Vickery v. Medtronic, Inc.
Filing
62
ORDER granting 45 Motion for Summary Judgment; terminating 56 Motion for Oral Argument. Signed by Senior Judge Charles R. Butler, Jr on 2/3/2014. (adk)
<![CDATA[
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
CARL
VICKERY,
Plaintiff,
v.
MEDTRONIC,
INC.
Defendant.
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
12-‐00731-‐CB-‐C
OPINION
and
ORDER
This
action,
filed
pursuant
to
42
U.S.C.
§
1981,
involves
several
employment
discrimination
claims
based
on
“reverse”
discrimination
and
retaliation.
The
defendant
has
filed
a
motion
seeking
summary
judgment
on
all
claims.
(Doc.
45.)
After
due
consideration
of
the
motion,
plaintiff’s
response,
and
all
supporting
evidence
and
briefs,
the
Court
finds
that
the
motion
is
due
to
be
granted.
FACTS
Background
Plaintiff
Carl
Vickery
was
employed
by
defendant
Medtronic,
Inc.
from
2006
until
2012.
Vickery
has
an
associate’s
degree
in
nursing,
as
well
as
an
undergraduate
degree
in
social
work,
and
a
master’s
degree
in
counseling.
For
two
years
immediately
prior
to
being
hired
by
Medtronic,
Vickery
was
employed
as
a
surgical
nurse.
Initially,
Vickery,
who
is
white,
worked
in
Medtronic’s
Navigation
division
as
a
Computer
Assisted
Surgical
Specialist
where
he
provided
technical
support
to
surgeons
using
Medtronic
navigation
equipment
to
perform
spine
or
cranial
surgeries.
In
2007,
Vickery
transferred
to
the
Neuromodulation
division
where
he
worked
initially
as
a
Procedures
Solutions
Specialist
for
the
Deep
Brain
Stimulation
(DBS)
therapy.
In
April
2008,
Vickery
became
Activa
Development
Manager
(ADM)
in
DBS,
a
position
he
held
until
his
termination
Neuromodulation
and
Navigation
are
separate
divisions
of
Medtronic,1
with
different
devices
aimed
at
different
types
of
medical
procedures.
Navigation
provides
equipment
for
spinal
and
cranial
surgeries.
Neuromodulation
provides
devices
for
deep
brain
stimulation
(DBS)
therapy.
DBS
uses
medical
devices
implanted
deep
within
the
brain
to
treat
certain
conditions,
such
as
Parkinson’s
disease.2
In
the
Navigation
unit,
Vickery
provided
technical
support
to
surgeons
using
Medtroinc
equipment
to
perform
spine
or
cranial
surgeries.
This
technical
support
included
operating
a
computer,
infrared
camera
system,
and
medical
devices
or
equipment
attached
to
drills
and
probes.
In
the
Neuromodulation
division,
Vickery’s
job
duties
in
his
first
position
as
Procedure
Solutions
Specialist
involved
working
closely
with
surgeons
to
help
them
understand
the
DBS
Nexframe
equipment,
which
was
similar
to
Navigation
equipment.
When
this
position
was
eliminated,
Vickery
became
an
ADM.
According
to
a
Medtronic
job
description
dated
September
2010,
an
ADM
“[w]orks
in
partnership
and
support
of
the
DBS
sales
organization
to
help
create
new
accounts,
introduce
new
therapies/indications,
assist
with
training
internal
and
external
people
on
DBS,
and
cover
difficult
cases.”
(Pl.’s
Ex.
A.,
Doc.
52-‐1.)
Vickery
1
The
company
is
“vertically
integrated”
so
that
each
division
has
a
separate
sales
and
marketing
channel,
each
with
its
own
general
manager.
(Frenkel
Dep.
12-‐
16,
Doc.
48-‐3.)
2
Medtronic’s
Activa
neurostimulator
delivers
a
controlled
electrical
pulse
to
precisely
targeted
areas
of
the
brain.
The
devise
is
typically
implanted
subcutaneously
and
connected
to
an
extension
and
lead
implanted
in
the
brain.
2
had
more
specialized
knowledge
than
regular
sales
representatives.
As
part
of
his
ADM
duties,
Vickery
trained
surgeons
on
the
use
of
the
DBS
Nexframe
equipment,
which
was
similar
to
equipment
used
in
Navigation
procedures.
He
also
trained
sales
representatives,
but
he
had
no
authority
to
discipline
them.
As
ADM,
Vickery
reported
to
the
Neuromodulation
division’s
southeast
regional
sales
manager.3
When
Vickery
became
ADM,
Ty
Atteberry
was
regional
sales
manager.
According
to
Vickery’s
understanding,
there
was
no
nationwide
uniformity
regarding
an
ADM’s
responsibilities.
Atteberry
used
his
discretion
based
on
the
needs
of
the
district
to
direct
Vickery’s
job
duties.
Ross
Becomes
Manager
In
2011,
Charles
Ross,
who
is
African
American,
replaced
Atteberry
as
sales
manager.
As
manager,
Ross
was
aware
of
Vickery’s
background,
education
and
experience.
Ross
reported
to
Ellen
Frenkel,
the
Vice
President
of
Sales
for
DBS.
In
addition
to
Vickery
(the
ADM)
approximately
twelve
sales
representatives
and
an
undetermined
number
of
clinical
specialists
reported
to
Ross.
The
racial
makeup
of
the
employees
under
Ross’s
supervision
was
overwhelmingly
white.
At
most,
there
were
three
nonwhite
employees-‐-‐Jesus
Azan,
a
sales
representative,
is
Hispanic;
Kelly
Roberts,
a
clinical
specialist,
has
been
described
as
a
person
“of
Persian
descent;”
and
Eric
Jackson,
a
sales
representative
fired
by
Ross
prior
to
Vickery’s
termination,
is
African
American.
According
to
Vickery,
Ross
was
not
a
good
manager.
He
“was
inconsistent
in
communication
with
the
team
and
destructive
in
the
way
he
interacted
with
some
of
3
Sales
representatives
also
reported
to
the
regional
sales
manager.
3
the
team
members,”
and
he
“targeted”
certain
individuals.
(Pl.’s
Decl.
¶
7,
Doc.
52-‐
15.)
On
January
12,
2012,
Ross
gave
Vickery
a
memorandum,
known
as
a
“letter
of
expectations,”
regarding
improvements
he
wanted
to
see
in
Vickery’s
job
performance.
(Id.
¶
9.)
Vickery
was
surprised
because
this
was
the
first
time
Ross
informed
him
that
he
was
not
meeting
expectations.
(Id.
¶
9.)
From
this
point
forward,
the
relationship
between
Vickery
and
Ross
went
downhill.
As
Vickery
describes
it,
By
2012,
it
was
clear
Mr.
Ross
had
targeted
me.
