Robinson v. COLQUITT EMC et al
Filing
83
ORDER granting 54 Motion for Summary Judgment. Ordered by U.S. District Judge HUGH LAWSON on 3/31/2015. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
JACKIE ROBINSON,
Plaintiff,
Civil Action No. 7:13-CV-92 (HL)
v.
COLQUITT EMC, DIXIE LIGHTFOOT,
and DOUG LOFTIS,
Defendants.
ORDER
Plaintiff Jackie Robinson, an African-American man, brings this action
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title
VII”), and under the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”) asserts
that Defendants Colquitt EMC, Dixie Lightfoot, and Doug Loftis discriminated
against him on the basis of his race. Plaintiff alleges that Defendants
impermissibly targeted him for discipline based on his race alone and treated him
differently than other similarly situated Caucasian employees. Plaintiff also claims
that Defendants permitted racially derogatory conduct to permeate the
employment landscape, creating a hostile work environment and subjecting
Plaintiff to the intentional infliction of emotional distress. Now before the Court is
Defendants’ Motion for Summary Judgment. (Doc. 54). After reviewing the
pleadings, briefs, depositions, and other evidentiary materials presented, and
determining that there is no genuine dispute of the material facts, the Court finds
that Defendants are entitled to judgment as a matter of law and grants
Defendants’ motion.
I.
FACTUAL BACKGROUND
Plaintiff Jackie Robinson (“Plaintiff”) worked for Defendant Colquitt EMC
(“Defendant”) from January 16, 2002 until his termination on July 2, 2012.
Defendant maintains a progressive discipline policy and terminated Plaintiff
following a documented series of disciplinary actions for substandard work,
inappropriate conduct, safety issues, carelessness, and failure to respond timely
when on call. Plaintiff contends that Defendant applied its disciplinary procedures
unevenly, holding him and other African-American employees to a different
standard of conduct than their Caucasian counterparts. Plaintiff further asserts
that Defendant permitted certain racially-motivated behaviors to pervade the
workplace, creating a hostile work environment for Plaintiff. The facts viewed in
the light most favorable to Plaintiff are as follows. 1
A.
Plaintiff’s Disciplinary History and Termination
Defendant is a not-for profit consumer-owned electrical distribution system
that provides energy to members in Berrian, Brooks, Colquitt, Lowndes, Tift and
1
The facts set forth herein, unless otherwise noted, are derived from those
portions of Defendants’ Statement of Material Facts (Doc. 56) admitted by
Plaintiff. (Doc. 71).
2
Worth Counties. The company is headquartered in Moultrie and operates district
offices in Valdosta and Tifton and branch offices in Adel, Nashville, and Quitman.
Plaintiff began working as a Groundman out of Defendant’s Valdosta office on
January 16, 2002. Plaintiff worked without incident for the first seven years of his
career with Defendant, receiving regular positive performance evaluations
accompanied by corresponding raises in pay. Plaintiff gradually moved from
Groundman to Lineman Apprentice to Lineman, and finally was promoted to
Senior Lineman in April 2009.
Plaintiff received his first written warning in October 2009. Disciplinary
action resulted from a September 17, 2009, incident during which Plaintiff failed
to follow proper procedures for installing a mechanical jumper while splicing wire.
This mistake caused a 20-minute power outage. Defendant placed the written
warning in Plaintiff’s personnel file. The company took no other disciplinary action
against Plaintiff in relation to this event.
Plaintiff was not disciplined again until March 17, 2011, when he received
a written warning along with a four day suspension without pay resulting from his
failure to secure properly a hot phase while working in the bucket of a truck on
March 14, 2011.2 Defendant temporarily reassigned Plaintiff from the Valdosta
2
Plaintiff’s personnel file contains an incident report dated February 8, 2011,
when Plaintiff dug up a telephone line while operating a trencher. Plaintiff was not
3
office to the Moultrie office following this episode and warned him that a future
incident would result in disciplinary action, including days off without pay,
reassignment, demotion, or termination. Plaintiff’s crew leader, Ray Parish, who
is Caucasian, also received a four day suspension for failing to notify
management about the incident.
Two months later, on May 3, 2011, Plaintiff was involved in a work-related
car accident. Plaintiff was driving Defendant’s truck #30 when the boom knuckle
of his truck hit the rear of truck #2103, driven by Leslie Hunt. Neither Plaintiff nor
Hunt reported the accident to their employer. Plaintiff provided inconsistent
statements about the cause of the accident. He admits that he possibly made a
statement to his crew supervisor that the damage to the truck resulted from
hitting a transformer. He also admits that he might have reported that he bumped
another truck while driving to the job site. Plaintiff later confessed to his
dishonesty and to violating company policy regarding failure to report the
accident and lying to cover up the property damage. Consequently, on May 5,
2011, Plaintiff received a written warning and a five day suspension. Additionally,
Defendant demoted him from Senior Lineman to Lineman. Plaintiff’s co-worker,
Leslie Hunt, a Caucasian male, was suspended but for a shorter period of time
officially written up for this occurrence, and there is no evidence that he was
penalized in any way.
