Canty v. Fry's Electronics, Inc. et al

Filing 150

ORDER ADOPTING 145 Final Report and Recommendation. IT IS HEREBY ORDERED that Plaintiff's 148 Objections to the R&R are OVERRULED. IT IS FURTHER ORDERED that Defendants' 110 Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Defendant Toy's 131 Motion to Dismiss or, Alternatively, for Summary Judgment is GRANTED as to the Motion for Summary Judgment and his alternative Motion to Dismiss is DENIED. Signed by Judge William S. Duffey, Jr on 3/26/2012. (rej)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RONNIE L. CANTY,
Plaintiff,
v.

1:09-cv-3508-WSD

FRY’S ELECTRONICS, INC.;
RANDY FRY, President; TODD
SMITH, District Manager; SHAWN
VAUGHN, Store Manager; JOHN
MCGUFFIN, Assistant Store
Manager; and MICHAEL TOY,
Department Manager,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation (“R&R”) [145] on Fry’s Electronics, Inc. (“Fry’s”),
Todd Smith (“Smith”), Shawn Vaughn (“Vaughn”), and John McGuffin’s
(“McGuffin,” collectively “Defendants”) Motion for Summary Judgment [110],
Defendant Michael Toy’s (“Toy”) Motion to Dismiss or, Alternatively, for
Summary Judgment [131], and Ronnie L. Canty’s (“Plaintiff”) Reply and
Objection to Magistrate Judge’s Final Report and Recommendation [148].

I.

BACKGROUND1
A.

Overview

On July 9, 2007, Plaintiff, a 47-year old African-American man, began
working for Fry’s as an Electronic Components Accessory Sales Associate at its
Duluth, Georgia store. In November 2007, Plaintiff was promoted to Electronic
Components Accessory Sales Supervisor. In July 2009, Plaintiff was promoted to
Electronic Components Sales Supervisor. On August 5, 2009, Plaintiff resigned
and told his supervisor he was returning to school.
In this action, Plaintiff alleges that he was discriminated against, subjected to
retaliation, harassed, and treated unfairly throughout the course of and after his
employment at Fry’s in violation of 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).
B.

Plaintiff’s internal complaints and Fry’s internal investigation

Plaintiff alleges he made complaints to his store management in 2008. He
claims he complained to his supervisor, Michael Toy, in August 2008, and his
store manager, Shawn Vaughn, in November 2008, about “discriminatory practices
1

The following short summary of facts are taken from the Magistrate Judge’s
R&R and the record. Plaintiff fails to identify any errors or omissions of fact, and,
in the absence of specific objections, there is no requirement that a district judge
review factual findings de novo. See Garvey v. Vaughn, 993 F.2d 776, 779 n. 9
(11th Cir.1993). Having reviewed the R&R’s statement of facts and finding no
plain error in them, the Court adopts the facts as set out in the R&R.
2

in scheduling” and areas of responsibility, favoritism, and hostile work
environment. He also claims he complained in November and December 2008,
and January and February 2009, to John McGuffin, an assistant, and then later,
store manager, and to Vaughn, of discriminatory practices in scheduling,
retaliation, harassment, and hostile work environment.
On March 17, 2009, Plaintiff submitted a “Tell Randy” form (the “March
17th Internal Complaint”) complaining of harassment, favoritism, and retaliation.
Defendant Randy Fry (“Mr. Fry”) is the president and co-founder of Fry’s.2 Mr.
Fry works from Fry’s corporate offices in California, and the “Tell Randy” form
allows employees to send comments, questions, or concerns to his office. Mr. Fry
does not personally review these forms, but refers them to other Fry’s employees
for review and handling.
The March 17th Internal Complaint stated:
I believe that I am being harassed or managed out the door.
Michael Toy, DM, is using work scheduling and DSC scheduling
to retaliate against me. I feel this way because of his personal
relationship with one of our subordinates, Betelihem Worku. Not
only am I in fear of losing my job, but my wellbeing as well.
I have had discussions with Vaughn, Store Manager, and he
refered [sic] me back to Toy. Said it was a personal issue between
me and him.
2

Mr. Fry was dismissed from this action on September 1, 2010. (Order of Sept. 1,
2010, at 22).
3