On
a
weekly
basis,
Mr.
Ross
failed
to
include
me
in
team
discussions
and
business
meetings
so
that
I
could
be
informed
of
issues
and
respond
to
them.
Mr.
Ross
regularly
criticized
me
for
being
responsive
to
the
requests
of
sales
representatives.
.
.
to
assist
them
in
covering
cases
and
training,
and
yet
he
never
took
action
that
would
give
me
the
time
or
resources
to
respond
to
any
unmet
expectation
he
identified.
He
held
me
accountable
for
circumstances
beyond
my
control
repeatedly
even
though
he
knew
what
obstacles
were
interfering
with
my
ability
to
respond
to
his
demands
within
his
desired
time
frame.
This
conduct
from
Mr.
Ross
was
persistent,
unremitting,
and
regular
from
January
2012
until
I
was
fired.
(Id.
¶
10.)
Vickery
testified
that
“the
way
I
felt
and
what
I
had
seen
with
a
couple
of
others
is
anybody
that
stood
their
ground
or
–or
tried
to
defend
their
position,
then
–and
they
were
white,
they
were
marked
[by]
Ross.”
(Pl.’s
Dep.
218,
Doc.
52-‐14.)
Two
of
Vickery’s
coworkers
also
perceived
Ross
to
behave
in
a
discriminatory
manner.
Barbara
Williams,
a
former
Medtronic
sales
representative,
testified
that
Ross
was
hostile
to
comments
by
white
employees
but
was
not
hostile
to
similar
comments
by
nonwhites.
(Williams
Decl.
¶
14,
Doc.
52-‐17.)
She
also
noted
that
Kelly
Robertson
(the
clinical
specialist
“of
Persian
descent”)
received
preferential
treatment
from
Ross.
Another
former
sales
representative,
Richard
Plummer,
also
4
complained
to
Human
Resources
that
Ross
had
discriminated
against
him
and
that
he
“was
being
targeted
because
of
[his]
race
and
for
[
]
being
a
witness
for
[his]
Caucasian
co-‐workers
who
were
complaining
about
Mr.
Ross.”
(Plummer
Decl.
¶
10,
Doc.
52-‐18.)
The
Hotel
Incident
and
the
White
Elephant
Comment
In
April
2012,
Ross
and
Vickery
attended
a
convention
in
Florida
and
were
staying
at
the
same
hotel.
They
made
arrangements
to
ride
together
to
the
convention
one
morning,
but
Ross
forgot
and
left
Vickery
at
the
hotel.
Later,
during
the
same
convention
when
a
coworker
asked
why
he
was
almost
late
for
the
meeting,
Vickery
explained
that
Ross
had
left
him.
Vickery
then
commented:
“Next
time
we’re
ever
in
Mississippi,
I’ll
leave
him
in
the
lobby
of
the
hotel
and
he
can
find
his
way
to
the
hospital.”
Another
Medtronic
employee,
Dr.
Sylvia
Bartley,
overheard
this
comment
and
thought
it
had
racial
overtones.
Bartley
told
Ross,
who
also
thought
the
comment
was
racist.
Ross
told
Laura
Neuenschwander
of
Human
Resources,
and
an
investigation
ensued.
Vickery
told
Heidi
Meyer,
who
was
investigating
the
matter
for
Medtronic:
“You
know,
it's
almost
like
I'm
being
set
up
here.
It's
almost
like
it's
a
hostile
work
environment.
It's
almost
like
he's
trying
to
push
me
out.
And
it's
almost
like
reverse
race
discrimination
going
on.
It's
almost
like
he's
got
it
against
me
that,
you
know,
the
team
likes
me.
I
work
well
with
the
team.
I
-‐-‐
you
know,
I
don't
know
what
the
issue
is.”
(Pl.’s
Dep.
209)
In
a
follow-‐up
conversation,
Vickery
thinks
he
“reiterated
it
seems
like
retaliation
at
this
point,
that
-‐-‐
that
it
was
hostile.
I
felt
like
it
was
violating
me
in
a
sense
that
he
was
coming
after
me
and
targeting
me.”
(Id.
213)
5
Vickery
feared
retaliation
from
Ross
because
“any
time
you
stood
up
or
disagreed
with
Mr.
Ross,
you
were
-‐-‐
you
could
-‐-‐
you
didn't
even
have
to
hold
your
breath;
you
were
getting
some
kind
of
negative
feedback
on
something
that
was
not
even
related
to
that
situation.”
(Id.)
At
a
sales
meeting
that
occurred
after
this
investigation,
another
employee
brought
up
“backstabbing
and
lying
in
the
Southeast
district.”
(Id.
183-‐84)
In
response,
Ross
looked
directly
at
Vickery
and
said,
“Well,
let's
discuss
the
white
elephant
in
the
room.”
(Id.
184)
After
he
made
the
remark,
Ross
“went
on
to
discuss
how
[the
group]
should
work
together,
.
.
.
teamwork,
how
he.
.
.
would
do
a
better
job
in
communicating.”
(Id.)
Vickery
considered
Ross’s
“white
elephant”
comment
to
be
“a
racist
remark.”
(Id.)
Use
of
Navigation
Equipment
During
Surgery
at
Sacred
Heart
Hospital
On
July
25,
2012,
Vickery
was
at
Sacred
Heart
Hospital
in
Pensacola
along
with
Michael
Tapley,
a
Medtronic
sales
representative,
and
Brian
Beck,
a
new
Medtronic
employee,
for
training.
Brian
Nguyen,
a
sales
representative
from
the
Navigation
unit,
asked
Vickery
to
cover
for
him
in
a
spine
surgery
because
he
had
been
called
to
an
emergency
at
another
hospital.
Nguyen
had
already
set
up
the
equipment
so
that
all
Vickery
had
to
do
was
to
aim
the
camera
for
the
surgeon.
Vickery
worked
under
the
direction
of
the
surgeon,
and
the
Navigation
camera
“operated
in
the
same
way
as
when
[Vickery]
was
a
Navigation
clinical
specialist
and
in
the
same
way
as
when
using
Nexframe
[i.e.,
DBS]
technology.”
(Pl.’s
Decl.
¶
6
15.)
Vickery
did
not
believe
he
was
doing
anything
wrong
when
he
filled
in
for
Nguyen,
and
his
assistance
prevented
any
delay
in
the
procedure.4
(Id.
¶
11.)
Ross
learned
about
this
incident
on
August
23,
2012
in
a
meeting
with
Vickery
and
Tapley.
Ross
summarized
that
meeting
in
a
memo
to
Laura
Neuenschwander.
(Def.’s
Ex.
2,
Doc.
49-‐1.)
Tapley
told
Ross
that
he
“was
going
over
planning
software
with
Brian
[a
new
hire]
when
he
noticed
Carl
was
not
present.
“
(Id.)
