CROCKETT v. Mabus

Filing 20

ORDER granting 15 Motion for Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 07/08/2014 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
LARRY ALAN CROCKETT,

*

Plaintiff,

*

vs.

*
CASE NO. 1:13-CV-9 (CDL)

RAY MABUS,
NAVY,

SECRETARY

OF

THE *
*

Defendant.
*
O R D E R
Larry Alan Crockett (“Crockett”), an employee at the Marine
Corp Logistics Base (“LOGCOM”) in Albany, Georgia since 1976,
has not always seen eye to eye with his superiors.
criticized
management.

them

for

their

incompetence

and

He has

ineffective

And according to him, their conduct has created a

hostile working environment.

But incompetence, ineffectiveness,

and hostility do not generally give rise to legal claims under
federal law.

To reach this Court, those claims must arise due

to an employee’s protected characteristic such as race or age.
And so, Crockett has attempted to couch his claims in those
terms,

alleging

that

his

employer

discriminated

against

him

based on his race and age, and then retaliated against him when
he complained of that discrimination.

He seeks relief pursuant

to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq.

The Defendant employer

(“the Navy”) responds that its actions had nothing to do with
Crockett’s

race,

discrimination.

age,

or

complaints

about

race

or

age

Because Crockett has failed to point to any

evidence from which a reasonable factfinder could conclude that
the Navy’s stated legitimate, non-discriminatory reasons for its
actions were pretext for unlawful discrimination or retaliation,
the

Navy

is

entitled

to

summary

judgment.

Accordingly,

the

Navy’s motion for summary judgment (ECF No. 15) is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ.

P. 56(a).

In

determining

whether

a

genuine

Fed. R.

dispute

of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

2

Id.

FACTUAL BACKGROUND
Viewed in the light most favorable to Crockett, the record
reveals the following.
Crockett,

a

white

male

born

in

1951,

began

working

for

LOGCOM in 1976 as an information technology specialist in the
Command,

Control,

Communications

and

Computers

Directorate,

known as “C4.”

During his career, Crockett has often criticized

C4 management.

Many of his complaints have nothing to do with

race

The

or

age.

present

record

shows

that

Crockett

first

raised complaints of race and age discrimination in January 2010
when he initiated contact with an Equal Employment Opportunity
(“EEO”)

counselor.

Def.’s

Statement

of

Material

Facts

[hereinafter Def.’s SMF] Ex. A, EEO Precompl. Intake Sheet 1,
ECF No. 16-1.

After mediation failed to resolve his complaints,

Crockett filed a formal EEO complaint in March 2010.
Ex. B, EEO Counselor’s Report 3, ECF No. 16-2.

Def.’s SMF

When the Equal

Employment Opportunity Commission (“EEOC”) did not find in his
favor, Crockett filed the present action.

He alleges that the

Navy discriminated and retaliated against him when his superiors
failed to promote him, gave him certain unfavorable performance
ratings,

disciplined

him,

and

Compl. ¶¶ 4, 6, 9, ECF No. 1.

3

treated

him

with

hostility.

DISCUSSION
Title

VII

of

the

Civil

Rights

Act

prohibits

employment

discrimination against certain federal agency employees on the
basis of

race,

color,

religion,

sex,

or

national

origin

and

protects employees from retaliation for making a charge of such
discrimination.

42 U.S.C. §§ 2000e-3(a), 2000e-16(a).

The ADEA

similarly prohibits employment discrimination because of the age
of

certain

federal

agency

employees

complaining of age discrimination.

and

retaliation

for

29 U.S.C. § 633a(a); Gomez-

Perez v. Potter, 553 U.S. 474, 477 (2008).
Absent

direct

evidence,

a

plaintiff

may

prove

discrimination or retaliation by circumstantial evidence under
the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973).

See Sims v. MVM,

Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (explaining that this
Title VII framework also applies to ADEA claims even after Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)); see also Smith
v. City of Fort Pierce, Fla., No. 12-15064, 2014 WL 1687746, at
*1, *3 (11th Cir. Apr. 30, 2014) (analyzing retaliation claims
under this framework even after Univ. of Tex. Sw. Med. Ctr. v.
Nassar,

133

plaintiff

S.

must

Ct.

2517

first

(2013)).

establish

Under
a

prima

this

framework,

facie

case

a
of

discrimination or retaliation under the appropriate statute; if
he does so, the burden shifts to the defendant to articulate a

4

legitimate,

non-discriminatory

reason

for

its

action(s).

Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th
Cir. 2007).

The burden then shifts back to the plaintiff to

rebut

reason

each

given

as

discrimination or retaliation.
I.

mere

pretext

for

unlawful

Id.

Failure to Promote
Crockett has not clearly alleged in his judicial complaint

which promotions he was denied due to his race, age, or EEO
activity.

He does allege in his March 25, 2010 EEO complaint

and June 23, 2010 amendment that he should have been, but was
not, promoted in January 1995 “due to management incompetence
and favoritism.”
16-10 at 23.

Def.’s SMF Ex. J, 2d Am. EEO Compl. 1, ECF No.

It is clear that such a claim would be barred by

the 180-day limitations period to file a charge with the EEOC
after the alleged discriminatory act.

42 U.S.C. § 2000e-5(e)(1)

(Title VII); 29 U.S.C. § 626(d)(1)(A) (ADEA).

But even if it

were not time-barred, the claim must still be dismissed because
Crockett has failed to point to any evidence that his race, age,
or EEO activity had anything to do with the failure to promote
him.

Management incompetence and favoritism, as long as not

race or age-based, do not support a cause of action under the
federal civil rights statutes. 1
1

Crockett does make reference to other denied promotions, but he has
pointed
to
no
evidence
that
they
were
based
on
unlawful
discrimination.
For example, Crockett mentions the promotion of

5

II.

Race-Based
or
Age-Based
Performance Ratings
Crockett

generally

Disciplinary

complains

about

his

Actions

and

supervisors’

performance of their jobs and their treatment of him.

But only

two of the complained of employment actions arguably qualify as
sufficiently adverse to give rise to a possible cause of action. 2
First, Crockett complains that his supervisor Debra Capers, a
black female born in 1957, threatened to and did place him under

Jackie Mitchell, a black male, explaining “that this assignment was
strictly because he was a MATCOM favorite.” Def.’s SMF Ex. J, Formal
EEO Compl. 12, ECF No. 16-10 at 15.
MATCOM was an outside
organization previously directed by Melvin Leonard, a white male born
in 1957, who subsequently transferred to C4 and made that promotion
decision. The only evidence relied on by Crockett in support of his
claims of discrimination is an isolated statement from Mitchell, the
person who received the promotion, to Crockett that he was “too old
for the supervisory job.” Def.’s SMF Ex. J, 2d Am. EEO Compl. 2, ECF
No.
16-10
at
24.
It
is
clear
that
“statements
made
by
nondecisionmakers or statements made by decisionmakers unrelated to
the decisional process do not demonstrate discriminatory intent.”
Rowell v. BellSouth Corp., 433 F.3d 794, 802 (11th Cir. 2005)
(internal quotation marks omitted).
Crockett also complains that
Mitchell subsequently refused to promote him for another position, but
he fails to identify the race or age of the successful candidate.
Formal EEO Compl. 14, ECF No. 16-10 at 17; see Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (per curiam)
(setting forth the elements of a prima facie failure to promote claim,
including that “the position was filled with an individual outside the
protected class”). Finally, Crockett even complains that Mitchell did
promote him, but only after the first candidate of unspecified
race/age declined the offer. Formal EEO Compl. 14, ECF No. 16-10 at
17. None of Crockett’s failure to promote claims are supported by any
evidence that the decisions were based on Crockett’s age, race, or EEO
activity. Therefore, those claims fail as a matter of law.
2
For example, Crockett complains about interim performance ratings and
letters of caution but offers no evidence that they had any impact on
his employment status or advancement.
Consequently, because they do
not constitute “a serious and material change in the terms,
conditions, or privileges of employment . . . as viewed by a
reasonable person in the circumstances,” they are not actionable.
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.
2001).

6

a national “pay for performance” system known as NSPS for the
hidden purpose of giving him low performance ratings to justify
not raising his pay.

2d Am. EEO Compl. 4, ECF No. 16-10 at 26;

Formal EEO Compl. 16, ECF No. 16-10 at 19.
evidence

establishes

that

Capers

gave

The undisputed

Crockett

performance

ratings of “2” for his 2010 annual assessment, which resulted in
Crockett

receiving

no

performance

salary

increase

that

year.

Def.’s SMF Ex. Q, 2010 NSPS Performance Appraisal 2-7, ECF No.
16-17; Def.’s SMF Ex. P, 2010 NSPS Pay Pool Form, ECF No. 16-16;
Formal

EEO

Compl.

16-17,

ECF

No.

16-10

at

19-20.

