King v. ANDREWS & COMPANY et al
ORDER granting 29 Motion for Summary Judgment; finding as moot 37 Motion to Strike. Ordered by U.S. District Judge CLAY D LAND on 02/11/2015. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
LAWRENCE EDWARD KING,
ANDREWS & COMPANY,
CASE NO. 4:13-CV-398 (CDL)
O R D E R
King contends that Andrews & Company transferred him and
then fired him because of his race and age, in violation of
42 U.S.C. § 2000e,
Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
terminated King for poor performance.
As discussed in more
detail below, King did not point to any evidence to create a
genuine fact dispute on his claims, and the Court finds that
Andrews & Company’s summary judgment motion (ECF No. 29) should
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
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.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Under the Court’s local rules, a party moving for summary
statement of the material facts to which the movant contends
there is no genuine dispute to be tried.”
M.D. Ga. R. 56.
Those facts must be supported by the record.
The respondent to
a summary judgment motion must respond “to each of the movant’s
numbered material facts.”
“All material facts contained in
the movant’s statement which are not specifically controverted
by specific citation to particular parts of materials in the
record shall be deemed to have been admitted, unless otherwise
statement of material facts is deemed admitted pursuant to Local
citations to the record to determine whether a genuine fact
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303
(11th Cir. 2009).
King did submit a response brief and five “declarations” in
opposition to the summary judgment motion.
The response brief
employee, are not sworn or notarized and do not state that they
are based on personal knowledge or that they were made under
consider the declarations or the factual allegations in King’s
See 28 U.S.C. § 1746 (requiring that an unsworn
declaration be made under penalty of perjury to have the same
force and effect as a sworn affidavit).
The materials submitted by Andrews & Company in support of
its summary judgment motion, which are undisputed for purposes
of this motion, establish the following.
Andrews & Company has
a janitorial services contract at Fort Benning, Georgia.
Decl. ¶ 4, ECF No. 33-1.
King, a 43-year-old black man, worked
September 1, 2011 until May 1, 2012.
Id. ¶ 5.
are older than King.
Jerry Gibbons was his
Both Gibbons and Baldwin are black and
Id. ¶ 7.
When King began working for Andrews & Company, he worked in
the food court area, and his responsibilities included emptying
the trash and cleaning the restrooms.
Id. ¶ 12.
he began working for Andrews & Company, Gibbons gave King a
written warning for failing to empty the trash and refusing to
According to Gibbons, King “would often stand around talking to
people instead of working and getting his job done,” and Gibbons
included “saggy pants,” “big necklaces that were distracting and
did not look neat or appropriate for cleaning,” and “a belt
buckle shaped like a handgun.”
Id. ¶ 8.
In March of 2012, Andrews & Company received a complaint
from Kathleen Wagner, the customer contact for the Fort Benning
occasions and that he did not correct concerns pointed out by
the food court’s managers.1
Meo Decl. Attach. 4 at 6, Email from
Matthew Andrews to Kathleen Wagner (Mar. 16, 2012), ECF No. 33-4
Later that month, Gibbons gave King a written warning for
using his cell phone at work in violation of company policies.
Meo Decl. Attach. 4 at 4, Performance Correction Notice (Mar.
25, 2012), ECF No. 33-4 at 4.
In mid-April of 2012, Gibbons decided to move King to a
King was reassigned to the porter area, where
his job duties included bringing shopping carts in from outside
and cleaning restrooms.
title did not change.
Gibbons Decl. ¶ 13.
Meo Decl. ¶ 4.
King’s pay and
Gibbons reassigned an
employee named Ryan to clean the food court area.
Ryan, a white male, is younger than King.
continued to have performance issues in his new area.
Id. ¶ 14.
In late April of 2012, Wagner complained to Baldwin that
King was disturbing her food court employees.
Meo Decl. Attach.
