t, Inc., 895 F.Supp. 289, 293 (M.D. Ala. 1995); Moss v. W&A Cleaners, 111 F .S u p p .2 d 1181, 1188 (M.D. Ala. 2000). "Supervisors with the capacity to hire and fire or th o s e who can recommend such decisions are subject to liability under 1981." Leige, 895 F .S u p p . at 293 (citing Faraca v. Clements 506 F.2d 956, 959 (5th Cir. 1975) 3 ) . However, su p e rv iso rs who do not participate in the decision to terminate an employee will not be held lia b le under a 1981 discrimination theory. See Burstein, 137 Fed. Appx. at 208. B e yo n d Alexander's conclusory assertions about Thompson, the record does not su g g e st Thompson participated in the decision to terminate Alexander. In contrast, D e f e n d a n ts attach significant uncontroverted evidence which shows Thompson played no p a rt in the decision to terminate Alexander as part of Boral Bricks' reduction in force. See D o c . 37, Exhibits 2 through 4. Specifically, David Hay, the Regional Human Resources M a n a g e r at Boral Bricks when Alexander was terminated, states Thompson played no role in the reduction in force nor the decision to terminate Alexander. See Doc. 37, Exhibit 2 at 8, "Affidavit of David Hay." Thompson's role was limited to telling the employees s e le c te d for lay-off. Id. at 8-9. The affidavit of Steve Markovich, the Plant Manager at B o ra l Bricks' Phenix City facility, confirms Thompson was merely a messenger. See Doc. 3 7 , Exhibit 3 at 5-7, "Affidavit of Steve Markovich." Finally, Thompson states in his own See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). Page 17 of 27 3 a f f id a v it that he was not involved in the decision to terminate Alexander, but simply notified h im of his selection for a reduction in force as directed by Hay and Markovich. See Doc. 37, E x h ib it 4 at 4-5, "Affidavit of Scott Thompson." In his objections, Alexander simply s ta te s "[i]f Scott has little to do with it then why does everyone consults [sic] with him?" See D o c . 48 at p. 3. Without evidentiary support, Alexander's conclusory assertions against T h o m p s o n are insufficient to withstand summary judgment. C. A D A Claims Against Boral Bricks T h e ADA prohibits discrimination against a qualified individual with a disability b a se d on that disability when the discrimination involves the hiring, advancement, term ination or conditions of employment of that qualified individual. 42 U.S.C. 12112(a). A le x a n d e r clearly asserts a claim for discrimination as to his termination. See Doc. 1, at p. 3 . Less clear is whether Alexander attempts to assert a claim for failure to accommodate. S e e Doc. 39 at p. 1. Regardless, both claims fail to survive summary judgment. i. D i s c r im i n a t i o n "The burden-shifting analysis of Title VII employment discrimination claims is a p p lic a b le to ADA claims." Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2 0 0 7 ) (quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000)). To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; ( 2 ) he is a qualified individual; and (3) he was subjected to unlawful discrimination because o f his disability. Id. at 1255-56; LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 Page 18 of 27 (1 1 th Cir. 1998). Boral Bricks argues Alexander cannot establish the first prong of the prima f a cie case. " I n order to state a claim for wrongful termination under the ADA, a plaintiff must f irs t provide that he has a disability, as defined by the Act." Standard, 161 F.3d at 1327 (c itin g Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 (11th Cir. 1996)). A d is a b ility, for the purposes of the ADA, is "(A) a physical or mental impairment that s u b s ta n tia lly limits one or more of the major life activities of [an] individual; (B) a record of s u c h an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. 1 2 1 0 2 (2 ). Disability under the first definition above, according to the Supreme Court, in v o lv e s a three-step analysis. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L .E d .2 d 540 (1998); see also Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2 0 0 4 ) (citing Bragdon). First, the plaintiff must be impaired. Rossbach, 371 F.3d at 1357. N e x t, the life activity impacted must be classified as a major life activity under the ADA. Id . For guidance as to what constitutes "major life activities," the Eleventh Circuit looks to th e regulations interpreting the Rehabilitation Act of 1973, 87 Stat. 361, as amended, 29 U .S .C . 