DANIELS v. STEBBINS ENGINEERING AND MANUFACTURING CO et al
Filing
49
ORDER GRANTING 39 Motion for Summary Judgment. Ordered by U.S. District Judge Marc Thomas Treadwell on 10/30/2013. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KENDELLE Y. DANIELS,
Plaintiff,
v.
STEBBINS ENGINEERING AND
MANUFACTURING COMPANY,
Defendant.
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CIVIL ACTION NO. 4:12-CV-92 (MTT)
ORDER
This matter is before the Court on the Defendant’s motion for summary judgment.
(Doc. 39). The Plaintiff did not file a response to the Defendant’s brief in support of its
motion or the Defendant’s statement of material facts. Thus, the Court finds that the
facts as set forth by the Defendant in its statement of material facts (Doc. 41) are
admitted. M.D. Ga., L.R. 56. The Court has also reviewed the record and finds the
facts undisputed. For the following reasons, the motion is GRANTED.
I. FACTUAL BACKGROUND
Plaintiff Kendelle Daniels, an African-American male, began working for
Defendant Stebbins Engineering and Manufacturing Company on Tuesday, August 2,
2011.1 (Doc. 41 at ¶¶ 1-3). Daniels was hired as a laborer to work at Georgia Power’s
Plant Scherer site in Juliette, Georgia. (Doc. 41 at ¶ 6). He was assigned to a team
that pumped concrete through a hose to create walls at the plant. (Doc. 41 at ¶ 8).
1
During his orientation, Daniels was provided with a copy of Stebbins’s Equal Opportunity and Sexual
Harassment Policy, and Daniels signed an acknowledgement of that policy. (Doc. 41 at ¶ 7).
Richard Winter, Daniels’s Caucasian supervisor, often threatened his employees
with termination and told them to go home if they did not like their jobs. (Docs. 41 at ¶
14; 43 at 25:17-25). Winter threatened to fire all of his subordinates without targeting
any particular ethnic group or race. (Doc. 41 at ¶ 21). However, Winter and Daniels
were apparently friendly with each other, and they joked together during lunchtime by
calling each other names. (Doc. 43 at 44:24-25, 45:1-12).2
On August 4, Daniels approached Isadore Andrews, an African-American
coworker who supervised members of the iron workers union at the Scherer plant.
(Doc. 41 at ¶¶ 10, 12, 26). Andrews did not supervise or work directly with Daniels.
(Doc. 41 at ¶ 11). Daniels asked Andrews if he needed any help, and Andrews asked
Daniels if he was an iron worker. (Doc. 43 at 29:9-16). Daniels responded that he was
previously a member of the iron workers union but that he was no longer a member
because he could not go to school to get necessary further training. (Doc. 41 at ¶¶ 30,
32). Daniels then went on to tell Andrews that he was removed from the union because
of an incident that occurred while Daniels was working in the Local 387 at the Centers
for Disease Control in Atlanta as a first-year apprentice. (Doc. 41 at ¶¶ 29, 33). He
explained that while working at the CDC his Caucasian supervisor improperly rigged a
piece of equipment which caused the equipment to fall. (Doc. 41 at ¶ 34). Daniels
further told Andrews that the supervisor blamed Daniels for the incident and called him
“a stupid nigger.” (Doc. 41 at ¶ 35).
2
Daniels called Winter “a Mexican” based on Winter’s appearance, although Daniels was not sure of
Winter’s race, and Winter called Daniels “a little leprechaun” due to Daniels’s height. (Doc. 43 at 44:2425, 45:1-18).
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After Daniels finished his explanation, Andrews told Daniels he was “a stupid ass
nigger” because he could have “owned the job, the company or whatever[,]” apparently
meaning that Daniels could have brought a successful lawsuit based on his former
supervisor’s use of that epithet. (Doc. 43 at 33:11-18). Daniels did not respond to
Andrews and walked away. (Doc. 41 at ¶ 39).
The following day, Andrews called Daniels over to join a conversation with Alvin
Terry, an African-American laborer. (Docs. 41 at ¶ 40; 43 at 44:13-14). Andrews
repeated the epithet to Terry while pointing at Daniels. (Doc. 44 at 17:10-20). Terry
believed Andrews was joking, finding the epithet humorous, but Terry did not find
Andrews’s remarks funny and later told Daniels to report Andrews’s behavior. (Doc. 44
at 18:9-14). Terry only heard Andrews use the epithet once, and he did not hear any
other coworkers use it during his employment with Stebbins. (Doc. 44 at 18:20-25,
22:2-4).
