CAMPBELL v. ADVANCE CORE CONSULTING INC et al
Filing
27
ORDER granting 14 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/28/16 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HENRY RAY CAMPBELL,
Plaintiff,
V.
ADVANCE CORE CONSULTING,
INC.,
Defendant.
:
:
:
:
:
:
:
:
:
No. 5:14‐CV‐195 (CAR)
ORDER ON MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Advance Core Consulting, Inc.’s Motion for
Summary Judgment [Doc. 14]. Plaintiff Henry Ray Campbell contends Defendant did
not rehire him in retaliation for filing an EEOC complaint for age and sex
discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq. (“Title VII”). After fully considering the matter, the Court finds
Defendant is entitled to judgment as a matter of law, and its Motion for Summary
Judgment [Doc. 14] is hereby GRANTED.
STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “if the movant shows that there is no genuine dispute as to any material fact
1
and the movant is entitled to judgment as a matter of law.”1 A genuine issue of material
fact only exists when “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”2 Thus, summary judgment must be granted if
there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving
party or, in other words, if reasonable minds could not differ as to the verdict.3 When
ruling on a motion for summary judgment, the Court must view the facts in the light
most favorable to the party opposing the motion.4
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact” and that entitle it to a judgment as a matter of law.5 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.6 This evidence must consist of more than mere conclusory allegations or
legal conclusions.7
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 See id. at 249‐52.
4 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
5 Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
6 See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
7 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
1
2
2
As a pro se litigant, Plaintiff is held “to a less stringent standard than formal
pleadings drafted by lawyers.”8 Nevertheless, Plaintiff’s pro se status “does not exempt
him from compliance with relevant rules of procedural and substantive law,” including
those applicable on summary judgment.9
BACKGROUND
Defendant is the main contractor for the Department of Defense [DoD] Air
Traffic Control Radar Beacon Systems, Identification Friend or Foe, Mark XII, Systems
(“AIMS”).10 Plaintiff was a former program manager for AIMS, until he retired. As a
program manager, Plaintiff was responsible for managing “the architecture of a
multitude of weapons systems to ensure it met certain specifications, qualifications, and
certifications.”11 Dave Domingue, Defendant’s owner and president, approached
Plaintiff about subcontracting with AIMS through Defendant. Defendant provided an
Advisory and Assistance Services (“A&AS”) contract to AIMS, and in 2006, Plaintiff
began subcontracting through Defendant to provide support as a program manager to
AIMS at the AIMS office on Warner Robins Air Force Base.12
After Plaintiff began subcontracting through Defendant with AIMS, Paul
Washlesky became the government program manager for AIMS, Defendant’s
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Hillemann v. Univ. of Cent. Fla., 411 F. Supp. 2d 1354, 1358‐59 (M.D. Fla. 2004), aff’d 167 F. App’x
747 (11th Cir. 2006) (internal quotation omitted).
10 Pl’s Dep., [Doc. 18] at 14, 25.
11 Def. SOF, [Doc. 16] at 1.
12 Id. at 2; Pl’s Dep., [Doc. 18] at 26.
8
9
3
customer.13 In January 2012, Washlesky told Domingue there were funding issues with
the AIMS contracts and funding was ultimately reduced.14 As a result of the funding
shortage, Washlesky and Domingue discussed ways to save funds. They issued stop
work orders on the subcontractors, including Plaintiff. Defendant said the contract
Plaintiff was subcontracting under had reached its funding ceiling.15 Domingue told
Plaintiff that he had to end Plaintiff’s subcontractor relationship with AIMS, but he
wanted to bring Plaintiff on as an employee, albeit with decreased salary. 16 Thus, on
February 1, 2012, Plaintiff began working as an employee for Defendant; his
responsibilities did not change.17
On February 24, 2012, Plaintiff sent an email to Domingue requesting that he
return to his subcontractor status. Defendant never responded to the email. Prior to
receiving Plaintiff’s email, Domingue had been informed there was even less funding
then he originally thought, and Defendant was going to have to make additional
cutbacks.18 Because of the funding shortage, Plaintiff was terminated on February 27,
2012.19
In April 2012, AIMS informed Domingue additional funding was available, and
Domingue Dec., [Doc. 22] at 1.