701, et seq. (2000). Id. The regulations define major life activities as "functions s u c h as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, b re a th in g , learning and working." 45 C.F.R. 84.3(j)(ii).4 If not specifically enumerated in 4 There are two potential sources for guidance in the definition of disability - the regulations interpreting the Rehabilitation Act and the EEOC regulations interpreting the ADA at 29 C.F.R. 1630.2. Toyota Motor Mfg. v. Williams, 534 U.S. 184, 193, 122 S.Ct. 681, 689, 151 L.Ed.2d 615 (2002). "Because Congress drew the ADA's definition of disability almost verbatim Page 19 of 27 th is list, the activity must be "significant" to everyday life. Bragdon, 524 U.S. at 638, 118 S .C t. at 2205. Finally, the Court must determine whether the impairment substantially limits th a t life activity. Rossbach, 371 F.3d at 1357. A l e x a n d e r alleges he is a disabled veteran with a seventy percent (70%) disability. S e e Doc. 1 at p. 3 12. He does not specify in this pleadings what his disabilities are, but in s te a d simply attaches various documents from the Department of Veterans Affairs. See D o c . 42, attachments at p. 4-16. It is not the Court's job to rifle through the various d o c u m e n ts to glean evidence. See Foster v. Mid State Land & Timber Co, Inc., 2007 WL 3 2 8 7 3 4 5 , *11 (M.D. Ala. 2007) ("It is not the Court's function to weed through the summary jud g m en t submissions in search of evidence to support [plaintiff's] position."). However, a brief review of the documents confirms Alexander has a 70% disability rating which relates to knee and ear problems. See Doc. 42 at p. 14. Beyond this minimal information, the record b e f o re the Court is very limited. The Court nonetheless assumes for the purposes of s u m m a ry judgment that Alexander has an impairment. However, "the mere existence of a p h ys ic a l impairment does not constitute a disability under the ADA; the impairment must s u b s ta n tia lly limit a major life activity." Id. at 1328 (citing Gordon, 100 F.3d at 911). from the definition of `handicapped individual' in the Rehabilitation Act, the Supreme Court has stated that it is proper to construe that term in accordance with pre-existing regulatory interpretations under the Rehabilitation Act." Rossbach, 371 F.3d at 1357 n. 4 (citing Williams, 534 U.S. at 193-94, 122 S.Ct. at 689). While the persuasive authority of the EEOC regulations is less clear, it is still appropriate to look to them for interpretive guidance as to Subsection A of the ADA. Id. (citations omitted). Page 20 of 27 A le x a n d er does not specifically articulate the impairment of any major life activities. From h is knee and ear problems, the Court can only assume the major life activities would be m a n u a l tasks, walking, hearing, and working. As a matter of law, Alexander fails to d e m o n s tra te that he is substantially limited in the major life activities of performing manual tas k s, walking, hearing, and working. While Alexander states he was in pain, he does admit h e did not complain about it to his employer. See Doc. 42 at p. 2-3. Further, vague a ss e rtio n s and conclusory statements are insufficient to establish a substantial limitation of a major life activity. Therefore, Alexander fails to establish an actual impairment which w o u ld satisfy the first prong of the McDonnell Douglas analysis. A n individual who "[h]as a physical or mental impairment that does not substantially lim it major life activities but is treated by [an employer] as constituting such limitation" is a lso considered disabled under the ADA. 29 C.F.R. 1630.2(l); see also Rossbach, 371 F.3d a t 1359. Under this theory, a plaintiff is considered disabled not because he actually is d is a b le d , but because his employer treats him as having a disability as defined by the statute. H ilb u r n v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1230 (11th Cir.1999). In other words, th e employer must perceive the impairment as involving a major life activity and su b stan tially