Daniels did not work on Saturday or Sunday and returned to work the following
Monday, August 8. (Doc. 41 at ¶¶ 4, 5). Andrews repeated the epithet to Daniels once
after the morning meeting at the job site. (Doc. 43 at 39:16-18). A different coworker
overheard Andrews’s remark and told Daniels he needed to stop Andrews from calling
him that before others began to use that language as well. (Doc. 41 at ¶ 49). But
Daniels did not say anything to Andrews, and he did not report Andrews’s remarks.
(Doc. 43 at 40:11-15).
Later that day, Daniels worked with another laborer to seal concrete on a wall.
(Doc. 41 at ¶ 52). Daniels alleges the other laborer damaged the wall while attempting
to seal it, and Daniels was going to help him repair it. (Doc. 43 at 47:1-5). Winter came
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by and observed the damaged wall. However, the other laborer had walked off, and
Winter did not see the other laborer cause the damage. (Doc. 43 at 47:5-8, 20-22).
Winter apparently assumed Daniels damaged the wall. Winter instructed Daniels to fix
the wall and then grab his lunch and go to Winter’s truck. (Doc. 41 at ¶ 56). Daniels
responded that he would not fix the wall if Winter was planning to fire him, and Daniels
walked over to Winter’s truck. (Doc. 43 at 47:17-19).
Winter informed Daniels he was being terminated for performance reasons.
(Doc. 41 at ¶ 58). Andrews had no part or role in Daniels’s termination. (Doc. 41 at ¶
57). Only after Winter told Daniels that he was terminated did Daniels tell Winter about
Andrews use of the racial epithet. (Doc. 41 at ¶ 59). Winter then drove Daniels to the
plant’s front gate. (Doc. 41 at ¶ 60).
At the gate, Daniels complained to Georgia Power’s security guard about racial
harassment. (Doc. 41 at ¶ 61). Georgia Power then informed Stebbins of Daniels’s
allegations. (Doc. 41 at ¶ 62). Stebbins’s Human Resources Director, Margaret
LaVancha, investigated Daniels’s claims. LaVancha interviewed Daniels, Andrews, and
Winter. (Doc. 45 at ¶¶ 4-5). Daniels refused to provide LaVancha with the names of his
two coworkers who witnessed Andrews’s use of the racial epithet. (Doc. 45 at ¶ 7).
Daniels also threatened to personally hurt Andrews during his interview with LaVancha.
(Doc. 45 at ¶ 6). LaVancha concluded from her investigation that Daniels’s version of
events “was incomplete, inaccurate, and at times was contradictory[,]” and the
investigation did not reveal that any discrimination or harassment had occurred. (Doc.
45 at ¶ 9).
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Daniels filed his complaint (Doc. 1) and amended complaint (Doc. 12) pro se.
While Daniels brought his amended complaint pursuant to Title VII and his amended
complaint sets forth the relevant facts, it does not identify his precise claims.
Accordingly, Stebbins has moved for summary judgment on what appear to be the most
relevant claims considering Daniels’s allegations. The Court agrees, based on a liberal
construction of Daniels’s amended complaint, these are the most appropriate claims.
II. DISCUSSION
A. Motion for Summary Judgment Standard
Summary judgment must be granted “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.” Fed. R. Civ. P. 56(a). “A factual dispute is genuine only if ‘a reasonable
jury could return a verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City
of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)). The burden rests with the moving
party to prove that no genuine issue of material fact exists. Info. Sys. & Networks Corp.,
281 F.3d at 1224. The party may support its assertion that a fact is undisputed by
“citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A).
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing … relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
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(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-moving party
does not satisfy his burden “if the rebuttal evidence is ‘merely colorable, or is not
significantly probative’ of a disputed fact.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)). However, “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge … . The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (citation
omitted).
B. McDonnell Douglas Framework
A Title VII plaintiff may prove his case directly or circumstantially. Here, there is
no direct evidence of discrimination, so Daniels must rely on circumstantial evidence.3
The framework for analyzing circumstantial evidence to establish a prima facie case of
discrimination is provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4
Pursuant to McDonnell Douglas, a plaintiff must first establish a prima facie case of
discrimination. If a plaintiff establishes a prima facie case of discrimination, the burden
of production, but not the burden of persuasion, shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the employment action. Tex. Dep’t of Cmty.
3
According to Daniels’s testimony, the only person to use the racial epithet, other than himself, was
Andrews. Andrews did not play a role in Daniels’s termination. Rather, Winter was the sole decisionmaker in that regard, and Daniels has not alleged any direct evidence of Winter’s discriminatory intent.