4
because he had no recent prior incident and because Defendant determined that
Plaintiff was at fault for the accident and initiated the cover-up.
Plaintiff next was written up for tardiness on September 15, 2011.3 Plaintiff
forgot to set his alarm on September 14, 2011, and, as a result, was late to work.
Shortly thereafter, Defendant transferred Plaintiff back to the Valdosta office.
The next disciplinary event occurred on October 18, 2011, when Plaintiff
failed to secure a neutral line while working in the bucket of a truck. The line fell
down the pole and sprang back up, creating the potential for serious injury both
to Plaintiff and others on the job site. As a result, on October 27, 2011,
Defendant issued Plaintiff another written warning and suspended him for four
days. Defendant further cautioned Plaintiff that the “next incident of sub-standard
work, conduct, safety, disobedience, or carelessness will result in immediate
termination.” (Doc. 62, p. 68).
Following the October 2011 incident, Plaintiff met with Doug Loftis,
Manager for Human Resources and Corporate Services for Defendant; Dixie
Lightfoot, District Manager in Defendant’s Valdosta office; Sidney Zipperer,
Operations Manager; and Ronnie Caldwell, District Operations Superintendent
for the Valdosta office. Management reviewed Plaintiff’s recent rash of conduct
3
Plaintiff was involved in another episode on July 14, 2011, when he allowed an
energized URD elbow to touch a transformer. He was counseled, but there
otherwise was no disciplinary action taken against Plaintiff.
5
resulting in disciplinary measures. Loftis inquired why Plaintiff was having
difficulty performing his job. Plaintiff responded that the recent death of his sister
was on his mind and creating a distraction. At the conclusion of the meeting,
Loftis instructed Plaintiff that he would have to be an “exemplary Lineman” for the
next several years.
Plaintiff worked without incident from October 2011 until May 2012.4 Then,
on May 8, 2012, Plaintiff received a three day suspension for failing to respond
timely to a power outage on May 6, 2012.5 Plaintiff was on call on that date.
When the dispatcher notified him about the outage, Plaintiff informed her that he
4
On April 16, 2012, Plaintiff was counseled but not disciplined after failing to
close a switch on a new piece of equipment with which he was not familiar.
5
Defendant maintains a policy requiring prompt response when an employee is
on call. The appropriate response time and whether or not there is a written or
merely an understood policy is unclear from the record. Doug Loftis testified in
his deposition that a late response is not responding to the dispatcher within 30
minutes. (Doc. 63, p. 46). The policy sets the expectation that the on-call
employee will respond to the dispatcher’s call within 30 minutes, not necessarily
arrive at the job site within that time period. (Id. at 60). However, after 30
minutes, the individual is considered late. (Id. at 61). Dixie Lightfoot testified that
the company expects a response within 15 minutes of receiving a call from
dispatch. (Doc. 64, p. 29). Justin Brown and John Fisher likewise testified that
employees are supposed to respond to dispatch within 15 minutes. (Doc. 65, p.
29; Doc. 67, p. 46-47). Ray Parrish testified that he understood the policy to be
that an on call person is to respond to the dispatcher’s call within 15 minutes and
report to the site of the outage within 30 minutes. (Doc. 66, p. 38). Plaintiff
testified during the course of his deposition that after 10 years of employment, he
was familiar with Defendant’s on-call procedures, but he never stated what he
believed to be the appropriate response time. (Doc. 59, p. 64).
6
was at a family reunion planning meeting.6 Upon further investigation,
management determined that after placing the first call to Plaintiff, the dispatcher
called again 45 minutes later, at which time Plaintiff said that he would respond in
ten minutes.
Plaintiff met with Loftis, Lightfoot, and Caldwell on May 11, 2012.
Management reviewed Plaintiff’s disciplinary history and provided him with a
memorandum explaining that he was at the “last chance” stage of Defendant’s
progressive discipline policy. Plaintiff was told that he was at the point of
termination in every aspect of job performance, including substandard work,
inappropriate conduct, safety issues, attendance problems, disobedience, and
carelessness. Management emphasized that another incident of any sort would
result in immediate termination. Loftis again told Plaintiff that he needed to be an
exemplary employee in order to keep his job.
