BOND v. GEORGIA POWER COMPANY
Filing
20
ORDER granting 15 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 5/29/2018. (chc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ELTRED BOND,
Plaintiff,
v.
CIVIL ACTION NO.
5:17-cv-00014-TES
GEORGIA POWER COMPANY,
Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Eltred Bond claims that his former employer, Defendant Georgia Power
Company, discriminated against him because of his race. Plaintiff brought claims against
Georgia Power under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and 42 U.S.C. § 1981. Defendant seeks summary judgment contending that all claims
raised by Plaintiff are both legally and factually deficient, and as a result, no genuine
dispute of material fact exists to be tried on this case. For the reasons set forth below, the
Court GRANTS Defendant’s Motion for Summary Judgment [Doc. 15].
FACTUAL BACKGROUND
Georgia Power hired Bond as a Truck Operator on January 14, 2013. [Doc. 17, at
59:2-9]. The Truck Operator position is an entry level, probationary position covered
under the Collective Bargaining Agreement with the International Brotherhood of
Electrical Workers Union, Local 84. [Doc. 15-3, at 148; ¶ 4]. Truck Operators are part of a
statewide, traveling construction crew responsible for assisting linemen and other
Georgia Power employees in constructing new and replacing existing transmission lines.
[Id. at 149; ¶ 6].
Upon his hire, Bond completed orientation at Georgia Power’s training facility and
began job training throughout his assignment to his traveling construction crew. [Doc.
17, at 71:7-9]; see also [Doc. 15-3, at 148; ¶ 6]. Although clearly qualified for his job, Bond,
from the outset, frequently retrieved the incorrect tools and struggled with tying knots
and “barreling armour [sic] rods,” all of which were integral parts of Bond’s duties as a
Truck Operator. [Doc. 15-3, at 149; ¶¶ 9, 10, 11]. When compared to other entry level
Truck Operators who typically barrel rods within five minutes, Bond took almost 40
minutes. [Id. at 150; ¶ 14]. Despite more experienced Georgia Power employees’ attempts
to help Bond, he refused their help. [Id. at 150; ¶ 11]. For example, Nick Tinsley, Bond’s
direct supervisor, witnessed Bond’s lack of initiative to improve his knot tying skills, and
in response, cut Bond a piece of rope for practice. [Id. at 150; ¶ 10]. After telling Bond to
practice with the rope, Tinsley later saw Bond leave the rope at their work site rather than
take the rope with him to practice. [Id.]. This, along with Bond’s desire to “bid out” to
other positions within Georgia Power, displayed to Tinsley, “a lack of initiative and drive
required of an entry level truck Operator.” [Id.]; see also [Doc. 15-3, at 150; ¶ 12].
On March 19, 2013, while installing spacers on three phase transmission lines, an
incident occurred. See [Doc. 17, at 110:12–112:5]. In order to install spacers on a
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transmission line, a lineman must work from a transmission cart approximately 90 feet
above the ground. [Doc. 15-3, at 151; ¶ 16]; see also [id., at 157; ¶ 9]. The transmission cart
moves along the wire by pulling it with a rope attached from the transmission cart to an
all-terrain vehicle (“ATV”). [Id.]. While driving an ATV with a rope attached to Lineman
Chuck Raper’s transmission cart, Bond drove across a creek at an abrupt and accelerated
rate of speed. [Id.]; see also [Doc. 17, at 113:19-22]. This burst of speed caused Raper’s cart
to travel suddenly down the line, nearly throwing Raper from the transmission cart. [Doc.
15-3, at 151; ¶16]; see also [id., at 157; ¶ 9]. Although Bond did not hear Raper’s yells, Raper
yelled at Bond because he was allegedly going too fast. [Doc. 17, at 115:19–116:3]. Clearly
upset by the incident, and after Bond explained to Raper that he did not hear him yell
anything, Raper replied, “[I]f [I] had had a gun [I] would have shot [you].” [Id. at 118:1519]. When discussing the incident with Jody Tillman, another Georgia Power employee,
Tillman told Bond “if [you] were pulling [me] that fast [I] would have thrown a wrench
and hit [you] in the head.” [Id. at 118:6-14]. Following this incident, Bond never
acknowledged making a mistake or apologized to Raper or Tinsley for the way he pulled
the transmission cart. [Id. at 120:15–121:2].