Tapley
learned
that
Vickery
was
“’[r]unning
the
Stealth
[Navigation
equipment]
in
a
spine
case
for
the
surgeon.’”
(Id.)
In
the
meeting,
Vickery
confirmed
to
Ross
that
“’he
ran
the
camera
for
a
spine
case
for
the
surgeon’”
but
was
“’just
helping
the
local
MNav
rep
out.’”
(Id.)
Ross
informed
Vickery
that
this
was
a
violation
of
policy.
(Id.)
Transfer
Request
On
August
29,
2012,
Vickery
told
Laura
Neuenschwander
that
Ross
“had
been
hostile
towards
me
and
his
communication,
or
lack
of
communication,
that
he
did
not
follow
up
with
questions,
.
.
.
or
he
was
supposed
to
have
a
conference
call
with
me
on
the
plan;
he
never
followed
up
with
that.
And
I
felt
like
I
was
being
set
up
and
that
I
felt
that
race
was
involved;
I
felt
retaliation
was
involved
(Pl.’s
Dep.
244.)
Vickery
requested
that
he
be
transferred.
(Id.)
Medtronic,
however,
was
already
moving
toward
termination
and,
therefore,
did
not
grant
the
transfer
request.
(Neuenschwander
Dep.
41,
Doc.
48-‐8.)
4
The
surgery
would
have
gone
ahead,
even
if
Vickery
had
not
assisted.
However,
the
nurse
practitioner
would
have
run
the
camera
and
would
have
been
required
to
resterilize
each
time
she
touched
the
camera.
As
a
result,
the
surgery
would
have
taken
longer,
thereby
increasing
both
the
length
of
the
surgery
and
the
patient’s
time
under
anesthesia.
(Vickery
Decl.¶
11.)
7
Termination
On
September
11,
2012,
Medtronic
terminated
Vickery’s
employment.
(Ross.
Dep.
74-‐75,
Doc.
48-‐4.)
Ross
and
Ellen
Frenkel,
Medtronic’s
Vice
President
of
Sales
for
DBS,
jointly
made
the
termination
decision
based
on:
(1)
Vickery’s
poor
judgment
in
assisting
with
the
procedure
for
which
he
was
not
trained
(the
Sacred
Heart
spine
surgery)
and
(2)
his
repeated
failure
to
meet
performance
expectations
outlined
by
Ross.
(Id.)
Regarding
performance
expectations,
Ross
testified
that
Vickery
failed
to
work
toward
account
development,
failed
to
“deliver
training
…
to
groups
of
neurologists,”
and
generally
failed
to
strike
a
proper
balance
between
providing
clinical
support
and
developing
new
accounts.
(Id.
75-‐78.)
Medtronic’s
written
policy
required
that
“prior
to
providing
any
technical
support
a
representative
must
be
trained
on
the
products
they
support.”
(Def.’s
Ex.
6,
Doc.
49-‐
2.)
Although
Vickery
had
been
trained
on
the
equipment
used
in
the
spine
surgery
when
he
was
in
the
Navigation
division,
his
did
not
possess
current
training
or
credentials
to
operate
Navigation
equipment
when
he
took
part
in
the
spine
surgery
at
Sacred
Heart.
(Neuenschwander
Dep.
41-‐43.)
Post-‐Termination
Application
for
Navigation
Position
Within
days
of
his
termination,
Vickery
applied
for
a
clinical
specialist
position
in
Medtronic’s
Navigation
division.
(Pl.
Dep.
228.)
Erik
Bruskotter,
a
Navigation
regional
sales
director,
interviewed
two
candidates
for
the
job—Vickery
and
Lori
Josey,
an
African
American.
Before
the
interview,
Vickery
spoke
to
Bruskotter,
whom
he
had
known
when
he
worked
in
Navigation,
via
telephone.
Vickery
told
Bruskotter
that
he
was
interested
in
the
position
and
also
explained
8
that
he
had
been
terminated
from
Medtronic.
(Id.)
Vickery
asked
if
that
was
going
to
be
a
problem,
and
Bruskotter
assured
him
that
“[a]s
long
as
you
are
rehireable,
I
definitely
don’t
have
a
problem
with
you,
definitely
want
you
to
interview
and
you
would
definitely
be
one
of
the
top
candidates.”
(Id.
230.)
At
the
interview,
Bruskotter
asked
Vickery
why
he
was
let
go,
and
Vickery
explained
that
he
had
some
challenges
with
the
sales
reps,
that
there
were
some
conflicts,
and
that
he
also
had
some
challenges
with
his
manager.
(Bruskotter
Dep.
73,
Doc.
48-‐5.)
Bruskotter
told
Vickery
that
he
had
one
more
person
to
interview
and
that
“if
everything
works
out,”
he
would
be
giving
Vickery
a
call.
(Pl.
Dep.
231.)
Vickery
was
actually
Bruskotter’s
second
interview.
(Bruskotter
Dep.
58.)
Bruskotter
had
already
interviewed
Josey,
whom
he
found
to
be
a
solid
candidate.
Josey’s
training
and
experience
made
her
a
good
fit
for
the
position.
She
had
clinical
experience
working
with
hospital
staffs
that
involved
supporting
other
types
of
surgical
equipment,
experience
with
a
radiology
device
that
had
some
similarities
to
Navigation
equipment,
and
a
degree
in
computer
information
systems,
which
would
obviously
be
of
value
working
with
computers
and
software.
(Id.
60-‐63.)
Immediately
after
Vickery’s
interview,
Bruskotter
decided
that
Vickery
would
be
a
better
fit
for
the
position
because
he
had
a
background
with
Navigation.
(Id.
74.)
That
same
day,
Bruskotter
sent
an
email
to
Veronica
Lambert,
the
HR
person
assigned
to
his
group
informing
her
that
he
wanted
to
put
together
an
offer
letter
for
Vickery.
In
the
email
Bruskotter
also
explained
that
Vickery
had
been
“let
go”
by
Activa
but
that
he
was
eligible
for
rehire.
(Id.
81-‐82.)
Lambert
had
some
questions
about
why
Vickery
had
been
“let
go,”
which
led
to
a
telephone
9
conversation
the
following
day
between
Bruskotter
and
Lambert.
(Id.
84.)
Between
the
time
of
the
email
exchange
and
the
time
of
his
conversation
with
Lambert,
Bruskotter
began
to
rethink
his
decision.
(Id.
85.)
Bruskotter
talked
about
the
situation
with
Lambert
and
told
her
that
he
had
begun
to
have
“a
lot
of
concerns
.
.
.
given
the
friction
that
[Vickery]
had
mentioned.
.
.
with
the
sales
rep
and
the
manager.”
Id.
By
the
end
of
the
conversation,
Bruskotter
decided
“to
move
forward
with
[Josey]
instead
of
[Vickery].”