Second,

Crockett complains that he was reprimanded in 2007 for a system
crash and data loss for which he was not responsible.

Formal

EEO Compl. 13-15, ECF No. 16-10 at 16-18; Def.’s SMF Ex. D,
Rebuttal

of

Letter

of

Reprimand

3-6,

ECF

No.

16-4.

It

is

undisputed that Jackie Mitchell issued Crockett a formal letter
of reprimand, Def.’s SMF Ex. C, Letter of Reprimand, ECF No. 163, and Melvin Leonard transferred Crockett from the Enterprise
Systems Division to a nontechnical position in the Plans and
Policy Branch, Def.’s SMF Ex. E, Leonard Decl. ¶¶ 7-9, ECF No.
16-5,

after

a

December

2006

crash

and

data

loss

in

the

Enterprise Systems Division.
The Court is skeptical of whether Crockett has made out a
prima
adverse

facie

case

employment

of

discrimination

actions.

He

7

has

arising
failed

from
to

these

point

to

two
any

potential

comparators

showing

that

other

similarly

situated

employees outside his class were treated more favorably.

See

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.
2004) (“A plaintiff establishes a prima facie case of disparate
treatment

by

showing

protected

class

that

and

was

[]he

was

subjected

a

qualified

to

an

member

adverse

of

a

employment

action in contrast with similarly situated employees outside the
protected class.”).

Instead, he quarrels with the justification

for the employment decisions, asking the Court to infer that
they

could

only

have

been

taken

based

on

unlawful

discrimination.

But even if the Court assumes Crockett could

establish

facie

prima

presents

no

cases

evidence

discrimination

to

of

disparate

suggesting

rebut

the

treatment,

racial

Navy’s

or

Crockett
age-based

legitimate,

non-

discriminatory reasons for these actions.
Regarding
Crockett

the

“2s”

resistance,

due

or

assignments.

even

annual
to

performance

his

deficient

resentment,

motivate

Capers

performance
his

gave

and

his

supervisors

and

Def.’s SMF Ex. F, Capers Decl. ¶¶ 4-11, ECF No.

16-6; Leonard Decl. ¶¶ 14-16.
might

toward

ratings,

a

reasonable

Because these are reasons that
employer

to

give

an

employee

an

unfavorable performance rating, Crockett must meet each “reason
head on and rebut it” and “cannot succeed by simply quarreling
with the wisdom of that reason.”

8

Chapman v. AI Transp., 229

F.3d 1012, 1030 (11th Cir. 2000).

While Crockett attempts to

rebut that his performance was deficient, Formal EEO Compl. 1617, ECF No. 16-10 at 19-20, he points to no evidence that the
evaluation

of

his

discrimination.

performance

Moreover,

was

a

Crockett

pretext

presents

for

no

unlawful

evidence

to

rebut the Navy’s explanation that his performance evaluation was
due in part to his poor attitude.
1308

(“If

the

employer

See Crawford, 482 F.3d at

proffers

more

than

one

legitimate,

nondiscriminatory reason, the plaintiff must rebut each of the
reasons to survive a motion for summary judgment.”).
Regarding

the

2007

transfer

and

reprimand,

the

Navy

explains that it determined that Crockett’s role in the system
crash

and

data

loss

justified

Leonard Decl. ¶¶ 2, 4-7, 9-13.

those

employment

decisions.

Specifically, Leonard explains

that while Crockett was in charge of the database, he failed to
assure proper backup of the data.

Id.

Again, since this reason

is one that could motivate a reasonable employer to take action
against an employee, Crockett must rebut Leonard’s reason head
on

and demonstrate

that

it

is

pretextual

quarrelling with the ultimate decision.
1030.

rather

than

merely

Chapman, 229 F.3d at

Crockett points to no evidence that he made sure the data

was properly backed up while in charge; instead he gives excuses
as

to

why

Leonard

should

not

blame

him

for

the

data

loss.

Formal EEO Compl. 13-15, ECF No. 16-10 at 16-18; Rebuttal of

9

Letter of Reprimand 3-6.

This is not sufficient evidence of

pretext to avoid summary judgment.
Even when viewing the record in the light most favorable to
Crockett, the Court finds no evidence that the Navy’s proffered
reasons

for

its

disciplinary

actions

and

performance

ratings

were pretext to cover up discriminatory animus based on race or
age.

Consequently, the Navy is entitled to summary judgment on

those claims.
III. Racially Hostile or Age-Based Hostile Work Environment
Crockett believes that he was forced to work in a hostile
environment.