Id.
15 Def. SOF, [Doc. 16] at 3.
16 Id. at 2.
17 Id. at 4.
18 Campbell Dec., [Doc. 24‐5] at 25; Domingue Dec., [Doc. 22] at 1.
19 Pl. Dep.,[Doc. 18] at 178.
13
14
4
Defendant could now support another program manager. However, Washlesky,
Defendant’s customer, expressed concerns about bringing Plaintiff back as a program
manager due to communication issues he previously had with Plaintiff.20 While
working with Defendant, it became obvious to Domingue and others that there was a
“communication problem” between Plaintiff and Washlesky.21 John Seeriter, AIMS
chief engineer and team leader, talked to Plaintiff at least twice about the need to work
out his relationship with Washlesky. A few days before being terminated, Plaintiff sent
an email to Washlesky and April Griner, the on‐site contractor representative,
responding to questions Washlesky asked. Washlesky disliked Plaintiff’s tone in the
email, and asked Griner to forward the email to Domingue.22
A month after Plaintiff’s termination, Plaintiff sent an email to one of
Defendant’s customers, stating that he had been “terminated in favor of personnel with
no experience.”23 The customer forwarded the email to Domingue, who thought the
email was inappropriate.24 That same month, Plaintiff sent an email to Griner calling
her a “glorified secretary,” which she told Domingue “greatly upset” her.25
Despite his termination, Plaintiff continued to send invoices to Defendant for
Domingue Dec., [Doc. 22] at 2.
Pl’s SOF, [Doc. 24‐2] at 3‐4; Domingue Dec., [Doc. 22] at 2.
22 Pl. Dep.,[Doc. 18] at 176.
23 Id. at 179.
24 Domingue Dec., [Doc. 22] at 3.
25 Griner Dec., [Doc. 21] at 2.
20
21
5
work he said he was performing as a subcontractor.26 Plaintiff believed his
subcontractor status was not terminated, even though Domingue states he told him it
was terminated, Domingue hired him as an employee, and Domingue later terminated
him.27 According, to Domingue Plaintiff was not authorized to perform the work and
did not pay the invoices Plaintiff sent to him.28 On April 16, 2012, Domingue
communicated to Plaintiff that the contract he was subcontracted under had “exceeded
its ceiling” and his “acceptance of a position” as an employee with Defendant was “a
testament to that.”29 Even after this email exchange with Defendant, Plaintiff requested
to attend an industry AIMS Conference. Domingue responded on April 26th that he
did not “know how much clearer” he had to make it, but Plaintiff no longer represented
AIMS through Defendant as a contractor or employee.30 He asked Plaintiff to “please
stop harassing ACC employees, AIMS personnel, and AIMS customers” and told him
“we hope you’ll be able to move on and enjoy life without the AIMS Program.”31
Defendant states that Washlesky approached Domingue in mid‐April and
suggested that James Bamburg would be a good fit for the position created by the
additional funding.32 Both Washlesky and Seeriter recommended Bamburg. Defendant,
Pl. SOF, [Doc. 24‐2] at 8.
Pl’s Dep., [Doc. 18] at 56, 57; Domingue Dec., [Doc. 22] at 2.
28 Domingue Dec. [Doc. 22] at 3.
29 Pl. Dep.,[Doc. 18] at 185‐86.
30 Id. at 190.
31 Id. at 191.
32 Domingue Dec., [Doc. 22] at 3.
26
27
6
through Griner, began to communicate with Bamburg in April about interviewing him
for the position.33 Defendant says it interviewed Bamburg at the industry AIMS
Conference between April 30–May 4, and decided to hire him, effective after Bamburg’s
retirement from the Army. Bamburg could not legally accept a position with Plaintiff
until July 11, 2012 after he retired.34 Defendant gave Bamburg an official offer of
employment on July 16, 2012.35
Plaintiff filed his first EEOC charge on May 7, 2012, alleging his termination was
based on age and sex discrimination.36 Defendant received notice of Plaintiff’s EEOC
charge after May 9, 2012.37 However, when Plaintiff realized that Bamburg was hired,
and he was not rehired, he filed another claim with the EEOC on December 25, 2012,
alleging retaliation for filing the first EEOC charge. Plaintiff received a right to sue letter
on his retaliation charge, and timely filed the instant suit against Defendant on May 16,
2014.38
Griner Dec., [Doc. 21] at 7.