(Id.
86.)
Bruskotter
subsequently
had
a
telephone
conversation
with
Vickery
to
inform
him
of
the
decision.
(Id.
90.)
According
to
Vickery,
Bruskotter
told
him
“HR
had
put
a
kibosh
on
me
coming
on
board.”
(Vickery
Dep.
231.)
Vickery
subsequently
filed
the
instant
action
against
Medtronic,
asserting
numerous
employment
discrimination
and
retaliation
claims
under
42
U.S.C.
§
1981.
Specifically,
Vickery
claims
that
Medtronic
terminated
his
employment
because
of
his
race,
that
Medtronic
failed
to
rehire
him
because
of
his
race
and
that
Medtronic
subjected
him
to
a
hostile
work
environment
because
of
his
race.
Further,
Vickery
alleges
that
Medtronic
retaliated
against
him
for
complaining
of
race-‐based
discrimination
by
terminating
his
employment,
by
refusing
to
transfer
him
to
a
different
position
prior
to
his
termination,
and
by
refusing
to
rehire
him
following
his
termination.
ISSUES
PRESENTED
On
summary
judgment,
Medtronic
argues
that
Vickery
cannot
produce
sufficient
evidence
to
support
any
of
the
six
claims
he
has
asserted.
In
his
response
brief,
Vickery
addresses
only
four
of
those
claims,
omitting
his
claims
for
10
discriminatory
failure
to
rehire
and
retaliatory
termination.
In
reply,
Medtronic
asserts
that
those
unaddressed
claims
have
been
abandoned.
In
surreply,
Vickery
argues
that
he
did
not
intentionally
abandon
those
claims.
Below,
the
Court
sets
out
the
applicable
legal
standards
and
explains
why
certain
claims
are
deemed
abandoned
before
addressing
the
sufficiency
of
the
evidence
as
to
each
of
the
remaining
claims—discriminatory
termination,
hostile
work
environment,
retaliatory
refusal
to
transfer,
and
retaliatory
refusal
to
rehire.
LEGAL
ANALYSIS
Applicable
Standards
of
Review
Summary
Judgment
Standard
Summary
judgment
should
be
granted
only
if
"there
is
no
issue
as
to
any
material
fact
and
the
moving
party
is
entitled
to
a
judgment
as
a
matter
of
law."
Fed.
R.
Civ.
P.
56(c).
The
party
seeking
summary
judgment
bears
"the
initial
burden
to
show
the
district
court,
by
reference
to
materials
on
file,
that
there
are
no
genuine
issues
of
material
fact
that
should
be
decided
at
trial."
Clark
v.
Coats
&
Clark,
Inc.,
929
F.2d
604,
608
(11th
Cir.
1991).
Once
the
moving
party
has
satisfied
his
responsibility,
the
burden
shifts
to
the
nonmoving
party
to
show
the
existence
of
a
genuine
issue
of
material
fact.
Id.
"If
the
nonmoving
party
fails
to
make
'a
sufficient
showing
on
an
essential
element
of
her
case
with
respect
to
which
she
has
the
burden
of
proof,'
the
moving
party
is
entitled
to
summary
judgment."
United
States
v.
Four
Parcels
of
Real
Property,
941
F.2d
1428,
1437
(11th
Cir.
1991)
(quoting
Celotex
Corp.
v.
Catrett,
477
U.S.
317
(1986))
(footnote
omitted).
11
"In
reviewing
whether
the
nonmoving
party
has
met
its
burden,
the
court
must
stop
short
of
weighing
the
evidence
and
making
credibility
determinations
of
the
truth
of
the
matter.
Instead,
the
evidence
of
the
non-‐movant
is
to
be
believed,
and
all
justifiable
inferences
are
to
be
drawn
in
his
favor.”
Tipton
v.
Bergrohr
GMBH-‐
Siegen,
965
F.2d
994,
999
(11th
Cir.
1992)
(internal
citations
and
quotations
omitted).
“However,
we
draw
these
inferences
only
“’to
the
extent
supportable
by
the
record.’”
Penley
v.
Eslinger,
605
F.3d
843,
848
(11th
Cir.
2010)
(quoting
Scott
v.
Harris,
550
U.S.
372,
381
n.
8
(2007)
(emphasis
omitted)).
Furthermore,
“[a]
dispute
over
a
fact
will
only
preclude
summary
judgment
if
the
dispute
“might
affect
the
outcome
of
the
suit
under
the
governing
law.”
Id.
(quoting
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
248,
(1986))
Employment
Discrimination
&
Retaliation
Framework
For
more
than
30
years,
federal
courts
have
relied
on
the
burden-‐shifting
framework
established
in
McDonnell
Douglas
Corp.
v.
Green,
411
U.S.
792
(1973)
and
Texas
Department
of
Community
Affairs
v.
Burdine,
450
U.S.
248
(1981),
to
analyze
employment
discrimination
and
retaliation
claims
based
on
circumstantial
evidence.
See,
e.g.,
Chapman
v.
A1
Transport,
229
F.3d
1012,
1024
(11th
Cir.
2000)
(en
banc)(analyzing
ADEA
claim
using
McDonnell
Douglas/Burdine
analysis);
Combs
v
Plantation
Patterns,
106
F.3d
1519,
1528
(11th
Cir.
1997)
(racial
discrimination).5
Under
that
framework,
a
plaintiff
bears
the
initial
burden
of
establishing
a
prima
5
The
same
analysis
applies
to
discrimination
and
retaliation
claims
brought
under
Title
VII,
§
1981
and
the
Age
Discrimination
in
Employment
Act
(ADEA).
See
e.g.,
Brown
v.
Alabama
Dept.
of
Transp.,
59
F.3d
1160,
1174
n.
6
(11th
Cir.
2010)
(Title
VII
and
§
1981);
Chapman,
229
F.3d
at
1024
(ADEA
and
Title
VII);
Goldsmith
v.
Bagby
Elevator
Co.,
513
F.3d
1261,
1277
(11th
Cir.
2008)
(retaliation
under
Title
VII
and
§
1981).
Therefore,
the
case
law
in
these
types
of
cases
is
interchangeable.
12
facie
case
of
discrimination
or
retaliation
through
circumstantial
evidence.
Combs
v.
Plantation
Patterns,
106
F.3d
1519,
1527
(11th
Cir.
2000).
If
the
plaintiff
does
so,
a
presumption
of
discrimination
or
retaliation
is
created
and
the
burden
shifts
to
the
defendant
to
produce
a
legitimate
nondiscriminatory
reason
for
its
action.
Id.
1527-‐
28.
If
the
defendant
meets
his
burden
(which
is
a
burden
of
production,
not
persuasion),
then
the
presumption
disappears,
and
the
plaintiff
must
“’demonstrate
that
the
proffered
reason
was
not
the
true
reason
for
the
employment
decision.’”
