Moore v. AMEC Foster Wheeler
ORDER granting 20 Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 2/10/2017. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
GALVIN ELON MOORE,
AMEC FOSTER WHEELER,
) CIVIL ACTION 16-0008-WS-M
This matter is before the Court on the defendant’s motion for summary
judgment. (Doc. 20). The parties have filed briefs and/or evidentiary materials in
support of their respective positions, (Docs. 20, 24, 25),1 and the motion is ripe for
resolution. After careful consideration, the Court concludes that the motion is due
to be granted.
According to the pro se complaint, (Doc. 1), the plaintiff was employed by
the defendant for about one week in April 2015. The defendant and the Court
construe the complaint as asserting two claims, both under Title VII: one for
The plaintiff submitted only a two-page, unsworn letter in opposition to the
defendant’s motion. “Unsworn statements do not meet the requirements of Fed. Rule
Civ. Proc. 56(e) and cannot be considered by a district court in ruling on a summary
judgment motion.” Carr v. Tartangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003)
(internal quotes omitted); accord Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d
1235, 1248 n.8 (11th Cir. 2009); Rachel v. City of Mobile, 112 F. Supp. 3d 1263, 1274
(S.D. Ala. 2015) (same rule applies under the current version of Rule 56). Because the
plaintiff’s letter is unsworn, he cannot rely on it to defeat summary judgment. But
because parties may make binding admissions in their unsworn briefs, e.g., Shuler v.
Ingram & Associates, 441 Fed. Appx. 712, 719 (11th Cir. 2011), material in the plaintiff’s
response may be used against him. Nevertheless, the allegations, arguments and
evidence are such that the result of the defendant’s motion would be the same even had
the plaintiff submitted a sworn response.
hostile work environment and one for retaliation. The plaintiff in his response
asserts no other.
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). 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). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “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.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.2 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[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,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
I. Hostile Work Environment.
The plaintiff’s claim is based on being touched by a male co-worker twice
on a single work shift. The first time, the co-worker bumped or tapped the
plaintiff’s buttocks with his hand one time while walking past the plaintiff; the
incident lasted between half a second and a full second. (Doc. 20-2 at 8-9). Three
or four hours later, as the co-worker walked hurriedly past the plaintiff, he
thumped the plaintiff’s crotch; again, the incident lasted between half a second and
a full second, and the co-worker went right back upstairs. (Id. at 7, 15-17).
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).
The fourth element of a claim for sexual harassment is that “the harassment
was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment.” Hulsey
v. Pride Restaurants, LLC, 367 F.3d 1238, 1244 (11th Cir. 2004). The defendant
argues that the plaintiff cannot satisfy this test.
“Determining whether the harassment was sufficiently severe or pervasive
involves both an objective and a subjective component. [citation omitted] In
determining the objective element, a court looks to all the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” McCann v.
Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (internal quotes omitted).
“[I]solated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal quotes omitted).
The plaintiff worked a total of four days and experienced two incidents of
harassing activity. While “fifteen separate instances of harassment over the course
of four months,” or roughly one incident a week, is “not infrequent,” Johnson v.
Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 509 (11th Cir.
2000), the plaintiff has identified no authority for the proposition that a plaintiff
can satisfy the frequency criterion with only one or two incidents simply because
he was employed a short time. Even assuming the plaintiff has crossed some
relevant threshold of frequency, “show[ing] frequent conduct … does not
compensate for the absence of the other factors.” Mendoza v. Borden, Inc., 195
F.3d 1238, 1248 (11th Cir. 1999) (en banc).
In Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000), the
two “most serious” incidents involved the harasser putting his hand on the
plaintiff’s thigh (partly on the inside of her thigh) and lifting the hem of her dress
about four inches. Id. at 579, 585. “Each incident was only momentary, and
neither was coupled with any verbal suggestions or advances.” Id. at 585. The
Eleventh Circuit ruled the conduct was not severe. Id. at 586. In Mendoza, the
plaintiff complained that the harasser “rubbed his hip against [hers] while touching
her shoulder and smiling,” 195 F.3d at 1247; the Eleventh Circuit held this was not
severe conduct. Id. at 1249. In Lockett v. Choice Hotels International, Inc., 315
Fed. Appx. 862 (11th Cir. 2009), the harasser tried to hug the plaintiff and, on
another occasion, “touched her bottom quickly.” Id. at 863. The Eleventh Circuit
declared that the “two incidents of brief touching fall below the minimum level of
severity … needed to establish sexual harassment.” Id. at 866. In light of these
authorities, the momentary, isolated conduct of the co-worker in this case, while
unwelcome and unacceptable in a civilized workplace, cannot be construed as
severe within the contemplation of Title VII.
In each of the cases cited in the preceding paragraph, the Eleventh Circuit
ruled that the conduct was not threatening or humiliating. Gupta, 212 F.3d at 586;
Mendoza, 195 F.3d at 1248-49; Lockett, 315 Fed. Appx. at 866. That being so, the
conduct here cannot be considered as threatening or humiliating.
Interference with job performance “involves both a subjective and objective
inquiry.” Gupta, 212 F.3d at 586. That is, the plaintiff must subjectively have
experienced interference with his job performance, and the conduct must be such
that it “would … have interfered with a reasonable employee’s performance of her
job.” Id. The plaintiff concedes that the two fleeting incidents (involving a coworker not working in his area but simply passing by) did not interfere with his
job performance, and he continued working after each. (Doc. 20-2 at 13, 15, 1718, 20).
As in Mendoza, three of the four factors for gauging severity or
pervasiveness “are clearly absent.” 195 F.3d at 1248. As in Mendoza, “to the
extent [the plaintiff] showed frequent conduct, the frequency of it does not
compensate for the absence of the other factors.” Id. As in Mendoza (and the
other cited cases), such a showing is inadequate to survive summary judgment.
The facts regarding the plaintiff’s retaliation claim are more detailed, but
they are equally uncontroverted. In April 2015, the defendant was working on two
brief construction projects at a Georgia-Pacific (“GP”) facility during a mill
outage. A staffing agency provided workers for one project, while the defendant
did its own short-term hiring for the other. The plaintiff was referred by the
staffing agency to work on the project it was staffing but, when he showed up at
the GP facility on April 15, 2015, he was inadvertently directed to the other
project, where he was put to work on the night shift without confirming whether
he was at the correct site (apparently on the assumption he had been hired during
the day shift, as was the defendant’s practice on this project).
The incidents described in Part I occurred during the April 18-19 night
shift. When the plaintiff arrived for his next shift on the evening of April 19, he
threatened to stab and kill the co-worker if he showed up for work. This statement
was made to the GP safety representative and in the presence of two of the
defendant’s representatives. The GP representative advised the defendant’s
representatives that, due to this threat, the plaintiff was no longer welcome on GP
property, effectively ending his work on the project. The plaintiff was sent home
while the defendant investigated his complaint of sexual harassment.
The plaintiff then contacted the staffing agency to ask for his paycheck; he
learned he had not reported to the project being staffed by the agency and so did
not show up on the agency’s list of sign-ins, as necessary to be eligible for
payment by the agency. The staffing agency informed the defendant of the mixup. On approximately April 21, 2015, the plaintiff returned to the GP facility to
sign paperwork for the defendant,3 which paperwork was necessary in order to pay
This paperwork included an employment application, an employee record form,
a W-4 form, an A4 form, and acknowledgments of receipt of the defendant’s employee
handbook, code of business conduct and other policies.
him for the few days he had worked on the GP project. The mill outage ended on
April 22, 2015. The defendant paid the plaintiff through that date, even though he
did not return to work after threatening extreme violence on April 19.