On June 30, 2012, Plaintiff again failed to respond to a call in a timely
fashion. Plaintiff testified that on that date he had become overheated while
6
Plaintiff did eventually respond to the call. In his response to Defendants’
Statement of Facts, however, Plaintiff denies the amount of time he took to
respond. (Doc. 71, p. 7). Plaintiff submits that he told the dispatcher that it would
take him 30 minutes to get home, change, and get back on the road to respond
to the call. (Id.). Plaintiff’s responses and deposition testimony contradict the
written statement he provided to his employer shortly after the incident in which
he stated that at 4:00 p.m. he was at home. (Doc. 62, p. 77). When the
dispatcher called, he said that he needed 30 minutes because he was in a
meeting. At 5:05 p.m., the dispatcher called again. (Id.). Plaintiff “[w]as in the
truck and rolling with[in] 5 mins.” (Id.).
7
cutting grass. (Doc. 59, p. 215). When the dispatcher called at 4:02 p.m., he
informed the dispatcher that he was ill. (Id.) The dispatcher inquired whether he
still could make the call, and Plaintiff replied in the affirmative. (Id.). He then fell
back asleep. (Id.) Plaintiff recollects that the dispatcher called again at 4:45 p.m.
(Doc. 59, p. 214). He then completed the call at 5:48 p.m., and returned home by
6:19 p.m. (Id.). In contrast, the dispatcher’s log shows that the first dispatcher
contacted Plaintiff at 4:02 p.m. (Doc. 82, p. 14, 16). A second dispatcher called at
5:48 p.m. (Id.). Plaintiff completed the call at 6:19 p.m. and returned home at
6:39 p.m. (Id.).
As a result of this final incident, Defendant terminated Plaintiff on July 2,
2012. Dixie Lightfoot signed the Separation Notice, but Danny Nichols, the
General Manager, and Doug Loftis made the ultimate decision to relieve Plaintiff
of his position. Defendant listed Plaintiff’s position on July 5, 2012, and promoted
Chris Bolling, a Caucasian male and existing employee, to fill the vacancy on
August 16, 2012.
B.
Plaintiff’s Hostile Work Environment Claims
Plaintiff alleges that despite Defendant’s policy prohibiting discriminatory
and harassing conduct, during his tenure working for Defendant he was subject
to a barrage of racially discriminatory and offensive conduct from other
8
employees that created a hostile work environment.7 Plaintiff stated that when he
first began working for Defendant, he heard someone say that Plaintiff would not
make it as a Colquitt EMC employee. Early in his employment Plaintiff indicated
that each February Andy Sykes would ask “What do Black people need Black
History Month for?” or “What is Black History Month for?” After Barak Obama’s
election as President, Justin Brown, a Caucasian foreman, stated, “The Black
people now got them a Black Jesus.”
In 2004 or 2005, Herman Brasher, a non-supervisory employee of
Defendant, told another Caucasian employee that “if the base closes, this will be
nothing but a nigger town.” Plaintiff was present when Brasher made the
comment. Brasher later apologized to Plaintiff. From 2006 through 2007, Plaintiff
worked under the supervision of a foreman by the name of Monty Cowart.
Cowart regularly referred to Plaintiff as “colored” or “colored boy.” Plaintiff at
some point during this time frame verbally addressed Cowart’s treatment to
Lightfoot and Loftis. Following this conversation, the comments ceased. Cowart
no longer supervised Plaintiff and eventually was relieved of his position as a
foreman on September 16, 2007.
7
Defendant’s Employee Handbook, which Plaintiff acknowledges receiving,
contains a provision on “Harassment/Discrimination” and instructs any employee
who feels he has been subjected to any type of harassment or discrimination to
report the incident immediately. Defendant also maintains an Anti-Harassment
Policy, which again encourages affected employees to report unacceptable
conduct. Plaintiff was aware of this policy.
9
Justin Brown confessed to Plaintiff in 2009 or 2010 that he and Ray
Parrish, another Caucasian foreman, burned a cross at Lowndes County High
School more than 20 years ago. Plaintiff never raised this conversation with
management, and he, Brown, and Parrish never spoke about the matter again.
Plaintiff complains of other intermittent comments made by other
employees. He states that Brown regularly addressed him as “hey” or “you”
rather than by his name, even though he referred to Caucasian employees by
their given names. Parrish made comments along the lines of “What’s the matter
with you butterfingers?” or “Butterfingers, you can’t keep your mind on what
you’re doing,” when Plaintiff would drop something while working in gloves.
Plaintiff never instituted any complaint about these remarks and admits that the
particular terminology employed by Brown and Parrish was not racially offensive.
Plaintiff heard other co-workers make what he perceived as racially
charged declarations. Ronnie Caldwell once said, “I don’t trust Nancy Pelosi and
the clown that’s running this county.” Reid Ensley passed around his cell phone
to share a picture of President Obama boarding Air Force One carrying a
watermelon under his arm. David Sills upon pulling up to a work site once
declared, “How in the world are we supposed to get in all this nigger S right
here.” Sills also joked with Plaintiff that “Pontiac stands for poor niggers think it’s
a Cadillac.”