Id.
(quoting
Burdine,
450
U.S.
at
256).
This
may
be
accomplished
“’either
directly
by
persuading
the
court
that
a
discriminatory
reason
more
likely
motivated
the
employer
or
indirectly
by
showing
that
the
employer’s
proffered
explanation
is
unworthy
of
credence.’”
Id.
Review
of
Plaintiff’s
Claims
Abandoned
Claims
Vickery’s
summary
judgment
response
fails
to
address
his
claims
for
discriminatory
failure
to
rehire
and
retaliatory
termination.
The
Eleventh
Circuit
has
long
held
that
“[t]here
is
no
burden
upon
the
district
court
to
distill
every
potential
argument
that
could
be
made
based
upon
the
materials
before
it
on
summary
judgment.”
RTC
v.
Dunmar
Corp,
43
F.3d
587,
599
(11th
Cir.
1995);
accord
Clark
v.
City
of
Atlanta,
___
Fed.
Appx.
___
2013
WL
6037179
(11th
Cir.
Nov.
15,
2013)
(district
court
properly
treated
as
abandoned
claims
not
addressed
in
opposition
to
summary
judgment
motion).
Vickery
asserts,
in
surreply,
that
he
should
not
be
penalized
for
the
“lack
of
clarity”
in
his
summary
judgment
response.
Plaintiff’s
problem
is
more
than
a
lack
of
clarity.
He
has
failed
to
address
the
claims
at
all.
13
Plaintiff’s
counsel
points
to
last-‐minute
difficulties
she
encountered
in
filing
the
summary
judgment
response
and
to
her
“good
faith
belief”
that
the
submission
entitled
“Plaintiff’s
Statement
of
Disputed
Facts
Requiring
Trial”
would
be
sufficient
to
preserve
the
claims
not
addressed
in
Plaintiff’s
summary
judgment
response
brief.
But
a
statement
of
disputed
facts—even
one
as
extensive
as
this—does
not
explain
how
the
facts
relate
to
any
specific
legal
claim,
much
less
the
legal
sufficiency
of
the
claims.
“[T]he
onus
is
upon
the
parties
to
formulate
arguments;
grounds
alleged
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned.”
Dunmar,
43
F.3d
at
599.
Because
Plaintiff
provided
no
argument
to
support
his
claims
for
discriminatory
failure
to
rehire
and
retaliatory
termination,
those
claims
are
deemed
abandoned.
Discriminatory
Termination
Claim
Medtronic
argues
that
it
is
entitled
to
summary
judgment,
first,
because
Vickery
cannot
prove
a
prima
facie
case
of
discrimination.
Most
often
an
employee
asserting
discriminatory
discharge
demonstrates
a
prima
facie
case
by
proving
that:
(1)
he
is
a
member
of
a
protected
class;
(2)
he
was
qualified
for
the
position;
(3)
he
suffered
an
adverse
employment
action;
and
(4)
he
was
treated
less
favorably
than
a
similarly-‐situated
individual
outside
his
protected
class.
Maynard
v.
Bd.
of
Regents
of
Div.
of
Univs.
of
Fla.
Dept.
of
Educ.
ex
rel.
Univ.
of
S.
Fla.,
342
F.3d
1281,
1289
(11th
Cir.
2003).
However,
“[t]he
methods
of
presenting
a
prima
facie
case
are
not
fixed;
they
are
flexible
and
depend
to
a
large
degree
upon
the
employment
situation.”
Wilson
v.
B/E
Aerospace,
Inc.,
376
F.3d
1079,
1987
(11th
Cir.
2004).
A
plaintiff’s
discrimination
claim
is
not
doomed
simply
because
there
are
no
similarly-‐situated
14
employees
who
may
be
used
as
comparators.
Smith
v.
Lockheed-‐Martin
Corp,
644
F.3d
1321
(11th
Cir.
2011).
Recognizing
that
Vickery
relies
on
“other
evidence”
to
prove
discrimination,
Medtronic
argues
that
Vickery’s
evidence
is
not
sufficient
to
raise
an
inference
of
intentional
discrimination.
Vickery’s
response
is
two-‐fold.
First,
citing
Smith,
Vickery
argues
that
the
entire
McDonnell
Douglas
framework
can
be
cast
aside
and
that
he
need
only
prove
“any
circumstantial
evidence
from
which
a
reasonable
inference
of
discrimination
can
be
drawn.”
(Pl.’s
Br.,
Doc.
53
at
16.)
Alternatively,
Vickery
asserts
that
he
can
prove
a
prima
facie
case
under
McDonnell
Douglas.
Taking
the
latter
argument
first,
it
is
easy
to
understand
why
Vickery
relies
so
heavily
on
the
former.
Vickery
points
to
Kelly
Robertson
as
a
comparator
and
argues
that
she
was
“a
person
of
color
.
.
.
known
by
Ross
to
have
performed
work
outside
of
her
training
and
experience
without
being
terminated.”
(Pl.’s
Br.
18,
Doc.
53.)
To
satisfy
his
burden,
Vickery
must
prove
that
he
and
Robertson
were
similarly
situated
in
all
relevant
respects
and
that
Robertson’s
misconduct
was
“nearly
identical”
to
his
own.
Wilson,
376
F.3d
at
1091.
The
supporting
evidence
he
cites,
however,
falls
far
short
of
proof.
Vickery
cites
to
his
own
declaration
and
that
of
Williams,
a
former
sales
representative
who
worked
with
Robertson.
In
his
own
declaration,
Vickery
avers
that
“Mr.
Ross
knew
Kelly
Robertson
had
performed
work
without
certification
without
disciplining
her.”
(Pl.’s
Decl.¶
12,
Doc.
52-‐15.)
Because
Vickery
does
not
identify
the
work
Robertson
did
without
certification,
it
is
impossible
to
say
that
it
was
similar
in
all
relevant
respects
to
the
conduct
for
which
Vickery
was
terminated.
Williams’
declaration
does
not
identify
any
work
Robertson
performed
without
15
certification.
Instead,
Williams
complains
that
Robertson
did
not
perform
her
job
and
Ross
did
nothing
about
it.
(Williams
Decl.,
¶
14,
Doc.
52-‐15.)
Whether
the
Eleventh
Circuit
in
Smith
created
an
alternative
to
the
McDonnell
Douglas
paradigm
in
its
entirety
or
merely
an
alternative
method
of
proving
the
fourth
element
of
a
prima
facie
case
is
the
subject
of
debate.
See,
e.g.,
Bell
v.
Crowne
Mgmt,
LLC,
844
F.Supp.2d
1222,
1232
(S.D.
Ala.
