Williams v. Quality Culvert Concrete
Filing
45
ORDER granting 27 Motion for summary judgment. Signed by Senior Judge Wm. Terrell Hodges on 3/12/2014. (LRH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CARLTON WILLIAMS,
Plaintiff,
-vs-
Case No. 5:12-cv-380-Oc-10PRL
CENTRAL
PROCESSING
CORPORATION,
Defendant.
____________________________________/
ORDER
Plaintiff Carlton Williams, an African American male, was a 16-year employee
of Defendant Central Processing Corporation (“CPC”). Williams contends that his
former employer failed to promote him to a managerial position due to his race. After
he allegedly complained about the discrimination, Williams claims that CPC terminated
his employment in retaliation for his complaint about the unsuccessful promotion. He
seeks compensatory and punitive damages under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C. § 1981.
CPC has moved for summary judgment (Doc. 27). Williams has filed a response
in opposition (Doc. 37), and with leave of Court, CPC has also filed a reply (Doc. 42).
The issues are therefore fully briefed, and the motion is ripe for disposition.
Upon due consideration, and for the reasons discussed below, the Court
concludes that CPC is entitled to summary judgment as a matter of law on all claims.
Undisputed Material Facts
I.
The Parties
CPC is a management company that employs and supplies workers to various
companies. CPC’s administrative processing office is located in Madison, Wisconsin,
through which CPC provides human resources services to its employees. During the
relevant time period for this case, the Human Resources Manager position for CPC
was vacant. Kerry Bartol, Director of Risk Management, performed the Human
Resources Manager duties, and also oversaw many functions relating to legal
compliance, as well as the creation of and adherence to company policies. Bartol
would be consulted regarding significant policy violations and would be sent and and
would retain personnel documents such as disciplinary actions or complaints. There
is no dispute that Williams, and all individuals mentioned in this case were employees
or independent contractors of CPC.
One of CPC’s clients, to which it provides employees, is Quality Culvert, Inc.,
(“Quality Culvert”) a corporation located in Astatula, Florida that manufactures and
supplies a variety of drainage products, including concrete pipe. Quality Culvert’s
Astatula facility consists of three units: (1) a manufacturing facility; (2) a small
administrative office (co-located in the same building); and (3) a large outside yard area
used for storage and loading of finished pipe products.
Pipe products are
manufactured on two machines, the Hawkeye and the McCracken, and one or two wire
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cages, depending on the diameter of the pipe, are covered by concrete to form the
pipe. Quality inspections are performed both prior to manufacturing of the pipe, and
again after the concrete is added to create the pipe. The finished pipe is then
transported to the yard to be loaded onto trucks for delivery to worksites.
Williams is an African-American male. After graduating from high school in 1974,
he worked at a plant nursery, Foliage Corp. America, for approximately eight (8) years.
While employed at Foliage Corp., Williams performed duties that included sales,
delivery of goods, and shipping of goods.
He also had supervised up to five
employees.1
After leaving Foliage Corp., Williams worked for Finfrock, a company that
manufactures concrete slabs, for approximately one (1) year.
While at Finfrock,
Williams was a “setup guy” who read blueprints and set up forms for concrete slabs.
Williams left Finfrock due to a lack of predictable and steady work.
From 1984 through 1995, Williams was employed by Hydro Conduit. Williams’
job duties included forklift driver and mechanic. He worked in every aspect of the
company at various points in time, and learned every position in the company. For
approximately one year he also performed supervisory functions as interim yard
foreman. However, Williams primarily worked as a forklift driver unless he was needed
in another area.
1
Williams did not mention any supervisory experience at Foliage Corp. on his application
for employment with CPC.
-3-
II.
Williams’ Employment at CPC
Williams was hired by CPC on March 6, 1995 to work at Quality Culvert as a
forklift driver. During his first year of employment he “did a little of everything” and
helped out where needed. He was then placed in charge of the yard and had the title
of either Forklift Driver/Supervisor or Forklift Driver/Lead. He remained in this position
until his termination, however, at some point from 1996 through 2001, Williams claims
he spent a year running one of the pipe machines. Williams also performed some
quality control duties and inspected pipes prior to having them moved out to the yard,
although it is not clear from the record how often he performed these duties. He
completed a quality control technician course and exam for Level I and Level II from
the American Pipe Concrete Association.