The next day, Tinsley, reported the incident to Transmission Line Construction
Manager, Ben Webb. [Doc. 15-3, at 152; ¶ 19, 155; ¶ 3]. Shortly thereafter, Webb consulted
with two other members of Georgia Power’s management, and they ultimately decided
to terminate Bond based on his work performance, probationary status, and his lack of
3
understanding regarding safety protocols. [Id. at 157; ¶ 10]; [id. at 152; ¶ 19].
Consequently, Plaintiff filed suit.
In support of his claims, Bond contends that three co-workers made racial
comments relating to his employment and work ethic. [Doc. 1, at ¶¶ 9, 10]. Bond claims
that fellow entry level Truck Operator, Justin McAllister, stated that, “the company’s not
going to fire you because you’re black.” [Doc. 17, at 143:19-22]. Additionally, McAllister
allegedly stated that, “[I] ha[ve] to work ten times harder than [you] because [you are]
black.” [Id. at 143:23–144:2]. On another occasion, Bond asserts that he overheard coworker, Tillman say, “the only reason you got hired is because you are black.” [Id. at
143:15-18]. Next, Bond asserts that DJ Ray’s comment, “two out of three is not bad” when
referring to the “three new hires” (Bond, McAllister, and Satcher) was an indication that
Bond was “not doing a good job.” [Id. 148:4-25]. Finally, Plaintiff alleges that “[the crew]
lied about how [Bond] did [his] job” to Tinsley and presumably upper management. [Id.
at 149:13-20]. However, when questioned about these alleged lies in regards to his work
ethic Bond believes he “did a great job” and that his performance as a Truck Operator
“went above and beyond what they asked.” [Doc. 17, at 141:24–142:1].
As for opportunities as a Truck Operator, Bond alleges that his fellow entry level
Truck Operators (Justin McAllister and Jay Satcher) received unwarranted training
opportunities that he did not. [Id. at 130:15-22]. In essence, Bond contends that neither he,
McAllister, nor Satcher should have been driving certain vehicles without proper training
4
or a commercial driver’s license. Moreover, Bond complains that his fellow entry level
co-workers drove certain commercial vehicles in violation of Georgia Power’s policy.
[Id.]; see also [id. at 129:23-25]. Lastly, Bond alleges that certain discriminatory acts
extended to off-duty social activities. However, Bond states that “some nights [he]
participated” and “some nights [he] didn’t.” [Id. at 133:5-15]. The foregoing facts
encompass Bond’s claims against Georgia Power. In making its ruling, the Court
examines each instance and its relation to federal law, in turn below.
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.” Fed. R. Civ. P. 56(a).
In determining whether a genuine dispute of material fact exists to defeat a motion
for summary judgment, “the evidence of the [nonmovant] is to be believed, and all
justifiable inferences are to be drawn in [the nonmovant’s] favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party “bears the initial burden 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.” Jones v.
UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (internal quotation omitted); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it is relevant or necessary
5
to the outcome of the suit. Anderson, 477 U.S. at 248. A factual dispute is genuine if the
evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The burden then “shifts to the [nonmoving] party to rebut that showing by producing
affidavits or other relevant and admissible 2 evidence beyond the pleadings.” Jones, 683 F.3d at
1292 (11th Cir. 2012) (quoting Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315
(11th Cir. 2011) (emphasis added)). The nonmovant fails to “satisfy its burden if the rebuttal
evidence ‘is merely colorable, or is not significantly probative’ of a disputed fact.” Jones, at
1292 (quoting Anderson, 477 U.S. at 249-50 (1986)). Moreover, a “mere ‘scintilla’ of evidence
supporting the [nonmovant’s] position will not suffice; there must be enough of a showing
that the jury could reasonably find for [the nonmoving party].” Walker v. Darby, 911 F. 2d
1573, 1577 (11th Cir. 1990). Courts “are required to draw all reasonable inferences in favor of
the nonmoving party, not all possible inferences.” Horn v. UPS, 433 F. App’x. 788, 796 (11th
Cir. 2011).