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The Court recognizes that establishing the McDonnell Douglas elements is not “the sine qua non for a
plaintiff to survive a summary judgment motion in an employment discrimination case.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff can always avoid summary
judgment by creating a triable issue concerning the employer’s discriminatory intent. A plaintiff does this
by presenting “‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.’” Id. (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir.
2011)). However, Daniels has not presented such evidence and does not meet Lockheed-Martin’s
standard.
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Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). This burden of production means the
employer “need not persuade the court that it was actually motivated by the proffered
reasons” but must produce evidence to raise a genuine factual dispute as to whether it
discriminated against the plaintiff. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304,
1308 (11th Cir. 2012) (emphasis added) (citation omitted).
A plaintiff then has the opportunity to show that the employer’s stated reason is in
fact pretext for discrimination. “The plaintiff can show pretext ‘either directly by
persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.’” Id. (quoting Burdine, 450 U.S. at 256). Put another way, “a plaintiff can
survive a motion for summary judgment … simply by presenting evidence sufficient to
demonstrate a genuine issue of material fact as to the truth or falsity of the employer's
legitimate, nondiscriminatory reasons.” Evans v. McClain of Ga., Inc., 131 F.3d 957,
965 (11th Cir. 1997) (citations omitted). Consequently, at this juncture it is not required
that a plaintiff prove his employer was motivated by discriminatory intent.
C. Wrongful Termination Claim
Generally, Title VII makes it unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or to otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of
wrongful termination based on race, Daniels must show: (1) he is a member of a
protected class; (2) he was qualified for the position held; (3) he was terminated; and (4)
he was replaced by a person outside of his protected class. See Walker v. NationsBank
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of Fla. N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Stebbins does not dispute that
Daniels can satisfy the first, second, and third elements of his prima facie case.
However, Daniels offers no evidence that he was replaced by a person outside of
his protected class or that his position was even filled after his termination. Even if
Daniels had identified a person outside of his class who replaced him, Stebbins has
offered a legitimate, nondiscriminatory reason for Daniels’s termination. Stebbins
argues that Winter terminated Daniels for poor work performance after observing the
damaged wall.
Accordingly, Daniels has not established a prima facie case of wrongful
termination. Nor does Daniels argue that Stebbins’s legitimate, nondiscriminatory
reason was merely pretextual. Therefore, Stebbins is entitled to summary judgment on
this claim.
D. Disparate Treatment Claim
To establish a prima facie case of disparate treatment under Title VII, Daniels
must show: (1) he is a member of a protected class; (2) he was qualified for his position;
(3) he suffered an adverse employment action; and (4) he was treated less favorably
than a similarly situated individual who is not a member of his protected class. McCann
v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). Again, Stebbins does not dispute that
Daniels can satisfy the first, second, and third elements of his prima facie case.
The Plaintiff fails to identify any coworker at Stebbins he was treated less
favorably than, and he certainly does not identify a similarly situated individual who was
not a member of his protected class and who was treated more favorably. Accordingly,
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Daniels does not satisfy the elements of a prima facie disparate treatment claim, and
Stebbins is entitled to summary judgment on this claim as well.
E. Hostile Work Environment Claim
To establish a prima facie case for a hostile work environment claim, Daniels
must show: (1) he is a member of a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment complained of was based on his
membership in the protected class; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create a hostile or
abusive working environment; and (5) the employer is responsible for that environment
under either vicarious or direct liability. Jones v. UPS Ground Freight, 683 F.3d 1283,
1292 (11th Cir. 2012). The harassment must be “so severe or pervasive as to alter the
conditions of employment.” Id. (internal quotation marks and citation omitted). The
plaintiff must meet both a subjective and objective test to show the harassing conduct
was severe or pervasive. Thus, “[t]he burden is on the plaintiff to demonstrate that he
perceived, and that a reasonable person would perceive, the working environment to be
hostile or abusive.” Id. (citation omitted). Specifically, when evaluating whether the
harassment is objectively severe or pervasive, the Court looks at the totality of the
circumstances and considers: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee's job performance.” Freeman v. City of Riverdale, 330 F. App’x 863, 865
(11th Cir. 2009).5
5
"Unpublished opinions are not considered binding precedent, but they may be cited as persuasive
authority." 11th Cir. R. 36-2.
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Daniels has satisfied the first three elements of a hostile work environment claim.
He is a member of a racial minority, he was subjected to unwelcome harassment by
Andrews, and the epithet used was directed at Daniels’s race. Thus, the Court must
determine whether the harassment was both subjectively and objectively severe or
pervasive so as to alter the conditions of Daniels’s employment and whether Stebbins
may be held liable for Andrews’s behavior.