While employed by CPC, Williams led three (3) forklift operators: his brother
David Williams, Troy Rainey, and Horace Wiley. Williams coordinated the work of the
three forklift operators, determined the order in which trucks would be loaded, and
would interact with dispatchers if a load needed to be modified or expedited. Williams
also coordinated the work of forklift drivers and “patchers” who pulled pipe out of the
buildings to the yard. He also trained new employees and held employee safety
meetings. Although Williams did not have final authority to hire or fire employees, or
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to determine salaries or raises, he would make such recommendations to his next level
supervisors.2
In addition to these duties, at some point during his employment with CPC,
Williams served as a plant manager at Quality Culvert for approximately 12 months
while the position was vacant. In this role, Williams operated the computer and
batching system, supervised cage welders inside, inspected forms and cages, worked
the pipe machines, and supervised employees.
While employed by CPC at the Quality Culvert facilities, Williams had three
different supervisors, each of whom was hired by CPC and at all relevant times
remained a CPC employee. Williams’ first supervisor was Richard Whybrew, a
General Manager for Quality Culvert from May 15, 1989 through March 13, 2011.
Whybrew hired Williams, and promoted him to the Foklift Driver/Supervisor position.
Williams’ second supervisor was Ron Mitchell. Mitchell was hired by CPC in March
2001 as another General Manager. In that role, Mitchell’s duties primarily involved
supervision of all aspects of pipe manufacturing and quality testing of the completed
pipe. Because all of these duties took place inside the Quality Culvert building, it does
not appear from the record that Mitchell had any supervisory authority over the yard,
or over Williams, until sometime in February or March 2011, when Mitchell was
promoted to Location Manager. In that role, Mitchell was responsible for overseeing
2
Williams believes he fired one employee at some point during his employment, but could
not remember any other details.
-5-
all aspects of pipe manufacturing, including shipping, receiving, maintenance, and
dispatch.
Williams’ third supervisor was Jack Brown, who was hired by CPC on January
3, 2011 as the new Regional Manager. Brown’s jurisdiction included the Quality
Culvert Astatula facility, and he was responsible for the manufacture, sale, and
distribution of products from the facility, including concrete pipe. Brown promoted
Mitchell to the Location Manager position, and also was the person who made hiring
and promotion decisions for employees working at Quality Culvert.
III.
Williams’ Application for Promotion
In March 2011 Williams became aware that CPC would be hiring someone to
serve as the Plant Foreman-Concrete at Quality Culvert.3 According to Brown, the job
duties of this position include overseeing all aspects of pipe manufacturing, including
the manufacture of support cages, the formulation of the concrete that was added to
the cages to create the pipe, oversight of the machines used to create the pipe, quality
testing of the completed pipe, and loading and transporting the pipe.
Several
employees, including Williams, expressed interest in the position to Brown, who was
the person tasked with hiring for the position.
3
Williams argues in his opposition that the job he applied for was really the General
Manager position that Mitchell vacated when he transferred to Location Manager. Williams has
not presented any evidence to support this contention, and in fact, this argument contradicts his
prior deposition testimony. (Doc. 43-1, p. 88). In addition, CPC has submitted the affidavit of
Brown, who testified that the position he chose to fill, and which Williams applied for, was Plant
Foreman-Concrete (Doc. 32, ¶ 3).
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It appears that the hiring process was extremely informal. There does not
appear to have been any formal job posting or description of job duties (or at least no
party has submitted a copy of such documents), there was no job application, and no
formal request for copies of applicant resumes. Rather, Brown simply interviewed the
persons who expressed interest in the job, including Williams.
During his interview of Williams, Brown asked about his production and
supervisory experience. Based on Williams’ responses, Brown determined that while
Williams had experience loading trucks and supervising forklift operators, he had very
little experience making wire cages for concrete pipe, working with the production of
concrete pipe itself, supervising large numbers of employees, or supervising
employees in concrete pipe production. Williams’ personnel documents also did not
reflect any experience with the production of concrete pipe, and Williams never listed
on his original job application in 1995 any experience producing concrete pipe or
supervising employees who produce concrete pipe.4
Brown also interviewed Brant Sims, another employee of CPC who worked at
Quality Culvert. Sims was hired on November 29, 2010 as the Wire/Cage Making
Supervisor. At the time of his interview with Brown, Sims was still in charge of the
wire/cage making department, performed quality control functions, and was familiar
4
Williams contends that Mitchell was present and participated in his interview, as well as
in the entire hiring process. However, Williams has presented no evidence suggesting that the
final decision was made by anyone other than Brown.