2012)
(to
extent
Smith
suggests
burden-‐shifting
paradigm
of
McDonnell
Douglas
can
be
ignored
in
circumstantial
evidence
case,
“it
is
in
tension
with
a
long
line
of
Eleventh
Circuit
precedent”
and
“with
McDonnell
Douglas
itself”);
Williams
v.
Cleaver
Brooks,
Inc.
,
2012
WL
6151141,
*7
n.
9
(M.D.
Ga.
Dec.
11,
2102)
(noting
with
interest
the
relevant
portion
of
Bell).
This
Court
need
not
wade
into
the
debate,
however,
because
Vickery’s
“other
evidence”
does
not
amount
to
the
type
of
“convincing
mosaic
of
circumstantial
evidence”
that
would
allow
a
jury
to
infer
intentional
discrimination.
As
circumstantial
evidence
of
discriminatory
intent
Vickery
argues,
first,
that
“[p]roof
of
bias
by
a
decision-‐maker
against
other
employees
is
probative
of
discriminatory
animus
even
if
those
employees
are
not
similarly
situated.”
(Pl.’s
Brf.
15,
Doc.
53.)
Vickery’s
potential
“bias”
evidence
is
of
two
types.6
First
is
evidence
that
other
employees
were
mistreated
and
abused
by
Ross.
Undoubtedly,
there
were
issues
with
Ross’s
management
style.
He
may
have
treated
some
employees
unfairly,
but
there
is
no
evidence
from
which
a
factfinder
could
reasonably
infer
that
6
The
difficulty
with
this
claim
is
that
Vickery
does
not
explain
what
he
believes
to
be
evidence
of
Ross’s
racial
bias,
leaving
the
Court
to
comb
through
his
proposed
facts
to
arrive
at
some
possibilities
and
then
to
sift
through
pages
of
depositions
and
declarations
to
determine
whether
the
evidence
supports
those
“facts”.
16
he
did
so
because
of
their
race.7
Vickery’s
second
type
of
“bias”
evidence
is
that
Ross
showed
favoritism
to
nonwhite
employees.
A
former
coworker,
Barbara
Williams
observed
that
Ross
responded
more
positively
to
Eric
Jackson,
an
African
American,
than
he
did
to
white
employees;
that
he
spoke
more
kindly
to
Jesus
Azan,
a
Hispanic,
than
he
did
to
white
employees;
and
that
he
gave
preferential
treatment
to
Kelly
Robertson,
a
clinical
specialist
who
is
“of
Persian
descent.”
(Id.
¶¶
13-‐14.)
As
additional
circumstantial
evidence
of
discrimination,
Vickery
points
again
to
Kelly
Robertson,
arguing
that
she
engaged
in
conduct
outside
the
scope
of
her
employment
and
was
not
disciplined.
But
that
vague
claim,
supported
by
no
specific
information
as
to
conduct,
provides
no
basis
for
any
inferences.
8
9
Vickery’s
final
piece
of
circumstantial
evidence
of
discriminatory
termination
is
his
claim
that
“he
did
not
violate
any
policy
or
engage
in
any
misconduct.”
(Pl.’s
Brf.
17.)
The
evidence
does
not
support
Vickery’s
claim.
At
the
time
Vickery
covered
the
spine
surgery
at
Sacred
Heart
Hospital,
Medtronic
had
a
policy
that
7
Vickery
misses
the
mark
with
his
argument
that
this
is
“me
too”
evidence
that
can
be
considered
as
probative
of
discriminatory
intent.
It
is
only
probative
if
the
evidence
proffered
demonstrates
discriminatory
intent.
Since
one
could
not
reasonably
conclude
that
Ross
discriminated
against
the
other
employees
because
of
their
race,
no
inference
can
be
made
that
he
intentionally
discriminated
against
Vickery
on
account
of
race.
8
See
discussion,
supra
at
15,
regarding
Robertson’s
alleged
misconduct.
If
Vickery
is
implying
that
Robertson’s
failure
to
perform
her
job
duties
is
equivalent
to
engaging
in
out
of
scope
conduct,
that
is
simply
wrong.
9
In
the
“Statement
of
Material
Facts”
section
of
his
summary
judgment
response,
Plaintiff
implies
that
he
has
“been
disadvantaged
in
responding”
to
this
issue
because
no
ruling
has
been
entered
on
a
pending
discovery
motion
“that
would
likely
produce
evidence
favorable
to
Plaintiff
if
allowed.”
(Pl.’s
Rsp.
11
n.3.)
Pursuant
to
Fed.
R.
Civ.
P.
56(d)
if
a
party
“cannot
present
facts
essential
to
justify
its
opposition,”
it
must
present
“an
affidavit
or
declaration”
setting
forth
the
“specified
reasons”
it
cannot
do
so.
A
vague
footnote
in
a
summary
judgment
response
is
not
sufficient.
17
required
its
employees
to
be
trained
on
the
products
they
support.
Vickery
did
not
possess
current
training
or
credentials
for
the
Navigation
equipment.
Vickery
asserts
that
the
training
he
had
was
sufficient,
but
that
is
nothing
more
than
a
disagreement
with
Medtronic’s
policy.
It
is
not
evidence
that
the
policy
did
not
exist,
nor
is
it
evidence
that
he
did
not
engage
in
misconduct.10
In
summary,
Vickery
has
presented
evidence
that
Ross
was
vindictive
toward
employees
who
stood
up
to
him
and
that
Ross
was
more
positive
to
a
nonwhite
employee
(whom
he
later
fired),
spoke
kindly
to
another
nonwhite
employee,
and
did
not
force
a
third
nonwhite
employee
to
perform
her
job
duties.
This
type
of
evidence—that
a
manager
treated
employees
unfairly
and
showed
slight
favoritism
toward
others—cannot
be
the
“convincing
mosaic”
that
the
Smith
court
had
in
mind.11
Indeed,
this
is
exactly
the
type
of
case
that
requires
a
court
to
sift
through
10
Vickery’s
argument
that
he
did
not
violate
any
policy
is
followed
by
a
series
of
“facts”
intended
to
prove
that
claim.
The
actual
evidence
cited
does
not
support
the
“facts”
asserted.
But
even
if
it
did
those
“facts”
would
demonstrate
only
that
the
policy
was
not
clearly
conveyed
to
Medtronic’s
employees.
Specifically,
he
claims
that
sales
representatives
frequently
did
things
that
were
“out
of
scope,”
and
that
they
received
confusing
information
about
what
was
“out
of
scope.”
Failure
to
communicate
a
policy
does
not
mean
that
no
policy
existed.
And
“out
of
scope”
is
not
the
same
as
providing
support
using
equipment
for
which
one
has
not
been
trained.
Vickery
also
claims
that
he
was
led
to
believe
that
working
on
Navigation
equipment
was
not
against
Medtronic
policy.
In
his
declaration,
he
recounts
an
April
2012
meeting
of
ADM’s:
“I
heard
Van
Allen
[another
ADM]
talk
about
covering
Navigation
cases
(which
includes
spine
and
cranial
cases).