Stebbins argues that Andrews’s use of the racial epithet four or five times could
not have subjectively offended Daniels because he never reported it to anyone prior to
his termination and that Daniels’s own use of racial epithets at the plant belies his
alleged offense taken to the epithet used against him. Daniels testified that he walked
away from Andrews each time he used the epithet but did not tell Andrews to stop using
that language or that he found the language offensive. Daniels also testified that he
worked closely with Winter daily but never told Winter about the offensive utterances
until after Winter fired him. However, Daniels acknowledges Winter was the appropriate
person to whom he should have reported Andrews’s behavior. (Doc. 43 at 15:20-25,
16:1, 26:11-19). See Barrow v. Ga. Pac. Corp., 144 F. App’x 54, 57 (11th Cir. 2005)
(evaluating the plaintiff’s failure to use his employer’s procedures and policies to report
racial harassment as part of the subjective inquiry into whether the plaintiff perceived his
working environment to be hostile). Further, Daniels admits to using a term that could
be perceived as a slur on the job site, although he considered his use of the term
playful. Thus, based on Daniels’s reaction to Andrews’s use of the epithet and
Daniels’s own use of racial epithets, it is not clear he perceived his work environment to
be hostile or abusive.
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However, even if Daniels subjectively believed his environment to be hostile, he
“has not presented evidence that the workplace was ‘permeated with “discriminatory
intimidation, ridicule, and insult” that [was] “sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working environment.”’” Id.
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The language used by
Andrews is no doubt objectively offensive.6 But “[a]lthough offensive, such instances of
racially derogatory language alone” do not necessarily alter the terms and conditions of
employment. Freeman, 330 F. App’x at 866 (quoting McCann, 526 F.3d at 1379).
Frequent and consistent use of offensive language does weigh in favor of a
plaintiff’s hostile work environment claim even if the remarks occur over a relatively
short period of time. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th
Cir. 2002) (holding that a coworker’s use of ethnic slurs directed at the plaintiff three or
four times daily over a one month period was severe and pervasive). Daniels testified
that he believed Andrews used the term four or five times, although he could only
recount three instances, during Daniels’s employment with Stebbins. Thus, Andrews
used the epithet at least once daily on the three final days of Daniels’s five day
employment.
Under these circumstances, Andrews’s behavior was not severe or pervasive
enough to create a hostile work environment claim. Racial slurs must be “so
‘commonplace, overt and denigrating that they created an atmosphere charged with
racial hostility.’” Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995)
(quoting E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990)).
6
In the Court’s view, the fact that Andrews is African-American does not make the use of the word any
less offensive.
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Daniels admits he was not harassed by any of his other coworkers and that Andrews
was the only co-worker who used the slur. Further, Daniels does not allege Andrews’s
conduct caused other employees to behave negatively toward Daniels, and although
offensive, Andrews’s remarks were not physically threatening. See Harris, 510 U.S. at
21 (“‘[M]ere utterance of an ... epithet which engenders offensive feelings in [an]
employee,’ … does not sufficiently affect the conditions of employment to implicate Title
VII.”). Nor does Daniels argue that his job performance was hindered by Andrews’s
slurs.
Finally, there is no basis for holding Stebbins vicariously or directly liable for
Andrews’s conduct. Stebbins is not subject to vicarious liability because Andrews was
not Daniels’s supervisor and did not have immediate authority over Daniels. Miller, 277
F.3d at 1278. To be liable for the harassing conduct of a plaintiff’s coworker rather than
a supervisor, the employer must have “‘[known] or should have known of the harassing
conduct but failed to take prompt remedial action.’” Baldwin v. Blue Cross / Blue Shield
of Ala., 480 F.3d 1287, 1302 (11th Cir. 2007) (quoting Miller, 277 F.3d at 1278). There
is no evidence Stebbins knew of Andrews’s conduct until Daniels was terminated and
informed Winter and the Georgia Power security guard of the harassment. LaVancha
promptly launched an internal investigation to determine whether any discrimination or
harassment had occurred. LaVancha was unable to determine that such harassment
occurred because Daniels provided her with contradictory stories and refused to provide
the names of his witnesses to further the investigation.7 Thus, Stebbins took prompt
remedial action to Daniels’s allegations.
7
The Court has not relied on LaVancha’s conclusions in reaching its conclusions.
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Accordingly, Stebbins is entitled to summary judgment on Daniels’s hostile work
environment claim.
III. CONCLUSION
For the foregoing reasons, Stebbins’s motion for summary judgment is
GRANTED.
SO ORDERED, this the 30th day of October, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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