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
Generally, “inadmissible hearsay ‘cannot be considered on a motion for summary judgment.’” Jones, 683
F.3d 1283, 1293 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (footnote
omitted)). Nevertheless, “a district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at trial or reduced to
admissible form.” Jones, 683 F.3d at 1293-94.
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“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.
LEGAL AUTHORITY AND ANALYSIS
A.
Plaintiff’s Race Discrimination Claims Under Title VII and § 1981
1.
Plaintiff Failed to Establish a Prima Facie Case of Race
Discrimination
In the employment context, § 1981 provides for protection against discrimination
based on race. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330-34 (11th Cir. 1998).
Similarly, Title VII prohibits an employer from discharging or otherwise discriminating
against a person based on his race. 42 U.S.C. § 2000e-2(a)(1). Therefore, courts analyze §
1981 claims using the same evidentiary requirements and analytical framework as claims
brought under Title VII. See Standard, 161 F.3d 1318, 1330 (11th Cir. 1998). Disparate
treatment claims can be proven using direct evidence (requiring no inference or
presumption) or circumstantial evidence. Burke-Fowler v. Orange County, Fla., 447 F.3d
1319, 1323 (11th Cir. 2006). If racial discrimination claims are based on circumstantial
evidence, then those claims are evaluated under the McDonnell Douglas burden shifting
framework.” Id.
7
Where, as here, a former employee attempts to prove discriminatory intent by
circumstantial evidence, 3 the claims are subject to the methods of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Maynard v. Board of Regents of Div.
of Universities of Florida Dept. of Educ. Ex rel. University of South Florida, 342 F.3d 1281, 1289
(11th Cir. 2003). Under the McDonnell Douglas framework, a plaintiff establishes a prima
facie case for disparate treatment in a race discrimination case by demonstrating that he
(1) is a member of a protected class, (2) was qualified for his position, (3) suffered an
adverse employment action, and (4) was replaced by someone outside of his protected
class or was treated less favorably than a similarly situated 4 employee outside of his class.
Id. If the plaintiff satisfies the four McDonnell Douglas elements, then the defendant must
show a legitimate, nondiscriminatory reason for its employment action. Burke-Fowler, 447
F.3d at 1323; McDonnell Douglas, 411 U.S. 792, 802 (1973). If it does so, then the plaintiff
Unlike circumstantial evidence, direct evidence of race discrimination is “evidence which, if believed,
proves the existence of a fact without inference or presumption.” Scott v. Suncoast Beverage Sales, Ltd., F.3d
1223, 1227 (11th Cir. 2002). Further, “the Eleventh Circuit has stated, ‘only the most blatant remarks, whose
intent could be nothing other than to discriminate on the [protected classification]’ are direct evidence of
discrimination. Id. (quoting Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1359 (11th Cir.
1999) (alteration in original)). “Comments by non-decision makers or remarks unrelated to the decision
making process are not direct evidence.” Standard, 161 F.3d at 1330. “Under a ‘cat’s paw’ theory, ‘causation
may be established if the plaintiff shows that the decision maker followed the biased recommendation [of
the employee] without independently investigating the complaint against the employee.’” Williams v.
Cleaver-Brooks, Inc., No. 7:11-CV-144 (HL), 2012 WL 6151141, at *5 (M.D. Ga. Dec. 11, 2012) (quoting Stimpson
v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (alteration in original)). In this case, Bond has not
alleged that Tinsley, or any other member of upper management involved in his termination made any
discriminatory comments. Accordingly, because Bond failed to offer any direct evidence of race
discrimination, he must necessarily proceed under the circumstantial route.
3
To be “similarly situated” to the plaintiff, another employee, known as a comparator, must be similarly
situated “in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
4
8
must prove that the reason provided by the defendant is a pretext for unlawful
discrimination. Burke-Fowler, 447 F.3d at 1323. To prove such a pretext (discussed in
greater detail in Section 3 of this Order), the plaintiff must “cast sufficient doubt on the
defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer’s proffered legitimate reasons were not what actually
motivated its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(internal quotation marks omitted).