Campbell Dec., [Doc. 24‐5] at 15.
35 Id. at 17.
36 Plaintiff filed four EEOC charges, an OFCCP complaint, and a demand letter alleging
defamation. Although Plaintiff received a right to sue letter on his discrimination charge, he did
not file suit.
37 Pl’s Dep. Ex. 22, [Doc. 18] at 225; Domingue Dec., [Doc. 22] at 14.
38 This lawsuit is based exclusively off of Plaintiff’s EEOC charge 03831, alleging retaliation for
filing an EEOC charge. See infra note 49.
33
34
7
DISCUSSION
To establish a claim of retaliation under Title VII, a plaintiff must prove that (1)
he engaged in statutorily protected activity, (2) he suffered a materially adverse action,
and (3) there is a causal relation between the two events.39 Moreover, it is up to the
employee to prove that “the desire to retaliate was the but‐for cause of the challenged
employment action.”40
Where, as here, a plaintiff uses circumstantial evidence to prove retaliation under
Title VII, we apply the burden‐shifting approach articulated in McDonnell Douglas Corp.
v. Green. 41 Under this approach, a plaintiff must first make a prima facie case of
retaliation. 42 If the plaintiff does so, the employer then must articulate a legitimate, non‐
retaliatory reason for the challenged employment action as an affirmative defense to
liability.43 The plaintiff bears the ultimate burden of proving retaliation by a
preponderance of the evidence and that the reason provided by the employer is a
pretext for prohibited retaliatory conduct.44
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).
Booth v. Pasco Cnty., Fla., 757 F.3d 1198, 1207 (11th Cir. 2014) (quoting Univ. of Tex. Sw. Med.
Ctr. v. Nassar, —U.S.—, 133 S. Ct. 2517, 2528, 186 L.Ed.2d 503 (2013)).
41 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Brown v. Ala. Depʹt of Transp., 597 F.3d 1160,
1181 (11th Cir. 2010).
42 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802. (1973).
43 Goldsmith, 513 F.3d at 1277.
44 Id.
39
40
8
I.
Prima Facie
Defendant concedes Plaintiff satisfies the first two elements of his prima facie
case, but argues he cannot establish the third element, a causal connection. To establish
a causal connection, the plaintiff must show the decision maker was aware of the
protected conduct, and the protected activity and adverse action were not wholly
unrelated. 45 A plaintiff may show causation between the protected expression and the
adverse action if they are in “close temporal proximity.”46 However, where a plaintiff
relies solely on temporal proximity it must be “very close.”47 Additionally, “in a
retaliation case, when an employer contemplates an adverse employment action before
an employee engages in protected activity, temporal proximity between the protected
activity and the subsequent adverse employment action does not suffice to show
causation.”48
Defendant argues Plaintiff cannot demonstrate a causal connection because it
contemplated and decided not to rehire Plaintiff prior to receiving notice of Plaintiff’s
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013).
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). We note that the Eleventh Circuit has
only opined in unpublished opinions, but has not made a definitive ruling, on whether
temporal proximity post‐Nassar is enough to satisfy but‐for causation. See Schmidt v. City of
Atlanta, 558 F. Appʹx 953, 955 (11th Cir. 2014); Butterworth v. Lab. Corp. of Am. Holdings, 581 F.
Appʹx 813, 816 (11th Cir. 2014); Jackson v. United Parcel Serv., Inc., 593 F. Appʹx 871, 877 (11th Cir.
2014); Rives v. Lahood, 2015 WL 1320586, at *3 (11th Cir. Mar. 25, 2015); Baroudi v. Secʹy, U.S.
Depʹt of Veterans Affairs, 2015 WL 1475586, at *3 (11th Cir. Apr. 2, 2015).
47 Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
48 Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).