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with the concrete pipe making machinery as it was similar to the equipment he used
at his prior jobs.5 Prior to starting his employment with CPC, Sims had 11 years of
experience working for concrete companies. He had been employed as a wire
department supervisor, pipe pro supervisor, assistant production manager, and plant
manager. He had supervised more than 65 employees in an automated concrete pipe
producing facility similar to the facility at Quality Culvert. At Brown’s request, Mitchell
checked Sims’ employment references and determined that they were all positive.
Based on Sims’ prior work experience – particularly his supervisory and upper
management experience – coupled with his current job duties at Quality Culvert, Brown
determined that Sims was the most qualified candidate and selected him for the
position. The record does not divulge the date Brown made his decision, but it appears
to have been in late March 2011.
IV.
Williams’ Termination
Brown asked Mitchell to inform the other candidates, including Williams, that they
had not been selected for the Plant Foreman-Concrete position. Williams contends
that when Mitchell spoke with him, Mitchell used profanity.6 As a result, Williams
refused to engage with Mitchell any further. However, Williams also claims that at
5
Williams contends that when Sims began his employment, Williams trained him on how
to complete quality control paperwork, how to take specifications on wire cages, and how to run
the Hawkeye and McCracken machines.
6
The record does not detail what exactly Mitchell said, and there is no suggestion that
Mitchell made any racially discriminatory remarks.
-8-
some unspecified later date, he complained to Mitchell that he believed he had been
denied the promotion due to his race. Williams does not claim, and there is no
evidence in the record, that he ever voiced such complaints to anyone else.7
At the end of March or early April 2011, two of the forklift operators supervised
by Williams – Troy Rainey and Horace Wiley (both of whom are African American) –
along with an independent lease hauler (whose name is not identified in the record),
submitted written complaints about Williams to CPC. These employees first delivered
the complaints to Minerva Garner, an Administrative Assistant working at Quality
Culvert who also acted on occasion as the HR point of contact between CPC and
Quality Culvert. All three complaints were strikingly similar in their concerns. For
example, they each complained that Williams:
(1) was verbally abusive to his
employees: (2) abused his authority; (3) allowed his brother to take extended breaks
while forcing other employees to perform additional work; (4) took monetary bribes from
truck drivers to load their trucks out of order; (5) misappropriated company property for
his own use; and (6) sold scrap material for his own profit. See Doc. 31, Exs. 1-3.
7
Williams also contends that at some point prior to applying for the promotion, Mitchell
stated to him that when Quality Culvert moved into a new building “no black would be working
inside, only whites.” Williams further contends that Mitchell stated to him that black people work
best outside and should not work inside; rather only whites should work inside.
At his deposition, Williams testified that these statements were purportedly made in either
2008 or 2009. (Doc. 43-1, p. 8). However, in his affidavit attached to his summary judgment
opposition, Williams now states that these statements were made in early 2011, shortly before he
was denied the promotion to Plant Foreman-Concrete (Doc. 37-1, p. 3).
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CPC has submitted Affidavits from Troy Rainey and Horace Wiley, both of whom aver
that no one at CPC solicited them to make these complaints; they both simply had
enough of Williams’ inappropriate behavior. (Docs. 29-30).
Garner forwarded these complaints to Bartol in Wisconsin for her review. Bartol
received the complaints in early April 2011. After reviewing the statements and
allegations therein, on April 11, 2011 Bartol made the decision that Williams’
employment should be terminated immediately. Bartol contacted Brown and Maria
Montes, the CPC Officer Manager working at Quality Culvert, and informed them of her
decision. Bartol based her decision on the fact that there were multiple similar serious
allegations made by three different individuals.8
At the time Bartol decided to terminate Williams’ employment, she was not aware
that he had made any complaint of race discrimination. She was also unaware that he
had applied for and had been denied a promotion. Her only knowledge of Williams
consisted of the three complaints, and the fact that Williams at some point in time had
stated that he would not speak with Mitchell. Bartol claims she made her termination
decision based solely on the three complaints. There is no dispute that Bartol made
the termination decision alone. There is also no evidence that Bartol or anyone else
8
Bartol averred in her Affidavit that Williams’ purported actions constituted violations of
company code of conduct and conflict of interest policies. However, CPC has not submitted
copies of any company codes, policies, or procedures.