limiting and significant. Rossbach, 371 F.3d at 1360. Alexander fails under b o th prongs of the inquiry. Alexander states Boral Bricks knew of his knee problems, but that he did not complain n o r did he request any accommodations. See Doc. 42 at p. 3; see also Doc. 37, Exhibit 1, Page 21 of 27 " P lain tiff 's Deposition" at p. 186 line 20 through p. 187 line 3. Moreover, Alexander admits h e was capable of performing his job. Doc. 37, Exhibit 1, "Plaintiff's Deposition" at p. 183 lin e 12 through p 184 line 20. While Alexander states Thompson was aware of his o c c as io n a l difficulties, there is not sufficient evidence in the record that Boral Bricks p e rc e iv e d him to be impaired in the major life activity of working. At best, he merely shows B o ra l Bricks might have been aware of him having some physical difficulties on occasion, w h ich is insufficient as a matter of law. Summary judgment is also due to be granted as to th e ADA discrimination claim. i i. F a ilu re to accommodate It appears Alexander attempts to assert a claim for failure to accommodate though no s p e c if ic s are provided in the Complaint. See Doc. 1 generally; Doc. 39 at p. 1. D iscrim inatio n under the ADA includes an employer not making reasonable accommodations f o r a qualified employee's known disability. 42 U.S.C. 12112(b)(5)(A). Accordingly, the A D A imposes an affirmative duty on employers to provide such reasonable accommodations u n le s s doing so would pose an undue hardship. Morisky v. Broward County, 80 F.3d 445, 4 4 7 (11th Cir.1996). There is some legal ambiguity as to whether the familiar McDonnell Douglas f ra m e w o rk applies to failure to accommodate cases. See Nadler v. Harvey, 2007 WL 2 4 0 4 7 0 5 (11th Cir. 2007) (unpublished); see also Jones v. Georgia Dep't of Corr., 2008 WL 7 7 9 3 2 6 (N.D. Ga. 2008) (discussion on legal ambiguity since Eleventh Circuit did not Page 22 of 27 p u b lis h Nadler decision). The purpose of the McDonnell Douglas analysis is to determine th e sufficiency of intentional discrimination claims. Jones, 2008 WL 779326 at *5 (citing H ic k s, 509 U.S. at 506, 113 S.Ct. at 2746). However, a discrimination claim based on a f a ilu re to provide reasonable accommodations does not require discriminatory intent. N a d le r, 2007 WL 2404705 at *8. Rather, the failure to provide reasonable accommodations is a per se violation of the ADA, regardless of intentions. Jones, 2008 WL 779326 at *5. "In other words, a claim that an employer failed to perform a statutory duty, such as the A D A 's requirement to provide reasonable accommodations to qualified employees, does not inv o lve a determination of whether that employer acted, or failed to act, with discriminatory in te n t." Id. The Eleventh Circuit in its unpublished decision joined with various other c irc u its to hold that the McDonnell Douglas burden-shifting framework, "while appropriate f o r determining the existence of disability discrimination in disparate treatment cases, is not n e c e ss a ry or useful in determining whether a defendant has discriminated by failing to p ro v id e a reasonable accommodation." Nadler, 2007 WL 2404705 at *9 (citations omitted). A s the Nadler case is unpublished, it is not binding and merely provides persuasive authority o n the subject. However, this Court agrees that the McDonnell Douglas analysis is in a p p lic a b le for a failure to accommodate claim. Regardless of whether this Court applies M c D o n n e ll Douglas, Alexander has not shown he is disabled or otherwise qualified within th e meaning of the Act and therefore his reasonable accommodation claims also fail and s u m m a ry judgment is due to be granted. Page 23 of 27 D. E P A Claims Against Boral Bricks It also appears that Alexander assert a claim under the EPA though no specifics are p ro v id e d in the Complaint beyond vague assertions relating to his wages and the wages of o th e r Boral Bricks employees. See Doc. 1 at p. 3 9-10. There is no reference to the EPA b y name or by citation. However, Alexander does later reference this cause of action in other p le a d in g s , so the Court will address it here. See Doc. 39 at p. 1-2; Doc. 42 at p. 3-4. T h e EPA prohibits employers from paying an employee at a rate less than that paid