45
46
9
EEOC complaint.49 Moreover, Washlesky, Defendant’s customer, requested Plaintiff not
be rehired due to issues Plaintiff had with Washlesky prior to being terminated. Finally,
upon Washlesky’s recommendation to consider Bamburg, and after interviewing him,
Defendant decided to offer Bamburg the position at the AIMS Conference (April 30‐
May 4)—over a week before becoming aware of Plaintiff’s EEOC complaint.
Plaintiff claims genuine issues of fact exist as to whether Defendant was aware of
Plaintiff’s EEOC complaint before Bamburg’s hiring date. First, Plaintiff claims there is
no evidence, except for Domingue’s assertions, that Defendant decided not to rehire
him before hiring Bamburg. Second, Plaintiff argues a reasonable jury could find
Defendant did not actually decide to hire Bamburg until July 16th, i.e., after receiving
Plaintiff’s EEOC Complaint, because Bamburg could not legally accept employment
from Defendant until July 11th and was not extended a formal offer till July 16th. Thus,
Plaintiff argues the jury could infer causation based on temporal proximity between
Plaintiff in his Complaint asserted that the adverse employment action and protected activity
were Defendant’s failure to rehire him after filing his EEOC charge. Now, Plaintiff in his
Response attempts to bring up additional protected activities and adverse employment actions.
See Pl’s. Resp. Br., Doc. 24‐1 at 11‐12. However, these were not included in the EEOC charge at
issue here, and as the Eleventh Circuit has noted, a plaintiffʹs civil complaint remains “limited
by the scope of the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.” Green v. Elixir Indus., Inc., 152 F. Appʹx 838, 840 (11th Cir. 2005)
(quoting Gregory v. Ga. Depʹt of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)). Moreover,
even though the Court construes a pro se plaintiff’s case liberally, “plaintiffs may not ‘raise new
claims at the summary judgment stage,’” and may not amend their complaint in a brief
opposing summary judgment. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200 (11th
Cir. 2015) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004) (per
curiam)). Therefore, the Court limits its discussion to the claims brought in Plaintiff’s Complaint.
49
10
Plaintiff’s protected activity and Bamburg’s hiring date, which was over two months.
The Court is unconvinced.
Plaintiff offers no evidence to contradict Defendant’s assertion that Washlesky
told Domingue he did not want Plaintiff to return and offered Bamburg as an
alternative choice. Moreover, it is undisputed that Defendant began to communicate
with Bamburg in early April, and interviewed Bamburg for the position at the AIMS
Conference that took place between April 30‐May 4. That Defendant did not hire
Bamburg until July 16th, does not contradict Defendant’s assertion it had already
contemplated not rehiring Plaintiff and decided to extend an offer to Bamburg before
becoming aware of Plaintiff’s EEOC complaint. Moreover, temporal proximity of over
two months is not sufficiently close to satisfy causation in this case.50 Finally, even if
Plaintiff could make out a prima facie claim based on temporal proximity, he cannot
establish his alleged protected activity was the “but‐for” cause of Defendant’s alleged
unlawful retaliation.
Thomas, 506 F.3d at 1364 (finding a “three (3) month period, without more, does not rise to the
level of ‘very close’”; see also Higdon, 393 F.3d 1211, 1221 (11th Cir. 2004) (“By itself, the three
month period ... does not allow a reasonable inference of a causal relation between the protected
expression and the adverse action.”); Williams v. Waste Mgmt., Inc., 411 F. Appʹx 226, 229‐30
(11th Cir. 2011) (finding a “two‐month gap may be closer’ in time, but it is not ‘very close’”).
Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (concluding that a causal
nexus was established based on the supervisorsʹ knowledge of an EEOC charge and the
employeeʹs termination seven weeks later).
50
11
II.
Legitimate Nondiscriminatory Reason
An “employer may fire an employee for a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action is not for a
[retaliatory] reason.”51 Defendant gives various reasons for not rehiring Plaintiff after he
was terminated: (1) Plaintiff sent what the Defendant considered to be harassing emails
to Defendant, customers, and employees; (2) Washlesky complained to Defendant
about Plaintiff’s past performance, specifically communications issues; and (3)
Washlesky requested Defendant not rehire Plaintiff and instead to consider hiring
Bamburg. 52 Because these reasons are legitimate and non‐retaliatory, to sustain his
claim, Plaintiff must show these reasons are merely pretext for retaliation.