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ever investigated the complaints to verify their veracity, or asked Williams to respond
to the complaints.
On April 11, 2011, Brown, Mitchell, and Montes met with Williams and notified
him that he was being terminated due to inappropriate behavior towards co-workers,
uncooperativeness, and lack of compliance in performing his job duties. Williams was
not given an opportunity to refute the claims against him, and indeed he contends that
the allegations are false. However, he has not submitted any evidence suggesting any
bias, ulterior motive, or otherwise challenging the veracity of the three written
complaints other than his own opinion.9
Other than the events related to his termination, Williams had never had any
disciplinary issues during his employment with CPC.
V.
Procedural History
On April 27, 2011, Williams filed a Charge of Discrimination with the Florida
Commission on Human Relations (“FCHR”) and the Equal Employment Opportunity
Commission (“EEOC”) (Doc. 28, Ex. B). The Charge alleged that Williams had been
denied a promotion due to his race, and subjected to retaliation because “a family
member, who worked for Quality Culvert, became involved in an EEOC charge” in
November 2010. Id. The Charge nowhere mentions any allegations of retaliation
9
Williams states in his affidavit that at some point after his termination, Troy Rainey
approached him, apologized for writing the statement, and said that he was asked to write the
statement by Mitchell. (Doc. 37-1, p. 4). The Court will not consider this portion of Williams’
affidavit as it is clearly inadmissible hearsay. See Fed. R. Evid. 801(c)(1), 802.
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related to any complaints by Williams regarding the denial of the promotion to Plant
Foreman-Concrete.
Williams received his Notice of Right to Sue, and timely filed his Complaint on
June 12, 2012 (Doc. 1). He filed an Amended Complaint on August 27, 2012 (Doc.
13), alleging claims of race discrimination based on failure to promote and retaliatory
termination in violation of Title VII and 42 U.S.C. § 1981.
Summary Judgment Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(a), “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” In applying this
standard, the Court must examine the materials on file and the record evidence “in the
light most favorable to the nonmoving party.” Samples on Behalf of Samples v. Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988). When faced with a “properly supported motion
for summary judgment [the nonmoving party] must come forward with specific factual
evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131
F.3d 995, 999 (11th Cir. 1997). The party opposing a motion for summary judgment
must rely on more than conclusory statements or allegations unsupported by facts.
Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory
allegations without specific supporting facts have no probative value”).
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At the summary judgment stage the judge’s function is not to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511
(1986). Some degree of factual dispute is expected, but to successfully counter a
motion for summary judgment the factual dispute must “affect the outcome of the suit”
and must be “such that a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248, 106 S. Ct. at 2510.
Discussion
CPC seeks summary judgment as to all of Williams’ claims, arguing that the
undisputed material facts show that it is entitled to judgment as a matter of law. In
particular, CPC argues that Williams has failed to establish a prima facie case, and that
he cannot establish that CPC’s legitimate non-discriminatory and non-retaliatory
reasons for not promoting and for firing him are pretextual.
Before these arguments can be addressed, the Court must resolve one point of
contention. Although CPC’s motion for summary judgment requests relief as to the
entire case (Doc. 27, pp. 1, 22), it analyzes the relevant material facts solely as they
pertain to the legal standards set forth under Title VII. The motion is completely devoid
of any reference to § 1981. As such, Williams argues that CPC’s motion is really a
motion for partial summary judgment, and the § 1981 claims remain intact and should
proceed to trial.
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The Court disagrees. The law of the Circuit is clear that the analysis applied to
claims under both Title VII and § 1981 is identical. Brown v. American Honda Motor
Co., 939 F.2d 946, 949 (11th Cir 1991) (“[T]he test for intentional discrimination in suits
under § 1981 is the same as the formulation used in Title VII discrimination causes.”);
Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1174, n. 6 (11th Cir. 2010) (same).
Thus, whatever rulings the Court makes in this Order with respect to Williams’ Title VII
claims apply with equal force to his § 1981 claims. To hold otherwise would result in
the Court ruling as a matter of law on the Title VII claims, and then allowing the § 1981
claims, which follow the same legal doctrines, to proceed to a jury trial. This would not
only be a waste of judicial and attorney resources, but also would create a risk of
inconsistent judgments.
