ROSS v. EQUITY GROUP GEORGIA DIVISION LLC

Filing 28

ORDER granting 21 Motion for Summary Judgment. It is ordered and adjudged that Ross shall take nothing by her Complaint and judgment shall be entered in favor of Equity Group. Ordered by U.S. District Judge W LOUIS SANDS on 11/18/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
BURNIE R. ROSS,
Plaintiff,
v.
EQUITY GROUP,
Defendant.

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CASE NO.: 1:13-CV-24 (WLS)

ORDER
Presently pending before the Court is Defendant Equity Group’s Motion for Summary Judgment (Doc. 21). For the following reasons, Defendant Equity Group's Motion for
Summary Judgment (Doc. 21) is GRANTED.
I.

PROCEDURAL HISTORY
On September 5, 2012, Plaintiff Burnie Ross filed a Charge of Discrimination with

the Equal Employment Opportunity Commission (“EEOC”). (Doc. 26 at ¶ 10.) On November 21, 2012, Ross received a right-to-sue letter from that agency and filed suit within
ninety days of receipt thereof. (Id. at ¶ 19.) Although the complaint alleged race and sex
discrimination and retaliation, Ross “only pursues her claim for race and sex based discrimination for failure to promote.” (Doc. 25 at 2-3.)
On July 11, 2014, Defendant Equity Group moved for summary judgment on all
claims in Ross’ complaint. (Doc. 21.) In support of summary judgment, Equity Group contends: (1) Ross’ claims are barred by judicial estoppel because she failed to identify her instant claims as personal property in a bankruptcy proceeding; and (2) Ross failed to establish
a prima facie case of discrimination. (See Doc. 21-1.) Ross filed a response and Equity
Group timely replied thereto. (See Docs. 25-27.) Accordingly, the above-referenced Motion
is ripe for review. See M.D. Ga. L.R. 7.3.1(a). Because the Court finds Equity Group’s sec-

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ond ground for summary judgment dispositive, the Court will not address the issue of judicial estoppel.
II.

SUMMARY JUDGMENT STANDARD
A.

Federal Rule of Civil Procedure 56

“Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Chow v. Chak Yam Chau, 555 F. App’x 842, 848 (11th Cir. 2014) (citing Maddox v.
Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013)). “A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to
return a verdict in its favor.” Grimes v. Miami Dade Cnty., 552 F. App’x 902, 904 (11th Cir.
2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)). “An issue of fact
is ‘material’ if it is a legal element of the claim under the applicable substantive law which
might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “It is ‘genuine’ if the
record taken as a whole could lead a rational trier of fact to find for the non-moving party.”
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Barreto v. Davie Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009). The movant can meet
that burden by presenting evidence showing there is no dispute of material fact, or by
demonstrating that the nonmoving party has failed to present evidence in support of some
element of its case on which it bears the ultimate burden of proof. See Celotex, 477 U.S. at
322-24. Once the movant has met its burden, the nonmoving party is required “to go beyond the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party “must do more than
summarily deny the allegations or ‘show that there is some metaphysical doubt as to the material facts.’ ” Matsuhita, 475 U.S. at 586 (citations omitted). Instead, the nonmovant must
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point to record evidence that would be admissible at trial. See Jones v. UPS Ground Freight, 683
F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.
1999)) (noting that hearsay may be considered on a motion for summary judgment only if it
“could be reduced to admissible evidence at trial or reduced to admissible form.”). Such evidence may include affidavits or declarations that are based on personal knowledge of the
affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
On a motion for summary judgment, the Court must view all evidence and factual
inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S. at
322-23; Allen, 121 F.3d at 646. However, the Court must grant summary judgment if there is
no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
B.

Local Rule 56

Local Rule 56 requires the following:
The respondent to a motion for summary judgment shall attach to the response a separate and concise statement of material facts, numbered separately, to which the respondent contends there exists a genuine issue to be tried.
Response shall be made to each of the movant's numbered material facts. All
material facts contained in the moving party's statement which are not specifically controverted by the respondent in respondent's statement shall be
deemed to have been admitted, unless otherwise inappropriate.
M.D. Ga. L.R. 56. Here, Equity Group properly filed a summary judgment motion with a
statement of undisputed facts, as required by the Federal Rules of Civil Procedure and the
Local Rules of this Court. (See Doc. 21-2.) Likewise, Ross filed the proper response to Equity Group’s statement of material facts. (Doc. 26.) Having established the applicable
standards, the Court will proceed to the facts.
III.

RELEVANT FACTUAL BACKGROUND
The following facts are derived from the Complaint (Doc. 1); Equity Group’s Answer

(Doc. 13); Equity Group’s Statement of Material Facts (Doc. 21-2); and Ross’ Response to
Equity Group’s Statement of Material Facts (Doc. 26); and the record in this case. Where