10
It is not clear from the record when Plaintiff’s co-workers made any of
these isolated statements. However, Plaintiff admits that he never complained to
anyone in management about the pictures or comments made by other
employees either directly to him or in his presence.
C.
Plaintiff’s EEOC Charge of Discrimination
Plaintiff completed and submitted an Intake Questionnaire to the Equal
Employment Opportunity Commission (“EEOC”) on July 19, 2012. Plaintiff
alleged that his July 2, 2012 termination was discriminatory. He stated that his
crew leader, Justin Brown, discriminated against him by calling him “hey” or “you”
but referring to other Caucasian employees by name. (Doc. 62, p. 83). Plaintiff
further alleged that “[n]o one else [was] ever terminated for response time to
service calls.” (Id.). Along with his questionnaire, Plaintiff provided a cover letter
dated July 18, 2012, in which he detailed numerous other allegations of
discrimination and disparate treatment. (Doc. 62, pp. 86-145).
Plaintiff filed a formal Charge of Discrimination on October 12, 2012. (Doc.
62, p. 90). In response to the inquiry regarding the basis of his discrimination
claims, Plaintiff marked the box for “Race.” (Id.). Plaintiff provided the following
details about the basis of his race discrimination claim:
I.
I was hired by the above employer on January 16, 2012,
as a Groundman. My last position held was Lineman.
On July 2, 2012, I was discharged.
11
II.
I was told by Dixie Lightfoot (White), District Manager
that I was discharged due to my slow response time to
service call.
III.
I believe that I have been discriminated against because
of my race (African American) in violation of Title VII of
the Civil Rights Acts of 1964, as amended.
(Doc. 62, p. 90).
On March 18, 2013, the EEOC wrote to Plaintiff to inform him that
Defendant responded to his claims and denied any allegations of race
discrimination. (Doc. 62, pp. 91-93). The letter outlined Plaintiff’s disciplinary
history and provided him with the opportunity to respond. On March 27, 2013,
Plaintiff provided the EEOC with additional information concerning his view of the
events leading to his termination. (Doc. 62, pp. 94-96). He explained, “I filed my
discrimination suit because of unethical treatment of black employees. Whites
have had the same or similar incidents not used to pad their file[s] for
termination.” (Doc. 62, p. 95).
The EEOC issued Plaintiff a Dismissal and Notice of Rights on April 18,
2013. (Doc. 62, p. 97). Plaintiff initiated this lawsuit on July 2, 2013, raising
claims under Title VII and § 1981, for race discrimination, disparate treatment,
disparate impact, and retaliation.8 Plaintiff further alleges that Defendants
8
Plaintiff abandoned his claims for disparate treatment and retaliation. (Doc. 72,
p. 1). Those claims are, accordingly, dismissed.
12
subjected him to a hostile work environment and that he is the victim of
Defendants’ intentional infliction of emotional distress.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact arises only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
favorable to the nonmoving party. Id. at 254-55. The court may not, however,
make credibility determinations or weigh the evidence. Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The
party
seeking
summary
judgment
“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 a material fact.” Celotex,
13
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary
judgment must be entered “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
III.
DISCUSSION
Plaintiff alleges that Defendants discriminated against him on the basis of
his race in violation of Title VII and § 1981.9 These statutes both “have the same
requirements of proof and use the same analytical framework.” Standard v.
A.B.E.I. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, the Court will
address Plaintiff’s Title VII claims with the understanding that the analysis also
applies to the § 1981 claims.
9
As pointed out by Defendants and unrefuted by Plaintiff, “a Title VII claim may
be brought against only the employer and not against an individual employee.”
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (emphasis in original).
Therefore, Defendants Lightfoot and Lofitis are entitled to summary judgment as
to Plaintiff’s Title VII claims.
14
Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to 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). A plaintiff may
establish a prima facie case of discrimination through either direct or
circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085
(11th Cir. 2004). Claims of race discrimination premised on circumstantial
evidence, as is the present case, are evaluated under the burden-shifting
framework developed in McDonnell Douglas Corp. v. Green. 93 411 U.S. 792
(1973). In order to make out a prima facie case under this framework, the plaintiff
first must set forth “facts adequate to permit an inference of discrimination.”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the plaintiff is able to
do so, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981). The employer “need not persuade the court that it was
actually motivated by the proffered reasons.” Id. at 254-55. “If the employer
satisfies its burden of articulating one or more reasons, then the presumption of
discrimination is rebutted, and the burden of production shifts to the plaintiff to
offer evidence that the alleged reason of the employer is a pretext for illegal
discrimination.” Wilson, 376 F.3d at 1087.