The Court will treat CPC’s motion as a motion for summary judgment as to all
claims raised in the Amended Complaint.
I.
The Failure to Promote Claims
A plaintiff may establish a claim of race discrimination through either direct or
circumstantial evidence. See Schoenfeld v. Bobbitt, 168 F.3d 1257, 1266 (11th Cir.
1999). Williams argues that he has presented both.
A.
Direct Evidence
This Circuit defines direct evidence of discrimination as “evidence which reflects
a discriminatory or retaliatory attitude correlating to the discrimination or retaliation
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complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086
(11th Cir. 2004) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1358 (11th Cir. 1999) (internal citations omitted). Direct evidence is “evidence, that,
if believed, proves [the] existence of [a] fact without inference or presumption.” Burrell
v. Board of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997). “[O]nly
the most blatant remarks, whose intent could mean nothing other than to discriminate
on the basis of” some impermissible factor constitute direct evidence of discrimination.
Rojas v Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002) (quoting Schoenfeld, 168
F.3d at 1266) (citations and quotations omitted).
Williams points to two purported statements by Mitchell as direct evidence of
discrimination, both of which were allegedly made when Quality Culvert was moving
into a new building. According to Williams, Mitchell stated that “no black would be
working inside, only whites,” and that “Black people work best outside and should not
work inside; only whites should work inside.”
These statements do not constitute direct evidence of discrimination regarding
Williams’ non-promotion for two reasons. First they appear to have been made at least
two years before Williams was denied the promotion.
At his August 21, 2013
deposition, Williams testified that Mitchell allegedly made these statements in either
2008 or 2009 (Doc. 43-1, p. 8); however, he was denied the promotion in March or April
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2011.10 In order to constitute direct evidence, the evidence must directly relate in time
and subject to the adverse employment action at issue. See Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks . . . unrelated to the
decisionmaking process itself are not direct evidence of discrimination.”); see also Scott
v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-28 (11th Cir. 2002)
(concluding, in a Title VII race discrimination suit, that the statement “We’ll burn his
black ass” was not direct evidence of discrimination where it was made two and a half
years prior to plaintiff’s termination). Because Mitchell’s statements were made two or
three years before he was denied his promotion, they are not direct evidence of
discrimination.
Secondly, even if Mitchell’s statements were made in temporal proximity to the
time of the promotion decision, they were not made by the decision-maker and could
not qualify as direct evidence. It is undisputed that Brown was the ultimate and lone
decision-maker with respect to the Plant Foreman-Concrete position, and there is no
evidence that Brown ever made any racially discriminatory or inflammatory statements.
Although Mitchell was tasked with verifying Sims’ job references, and was asked to
10
In his January 14, 2014 affidavit attached to his summary judgment opposition, Williams
now states, without any explanation, that these statements were made in early 2011, shortly
before he was denied the promotion to Plant Foreman-Concrete (Doc. 37-1, p. 3). “When a party
has given clear answers to unambiguous questions which negate the existence of any genuine
issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.” Van T. Junkins and Assoc. v.
U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984).
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inform other candidates of Brown’s decision, it is clear that Brown was the person who
made the promotion decision. Discriminatory remarks do not constitute direct evidence
of discrimination if they are not made by the decision maker. Standard, 161 F.3d at
1330. See also Ritchie v. Industrial Steel, Inc., 426 F. App’x. 867, 872 (11th Cir. 2011)
(“The other discriminatory remarks identified [by the plaintiff] do not constitute direct
evidence because they were not made by the decision makers.”).
B.
Circumstantial Evidence
In evaluating discrimination claims supported by circumstantial evidence, the
Court uses the McDonnell Douglas burden-shifting analysis. See McDonell Douglas
Corp v. Green, 411 U.S. 792, 93, S. Ct. 1917 (1973), and Texas Dept. of Cmmty.
Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Under this framework, the
plaintiff must first establish a prima facie case of discrimination, which creates a
rebuttable presumption that the employer acted illegally. In a discriminatory failure to
promote case, the plaintiff must show: “(1) he is a member of a protected group; (2)
he was qualified for and applied for the promotion; (3) he was rejected in spite of his
qualifications; and (4) the person who received the promotion was not a member of the
plaintiff’s protected group and had lesser or equal qualifications.” Turner v. City of
Auburn, 361 F. App’x. 62, 64 (11th Cir. 2010) (citing Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1089 (11th Cir. 2004)).