to employees of the opposite sex for equal work. 29 U.S.C. 206(d)(1). Thus, a prima facie c a se of an EPA violation is shown if an employer pays different wages to employees of o p p o s ite sexes for equal work on jobs requiring "equal skill, effort, and responsibility, and w h ic h are performed under similar working conditions." Irby v. Bittick, 44 F.3d 949, 954 (1 1 th Cir. 1995) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2 2 2 3 , 2228, 41 L.Ed.2d 1 (1974)); see also Nixon v. Autauga County Bd. of Educ., 273 F .S u p p .2 d 1292, 1298 (M.D. Ala. 2003) ("Thus, establishing the prima facie case requires co m p arison of the plaintiff's work and earnings to that of a person of the opposite sex."). O n c e the employee presents a prima facie case, to avoid liability the employer must prove b y a preponderance of the evidence, that the pay differences are based on "(i) a seniority s ys te m ; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of p ro d u c tio n ; or (iv) a differential based on any other factor other than sex." 29 U.S.C. 2 0 6 (d )(1 ). The burden of these affirmative defenses rests on the employer and is a "heavy Page 24 of 27 o n e " because the "defendants must show that the factor of sex provided no basis for the wage d if f ere n tia l." Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir. 1994). If the d e f e n d a n t fails to meet this burden, the court must enter judgment for the plaintiff. Miranda v . B & B Cash Grocery Store, 975 F.2d 1518, 1533 (11th Cir. 1992). When the defendant o v e rc o m e s the burden, the plaintiff must rebut the explanation by showing with affirmative e v id e n c e that it is pretextual or offered as a post-event justification for a gender-based d if f e re n tia l. Schwartz v. Florida Bd. of Regents, 954 F.2d 620, 623 (11th Cir. 1991). If the p lain tiff is able to create an inference of pretext, then the issue must be reserved for trial. Ir b y , 44 F.3d at 954. In the case with Alexander, he is unable to meet the prima facie case because he does n o t show that he was paid less than female employees performing substantially similar jobs. H is argument rests solely on the fact he was paid by the hour while others in similar positions w e re on salary. See Doc. 42 at p. 3-4. Alexander further states he bases his argument in part o n the fact his male supervisor was paid at a higher rate. Id. at p. 4. Further, Alexander s p e c if ic a lly states in his reconsideration reply that "I never said that I was discriminated for e q u a l pay due to my race and gender. I said that I was discriminated for equal pay due to my ev ery day duties in comparison to other Supervisors and Shipping Managers who were s a la rie d employees." See Doc. 55 at p. 3. Thus, Alexander himself states his EPA claim has n o th i n g to do with gender/sex. Consequently, Alexander cannot establish a prima facie case a n d summary judgment must be granted in favor of Boral Bricks. Page 25 of 27 E. M o tio n to Strike Sur-reply B e c au s e Defendants' Motion for Summary Judgment is due to be granted, there is no n e e d to address Defendants' Motion to Strike Plaintiff's Sur-reply as it is rendered moot. V I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: (1) (2 ) (3 ) Defendants' Motion for Summary Judgment (Doc. 35) be GRANTED . T h is action be DISMISSED with prejudice. D e fe n d a n ts ' Motion to Strike Plaintiff's "Reply Brief." (Doc. 44) be DENIED a s moot.. (4 ) P la in tif f 's Motion for Reconsideration (Doc. 48) be DENIED as moot b e c au s e the evidentiary materials have now been considered and an Amended R e p o rt and Recommendation has been issued. (5 ) A n y other outstanding motions be DENIED as moot. It is further ORDERED that the parties are DIRECTED to file any objections to the s a id Recommendation not later than November 12, 2008. Any objections filed must s p e c if ic a lly identify the findings in the Magistrate Judge's Recommendation objected to. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the Page 26 of 27 M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S ep tem b er 30, 1981). D O N E this 29th day of October, 2008. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE Page 27 of 27

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