This
discussion
did
not
involve
any
criticism
by
Dr.
Bartley
[a
Medtronic
supervisor]
or
identification
of
any
policy
in
Medtronic
being
violated.”
(Pl.’s
Decl.
¶
11.)
Again,
failure
to
clearly
communicate
a
policy
does
not
mean
it
does
not
exist.
Finally,
Vickery
asserts
that
no
policy
was
identified
to
explain
his
termination.
Once
again,
the
failure
to
specifically
identify
the
policy
does
not
negate
its
existence.
11
The
plaintiff
in
Smith
was
terminated
under
the
Lockheed
Martin’s
“zero
tolerance”
policy
because
he
forwarded
a
racist
email
from
his
work
email.
At
the
time,
the
company
had
“a
substantial
incentive
to
discipline
white
employees
more
harshly
than
black
employees”
because
its
historic
treatment
of
African
American
18
personnel
disputes
and
reexamine
a
defendant’s
business
decision
based
on
the
slight
possibility
that
somewhere
there
might
be
a
whiff
of
discriminatory
intent.
Cf.
Denney
v.
City
of
Albany,
247
F.3d
1172,
1188
(11th
Cir.
2001)
(federal
courts
are
not
intended
to
sit
as
“a
super-‐personnel
department”).
Hostile
Work
Environment
Claim
The
Supreme
Court
has
defined
a
hostile
work
environment
as
“[a]
workplace
[
]
permeated
with
‘discriminatory
intimidation,
ridicule,
and
insult,’
that
is
“sufficiently
severe
or
pervasive
to
alter
the
conditions
of
the
victim's
employment
and
create
an
abusive
working
environment.’”
Harris
v.
Forklift
Sys.,
Inc.,
510
U.S.
17,
21
(1993).
An
employment
discrimination
claim
based
on
hostile
work
environment
has
both
an
objective
and
a
subjective
component.
It
requires
proof
of
an
environment
that
“a
reasonable
person
would
find
[it]
hostile
or
abusive”
and
that
the
“victim
.
.
.
subjectively
perceive[d]
.
.
.to
be
abusive.
Id.
510
U.S.
at
21.
“It
is
a
‘bedrock
principle
that
not
all
objectionable
conduct
or
language
amounts
to
discrimination
under
Title
VII.’
Therefore,
only
conduct
that
is
‘based
on’
a
protected
category,
such
as
race,
may
be
considered
in
a
hostile
work
environment
analysis.
Jones
v.
UPS
Ground
Freight,
683
F.3d
1283,
1297
(11th
Cir.
employees
was
facing
national
scrutiny.
Smith,
644
F.3d
at
1341.
Allegations
of
company-‐wide
racial
intolerance
were
about
to
be
the
subject
of
an
ABC
television
news
investigative
report.
The
news
coverage
stemmed
from
the
racially-‐motivated
shooting
of
several
African
American
employees
by
a
former
employee
who
was
also
a
white
supremacist.
19
2012)
(quoting
Reeves
v.
C.H.
Robinson
Worldwide,
Inc.,
594
F.3d
798,
809
(11th
Cir.
2010)
(en
banc)).
Vickery’s
evidence
falls
short.12
Vickery’s
hostile
work
environment
argument
relies
heavily
on
evidence
that
Ross
mistreated
him,
held
him
to
unrealistic
standards
and,
generally,
made
his
work
life
miserable.
Even
if
this
could
be
considered
evidence
of
harassment,
anti-‐
discrimination
laws
“do[
]
not
prohibit
harassment
alone,
however
severe
and
pervasive.”
Baldwin
v
Blue
Cross/Blue
Shield
of
Ala.,
480
F.3d
1287,
1302
(2007).
And
Vickery’s
evidence
does
not
demonstrate
that
this
mistreatment
was
based
on
race.
Vickery’s
primary
argument
is
that
white
subordinates
who
stood
up
to
or
challenged
Ross
became
targets
of
Ross’s
abuse.
This
evidence
has
no
probative
value
in
proving
a
racially
hostile
work
environment
because
the
workforce
under
Ross’s
command
was
overwhelmingly
white.
Thus,
the
modifier
“white”
to
describe
“employee”
is
almost
redundant.
Coupled
with
the
lack
of
evidence
that
any
nonwhite
employee
ever
challenged
Ross,
Vickery’s
evidence
proves
only
that
those
who
stood
up
to
Ross
were
targeted.13
Although
Vickery
does
not
specifically
cite
it
as
part
of
his
hostile
work
environment
argument,
Ross’s
“white
elephant
in
the
room”
comment
might
be
12
Because
the
Court
finds
insufficient
evidence
to
prove
a
racially
hostile
work
environment,
it
need
not
address
Medtronic’s
Faragher/Ellerth
affirmative
defense.
13
Vickery
asserts
that
“[t]he
work
environment
created
by
Ross
was
characterized
by
bias
in
favor
of
persons
of
color,
regardless
of
what
they
said
or
how
they
were
performing.”
This
sweeping
allegation
mischaracterizes
and/or
vastly
overstates
the
supporting
evidence
cited,
which
is
the
some
of
the
same
evidence
the
Court
has
found
insufficient
to
support
Vickery’s
discriminatory
discharge
claim.
Supra
at
16.
20
considered
evidence
racial
bias.
However,
as
the
Supreme
Court
has
pointed
out,
“’mere
utterance
of
an
…
epithet
which
engenders
offensive
feelings
in
an
employee
does
not
sufficiently
affect
the
conditions
of
employment”
to
support
a
hostile
work
environment
claim.
Harris
v.
Forklift
Sys.,
Inc.,
510
U.S.
17,
21
(1993)
(quoting
Meritor
Svgs.
Bank,
FSB
v.
Vinson,
477
U.S.
57,
67
(1986)).
On
the
spectrum
of
objectionable
conduct—from
severe
to
merely
offensive—the
“white
elephant”
comment
falls
squarely
at
the
low
end.
The
comment-‐-‐even
when
considered
in
the
totality
of
the
circumstance
(i.e.,
Ross
was
a
difficult
boss
who
did
not
treat
Vickery
well
and
targeted
employees
who
stood
up
to
him)14
the
comment
does
not
create
an
actionable
hostile
work
environment
.15
Retaliation
Claims
Vickery
has
asserted
retaliation
claims
based
on:
(1)
Medtronic’s
refusal
to
transfer
him
prior
to
his
termination
and
(2)
Medtronic’s
refusal
to
rehire
him
to
a
different
position
shortly
after
his
termination.
The
parties
agree
that
these
retaliation
claims
should
be
evaluated
under
the
McDonnell
Douglas
burden-‐shifting
framework.
Hurlbert
v.
St.