15
A.
Prima Facie Case
To establish a prima face case of discriminatory discharge, Plaintiff must
produce circumstantial evidence that “(1) he is a member of a protected class; (2)
he was qualified for the position; (3) he suffered an adverse employment action;
and (4) he was treated less favorably than a similarly situated individual outside
his protected class or was replaced by a person outside of his protected class.”
Thompson v. Tyson Foods, Inc., 939 F. Supp. 2d 1356, 1364 (M.D. Ga. 2013)
(citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003)). The
parties here do not dispute that Plaintiff meets the first three criteria, nor do they
contest that Plaintiff was replaced by a Caucasian individual. However, Plaintiff
cannot establish a prima facie case of disparate treatment because he fails to
point to a similarly situated comparator who was treated more favorably.
To draw a valid comparison, the plaintiff must demonstrate that he and the
comparators “are similarly situated in all relevant aspects.” Holifield, 115 F.3d at
1562. In the context of disciplinary action, “the quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). “[I]t is
necessary to consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.” Holified, 115 F.3d
16
at 1562; see also Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir.
2008) (“The most important factors in a comparator analysis in the disciplinary
context are the nature of the offenses committed and the nature of the
punishment imposed.”).
Plaintiff’s conclusory statement that he was treated differently from
similarly situated Caucasian employees and that no other employee for
Defendants was ever terminated based on failure to respond timely to a call is
not sufficient to prove his prima facie case. In support of his contention, Plaintiff
states simply that to his knowledge Trent Lasseter, Brent Roe, and Justin Brown
all failed to respond to service calls yet were not terminated. Plaintiff cites to no
evidence in the record to support this statement. Nor has Plaintiff produced any
evidence to show that any of these other employees were similarly situated in
terms of the remainder of their disciplinary histories.
Plaintiff also summarily states that Defendants treated him differently from
other similarly situated Caucasian employees by not forwarding his incident
reports to the safety committee for review and, generally, that other employees
were disciplined more leniently. Again, Plaintiff provides no factual basis for this
belief. Rather he summarizes that his claims are fact intensive and should
proceed to a trier of fact without offering a foundation for the essential facts in
dispute. (Doc. 72, p. 7).
17
Pointing to John Fisher and Ray Parrish10 as comparators, Plaintiff claims
that Defendants disciplined him more severely and deviated from the progressive
discipline policy to the benefit of Caucasian employees. On March 14, 2011,
there was an incident where Plaintiff failed to secure a hot phase while working in
the bucket of a truck. (Doc. 62, p. 56). As a result, the phase fell, “hitting a guy
wire and opening a downline OCR.” (Id.). Defendants charged Plaintiff with a
“Substandard Work” violation, suspended him for four days, and temporarily
reassigned him from Valdosta to Moultrie to evaluate and determine Plaintiff’s
“ability to retain current position as a Senior Lineman.” (Id.). In the course of
meeting with management subsequent to this event, Plaintiff admitted, “I made a
mistake and I’ll take my punishment.” (Id. at 57). Plaintiff now alleges that he was
following the direction of Parrish when this incident occurred, and complains that
Parrish’s punishment was not as severe.
However, the record reflects that Parrish likewise received a four day
suspension without pay for failing to notify his supervisors about the hot phase
incident and was told that Defendant was evaluating whether Parrish had the
ability to maintain his position as a crew foreman. (Doc. 82, p. 24). Defendants
10
Fisher and Parrish are both Foremen and have supervisory authority over the
line crews. However, as Foremen, they have no hiring or firing capabilities. Their
role is to give direction at the work site and to report any incidents that might
occur on the job. (Doc. 66, pp. 13-14, 36. Doc. 67, pp. 15). Defendants make no
argument that Fisher and Parrish are not appropriate comparators based on their
status as Foremen who supervised Plaintiff.
18
further warned Parrish that a similar incident would result in days off without pay,
reassignment, demotion, or termination. (Id.). Concerned about Parrish’s ability
to supervise a line crew effectively, Defendant determined that management
needed to monitor Parrish more closely and began making regular field checks to
document Parrish’s leadership capabilities. (Doc. 66, pp. 56-57). While Plaintiff
argues with Defendants’ reasons for instituting disciplinary measures against
Parrish as a result of this incident, namely that Parrish was reproached for failing
to report the incident rather than his alleged role in the incident, ultimately, the
two received comparable reprisals.
In support of his argument that Defendants unevenly managed the
progressive discipline policy, Plaintiff highlights Fisher’s disciplinary history.
According to Plaintiff, Fisher received a written warning in August 2011 for
unacceptable behavior, noting that in the event of future infractions, Fisher would
be subject to four days suspension without pay, demotion, or termination.