In cases involving discriminatory discipline, courts ask “whether the employees
are involved in or accused of the same or similar conduct and are disciplined in different
ways.” Burke-Fowler, 447 F.3d at 1323. The quantity and quality of the comparators’
misconduct, moreover, must be “nearly identical” to that of the plaintiff “to prevent
courts from second-guessing employers’ reasonable decisions.” Id. at 1323.
Thus, in order to satisfy the requirements of McDonnell Douglas in this case, Bond
must establish that a Georgia Power “decision maker” observed (or by some other means
learned of or knew) the alleged comparators, McAllister and Satcher, perform their work
as poorly as Bond. In other words, if Bond can demonstrate that his manager, Webb,
knew that McAllister and Satcher’s work suffered from the same performance issues as
Bond’s and they did not receive the same reprimand, then Bond could establish a prima
facie case of race discrimination.
9
First, it is undisputed between the parties that Bond is a member of a protected
class. Second, Georgia Power hired Bond as a Truck Operator; thus, Bond clearly met and
satisfied the qualifications necessary to secure employment. However, as to “suffering an
adverse employment action,” Bond believes his termination was an unjust and
discriminatory action when compared to his two co-workers, McAllister and Satcher. See
Maynard, 342 F.3d 1281, 1289 (11th Cir. 2003). Bond alleges that Satcher, as well as other
seasoned employees, “had problems from barrelling [sic] rods.” [Doc. 17, at 185:23–
186:8]. While it is clear that Bond and other employees, whether newly hired or seasoned,
occasionally “stumble” when assembling barrel rods, the comparators’ overall
misconduct is not “identical” to Bond’s. 5 [Id. at 186:4]; Burke-Fowler, 447 F.3d at 1323,
supra.
Contrary to Bond’s assertion, Georgia Power did not terminate him because of the
minor issues with Bond’s job performance, i.e., that he might have on occasion
unsuccessfully barreled rods, remembered tool names, retrieved the wrong tools,
improperly tied certain knots, or struggled with knowledge retention and applying his
classroom training while on the job. [Doc. 17, at 186:4; 101:18–102:1; 103:9-11]; see also
[Doc. 15-3, at 149; ¶¶ 8, 9]. Rather, Bond’s own deposition details an occasion where his
Plaintiff offers no evidence, other than his own self-serving and unsubstantiated testimony, that other
employees, even seasoned ones, struggled with similar tasks. See Rollins v. TechSouth, Inc., 833 F.2d 1525,
1529 (11th Cir. 1987) (holding “unsubstantiated assertions alone are not enough to withstand a motion for
summary judgment[]”).
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direct supervisor, Tinsley, suggested that he practice knot tying with a small piece of
rope. [Doc. 17, at 103:2–104:22]; see also [Doc. 15-3, at 150; ¶ 10]. This shows that Bond’s
superiors wanted his job performance to improve so that Bond could continue his employ
with Georgia Power. 6
Instead, Bond’s termination stemmed from his egregious actions on March 19,
2013. Since there is no evidence that either McAllister or Snatcher ever acted as
dangerously or recklessly as Bond did during the incident on March 19, 2013, Bond’s
misconduct sets him apart from his fellow entry level Truck Operators. This significant
distinction clearly shows that Bond and his fellow entry level Truck Operators were not
accused of “the same or similar conduct.” See Burke-Fowler, 447 F.3d at 1323.
Consequently, Bond cannot show that Georgia Power treated him less favorably than a
similarly situated employee outside of his protected class. Therefore, his race
discrimination claim must fail as a matter of law.
2.
Plaintiff Failed to Establish Disparate Treatment During Training
As for Bond’s disparate treatment during training claim, his criticism was not his
lack of qualification or ability to drive a commercial vehicle. Instead, Bond took issue
with the fact that even though McAllister and Satcher held commercial driver’s licenses,
they were still nonetheless unqualified to drive these types of vehicles because they
Tinsley “felt Mr. Bond was not putting in his full efforts at the Truck Operator position.” [Doc. 15-3, at
150; ¶ 12.]