On 03/15/09, I attempted to discuss the scheduling issue with
McGuffin, however, after his response to the issue, I felt slightly
intimidated by his response and reaction to the topic.
(Ex. 11 to Pl.’s Dep.).
On April 17, 2009, Plaintiff received a letter from Sonja Jamili, Mr. Fry’s
executive assistant, stating that Plaintiff’s “Tell Randy” form had been received
and Plaintiff’s complaint would be “reviewed personally by Randy and addressed
accordingly.” Mr. Fry claims he does not recall receiving or reviewing Plaintiff’s
“Tell Randy” form, and he did not personally contact Plaintiff regarding it. Mr.
Fry further states that he did not speak about Plaintiff with any employees who had
responsibility for the Duluth, Georgia store.
A few days after receiving Ms. Jamili’s correspondence, Plaintiff was
interviewed by Todd Smith (“Smith”), Plaintiff’s District Manager, as part of an
investigation into Plaintiff’s “Tell Randy” internal complaint, in which Plaintiff
claimed he told Smith during their discussion that any reference to a hostile work
environment in his “Tell Randy” complaint related to Ms. Worku, whom Plaintiff
complained was allowed to work more favorable schedules than Plaintiff. Plaintiff
also complained to Smith about Michael Toy, Plaintiff’s immediate supervisor,
who is African-American. Plaintiff claimed that Toy frequently changed
Plaintiff’s schedule without notifying him.

4

Plaintiff and Smith had a further meeting in late May or early June 2009 to
determine if Plaintiff had continuing concerns. Plaintiff never discussed his “Tell
Randy” internal complaint with his supervisors at the Fry’s store where he worked,
and he never told anyone at the Fry’s store at which he worked of his conversations
with Smith.
C.

Plaintiff’s allegation of denial of a promotion and his consultations
with the Equal Employment Opportunity Commission

Plaintiff alleges that he was denied a promotion to a more senior supervisory
position in May 2009, which Plaintiff claims was filled by a younger, lessqualified white person.
On May 19, 2009, Plaintiff completed an online intake questionnaire (the
“Intake Questionnaire”) on the Equal Employment Opportunity Commission’s
(“EEOC”) website. Plaintiff claims that after completing the Intake Questionnaire,
he was denied previously approved time off and was subjected to additional work
pressure by Toy, to include being counseled in writing multiple times for various
shortcomings and being placed on a probationary employment period. Plaintiff
admits that he did not tell anyone at Fry’s, including Toy, about completing an
online EEOC Intake Questionnaire.
On May 29, 2009, Plaintiff appeared at the Atlanta EEOC office and met
with an investigator “with the expectation that an investigation [of Plaintiff’s
5

complaints] would be conducted.” Plaintiff did not file a formal EEOC charge of
discrimination or receive a right to sue letter as a result of this meeting. Plaintiff
claims that the investigator later told him that the paperwork created at the May 29,
2009, meeting had been lost.
On July 30, 2009, Plaintiff returned to the EEOC office to follow-up with
the investigator about his claims. Plaintiff met with a different EEOC investigator.
Following this meeting, Plaintiff filed a charge of discrimination against
Defendants in which Plaintiff asserts that Defendants discriminated against
Plaintiff on the basis of his age by denying him vacation time-off and changing his
work schedule without his knowledge (the “July 30 EEOC Charge”). Plaintiff
checked only the box for age discrimination on this form. He did not check the
boxes for discrimination based on race, color, sex, religion, national origin,
retaliation, disability, or the generic box labeled “other.”
On August 28, 2009, the EEOC issued a right to sue letter to Plaintiff. A
copy was provided to Fry’s on September 2, 2009. Until it received a copy of the
right to sue letter from the EEOC, no one at Fry’s had any knowledge that Plaintiff
had contacted the EEOC to file a charge of discrimination relating to his
employment. Plaintiff admits that he never told anyone at Fry’s that he had
contacted the EEOC or asserted a discrimination complaint with the EEOC office.

6

D.

Plaintiff’s resignation and dispute over unemployment benefits

On August 5, 2009, Plaintiff resigned from Fry’s, telling his employer that
he was returning to school. After resigning, Plaintiff applied for unemployment
benefits from the Georgia Department of Labor. Fry’s completed a Georgia
Department of Labor Form 1199 in response to Plaintiff’s application for
unemployment benefits. Fry’s opposed granting benefits on the grounds that
Plaintiff voluntarily resigned in order to return to school.
On September 28, 2009, an unemployment benefits hearing was held by the
Georgia Department of Labor. At the hearing, Plaintiff argued he was entitled to
benefits because he was constructively discharged due to harassment and
retaliation. The Department of Labor found that Plaintiff was not entitled to
unemployment compensation. Plaintiff appealed the decision denying him
unemployment benefits to the Gwinnett County Superior Court, which upheld the
Department of Labor’s decision.
E.

Procedural history of this action

On December 1, 2009, Plaintiff, who is proceeding pro se, filed this action.
On February 19, 2010, Defendants moved to dismiss Plaintiff’s complaint,
or, alternatively, for summary judgment [24].