While perhaps unpleasant, hostility alone does not

give rise to a federal cause of action.
complains

of

objectively

must

be

hostile

based
such

on

race

that

it

or

The hostility Crockett
age,

results

and

it

must

in

a

material

alteration to the terms and conditions of his employment.

be

The

environment described by Crockett was neither.
For example, Crockett complains that the deputy director of
C4 has “verbally assaulted [him] at least three times,” Formal
EEO Compl. 16, ECF No. 16-10 at 19; but he provides no detail as
to the content of her words that would indicate any racism or
ageism.

Moreover,

pervasiveness,

and

no

three

incidents

meaningful

do

evidence

not
has

been

showing the severity of the alleged verbal assaults.

10

demonstrate
produced

To be actionable under Title VII or the ADEA, Crockett must
prove

that

his

“workplace

[i]s

permeated

with

discriminatory

intimidation, ridicule, and insult that [i]s sufficiently severe
or pervasive to alter the conditions of [his] employment and
create an abusive working environment.”

Jones v. UPS Ground

Freight, 683 F.3d 1283, 1299 (11th Cir. 2012) (third alteration
in

original)

(emphasis

added)

(internal

quotation

marks

omitted).

The antidiscrimination statutes “do[] not prohibit

harassment

alone,

[they]

prohibit[]

however

severe

discrimination,

and

pervasive[;

including

discriminates based on a protected category.”

i]nstead,

harassment

that

Baldwin v. Blue

Cross/Blue Shield of Ala., 480 F.3d 1287, 1301-02 (11th Cir.
2007).

It

harassment
employee.”

is
was

essential
“based

on

for

Crockett

a

protected

to

establish

that

the

of

the

characteristic

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1275 (11th Cir. 2002) (emphasis added); see also Cobb v. City of
Roswell, Ga. ex rel. Wood, 533 F. App’x 888, 897 (11th Cir.
2013) (per curiam) (applying same elements to ADEA claim).
With the exception of one isolated comment sometime before
2007 about being “too old,” 2d Am. EEO Compl. 2, ECF No. 16-10
at 24, Crockett has pointed to no other derogatory reference to
his race or age.

He simply makes vague, general allegations

that black employees were treated more favorably than whites by
some black supervisors.

This is not enough.

11

A general feeling

of unfairness based on a subjective belief of discrimination
certainly does not show that the harassment was “sufficiently
severe

or

pervasive

employment

and

environment.”
factfinder
Crockett
hostile

create

work

alter
a

the

terms

objectively

subjected

and

discriminatorily

Miller, 277 F.3d at 1275.

could
was

to

to

conclude

a

environment,

Navy

abusive

of

working

Because no reasonable
from

racially

the

conditions

the

record

hostile

is

or

entitled

that

age-based

to

summary

judgment on these claims.
IV.

Retaliation
Crockett also alleges that his superiors retaliated against

him after he initiated EEO activity in January 2010.

He relies

on the same adverse actions for his retaliation claims that he
pointed to in support of his race and age discrimination claims.
As previously explained, Crockett has failed to demonstrate that
the

Navy’s

stated

legitimate,

non-discriminatory

reasons

for

taking those actions were a pretext for unlawful discrimination
or

retaliation.

Therefore,

Crockett

is

unable

to

carry

his

burden on pretext under the McDonnell Douglas burden-shifting
framework.

Moreover,

for

similar

reasons,

he

has

failed

to

produce evidence from which a reasonable jury could find that
his

EEO

activity

retaliation.

was

the

“but-for”

cause

Nassar, 133 S. Ct. at 2533-34.

of

any

alleged

While the Court

analyzes retaliation claims under the McDonnell Douglas burden-

12

shifting framework and thus a failure to show pretext is fatal
to a retaliation claim, “the plaintiff always has the burden of
persuasion

‘to

proffer

evidence

sufficient

to

permit

a

reasonable fact finder to conclude that [retaliatory] animus was
the ‘but-for’ cause of the adverse employment action.’” Smith,
2014 WL 1687746, at *1, *3 (quoting Sims, 704 F.3d at 1332).
Thus, when such causation evidence is lacking, that also dooms a
retaliation claim.

For these reasons, the Navy is entitled to

summary judgment on Crockett’s retaliation claims.
CONCLUSION
For the reasons explained in this Order, the Navy’s motion
for summary judgment (ECF No. 15) is granted.

IT IS SO ORDERED, this 8th day of July, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

13