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If the plaintiff establishes his prima facie case, the burden of production shifts to
the employer to articulate a legitimate, non-discriminatory reason for its actions. Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citations omitted). If the
employer satisfies its burden by articulating one or more non-discriminatory reasons,
the burden shifts back to the plaintiff to offer evidence that the specified reason(s) are
pretext for discrimination. Id. At all times, however, the “ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff
remains . . . with the plaintiff.” Id. at 1088 (quoting Burdine, 450 U.S. at 253, 256, 101
S. Ct. at 1093, 1095).
It is undisputed that Williams is a member of a protected group (African
American), that he applied for a promotion, that he was rejected for the position, and
that a non-African American was promoted into the position. The Parties also appear
to agree, at least for summary judgment purposes, that Williams was qualified for the
promotion. Instead, CPC argues that Williams cannot prove the fourth element of his
prima facie case because the person it hired for the position – Brian Sims – was far
more qualified for the position than Williams.
CPC has presented evidence in the form of the affidavits of Brown (the decisionmaker) and Sims (the candidate who was hired), Sims’ resume, as well as the
deposition testimony of Williams himself, all of which show that Sims had superior
qualifications for the job. There is no dispute that the primary duties of the Plant
Foreman-Concrete position involved supervising large numbers of employees, and
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overseeing the manufacture of concrete pipe, which took place inside Quality Culvert’s
building. Sims had over ten (10) years of supervisory experience, including managing
up to 65 employees in an automated concrete pipe producing facility similar to Quality
Culvert. His prior job history also showed that he had held several management
positions directly related to the production of concrete pipe, and he had extensive
experience performing and overseeing all aspects of concrete pipe manufacturing.
In contrast, Williams had no experience managing large numbers of employees,
and spent the majority of his tenure with CPC working outside in the yard as a forklift
driver and yard foreman. He had very little direct experience working with the concrete
pipe manufacturing equipment; Williams testified that he spent one year running the
pipe manufacturing machinery, which took place approximately ten years before he
applied for the Plant Foreman-Concrete position. (Doc. 28-1, pp. 42-43, 58). He also
could not explain the extent of his quality control experience and duties at CPC.
Williams further testified that his past work experience consisted of job duties such as
sales, shipping, delivery, reading blueprints, operating forklifts, and “a little of
everything.” (Doc. 28-1, pp. 32-34).
In order to show that the person outside the protected class who received the
promotion were equally or less qualified than Williams, he must show that the
disparities in qualifications is “of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir.
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2004). Applying this standard, the undisputed evidence is more than enough to show,
as a matter of law, that Sims was not an equally or lesser qualified candidate. Rather,
he was more qualified than Williams for the Plant Foreman-Concrete position.
Even if Williams had presented a prima facie case of discriminatory failure to
promote, CPC would still be entitled to summary judgment because Williams has failed
to submit evidence creating a genuine issue of material fact as to whether CPC’s
legitimate, non-discriminatory reason for promoting Sims instead was really pretext for
discrimination.11 Sims’ superior qualifications for the Plant Foreman-Concrete position
present a legitimate, non-discriminatory reason for CPC’s decision to hire him over
Williams. The only evidence Williams has presented to show that he was more
qualified than Sims for the position consists of his own opinion, which is insufficient
without more. See Cooper v. Southern Co., 390 F.3d 695, 743 (11th Cir. 2004). All of
the other evidence shows, instead, that Brown reasonably considered Sims to be more
highly qualified, with more relevant experience. And, as discussed above, Williams has
not shown that the disparities between his qualifications and Sims’ were so great in
11
The Court engages in this analysis out of an abundance of caution. There is a split of
authority in the Circuit concerning the fourth element of a failure to promote prima facie case.
While some decisions have held that the fourth element requires that the position be filled by a
person outside the protected class possessing equal or lesser qualifications, see Wilson, supra
and Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010), other decisions
have held that a prima facie case can be established merely by showing that the position remained
open and that the employer either continued to attempt to fill the position or in fact filled the
position with persons outside the protected class, with no mention of qualifications. See Crawford
v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980) and Springer v. Convergys Customer
Mgmt. Group Inc., 509 F.3d 1344, 1347 n. 2 (11th Cir. 2007).