Despite two subsequent incidents, Defendants permitted Fisher to keep his job.
The August 2011 warning resulted from Fisher’s failure to supervise adequately a
Lineman who was doing “Hot Work.” (Doc. 67, p. 71). The event resulted in a
write-up being placed in Fisher’s file and three days suspension without pay.
Defendants further informed Fisher that the next incident of substandard work
would result in four days off without pay and demotion or termination. (Id.).
19
Fisher’s next written warning occurred on May 29, 2012, and stemmed from his
failure to inform his supervisor of his intent to take annual leave. (Doc. 67, p. 74).
He received one day off without pay and was warned that a subsequent
infraction of that nature would result in four days off without pay or termination.
(Id.). Then, in April 2013, Fisher was written up again for backing into another
vehicle at a railroad crossing. (Doc. 67, p. 75). Defendants considered this event
a minor incident and took no action against Fisher beyond placing a written
warning in his personnel file that would be active for 18 months. (Id.).
First, the Court notes that Fisher is not a viable comparator because his
disciplinary history shares neither the volume nor severity of Plaintiff’s
employment record. Second, the record contains no evidence that Defendants
strayed from the progressive discipline structure when addressing Fisher’s
conduct. As explained by Doug Loftis in his Supplemental Declaration, the “next
incident” language that appears in each of the written warnings refers to “the next
incident of that type.” (Doc. 82, p. 5). Thus, had Fisher had another infraction
involving his failure to supervise his crew following the August 2011 incident,
then the increased disciplinary measures referenced in that particular warning
would have applied. However, his next two violations were wholly unrelated and,
thus, required different disciplinary measures.
20
Reviewing Plaintiff’s written admonishments, the Court concludes that
Defendants applied a similar progressive standard to each of Plaintiff’s
infractions. For example, Plaintiff’s September 17, 2009 write-up for failure to
follow proper work procedure by not installing a mechanical jumper while splicing
wire, which Defendants categorized as “Substandard Work” and “Carelessness,”
resulted in a written warning and an admonishment that the next incident would
result in a five day suspension. (Doc. 62, p. 54). Plaintiff was disciplined again
after a March 14, 2011 incident that Defendants again considered “Substandard
Work.” (Id. at 56). As this occurrence involved the same category for disciplinary
purposes, Defendants imposed a four day suspension and warned Plaintiff that
the next incident of this sort would result in additional days off work, reassignment, demotion, or termination. (Id.).
Plaintiff next was disciplined in May 2011 for dishonesty after being less
than forthcoming about hitting another work truck. (Id. at 59). He received a
written warning and five days off without pay. (Id.) Defendants demoted Plaintiff
from Senior Lineman to Lineman and advised Plaintiff that any future issues
involving dishonesty would result in immediate termination. (Id.). In July 2011,
Plaintiff had another incidence of “Carelessness,” resulting in only a written
warning with no threat of future action. (Id. at 64). Plaintiff was tardy on
September 14, 2011. (Id. at 67). Defendants placed a written warning in Plaintiff’s
21
personnel file and indicated that the next instance of tardiness would result in
three days suspension or termination. (Id.).
In October 2011, Defendants disciplined Plaintiff again after Plaintiff failed
to secure a neutral line. (Id. at 68). Defendants suspended Plaintiff for four days
without pay and instructed Plaintiff that “[t]he next incident of sub-standard work,
conduct, safety, disobedience, or carelessness will result in immediate
termination.” (Id.). Plaintiff had no further issues until May 2012, when he
received his first warning for failing to respond timely to a service call. (Id. at 76).
Consistent with Loftis’ explanation for how the progressive discipline policy
operates, Plaintiff was not immediately terminated for this infraction because the
late response fell into a different category for discipline than the prior incident.
Rather, Defendants again suspended Plaintiff for three days. (Id.). Management
thereafter held a “last chance” meeting with Plaintiff and reviewed his entire
disciplinary record. (Id. at 78). Management explained to Plaintiff that he had
reached the end of all disciplinary measures and that any future incident of any
variety would result in immediate termination. (Id.). Accordingly, on June 30,
2012, when Plaintiff again failed to respond timely to another call, Defendants
were acting within the scope of the company’s policy by terminating Plaintiff. (Id.
at 81).
22
Plaintiff has failed to produce any evidence of a similarly situated
Caucasian comparator who was disciplined more favorably. Without a proper
comparator, Plaintiff cannot establish a prima facie case of discrimination, and
Defendants are entitled to summary judgment.
B.