Mary’s
Health
Care
Sys.,
Inc.,
439
F.3d
1286,
1297
(11th
Cir.
2006).
First,
the
plaintiff
must
establish
a
prima
facie
case
of
retaliation.
Id.
If
the
plaintiff
meets
this
burden,
the
defendant
must
articulate
a
legitimate
non-‐
14
The
term
“elephant
in
the
room”
refers
to
an
obvious
problem
that
is
not
acknowledged,
while
the
term
“white
elephant”
refers
to
a
costly
object
that
provides
little
reward
or
profit
See
www.merriam-‐webster.com.
15
Both
parties’
proposed
findings
of
fact
have
devoted
considerable
attention
to
events
surrounding
Vickery’s
remark
about
leaving
Ross
in
Mississippi.
Neither
party
has
explained
the
relevance
of
these
events
to
any
particular
claim.
It
does
not
support
the
hostile
work
environment
claim,
if
that
is
its
purpose.
Ross
believed
Vickery’s
remark,
as
it
was
repeated
to
him,
to
be
racist
and
reported
it
to
Human
Resources.
Reporting
a
remark
with
racial
overtones
is
not
race-‐based
harassment.
21
retaliatory
reason
for
its
action.
If
the
defendant
does
so,
then
the
plaintiff
must
prove
that
the
proffered
reason
is
pretextual.
The
success
or
failure
of
Vickery’s
retaliation
claims
depends
on
his
ability
to
prove
a
prima
facie
case,
since
that
is
the
only
challenge
Medtronic
has
raised
on
summary
judgment.
“To
establish
a
prima
facie
case
of
retaliation
under
Title
VII,
‘the
plaintiff
must
show
(1)
that
[he]
engaged
in
statutorily
protected
expression;
(2)
that
[he]
suffered
an
adverse
employment
action;
and
(3)
that
there
is
some
causal
relation
between
the
two
events.’”
Thomas
v.
Cooper
Lighting,
Inc.,
506
F.3d
1361,
1363
(11th
Cir.
2007)
(per
curiam).
Medtronic
argues
that
Vickery
cannot
establish
a
causal
connection
between
his
complaints
about
discrimination
and
either
of
the
adverse
employment
action.
Vickery
complained
three
times
that
he
believed
his
was
the
victim
of
racial
discrimination:
(1)
to
Laura
Neuenschwander
in
January
or
February
2012;
(2)
to
Heidi
Meyer
in
April
or
May
of
2012;
and
(3)
to
Laura
Neuenschwander
in
late
August
2012,
a
couple
of
weeks
before
his
termination.
To
prove
a
causal
connection
between
these
complaints
and
Medtronic’s
employment
decisions,
Vickery
must
show
“
that
the
decision-‐maker[s]
[were]
aware
of
the
protected
conduct,
and
that
the
protected
activity
and
the
adverse
action
were
not
wholly
unrelated.”
McCann
v.
Tillman,
526
F.3d
1370,
1376
(11th
Cir.
2008)
(internal
quotation
and
citation
omitted).
Close
temporal
proximity
between
the
protected
activity
and
the
adverse
employment
action
can
serve
as
evidence
that
the
two
events
are
“not
wholly
unrelated.”
Id.
“But
mere
temporal
proximity,
without
more,
must
be
‘very
close.’”
Thomas
v.
Cooper/Lighting,
Inc.,
506
F.3d
1361,
1364
(11th
Cir.
2007)
(quoting
Clark
County
Sch.
Dist.
v.
Breeden,
532
U.S.
268,
273
(2001)).
“Very
close”
means,
at
the
22
very
least,
less
than
three
months
between
the
statutorily
protected
expression
and
the
adverse
employment
action.
Id.
Consequently,
Vickery
cannot
establish
a
prima
facie
case
based
on
the
first
two
complaints
because
each
was
than
three
months
prior
to
the
first
adverse
action
(failure
to
transfer).
As
to
the
remaining
complaint,
temporal
proximity
may
exist,
but
it
is
not
enough
to
establish
causation
under
these
circumstances.
Medtronic
contends
that
no
causal
connection
exists
between
Vickery’s
August
2012
complaint
and
the
retaliatory
failure
to
transfer
claim
because
the
transfer
request
was
made
after
it
had
begun
moving
toward
Vickery’s
termination.
Vickery
offers
no
coherent
response
to
this
argument.16
While
Vickery
might
argue
that
the
August
2012
complaint
and
the
refusal
to
transfer
are
not
wholly
unrelated
because
they
occurred
in
same
conversation,
any
inference
of
causation
based
on
temporally
proximity
of
these
events
is
negated
by
the
fact
that
Medtronic
was
in
the
process
of
terminating
Vickery’s
employment
when
they
occurred.
Cf.
Castillo
v.
Roche
Laboratories,
Inc.,
467
Fed.
Appx.
859
(11th
Cir.
2012)
(finding
that
complaint
of
discrimination
post-‐dated
defendant
initially
contemplated
termination
negated
inference
of
causation
based
on
temporal
proximity).
With
respect
to
the
retaliatory
refusal
to
hire
claim,
Medtronic
argues
that
no
causal
connection
exists
because
there
is
no
evidence
that
Erik
Bruskotter,
the
person
who
made
the
hiring
decision,
was
aware
of
Vickery’s
protected
conduct.
Vickery
does
not
dispute
Bruskotter’s
lack
of
knowledge,
but
he
does
dispute
that
16
In
a
three-‐sentence
argument
directed
to
this
claim,
Vickery
states
that
he
had
a
conversation
with
Neuenschwander
on
August
29,
2012
in
which
he
complained
of
racial
discrimination
and
retaliation
and
that
he
was
terminated
on
September
11,
2012.
23
Bruskotter
was
the
decisionmaker.
Vickery
points
to
his
own
testimony
that
Bruskotter
told
him
the
Human
Resources
“put
the
kibosh”
on
his
hiring.
Thus,
according
to
Vickery,
“Human
Resources”
made
the
decision.
But
in
the
absence
of
evidence
that
the
person
or
persons
in
Human
Resources
who
vetoed
Vickery’s
hiring
also
knew
about
his
protected
conduct,
his
claim
fails.17
Conclusion
In
sum,
Vickery
has
failed
to
meet
his
burden
on
summary
judgment
as
to
any
of
the
claims
asserted
in
his
complaint.
Accordingly,
Medtronic’s
motion
for
summary
judgment
is
GRANTED.
DONE
and
ORDERED
this
the
3rd
day
of
February,
2014.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
17
The
only
evidence
before
the
Court
as
to
any
specific
intervention
by
Human
Resources
is
Bruskotter’s
testimony
that
Victoria
Lambert,
the
Human
Resources
representative
assigned
to
his
division,
sent
him
an
email
questioning
why
Vickery
was
let
go.
24
]]>
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