4 at 5, Performance Correction Notice (May 1, 2012), ECF No. 331
King contends that the nightly inspection reports demonstrate that he
did a satisfactory job. Andrews & Company did not produce the reports
during discovery, apparently because King exceeded the document
request limit and also because the reports were completed and
controlled by the customer, not by Andrews & Company.
¶ 9, ECF No. 32-1. According to Baldwin, the night supervisors signed
off on the inspection reports, but Wagner re-inspected the area each
morning and pointed out problems to Baldwin and Gibbons. Id.
4 at 5.
And Baldwin observed that King did not clean his duty
station and that the restrooms for which he was responsible were
not properly cleaned or restocked.
Baldwin issued King a
At that point, Gibbons decided to terminate
Gibbons terminated King on May 1, 2012.
After King was terminated, “Andrews & Company hired two
Id. ¶ 19.
King claims that Andrews & Company subjected him to two
adverse employment actions because of his race and age.
Andrews & Company transferred King from the food court to the
support of his claims.
Therefore, the Court analyzes his claims
under the framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).
discrimination under Title VII and the ADEA, King must show that
he was a member of a protected class who was qualified for his
position and was subjected to an adverse employment action while
similarly situated employees outside his protected class were
Shepard v. United Parcel Serv., 470 F. App’x 726, 731
(11th Cir. 2012) (per curiam).
If King establishes a prima
facie case, then Andrews & Company may articulate a legitimate
non-discriminatory reason for its actions.
Alvarez, 610 F.3d at
The Court addresses each of King’s claims
King’s Transfer to the Porter Area
King contends that his transfer to the porter area was an
“An adverse employment action is a ‘significant
change in employment status such as hiring, firing, failing to
responsibilities or a decision causing a significant change in
benefits.’” Shepard, 470 F. App’x at 731 (quoting Webb–Edwards
v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1031 (11th Cir.
“An involuntary transfer to a different position may be
an adverse employment action if it ‘involves a reduction in pay,
prestige, or responsibility.’”
Id. (quoting Hinson v. Clinch
Cnty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000)).
because all transfers generally require an employee to engage in
King does not appear to dispute that his transfer from the
food court area to the porter area did not involve a change in
pay or title.
Rather, it simply involved a change in some of
his cleaning duties.
There is no evidence that the transfer was
privileges of King’s employment.
Thus, King did not suffer an
adverse employment action, and his claims based on the transfer
King contends that he was terminated because of his race
There is no dispute that King was a member of a
present motion that King was qualified for his position.
satisfy the last element of the prima facie case, King must show
that he was replaced by someone outside his protected class or
outside his protected class.
Crawford v. Carroll, 529 F.3d 961,
970 (11th Cir. 2008); Clark v. Coats & Clark, Inc., 990 F.2d
1217, 1226 n.2 (11th Cir. 1993). The present record reveals that
Andrews & Company hired two new cleaners shortly after King was
cannot establish a prima facie case for race discrimination.
is not clear, however, how old those new employees were, and the
established a prima facie case of age discrimination with regard
to his termination.
Andrews & Company articulated a non-discriminatory reason
decided to fire King based on King’s significant performance
distracting other employees, improper attire, and inappropriate
cell phone use.
Andrews & Company also pointed to evidence that
it received several complaints from its customer about King’s
To survive summary judgment, King was required to
point to evidence that creates a genuine factual dispute as to
termination were a pretext for discrimination.
King did not
discriminatory reasons for his termination.
King’s major argument appears to be that Andrews & Company
transferred him and then fired him because Wagner, the customer
representative, did not like him.
Even if that is true, King
pointed to no evidence that Wagner did not like him because of
his race or age.
And even if he had, the record reveals that
Gibbons and Baldwin independently observed King’s performance
remained employed by Andrews & Company.
For these reasons, the
Court concludes that King failed to establish that Andrews &
Company’s proffered reasons for his termination are pretext for
King’s discriminatory termination claim fails.
For the reasons set forth above, the Court grants Andrews &
Company’s Motion to Strike (ECF No. 37) is denied as moot.
IT IS SO ORDERED, this 11th day of February, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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