Pretext
Even if Plaintiff could establish a prima facie case of discrimination, the
Court still finds that Defendants are entitled to summary judgment because
Plaintiff cannot show that Defendants’ legitimate, nondiscriminatory reason for
terminating him was merely a pretext for race discrimination. Defendants have
carefully outlined Plaintiff’s disciplinary history and explained that while Plaintiff
worked for a number of years without any performance issues, during the last
sixteen months of his employment, Plaintiff committed numerous serious
infractions that ultimately led to his termination.
The employer has the burden of production, not persuasion to articulate a
nondiscriminatory reason for termination, a burden that has been described as
“exceedingly light.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th
Cir. 2005). To establish that the employer’s proffered reason is nothing more
than a pretext for discrimination, a plaintiff “must demonstrate that the proffered
reason was not the true reason for the employment decision. The plaintiff may
succeed in this either directly by persuading the court that a discriminatory
23
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Jackson v. Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotations and
punctuation omitted). Evidence offered to establish the prima facie case may be
offered again to establish pretext. Wilson, 376 F.3d at 1088.
A
plaintiff
may
not
recharacterize
the
employer’s
proffered
nondiscriminatory reasons. Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th
Cir. 2000). “Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on and rebut it,
and the employee cannot succeed by simply quarreling with the wisdom of that
reason.” Id. Further, “federal courts do not sit as a super-personnel department
that reexamines an entity’s business decisions.” Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466, 1470 (11th Cir. 1991). The Eleventh Circuit has repeatedly held
that an employer may terminate an employee for a good or bad reason without
violating federal law. See id.; see also Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in the business of
adjudging whether employment decisions are prudent or fair.”); Smith v. Papp
Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) (“[I]f the employer fires an
employee because it honestly believed the employee had violated a company
policy, even if it was mistaken in such belief,” the discharge does not violate
24
federal law.); Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th
Cir. 1984) (“The employer may fire an employee for a good reason, a bad
reason, a reason based on erroneous facts, or for no reason all, as long as its
action is not for a discriminatory reason.”).
Defendants
have
met
their
burden
of
providing
a
legitimate,
nondiscriminatory reason for terminating Plaintiff. The burden now shifts to
Plaintiff to show that Defendants’ proffered explanation for Plaintiff’s termination
is but pretext for race discrimination. Plaintiff first calls into question Defendants’
decision to hold Plaintiff accountable for the last instance of sub-standard
conduct, failing to respond to a service call in an appropriate amount of time.
Plaintiff claims that the subjective application of the Defendants’ unwritten
response time policy is proof of pretext. As the Court has already noted, there
has been inconsistent testimony about the response time requirement and
whether there is an expectation for an employee to respond within 15 or 30
minutes of receiving a call from dispatch. However, even applying the longer time
frame to the benefit of Plaintiff does not absolve Plaintiff of his misconduct, as the
evidence reflects that while Plaintiff immediately answered the first dispatcher’s
call, he ultimately took just shy of two hours to respond when a second
dispatcher roused him from sleep.
25
Plaintiff further alleges in reference to this incident that Defendants failed
to follow their own policy of calling the next employee on call if unable to reach
the first. On this particular date, the dispatcher had no reason to call the second
person in line. Even though Plaintiff purportedly informed the dispatcher that he
was ill, he also stated that he still could make the call and led her to believe that
he would head in that general direction. Plaintiff did not say that he was too sick
to report to work; therefore, Defendants had a reasonable expectation that
Plaintiff could complete his assignment timely and reacted as a reasonable
employer by holding Plaintiff accountable for his greatly delayed response time.
Plaintiff next asserts that Defendants’ proffered explanation is pretext for
discrimination on the basis of Plaintiff’s unequal treatment and subjugation to
harsher penalties for his mistakes. Plaintiff claims that Defendants specifically
targeted him for discipline and left him to shoulder the burden of others’
mistakes. As thoroughly discussed above, however, Plaintiff has failed to
produce any evidence beyond his own beliefs and impressions that Defendants
disciplined him differently than any other employee.
Based on the ample evidence in the record, Plaintiff has failed to carry the
burden of showing that Defendants’ reason for terminating him was a pretext for
discrimination. Plaintiff has pointed to no direct evidence of outward
discrimination by Defendants and can draw no appropriate comparisons to other
26
employees Plaintiff thinks were treated less harshly to create an inference of
intentional discrimination. Defendants thus are entitled to judgment as a matter of
law.
C.
Hostile Work Environment
Plaintiff claims that he was subject to a constant barrage of verbal abuse
and unfair disciplinary procedures that created a hostile work environment and
impeded his ability to perform his job efficiently. The Court finds no validity to
Plaintiff’s claim.
Title VII is violated “when the workplace is permeated with racially
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283,
1292 (11th Cir. 2012) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116 (2002)) (internal punctuation omitted). The same is true under § 1981.
See Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010); see also
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Shields
v. Fort James Corp., 305 F.3d 1280, 1282, n.2 (11th Cir. 2002). An employer
therefore is liable to an employee for a racially hostile work environment where
the employee proves that “(1) he belongs to a protected group; (2) he was
subjected to unwelcome harassment; (3) the harassment was based on his
27
membership in the protected group; (4) it was severe or pervasive enough 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 a theory of either vicarious or direct liability.” Id.
The court will consider “the frequency and severity of the conduct, whether
it is physically threatening or humiliating, and to what degree it reasonably
interferes with the plaintiff’s job performance.” Rojas v. Florida, 282 F.3d 1339,
1344 (11th Cir. 2002). However, “mere utterance of an ethnic or racial epithet
which engenders offensive feelings in an employee” does not sufficiently impact
the conditions of employment to trigger the applicability of Title VII. Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Rogers v. EEOC, 454 F.2d
234, 238 (5th Cir. 1971)). “Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment – an environment that
a reasonable person would find hostile or abusive – is beyond Title VII’s
purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Racial slurs must
“be so ‘commonplace, overt and denigrating that they create[ ] 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)). Discourteousness and rudeness do not equate to
racial harassment, nor does a lack of racial sensitivity alone amount to actionable
28
harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (internal
quotations and citations omitted).
Without dispute, Plaintiff as an African-American is a member of a
protected group who was subjected to unwanted harassment and commentary
on the basis of his race. However, the evidence does not warrant a finding that
the off-color commentary and inappropriate jokes of Plaintiff’s co-workers were
so severe and pervasive to alter the conditions of Plaintiff’s employment. The
most offensive conduct described by Plaintiff is that of Monty Cowart, who
regularly referred to Plaintiff as “colored” or “colored boy.” Plaintiff did report
Cowart’s conduct to management and, while Plaintiff perceived that Defendants
took no action against Cowart because management never informed Plaintiff of
any remedial measures, the evidence shows that Defendants no longer
scheduled Plaintiff to work under Cowart and eventually stripped Cowart of his
supervisory position. These events transpired during 2006 and 2007, five or six
years before Plaintiff’s termination and seven years before Plaintiff initiated this
lawsuit.
Plaintiff complains a great deal about being addressed as “you” or “hey
you” and being called “butterfingers.” But he admits that, while he felt these
comments were meant derogatorily, the statements themselves are not racially
charged. The majority of the other statements and behaviors highlighted by
29
Plaintiff in support of his hostile work environment claim while certainly
inappropriate and insensitive were unreported, isolated comments of co-workers,
not supervisors, uttered over an undefined period of time, and do not rise to an
actionable level. The Court consequently grants Defendants’ motion for summary
judgment on Plaintiff’s hostile work environment claim.
D.
Intentional Infliction of Emotional Distress
Plaintiff’s final claim is for intentional inflection of emotional distress. He
alleges that years of humiliation, embarrassment, and malicious targeting of
disparate disciplinary measures culminating in Plaintiff’s termination, amount to
intentional and reckless conduct on the part of Defendants. Plaintiff’s claim lacks
merit and is unsupported by any facts.
To recover on an intentional infliction of emotional distress claim, a plaintiff
must show that “(1) defendants’ conduct was intentional or reckless; (2)
defendants’ conduct was extreme and outrageous; (3) a causal connection
existed between the wrongful conduct and the emotional distress; and (4) the
emotional harm was severe. Abdul-Malik v. AirTran Airways, Inc., 297 Ga. App.
852, 856 (2009).
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct
has been characterized by malice, or a degree of aggravation
which would entitle the plaintiff to punitive damages for
30
another tort. Liability has been found only where the conduct
has been extreme and outrageous.
Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 822 (2008).
Georgia is an at-will employment state, and Georgia law does not
recognize wrongful discharge of at-will employees. Beck v. Interstate Brands
Corp., 953 F.2d 1275, 1276 (11th Cir. 1992); see also Phillips v. Pacific & S. Co.,
215 Ga. App. 513, 515 (1994) (discharge for whatever reason, “without more,
gives rise to no claim for the intentional infliction of emotional distress”). “Even if
the employee is not terminable at will, discharge for an improper reason does not
constitute the egregious kind of conduct on which a claim of intentional infliction
of emotional distress can be based.” Id.
Plaintiff has produced no evidence that Defendants’ actions were
intentionally discriminatory or in any way extreme or outrageous. Viewing the
available facts in a light most favorable to Plaintiff, no reasonable person could
conclude otherwise. Defendants’ motion for summary judgment on Plaintiff’s
claim for intentional infliction of emotional distress is accordingly granted.
31
IV.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment
(Doc. 54) is granted, and this case is dismissed with prejudice.
SO ORDERED, this the 31st day of March, 2015.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks
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