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lacked the required training from Georgia Power (presumably, Smith’s Defensive Driver
Training). Id; see also [Doc. 17, at 129:15–130:10].
When asserting a claim for discriminatory denial of training, “a plaintiff must
show (1) the plaintiff is a member of a protected class, (2) the defendant provided training
to its employees, (3) the plaintiff was eligible for the training, and (4) the plaintiff was not
provided training under circumstances giving rise to an inference of discrimination.”
Gaines v. Johnson, 44 F. Supp. 3d 1169, 1180 (N.D. Ala. 2014).
Here, it is undisputed that Bond is a member of a protected class and Georgia
Power provides training to its employees to drive certain commercial vehicles. However,
simply stated, Bond never received training on driving any of Georgia Power’s
commercial vehicles because he did not possess a commercial driver’s license. [Doc. 17,
at 130:15-22]. Thus, Bond was not eligible for training to drive a commercial vehicle.
Even assuming Georgia Power deviated from its policy by permitting commercial
driver’s license holders, McAllister and Satcher, to drive certain vehicles without taking
specific training courses, this deviation does not raise an inference of discrimination. See
Mitchell v. USBI Co., 186 F.3d 1352, 1356 (11th Cir. 1999). Standing alone, absent a nexus
between deviation and the employee’s protected status, deviation from a company policy
does not demonstrate discriminatory animus. See id. at 1356-57. “Federal courts do not sit
as a super-personnel department that reexamines an entity’s business decisions.” Elrod v.
12
Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Alternatively, the inquiry is
limited to “whether the employer gave an honest explanation of its behavior.” Id.
Bond presents no evidence or makes any allegation that Georgia Power refused to
allow Bond to drive certain commercial vehicles because of his race. [Doc. 17, at 131:2-5].
Georgia Power simply based its refusal to train Bond to drive a commercial vehicle on
the fact that Bond did not possess a commercial driver’s license. Therefore, Bond’s
ineligibility to train ends our inquiry on the issue of disparate treatment in training.
3.
Plaintiff Failed to Establish Pretext for Race Discrimination
Even if Bond established a claim for race discrimination, which he has not, under
the McDonnell Douglas burden shifting framework, Georgia Power must show a
legitimate, nondiscriminatory reason for its employment action. Burke-Fowler, 447 F.3d at
1323; see also McDonnell Douglas, 411 U.S. 792 (1973), supra.
In a pretext analysis, when the quality of a plaintiff’s work is at issue, the
question is not whether the employer’s opinion is incorrect or unfounded.
Rather, the question is whether the employer is dissatisfied because of a
nondiscriminatory reason, even if the reason is incorrect or unwise or
whether the reason is merely a cover for discrimination.
Redd v. United States Parcel Service, Inc., No. CV-12-BE-3986-S, 2012 WL 4792234, at *20
(N.D. Ala. Sep. 24, 2014) (see Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266
(11th Cir. 2010)). A plaintiff’s perception of his own performance and abilities is irrelevant
since the inquiry into pretext “centers upon the employer’s beliefs, and not the
employee’s own perceptions of his performance.” Margolis v. Public Health Trust of Miami13
Dade Cty., 89 F. Supp. 3d 1343, 1353-54 (S.D. Fla. 2015) (quoting Holifield v. Reno, 115 F.3d
1555, 1565 (11th Cir. 1997)). “Ultimately, 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 discriminatory reason.” Id. at 1351. In order to show pretext, the
plaintiff must show both that the employer’s explanation was false, and that
discrimination was the real reason for its decision. Id.
Bond’s pivotal argument appears to be that he, in his own opinion, performed
adequately in his job, and went “above and beyond” the duties expected of him as a Truck
Operator. [Doc. 17, at 141:24–142:1]. However, as stated above, an employee’s personal
beliefs about his work performance are irrelevant. Other than Bond’s own self-serving
testimony that his job performance was adequate, the record is void of any evidence that
his superior’s observations and opinions (due to the supposedly false information they
received from various co-workers8) on the issue of his work performance are false.