III.
Pretext
In order to establish pretext, Plaintiff must demonstrate that Defendant’s
proffered reasons were not the real reasons for the employment decision.53 In other
words, Plaintiff must “cast sufficient doubt on the defendantʹs proffered
[nonretaliatory] reasons to permit a reasonable factfinder to conclude that the
employerʹs proffered legitimate reasons were not what actually motivated its
conduct.”54 Plaintiff may do so “either directly by persuading the court that a retaliatory
reason more likely motivated the employer or indirectly by showing that the employerʹs
Nix v. WLCY Radio/Rahall Commcʹns, 738 F.2d 1181, 1187 (11th Cir. 1984).
Def. MSJ Br., [Doc. 15] at 11.
53 Jackson v. Ala. State Tenure Commʹn, 405 F.3d 1276, 1289 (11th Cir. 2005).
54 Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citations omitted).
51
52
12
proffered explanation is unworthy of credence.”55 In the latter approach, Plaintiff must
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employerʹs proffered legitimate reasons for its actions that a
reasonable factfinder could find them unworthy of credence.”56 Plaintiff cannot meet
this burden.
Plaintiff contends that but for his EEOC complaint, he would have been rehired.
Plaintiff relies on temporal proximity and Defendant’s allegedly shifting reasons to
raise an inference of retaliation. Because Plaintiff’s temporal proximity argument fails
for the same reasons as stated above,57 the Court will only address Plaintiff’s claim that
Defendant’s reasons for not rehiring him are unworthy of credence because they have
changed or shifted.
Pretext may “be established by proof of inconsistent statements or shifting
explanations for the adverse employment decision, suggesting that the articulated
reasons are recently fabricated or false.”58 Here, Plaintiff contends Defendant only
developed reasons for not rehiring him after he filed his EEOC complaint. He asserts
Id.
Jackson, 405 F.3d at 1289; Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001).
57 Moreover, the Eleventh Circuit has noted that close temporal proximity without more, may
not be sufficient to establish pretext. See Hurlbert v. St. Maryʹs Health Care Sys., Inc., 439 F.3d
1286, 1298 (11th Cir. 2006) (“The close temporal proximity between [plaintiff’s] request for leave
and his termination—no more than two weeks, under the broadest reading of the facts—is
evidence of pretext, though probably insufficient to establish pretext by itself); see also Wascura
v. City of South Miami, 257 F.3d 1238, 1244–45 (11th Cir. 2001) (holding that three and one‐half
month period between employeeʹs protected activity and her termination was, standing alone,
insufficient to establish pretext).
58 Walker v. St. Josephʹs/Candler Health Sys., Inc., 506 F. Appʹx 886, 889 (11th Cir. 2013)
55
56
13
that when Defendant originally responded to his EEOC complaint, it did not list any
claims of unprofessional behavior or a request from the customer that Plaintiff not be
rehired, and only later “fabricated” these reasons.59 Moreover, Plaintiff contends
Defendant’s reasons changed in its second response to the EEOC, and again in its
Motion for Summary Judgment.
The Court finds none of Defendant’s proffered reasons shifted or are inconsistent
with each other. Clarifying or adding to legitimate non‐discriminatory reasons during
the process of litigation does not necessarily mean a defendant’s reasons have shifted or
are inconsistent. 60 Contrary to Plaintiff’s contention, Defendant did, in fact, state in its
first response to Plaintiff’s EEOC complaint that its reasons for not rehiring Plaintiff
included “complaints” received by the customer about Plaintiff’s “performance,”
including, among other things, his “inadequate communications.” 61 Additionally,
Defendant asserted that along with Plaintiff’s “performance deficiencies,” Washlesky,
Defendant’s customer, recommended Bamburg as an alternative to rehiring Plaintiff.62
Therefore, Defendant did not change its reasons between its first response and second
response; it merely identified more specific “examples” of what it believed to be
Pl.’s Resp. Br., [Doc. 24‐1] at 15.
