King v. ANDREWS & COMPANY et al
Filing
38
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
COLUMBUS DIVISION
LAWRENCE EDWARD KING,
*
Plaintiff,
*
vs.
*
ANDREWS & COMPANY,
*
Defendant.
CASE NO. 4:13-CV-398 (CDL)
*
O R D E R
Plaintiff
Company
court.
as
a
Lawrence
cleaner
King
at
worked
Fort
for
Defendant
Benning’s
Andrews
commissary
and
&
food
King contends that Andrews & Company transferred him and
then fired him because of his race and age, in violation of
Title
VII
of
the
42 U.S.C. § 2000e,
Civil
et
Rights
seq.,
Act
and
the
of
1964
Age
(“Title
Discrimination
Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.
Company
filed
a
summary
judgment
motion,
terminated King for poor performance.
VII”),
asserting
in
Andrews &
that
it
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
be 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.
Id.
Under the Court’s local rules, a party moving for summary
judgment
must
attach
to
its
motion
“a
separate
and
concise
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.”
Id.
“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
inappropriate.”
Id.
2
Andrews
material
&
Company
facts.
undisputed
King
material
submitted
did
not
facts.
a
statement
respond
to
Therefore,
of
that
Andrews
undisputed
statement
&
of
Company’s
statement of material facts is deemed admitted pursuant to Local
Rule
56.
The
Court
must
still
review
Andrews
&
Company’s
citations to the record to determine whether a genuine fact
dispute exists.
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.
contains
unsworn
King’s
and
version
contains
declarations,
which
of
no
the
facts,
citations
generally
state
The response brief
but
to
the
the
that
document
record.
King
was
is
The
a
good
employee, are not sworn or notarized and do not state that they
are based on personal knowledge or that they were made under
penalty
of
perjury.
For
these
reasons,
the
Court
cannot
consider the declarations or the factual allegations in King’s
response brief.
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).
FACTUAL BACKGROUND
The materials submitted by Andrews & Company in support of
its summary judgment motion, which are undisputed for purposes
of this motion, establish the following.
3
Andrews & Company has
a janitorial services contract at Fort Benning, Georgia.
Decl. ¶ 4, ECF No. 33-1.
for
Andrews
&
King, a 43-year-old black man, worked
Company
as
a
cleaner
September 1, 2011 until May 1, 2012.
direct
supervisor,
supervisor.
and
Id. ¶ 5.
are older than King.
Meo
Angelia
at
Id.
Fort
Benning
from
Jerry Gibbons was his
Baldwin
was
the
assistant
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.
Shortly after
he began working for Andrews & Company, Gibbons gave King a
written warning for failing to empty the trash and refusing to
clean
a
restroom.
Correction
Meo
Notice
Decl.
(Sept.
27,
Attach.
2011),
4
at
ECF
3,
No.
Performance
33-4
at
3.
According to Gibbons, King “would often stand around talking to
people instead of working and getting his job done,” and Gibbons
repeatedly
Gibbons
spoke
Decl.
counseled
King
¶
with
6,
King
ECF
about
about
No.
31-1.
his
his
performance
Gibbons
inappropriate
work
also
issues.
repeatedly
attire,
which
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
4
janitorial
services
complained
that
contract.
King
Meo
dressed
Decl.
¶ 13.
inappropriately
Wagner
on
several
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
at 6.
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
different area.
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.
¶ 15.
Gibbons Decl.
Ryan, a white male, is younger than King.
continued to have performance issues in his new area.
Id.
King
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.
Baldwin Decl.
¶ 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.
5
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.
write-up.
King.
Id.
¶ 4.
new
Id.
Id.
Baldwin issued King a
At that point, Gibbons decided to terminate
Gibbons terminated King on May 1, 2012.
Meo Decl.
After King was terminated, “Andrews & Company hired two
black
employees
services contract.”
to
work
on
the
Fort
Benning
janitorial
Id. ¶ 19.
DISCUSSION
King claims that Andrews & Company subjected him to two
adverse employment actions because of his race and age.
First,
Andrews & Company transferred King from the food court to the
porter
area.
employment.
Second,
King
did
support of his claims.
Andrews
not
&
point
Company
to
any
terminated
direct
King’s
evidence
in
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).
that
framework,
discrimination.
Under
King
must
establish
a
prima
facie
case
of
Id.
To
establish
a
prima
facie
case
of
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
6
similarly situated employees outside his protected class were
not.
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.
1264.
If
Andrews
discriminatory
Andrews
&
&
Company
reason,
then
Company’s
discrimination.
Id.
Alvarez, 610 F.3d at
articulates
King
must
proffered
a
legitimate
produce
reason
non-
evidence
that
pretext
for
is
The Court addresses each of King’s claims
in turn.
I.
King’s Transfer to the Porter Area
King contends that his transfer to the porter area was an
adverse
employment
discrimination.
action
that
gives
rise
to
a
claim
for
“An adverse employment action is a ‘significant
change in employment status such as hiring, firing, failing to
promote,
reassignment
with
significantly
different
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.
2008)).
“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)).
“It
is
not
enough
that
a
transfer
7
imposes
some
de
minimis
inconvenience
or
alteration
of
responsibilities,
however,
because all transfers generally require an employee to engage in
some
learning,
work
responsibilities.”
with
new
people,
and
accept
new
Id.
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.
a
serious
and
There is no evidence that the transfer was
material
change
in
privileges of King’s employment.
the
terms,
conditions,
or
Thus, King did not suffer an
adverse employment action, and his claims based on the transfer
fail.
II.
King’s Termination
King contends that he was terminated because of his race
and age.
There is no dispute that King was a member of a
protected
class
employment
and
action.
that
The
his
Court
termination
assumes
for
was
an
purposes
adverse
of
the
present motion that King was qualified for his position.
To
satisfy the last element of the prima facie case, King must show
that he was replaced by someone outside his protected class or
treated
less
favorably
than
outside his protected class.
a
similarly
situated
employee
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
8
Andrews & Company hired two new cleaners shortly after King was
fired,
and
both
new
employees
were
black.
Therefore,
King
cannot establish a prima facie case for race discrimination.
It
is not clear, however, how old those new employees were, and the
Court
will
assume
for
purposes
of
this
motion
that
King
established a prima facie case of age discrimination with regard
to his termination.
Andrews & Company articulated a non-discriminatory reason
for
terminating
King.
It
pointed
to
evidence
that
Gibbons
decided to fire King based on King’s significant performance
problems,
which
included
failure
to
complete
his
work,
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
performance.
To survive summary judgment, King was required to
point to evidence that creates a genuine factual dispute as to
whether
Andrews
&
Company’s
stated
reasons
termination were a pretext for discrimination.
point
to
any
evidence
to
refute
these
for
King’s
King did not
legitimate,
non-
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
9
his race or age.
And even if he had, the record reveals that
Gibbons and Baldwin independently observed King’s performance
problems.
King
did
not
identify
protected
class
who
had
any
similar
employee
performance
remained employed by Andrews & Company.
outside
his
problems
but
For these reasons, the
Court concludes that King failed to establish that Andrews &
Company’s proffered reasons for his termination are pretext for
discrimination.
King’s discriminatory termination claim fails.
CONCLUSION
For the reasons set forth above, the Court grants Andrews &
Company’s
summary
judgment
motion
(ECF
No.
29).
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
10
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