However, in its motion for summary judgment, Georgia Power provided Task
Observation Sheets demonstrating Bond’s need for improvement as well as affidavits
concerning Bond’s work performance and managerial concerns about Bond. See, e.g.,
[Doc. 15-3, at 143-146; 148-158]. These submissions are clear evidence of Georgia Power’s
“The biases of one who neither makes nor influences the challenged personnel decision are not probative
in an employment discrimination case.” Holifield v. Reno, 115 F.3d 1555, 1563-64 (11th Cir. 1997). Therefore,
any alleged comments (infra) made by Bond’s co-workers who were not involved in the discussion between
Tinsley and Webb that ultimately led to the decision to terminate are irrelevant and further fail to establish
pretext.
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dissatisfaction with Bond based on a nondiscriminatory reason. Therefore, Plaintiff’s
claims must fail.
Additionally, these records show a complete absence of race discrimination or any
mention of Bond’s race whatsoever. Specifically, the affidavits relating to the
conversations between Tinsley and Webb, the two individuals ultimately responsible for
Bond’s termination, do not mention Bond’s race. Moreover, “where the employer
produces performance reviews and other documentary evidence of misconduct and
insubordination that demonstrate poor performance, an employee’s assertions of his own
good performance are insufficient to defeat summary judgment, in the absence of other
evidence.” Holifield, 115 F.3d at 1565. Therefore, given the absence of racial animus in
Georgia Power’s decision to terminate as well as Georgia Power’s Task Observation
Sheets and other supporting documentation, Bond fails to establish pretext to support his
claim for racial discrimination.
4.
Bond Failed to Establish a Racially Hostile Work Environment
Finally, Bond attempts to support a race discrimination claim on the basis that his
co-workers’ actions and comments created a hostile work environment. Title VII
prohibits a hostile work environment in which “a series of separate acts . . . collectively
constitute one unlawful employment practice.” McCann v. Tillman, 526 F.3d 1370, 1378
(11th Cir. 2008). “As opposed to discrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire, a hostile work environment claim addresses acts
15
different in kind whose very nature involves repeated conduct, such as discriminatory
intimidation, ridicule, and insult.” Id. (internal quotations omitted).
To establish a hostile work environment claim, a plaintiff must show that (1) he
belongs to a protected group, (2) he has been subject to unwelcome harassment, (3) the
harassment must have been based on a protected characteristic of the employee, (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment, and (5) the
employer is responsible for such environment under either a theory of vicarious or of
direct liability. Id. Determining whether the harassment was sufficiently severe or
pervasive involves “both an objective and subjective component.” Id. In determining the
objective element, a court looks to “all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Id. (quoting National Railroad Passenger Corporation v. Morgan, 536
U.S. 101, 116 (2002), superseded in non-relevant part by statute, Lily Ledbetter Fair Pay Act of
2009) (internal quotation and citation omitted).
Again, Bond’s inclusion in a protected group is undisputed, and the comments to
which Bond was allegedly susceptible were, no doubt, based on a “protected
characteristic of the employee.” McCann, 526 F.3d at 1378. In support of his hostile work
environment claim, Bond alleges that his co-workers subjected him to a hostile work
16
environment when they made racial comments about his being black. To some effect,
these comments were: that his race was the only reason for his hire; white employees
have to work harder than Bond in order to keep their job; and finally, the comment or
alleged verbal threat made by Chuck Raper during the March 19, 2013, incident.
As iterated above, the specifics of that incident involve Bond driving an ATV while
pulling Lineman Raper in a transmission cart along a line. [Doc. 17, at 110:12–112:25].
When Bond crossed a creek at an accelerated and sudden rate of speed, the tension on
the transmission gave way causing Raper to be pulled several feet down a transmission
line, nearly throwing him from the cart. [Id. at 113:3–114:15]. Raper yelled at Bond in
hopes that Bond would slow down, but Bond never heard Raper yelling at him. [Id. at
114:16-20]. When Bond told Raper that he did not hear him yelling, Raper replied, “[I]f
[I] had had a gun [I] would have shot [you].” [Doc. 17, at 118:15–119:10].