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Williams’ favor that no reasonable person would have selected Sims over Williams.12
See Brooks v. County Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir.
2006). See also Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (“A
plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or
substitute his business judgment for that of the employer. Provided that the proffered
reason is one that might motivate a reasonable employer, an employee must meet that
reason head on and rebut it, and the employee cannot succeed simply by quarreling
with the wisdom of that reason.”). Williams cannot prove pretext merely by asserting
that he was better qualified than the person who received the position.13 See Jackson
v. Rooms to Go, Inc., 2008 WL 2824814 at * 7 (M.D. Fla. July 21, 2008).
Because Williams has failed to create a genuine issue of material fact concerning
whether CPC’s reasons for not promoting him were pretextual, summary judgment
shall be granted in CPC’s favor on the discrimination claims.
The Retaliation Claims
II.
Williams has also asserted two retaliation claims under Title VII and § 1981,
claiming that he was fired based on his complaints to Mitchell about CPC’s failure to
12
Williams’ reliance on the purported statements by Mitchell are unavailing. As previously
discussed, these statements were made years before Williams applied for the promotion, and
were not made by the decision-maker. They are insufficient to rebut CPC’s evidence that Sims
was the more qualified candidate.
13
In fact, Williams testified at deposition that he had no knowledge about Sims’ work
experience, both at the time Sims received the promotion, and at the time Williams filed his EEOC
charge. (Doc. 28-1, p. 93).
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promote him to Plant Foreman-Concrete. With respect to the Title VII retaliation claim,
Williams concedes that he did not properly exhaust his administrative remedies
because he failed to assert this particular theory of retaliation in his Charge filed with
the FCHR and the EEOC. See Doc. 28, Ex. B. See also 42 U.S.C. § 2000e-5(e)(1)
(stating plaintiff must file Title VII charge within 180 days after the alleged unlawful
employment practice). The Charge only lists a retaliation theory relating to a November
2010 EEOC charge involving a family member; it nowhere mentions Williams’
purported complaints about the failed promotion. As such, Williams failed to exhaust
his administrative remedies, and the Court will grant summary judgment in CPC’s favor
on the Title VII retaliation claim. See Anderson v. Embarq/Sprint, 379 F. App’x. 924,
926-27 (11th Cir. 2010); Thomas v. Miami Dade Public Health Trust, 369 F. App’x. 19,
22 (11th Cir. 2010); Gregory v. Georgia Dept. of Human Res., 355 F.3d 1277, 1279-80
(11th Cir. 2004); Alexander v. Fulton Cnty., 207 F.3d 1303, 1332 (11th Cir. 2000).
Williams’ § 1981 retaliation claim does not, however, have any exhaustion
prerequisites; therefore the Court will turn to its merits. A plaintiff establishes a prima
facie case of retaliation under § 1981 by showing that: (1) he engaged in statutorily
protected expression; (2) he suffered an adverse employment action; and (3) there was
some causal relation between the two events. Pennington v. City of Huntsville, 261
F.3d 1262, 1266 (11th Cir. 2001).14 See also Goldsmith v. Bagby Elev. Co., Inc., 513
14
As with discrimination claims, a plaintiff can prove a retaliation claim under § 1981 through
(continued...)
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F.3d 1261, 1277 (11th Cir. 2008). The plaintiff can establish a causal connection by
presenting evidence that “the decision-makers were aware of the protected conduct,
and that the protected activity and the adverse actions were not wholly unrelated.”
Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (internal
quotation marks omitted).
Once the plaintiff establishes a prima facie case of
retaliation, “the burden of production then shifts to the defendant to establish nonretaliatory reasons for the employment actions.” E.E.O.C. v. Reichhold Chems., Inc.,
988 F.2d 1564, 1572 (11th Cir. 1993). If the defendant establishes a non-retaliatory
reason for the action, the burden then shifts back to the plaintiff to refute these reasons
by proving that they are pretextual. Id.
The Parties do not dispute that Williams engaged in protected activity when he
allegedly complained to Mitchell, and that he suffered an adverse employment action
when he was fired. CPC contends, however, that there is no causal connection
between the two events. And even if Williams could establish a prima facie case, CPC
argues that he cannot show that the reasons for firing Williams were pretextual.