The plaintiff asserts that the defendant “called me into [sic] hire me after I
reported the claim” but thereafter “never called me back to work.” (Doc. 24 at 1).
Similar to discrimination cases, a retaliation case not based on direct
evidence follows a burden-shifting format. First, the plaintiff must make out a
prima facie case. Second, the defendant must produce evidence of one or more
legitimate, non-retaliatory reasons for the plaintiff’s adverse treatment. Third, the
plaintiff must show that the defendant’s proffered reasons are a pretext for
prohibited retaliatory conduct. Sullivan v. National Railroad Passenger Corp.,
170 F.3d 1056, 1059 (11th Cir. 1999).
The Court assumes without deciding that the plaintiff could establish a
prima facie case. The defendant identifies its legitimate, non-discriminatory
reason for not calling the plaintiff back to work after April 22, 2015 as being that
the plaintiff was no longer employed, his employment having ended along with
the mill outage for which he was employed. This is a legally sufficient reason for
failing to call the plaintiff back to work, and it is supported by record evidence.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981)
(discussing requirements for a legitimate, non-discriminatory reason).
“The inquiry into pretext requires the court to determine, in view of all the
evidence, whether the plaintiff has cast sufficient doubt on the defendant’s
proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude
that the employer’s proffered legitimate reasons were not what actually motivated
its conduct” but “were a pretext for discrimination.” Crawford v. Carroll, 529
F.3d 961, 976 (11th Cir. 2008) (internal quotes omitted). The plaintiff’s burden is
to “demonstrate weaknesses or implausibilities in the proffered legitimate reason
so as to permit a rational jury to conclude that the explanation given was not the
real reason, or that the reason stated was insufficient to warrant the adverse
action.” Rioux v. City of Atlanta, 520 F.3d 1269, 1279 (11th Cir. 2008). Of course,
“a reason is not pretext for discrimination unless it is shown both that the reason
was false, and that discrimination was the real reason.” Springer v. Convergys
Customer Management Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007)
(emphasis in original) (internal quotes omitted). To make this showing, the
plaintiff may resort to “all the evidence,” Crawford, 529 F.3d at 976, including
“the evidence establishing the plaintiff’s prima facie case and inferences properly
drawn therefrom.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
The plaintiff, however, has identified no evidence of his own, and no
weaknesses or implausibilities in the defendant’s evidence, that could call its
articulated reason into question. On the contrary, the plaintiff admits he was hired
only for the GP job, (Doc. 24 at 1), that the job ended on April 22, 2015, (Doc. 202 at 44), and that, when he filled out the defendant’s paperwork on or about April
21, he was told he was doing so in order that the defendant could process his pay.
(Id. at 38). The plaintiff also admits that, when the defendant contacted him
shortly after April 22 to continue its investigation of his complaint of sexual
harassment and the plaintiff asked when he was coming back to work, he was told
the project was over. (Id. at 51-52). Finally, the plaintiff has failed to explain
why, if the defendant intended to deny him work in retaliation for complaining of
sexual harassment, it would have him complete employment paperwork (the
conduct he says made him an employee entitled to continued work) only two days
after he complained.4
In sum, the defendant has met its intermediate burden, and the plaintiff has
failed to create a genuine issue as to whether the defendant’s articulated reason is a
pretext for unlawful retaliation.
The defendant’s representative(s) involved in having the plaintiff complete the
paperwork were at that time fully aware of the plaintiff’s complaint.
For the reasons set forth above, the defendant’s motion for summary
judgment is granted. Judgment shall be entered accordingly by separate order.5
DONE and ORDERED this 10th day of February, 2017.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The defendant says that its correct name is Amec Foster Wheeler, Kamtech, Inc.
(Doc. 20 at 1). The Court cannot unilaterally alter the style of the action as established
by the complaint, but it will enter judgment in favor of the defendant both as named in
the complaint and as it identifies its name.
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