Bond testifies that in the moments following the incident Tillman said, “[I]f [Bond]
was pulling Mr. Raper that fast, [Tillman] would have thrown a wrench and hit [Bond]
in the head.” [Id. at 118:12-14]. When examining Tillman and Raper’s comments—context
is critical. As Georgia Power notes in its Reply [Doc. 19], “these statements were made in
response to [Bond’s] claim of not hearing Raper yelling at him after [Bond’s] actions put
Raper’s safety at risk.” [Doc. 19, at 4] (emphasis supplied).
Critically, there is no evidence that these two specific comments contain any
mention of Bond’s race or indicate that Raper or Tillman made these comments to or
17
about Bond because of his race. The racially-void comments surrounding the March 19,
2013, incident resulted from Bond putting Raper’s safety at risk and were isolated
statements, occurring in the heat of the moment following the incident involving the
transmission cart. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (holding “mere
utterance of an . . . epithet which engenders offensive feelings in a[n] employee, [] does
not sufficiently affect the conditions of employment to implicate Title VII.”). Even though
these statements might subjectively prompt offense, the circumstances and reasons for
which they were spoken fail to give rise to the creation of a hostile work environment.
Thus, these comments, as a matter of law, are insufficient to meet the necessary
requirements of a hostile work environment claim.
As stated above, in order for a hostile work environment claim to succeed, “the
harassment must have been based on a protected characteristic of the employee” and the
harassment must be sufficiently severe or pervasive “to alter the terms and conditions of
employment.” McCann, 526 F.3d at 1378. Bond admits that DJ Ray’s comment, when
discussing the new hires, “two out of three is not bad” concerned Bond’s work
performance rather than his race. [Doc. 17, at 148:4-25].
However, the comments that involve racial implications such as the ones made by
McAllister and Tillman require a more thorough analysis. The standard to be followed is
whether the comments made to Bond constitute “severe or pervasive [behavior] to alter
the terms and conditions of employment and create a discriminatorily abusive working
18
environment.” McCann, 526 F.3d at 1378. Under the objective component, the main
question in this case is whether the discriminatory conduct unreasonably interfered with
Bond’s work performance. Id. (emphasis added).
The specific comments under review include: McAllister’s comments that “[H]e
had to work ten times harder than [Bond] because [Bond is] black” [Id. at 143:23–144:2]
and that “the company’s not going to fire [Bond] because [he is] black” [Doc. 17, at 143:1922], as well as the ones made by Tillman that “[T]he only reason you got hired is because
you are black” [Id. at 143:15-18] and “[Y]ou act like a black Jimmy. 9” [Id. at 146:19-20].
While Bond’s response to Georgia Power’s argument that summary judgment is
inappropriate for the hostile work environment claim is conclusory and slim at best, the
Court cannot ignore the evidence presented in making its determination. See [Doc. 18, at
19]. These comments span from Bond’s hiring date of January 4, 2013, to his termination
date of March 27, 2013. See [Doc. 17, at 32:4-8]. Thus, within a timeframe spanning nearly
three months, Bond’s co-workers subjected him to an average of more than one racial
comment per month. However, for the reasons discussed below, summary judgment is
still appropriate despite the frequency of the unnecessary comments (if actually said)
made to Bond during his employ with Georgia Power.
Jimmy is a white Georgia Power employee who, often times, is isolated from the crew. [Doc. 17, at 146:1020].
9
19
Bond’s claim for a hostile work environment fails for two reasons. First, when
applying the above standard, the comments made by Bond’s co-workers must be so
severe or pervasive that they “alter” the terms and conditions of his employment or
“unreasonably interfere” with Bond’s work performance. McCann, 526 F.3d at 1378. There
is no evidence that these alleged comments altered Bond’s employment or work
performance. In fact, Bond testified under oath that he performed his tasks “over and
beyond” what was expected of him. [Doc. 17, at 150:4-14]. Thus, given these comments,
it follows that Bond never alleged that his co-workers’ comments affected his work
performance. See generally [Doc. 17, at 142:14–151:9]. While these comments may have
subjectively offended Bond, they clearly did not alter the terms and conditions of Bond’s
employment given that Bond himself considered his work product to be more than
acceptable.