Williams argues that he has established his causal connection due to the very
short time period between his alleged complaint of discrimination and his termination,
14
(...continued)
direct or circumstantial evidence, and if the plaintiff relies on circumstantial evidence, the Court
applies the McDonnell Douglas burden shifting analysis. See Strickland v. Water Works & Sewer
Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). Williams has not come forward
with any direct evidence of retaliation.
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and the absence of any prior discipline against him. Williams correctly notes that “[t]he
general rule is that close temporal proximity between the employee’s protected conduct
and the adverse employment action is sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection.”
Brungart v. BellSouth
Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (citations omitted). However,
there is a notable exception to this general rule:
“temporal proximity alone is
insufficient to create a genuine issue of fact as to the causal connection where there
is unrebutted evidence that the decision-maker did not have knowledge that the
employee engaged in protected conduct.” Id. (citing Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1355-56 (11th Cir. 1999). “Neither a court nor a jury may impute
knowledge to a decision-maker who has sworn he had no actual knowledge.” Brochu
v. City of Riviera Beach, 304 F.3d 1144, 1156 (11th Cir. 2002).
Here, the Court is presented with the affidavit testimony of Kerry Bartol. She
testified that she was the sole decision maker with respect to Williams’ firing, and that
at the time she decided to terminate Williams’ employment she had no knowledge that
Williams had made any complaints of race discrimination. Bartol was not even aware
that Williams had applied for and been denied a promotion.15 (Doc. 31, ¶ 8). Bartol
15
Bartols’ physical location in Madison, Wisconsin tends to strengthen the credibility of her
denials of knowledge. Had she been located at the plant in Astatula, Florida, Williams might have
been able to argue from that circumstance that she “must have known.” As the record stands,
however, there is no basis upon which either Williams or the Court can reasonably assail her
testimony; it stands unrebutted.
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further testified that she based her decision to fire Williams solely on the three
unsolicited complaints from employees Williams supervised.
Williams has not
presented any evidence calling Bartol’s testimony into question.16
Based on this uncontradicted evidence that the decision maker, Bartol, had no
knowledge of Williams’ protected activity prior to terminating him, the Court finds that
Williams failed to establish a prima facie case of retaliation under § 1981. See,
Summers v. City of Dothan, Ala., 444 F. App’x. 346, 352-53 (11th Cir. 2011); WaltonHorton v. Hyundai of Ala., 402 F. App’x. 405, 409 (11th Cir. 2010); Hudson v. S.
Ductile Casting Corp., 849 F.2d 1372 (11th Cir. 1988); McCollum v. Bolger, 794 F.2d
602 (11th Cir. 1986).
Summary judgment shall be granted in CPC’s favor on the retaliation claims.17
16
Williams attempts to argue that the three complaints were false, and/or coerced by
Mitchell. However, Williams has not put forth any evidence, other than his own opinion,
challenging the veracity of these complaints. He has also not submitted any admissible evidence
suggesting that the complaints were solicited by anyone at CPC. And more importantly, he has
not presented any evidence suggesting that Bartol was aware that the complaints were false, that
she would have had any reason to question the validity of them, or that she harbored any hostility
or racial or retaliatory animus towards Williams. See Hawkins v Ceco Corp., 883 F.2d 977, 980
n. 2 (11th Cir. 1989) (That the employee did not in fact engage in misconduct reported to the
employer is irrelevant to the question whether the employer believed the employee had done
wrong); Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) (“[I]f the employer
fired an employee because it honestly believed that the employee had violated a company policy,
even if it was mistaken in such belief, the discharge is not ‘because of race’ and the employer has
not violated § 1981.”).
17
Assuming, arguendo, that Williams had proven his prima facie case, he would not survive
summary judgment. Williams has not presented any evidence, beyond his mere supposition, that
would create a material issue of fact as to whether CPC’s reason for terminating his employment
– the three complaints filed against him – was pretext for retaliation.
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Conclusion
Accordingly, upon due consideration, it is hereby ORDERED that Defendant
Central Processing Corp.’s Motion for Summary Judgment (Doc. 27) is GRANTED.
The Clerk is directed to enter judgment in favor of Defendant Central Processing Corp.,
and against Plaintiff Carlton Williams as to all claims. The Clerk is further directed to
terminate all pending motions and to close the file.
IT IS SO ORDERED.
DONE and ORDERED at Ocala, Florida this 12th day of March, 2014.
Copies to:
Counsel of Record
Maurya McSheehy
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