West v. Mando America Corporation et al

Filing 52

ORDER ADOPTING 49 Report and Recommendation. The 51 Objection is OVERRULED. Mando America's 33 Motion for Summary Judgment is GRANTED. This case is DISMISSED with prejudice. Final judgment will be entered separately. Signed by Honorable William Keith Watkins on 5/12/2010. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J O E WEST, ) ) P la in tif f , ) ) v. ) ) M A N D O AMERICA CORPORATION, ) ) D e f e n d a n t. )

CASE NO. 3:09-CV-252-WKW

ORDER P la in tif f Joe West sued Defendant Mando America Corporation for race d is c rim in a tio n and retaliation, in violation of federal employment anti-discrimination law. See 42 U.S.C. § 2000e-5 ("Title VII"). The Magistrate Judge entered a Report and

R e c o m m e n d a tio n ("R&R") (Doc. # 49), recommending that Mando America's motion for s u m m a ry judgment (Doc. # 33) be granted. Mr. West timely filed an Objection (Doc. # 51) to the R&R. Accordingly, the court reviews those portions of the R&R to which Mr. West o b je c ts de novo. 28 U.S.C. § 636(b). I . DISCUSSION A . Race Discrimination ­ Failure to Promote Claim M r. West's first objection is to the R&R's resolution of his claim that the failure to tra n s f e r him into a new position as a "process auditor" or "quality analyst." His objection a p p e a rs to conflate two elements of the McDonnell Douglas burden-shifting test for e v a lu a tio n employment discrimination claims. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-04 (1973). The R&R found that Mr. West failed to establish a prima facie c a s e of race discrimination, as required by the McDonnell Douglas test, because he did not m e e t the fourth prong of that test ­ showing that the positions he sought were filled by e q u a lly or less qualified employees of other races than his own. (R&R at 11-12.) The R&R f o u n d that of five vacant positions, three were filled by African-American employees and tw o by white employees. Mr. West is African-American. It further noted that Mr. West had in tro d u c e d no evidence of the other employees' qualifications. Accordingly, the R&R c o n c lu d e d that Mr. West had not made out a prima facie case of race discrimination. (R&R a t 12.) Mr. West takes issue with this finding, asserting that evidence showed that the two w h ite females who were hired for the positions had educational qualifications inferior to his o w n . (Objection at 2.) No such argument is made in Mr. West's brief in opposition to s u m m a ry judgment (Doc. # 41), however, and the court declines to consider arguments made f o r the first time in the Objection. Thus, the court agrees with the R&R's finding that Mr. W e s t did not make out a prima facie case of racial discrimination. In te rtw in e d with this objection is Mr. West's disagreement with the R&R's alternative c o n c lu s io n that, even if he had made out a prima facie case, he would fail at the next step of t h e McDonnell Douglas framework, because Mando America had a legitimate and n o n d is c rim in a to ry reason for favoring the other employees over Mr. West. (Objection at 1-2; R & R at 12-14.) According to Mr. West, Mando America's proffered reason that he "would n o t work well with others" (Doc. # 34, at 11) was the type of reason rejected by courts as a

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"wholly subjective and unarticulated standard[]." Byrnie v. Town of Cromwell, Bd. of Educ., 2 4 3 F.3d 93, 104 (2d Cir. 2001). But in Byrnie, the court also noted that "there is nothing u n la w f u l about an employer's basing its hiring decision on subjective criteria, such as the im p re ss io n an individual makes during an interview." Id. (quotation marks omitted). Few d e c is io n s made during a hiring process are likely to be entirely "objective," in the sense of b e in g capable of reduction to numbers or mechanical formulae. What is required is that an e m p lo ye r be sufficiently "clear and specific" about its reasons that the nature of the s u b je c tiv e judgment is brought into focus. Id. at 105 (quotation marks omitted). Mando A m e ric a met that standard, asserting that on the basis of Mr. West's interview, it concluded th a t he would not work well with other employees. (Doc. # 34, at 11.) No more is required. See also Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) ("[S]ubjecitve re a s o n s are not the red-headed stepchildren of proferred nondiscriminatory explanations for e m p lo ym e n t decisions. Subjective reasons can be just as valid as objective reasons."). B . Restructuring of the Quality Department as a Racially Motivated Scheme M r. West's next contention concerns his claim that the restructuring of Mando A m e ric a 's quality control department, in which he was employed, was a racially motivated s c h e m e . Once again, Mr. West entirely failed to develop any arguments relating to this claim in his brief opposing summary judgment, reciting only general principles of law (Doc. # 41, at 5), and the R&R deemed this claim abandoned. (R&R at 9 n.2.) Mr. West cannot now re v iv e his claim by making arguments for the first time in the Objection. Even if the new

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arguments were considered, they do not contain "statistical evidence of a kind and degree s u f f ic ie n t" to establish a disparate impact claim. Summers v. Winter, 303 F. App'x 716, 719 (1 1 th Cir. 2008). This objection lacks merit. C . Retaliation Claim M r . West's final objection is to the R&R's treatment of his retaliation claim. The R & R found that Mr. West did not establish a prima facie case of retaliation, because he re lie d entirely on the proximity of five months between the filing of his original EEOC claim a n d having suffered an adverse employment action, and such a temporal proximity was too re m o te to give rise to a presumption of proximity. (R&R at 16.) Such a conclusion is well s u p p o rte d by the case law cited in the R&R. Mr. West fails to address this reasoning directly, in s te a d contending that a jury could refuse to believe testimony by a Mando America human re s o u rc e s manager that only human resources staff is informed of EEOC charges made a g a in s t the corporation. (Objection at 4.) But the R&R's conclusion was not based on c re d itin g this testimony, but on the fact that Mr. West's only evidence of retaliation was the le n g th of time that elapsed between his EEOC charge and the adverse employment action. Accordingly, the objection lacks merit. I I . CONCLUSION F o r the foregoing reasons, it is ORDERED that: (1 ) The R&R (Doc. # 49) is ADOPTED; (2 ) The Objection (Doc. # 51) is OVERRULED;

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(3) Mando America's motion for summary judgment (Doc. # 33) is GRANTED; (4 ) This case is DISMISSED with prejudice; and F in a l judgment will be entered separately. D O N E this 12th day of May, 2010.

/s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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