Second, Bond’s claim for a hostile work environment also fails under the FaragherEllerth defense. “When a plaintiff alleges that h[is] employer is liable for the harassing
conduct of co-workers instead of supervisors, the employer will be held liable only if it
“knew or should have known of the harassing conduct but failed to take prompt remedial
action.” Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir. 2007).
To avoid liability for actions by its employees, Georgia Power must show that Bond
“unreasonably failed to take advantage of any preventive or corrective opportunities
provided by [Georgia Power] or to avoid harm otherwise.” See Faragher v. City of Boca
20
Raton, 524 U.S. at 775, 807 (1998); see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
765 (1998).
This is precisely the case here—Bond “never complained to anyone at Georgia
Power Company while [he was] employed about any of these comments other than the
statements that [Tillman and Raper] said after the buggy incident.” 10 [Doc. 17, at 149:512]. Since Bond failed to inform any direct supervisor or higher personnel at Georgia
Power in an effort to remedy and eliminate any other potentially derogatory racial
comments Faragher and Ellerth shields Georgia Power from liability.
In summation, because Bond presents no evidence that these comments “altered”
the terms and conditions of employment and because he failed to take advantage of any
preventive or corrective opportunities provided by Georgia Power, his claims must fail. 11
In response to Bond’s complaint about Raper’s comments, Georgia Power issued an Employee Discussion
Guide. This report, although reduced to writing, was intended to be an “oral discussion.” In that report,
Bond received discipline for his gun comment and Georgia Power instructed that “Chuck must not make
similar statements to his fellow employees in the future.” [Doc. 19-1, at 2, 3].
10
The Court takes this opportunity to respond to Defendant’s representation of McCann to the Court. In its
brief, Georgia Power makes the following statement: “First the alleged discriminatory comments by coworkers McAllister and Tillman are grossly inadequate to establish severe of pervasive behavior. See
McCann, 526 F.3d 1370, 1378-79 (being called ‘girl’ and hearing a supervisor refer to a black employee as a
‘ni**er’ bitch’ was not sufficiently severe or pervasive) . . .” [Doc. 15-1, at 15]. A fair reading of this statement
would allow the reader to believe that Georgia Power is making the inference that McCann actually heard
her supervisor make the racially derogatory comment. Further, to the extent Georgia Power attempts to
persuade the Court that the Eleventh Circuit held that “a supervisor [referring] to a black employee as a
‘ni**er bitch’ [is] not sufficiently severe or pervasive” to create a hostile work environment, its argument,
reading, and interpretation of McCann is woefully incorrect. [Id.]. In McCann, the Eleventh Circuit never
indicated that the substance of defendant’s “[ni–er] bitch” comment was not severe or pervasive. Any
representation to the contrary would be a strongly misguided interpretation of that opinion. McCann
clearly states, “[a]lthough McCann heard of racial epithets being spoken twice by Sheriff Tillman, these
were never directed at McCann, nor spoken in her presence.” 526 F.3d at 1379. The Eleventh Circuit
affirmed the district court’s grant of summary judgment, not on the severity of the language used by
11
21
For the foregoing reasons, Bond cannot, as a matter of law, prove pretext in order
to establish a race discrimination claim pursuant to Title VII or a civil rights claim
pursuant to 42 U.S.C. § 1981. Additionally, Bond’s failure to inform Georgia Power of
certain racially related comments that could potentially create a hostile work
environment also precludes any claim. Given Bond’s failure to rebut Georgia Power’s
showing that no dispute of material fact exists, his claims must fail as a matter of law.
Thus, Georgia Power Company’s Motion for Summary Judgment [Doc. 15] is hereby
GRANTED. The Clerk is instructed to enter judgment in favor of Defendant Georgia
Power Company.
SO ORDERED, this 29th day of May, 2018.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
McCann’s supervisor, but on the fact that the comments were never made about or to McCann or spoken
within her hearing. Id. at 1378-79.
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