See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1377 (11th Cir. 1996) (holding that plaintiff
failed to show pretext when the employerʹs later statements merely offered more detail
regarding perceived performance problems).
61 [Doc. 24‐6] at 35.
62Domingue Dec., [Doc. 22] at 3; Domingue Dep., [Doc. 20] at 49, 50, 53, 55.
59
60
14
Plaintiff’s “deficient performance.”63 Moreover, in its Motion, Defendant did not change
any reason for not rehiring Plaintiff, it merely added further justification that Plaintiff
had sent emails which Defendant considered to be harassing. Finally, Plaintiff’s
argument that Defendant “fabricated” its reasons for not rehiring him because it did not
articulate those reasons until it was required to do so in its response to the EEOC is
simply unpersuasive. Thus, Plaintiff has not demonstrated inconsistencies,
incoherencies, or contradictions in the Defendant’s proffered legitimate reasons for its
actions, from which a reasonable factfinder could not find them unworthy of credence.64
Finally, Plaintiff contends Defendant’s reasons are simply false. In particular, he
asserts the emails he sent after his termination were not harassing; his performance was
not deficient; the communication issues he had with Washlesky did not amount to
performance issues, and he disputes that Washlesky, as Defendant’s customer,
complained to Defendant about him. However, in making these claims he relies on his
own conclusory assertions.65 Unfortunately, such assertions are not sufficient to
establish pretext.66 Moreover, the Eleventh Circuit has made clear that what a plaintiff
See [Doc. 24‐6] at 29.
Jackson, 405 F.3d at 1289; Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001).
65 Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (“A plaintiff is not allowed to recast
an employerʹs proffered nondiscriminatory reasons or substitute his business judgment for that
of the employer.”).
66 See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (stating conclusory
allegations of retaliation, without more, are not sufficient to carry a plaintiffʹs burden);
63
64
15
believes is simply irrelevant; “the inquiry into pretext centers upon the employerʹs
beliefs, and not the employeeʹs own perceptions of his performance.”67 Defendant
believed Plaintiff’s emails were harassing and told Plaintiff to stop sending the emails.
Plaintiff cannot rebut Defendant’s reasons by simply asserting his belief that the
“negative tension” between he and Washlesky did not affect his performance, especially
given Plaintiff admits he and Washlesky had a “communication problem” and was told
on several occasions to work on his relationship with Washlesky.68 Plaintiff has simply
failed to “rebut head on” each of Defendant’s legitimate non‐retaliatory reasons as
pretextual, and the Court finds that no reasonable factfinder could conclude that
Plaintiff would have been rehired if he had not filed his EEOC complaint.69 Therefore,
he has failed to prove but‐for causation.70 Accordingly, Plaintiff has failed to establish
his claim of retaliation, and Defendant is entitled to judgment as a matter of law.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (finding a plaintiff’s “self‐
serving assertion that she was not insubordinate” is not sufficient where a plaintiff has not
shown that a defendant’s employment decisions “were in fact motivated by [retaliation]”)
67 Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)
68 See Pl. Resp. Br., [Doc. 24‐1] at 3. See Brooks v. County Commʹn of Jefferson County, Ala., 446 F.3d
1160, 1162 (11th Cir. 2006) (“A mere scintilla of evidence supporting the opposing partyʹs
position will not suffice; there must be enough of a showing that the jury could reasonably find
for that party.” (quotations omitted)).
69 Smith v. City of New Smyrna Beach, 588 F. Appʹx 965, 981 (11th Cir. 2014).
70 See Nassar, 133 S.Ct. at 2525 (“It is ... textbook tort law that an action is not regarded as a cause
of an event if the particular event would have occurred without it.”); see also Burrage v. United
States, 134 S. Ct. 881, 888 (2014) (discussing Nassarʹs but‐for test, and explaining that but‐for
causation can be shown when two or more factors combine only “so long as the other factors
alone would not have done so”).
16
CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment
[Doc. 14] is GRANTED.
SO ORDERED, this 28th day of March, 2016.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?