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relevant, the factual summary also contains undisputed and disputed facts derived from the
pleadings, the discovery and disclosure materials on file, and any affidavits, all of which are
construed in a light most favorable to Ross as the nonmoving party. See Fed. R. Civ. P. 56;
Celotex, 477 U.S. at 322-23.
Plaintiff Burnie R. Ross, an African American female, is employed by Defendant Equity Group, a poultry processing plant in Camilla, Georgia. (See Doc. 1.) Ross worked in
several capacities at Equity Group before receiving her position as a Quality Control Specialist (“QCS”) in 2005. (Docs. 25-1 at ¶¶ 1 & 3, 26 at ¶ 1.) William Blythe, an African American male, is the former Complex Human Resources Manager for Equity Group. (Doc. 26 at
¶ 31.) Following the termination of a QCS, Blythe decided not to hire a new QCS and instead assigned that person’s duties to other QCSs, including Ross and Eddie Dewberry.
(Doc. 21-16 at ¶¶ 12-14.)
In March or April 2012, Blythe posted an open position for Breeder Flock Representative (“BFR”) on various employment websites, consistent with Equity Group’s hiring
policies. (Id. at ¶¶ 15 & 16.) Prior to that time, in routine discussions, Blythe told employees
that open hourly positions would be posted on employee bulletin boards but salaried positions would only be posted on certain websites. (Id. at ¶¶ 17 & 18.) Blythe never told Ross
that salaried positions were not posted on employee bulletin boards. (See Doc. 25-1 at ¶ 4.)
Ross first learned of the hiring process for salaried positions in July 2012 from Sandra Williams, the Human Resources Manager at that time. (Id. at ¶ 6.)
After reviewing twenty-one applications for the BFR position, Blythe determined that
only seven individuals possessed the experience, education, and qualifications necessary for
the open position. (Doc. 21-16 at ¶ 21.) Blythe spoke with Ross on numerous occasions,
but Ross never expressed to him an interest in any salaried positions or promotions. (Id. at
¶¶ 25-28.) Ross expressed her interest in the BFR position to Steve Whitaker, the Breeder
Flock Program Manager, and Fred Brogren, Ross’ direct supervisor. (Doc. 25-1 at ¶ 4.)
Ross did not submit an application for the BFR position. (Doc. at ¶ 29.)

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IV.

DISCUSSION
To make out a prima facie case of race or sex discrimination on a failure to promote

claim, the plaintiff must prove: “(1) [s]he was a member of a protected class; (2) [s]he was
qualified for and applied for the promotion; (3) [s]he was rejected in spite of [her] qualifications; and (4) the person who received the promotion was not a member of the plaintiff’s
protected group.” Paul v. Americold Logistics, LLC, 450 F. App’x 850, 852 (11th Cir. 2012)
(citing Walker v. Mortham, 158 F.3d 1177, 1185-93 (11th Cir. 1998)). A plaintiff’s failure to
apply for the promotion in question is excused where the plaintiff “establishes that the company had some reason or duty to consider [her] for the post.” Carmichael v. Birmingham Saw
Works, 738 F.2d 1126, 1133 (11th Cir. 1984).
Equity Group concedes that Ross is a member of a protected class and the individuals who were given the promotion are outside of that group. (See Doc. 21-1 at 11-12.) Equity Group argues that it is entitled to summary judgment, however, because Ross never applied for the promotion and the promoted individuals were more qualified than Ross. (Id. at
13.) Ross concedes that she did not apply for the promotion, but states that she erroneously
believed that all positions were posted on employee bulletin boards and, because she was
given that belief by Equity Group, she was prevented from applying for the job. (Doc. 25 at
11-13.) Ross also states that Equity Group knew or should have known that she was interested in the promotion because she conveyed her interest to the Breeder Flock Program
Manager and her direct supervisor. (Id.)
The Court finds that Ross failed to meet her burden of establishing a prima facie case
because she did not apply for the BFR position. The cases cited by Ross that excuse a plaintiff’s failure to apply for a promotion involve “informal and subjective” or “vague and secretive” promotions policies, see Lyoch v. Anheuser-Busch Cos., Inc., 139 F.3d 612, 615-16 (8th Cir.
1998), employer’s actions that make it impossible for a person to apply for a promotion, see
Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1105 n.13 (8th Cir. 1996), lack of formal procedures for posting notices of job openings, see Carmichael, 738 F.2d at 1133, and plaintiffs
“making every reasonable attempt to convey [her] interest in the job to the employer.” See
EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990).

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The record evidence establishes that Ross did not make every reasonable effort to
learn of the hiring policy before the BFR position was filled. While she did communicate
her interest in the referenced position to the Breeder Flock Representative Manager and her
direct supervisor, those individuals were not involved in the hiring process. Equity Group
had an established procedure for hiring and promotions, and at least five employees of Equity Group stated their knowledge of that procedure. (Docs. 21-16—21-20.) Further, Ross
admits that she was able to learn the promotions policy after the BFR position was filled.
No showing has been made that Ross could not have learned of the policy before that time.
Further, at least twenty-one people submitted applications for the BFR position and one of
the individuals selected for the BFR position referenced the internet website in his cover letter. (See Doc. 27-2.) Even when construing the facts in Ross’ favor, the evidence is clear
and undisputed that Equity Group had an established policy for hiring and promoting individuals and Ross failed to apply for the BFR position in accordance with that policy. Accordingly, the Court finds that Ross failed to meet her burden of establishing a prima facie
case of discrimination.
CONCLUSION
For the foregoing reasons, Equity Group’s Motion for Summary Judgment (Doc. 21)
is GRANTED. It is hereby ORDERED AND ADJUDGED that Ross shall take nothing
by her Complaint (Doc. 1), and JUDGMENT shall be entered in favor of Equity Group.
SO ORDERED, this 18th day of November 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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