7

On July 19, 2010, the Magistrate Judge issued her Non-Final R&R and
recommended Defendants’ motion be granted in part and denied in part [38].
Plaintiff filed his objections to the Magistrate Judge’s conclusions of law and
recommendations [43].
On September 1, 2010, the Court adopted the Magistrate Judge’s Non-Final
R&R; granted in part and denied in part Defendants’ Motion to Dismiss or,
Alternatively, for Summary Judgment; dismissed the claims against Mr. Fry; and
ordered Plaintiff to re-plead his Complaint with regard to the claims that were not
dismissed by the Court [46].
On September 17, 2010, Plaintiff filed his Second Amended Complaint [47].
On December 21, 2010, Plaintiff sought leave to file a Third Amended Complaint,
which was granted by the Court on June 7, 2011 [79, 116].3
In his Third Amended Complaint, Plaintiff asserts that Defendants
discriminated and retaliated against him on the basis of his race [117]. Plaintiff
also claims he was constructively discharged and that Defendants otherwise were
negligent in the investigation and resolution of Plaintiff’s complaints.
3

On May 9, 2011, Plaintiff filed a motion to compel the production of certain
documents by Defendants [104]. On June 30, 2011, the Court held a discovery
conference where remaining discovery issues were resolved and, based on
responses by Defendants, Plaintiff’s motion to compel was denied as moot [126].
After the completion of the discovery conference, the parties filed responsive
pleadings to Defendants’ Motion for Summary Judgment [134, 135, 143].
8

On June 1, 2011, Defendants moved for summary judgment on all of
Plaintiff’s claims [110].
On July 14, 2011, Toy filed a Motion to Dismiss or, Alternatively, for
Summary Judgment [131].
On February 2, 2012, the Magistrate Judge issued her Final R&R
recommending that summary judgment on all of Plaintiff’s claims be granted for
Defendants [145].
On February 24, 2012, after being granted an extension of time to object,
Plaintiff filed his Reply and Objection to Magistrate Judge’s Final Report and
Recommendation [148].
On March 12, 2012, Defendants filed a Response to Plaintiff’s Reply and
Objection to Magistrate Judge’s Final Report and Recommendation [149].
II.

DISCUSSION
A.

Standard of review for a Report and Recommendation

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report or

9

specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). This requires that the district judge “‘give fresh
consideration to those issues to which specific objection has been made by a
party.’” Jeffrey S. by Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512
(11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess. (1976)).
With respect to those findings and recommendations to which a party has not
asserted objections, the Court must conduct a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S.
1050 (1984).
B.

Analysis of Plaintiff’s Objections

After having carefully reviewed Plaintiff’s pro se Objections [148], the
Court finds that Plaintiff has asserted six objections to the Final R&R. They are
considered below.
1.

Summary judgment on Plaintiff’s pre-resignation retaliation
claims

Plaintiff objects to the recommendation that summary judgment be granted
to Defendants on his pre-resignation retaliation claims based on the lack of a causal
connection between his alleged complaints and retaliatory actions. Plaintiff claims
“the totality of the circumstance [sic] would demonstrate that the preferential
scheduling of the white manager-in-training over that of the black manager-in10

training was a direct violation of violation of Title VII” in the form of retaliation to
his written complaint to Fry’s headquarters on March 17, 2009. (Pl.’s Objection at
4). Plaintiff claims that there were sufficient instances of harassment that a
reasonable jury could find in his favor.
Title VII prohibits discrimination against an employee “because he has
opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). An employee engages in protected activity if he opposes an
employment practice based on a good faith, reasonable belief that the practice
violates Title VII or Section 1981. See, e.g., Bryant v. United States Steel Corp.,
428 F. App’x 895, 898 (11th Cir. 2011); Little v. United Techs., 103 F.3d 956, 960
(11th Cir. 1997). “Filing an EEOC charge is statutorily protected activity in this
regard.” Birdyshaw v. Dillard’s Inc., 308 F. App’x 431, 436 (11th Cir. 2009). An
internal complaint about unfair treatment or general harassment, without an
allegation of discrimination based on race, sex, or national origin, is not protected
activity. See id. at 436-37 (citing Coutu v. Martin Cnty. Bd. of Cnty Comm’rs, 47
F.3d 1068, 1074 (11th Cir. 1995)).

11

The Eleventh Circuit broadly construes the causal relationship between
protected activity and an adverse retaliatory action. See Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004). A plaintiff, however, still is required to
demonstrate that the plaintiff engaged in protected activity and that there is a
causal connection between the protected activity alleged and an adverse action.
See id.
Plaintiff’s March 17th Internal Complaint does not constitute protected
activity. The internal complaint, by its terms, only complains of unfair treatment
and does not assert an allegation of discrimination based on his or anyone else’s
status as a member of a protected class. See id. Plaintiff, the Court notes, has not
objected to the Magistrate Judge’s finding that when he complained to his
supervisors, he did not even suggest discrimination on the basis of race, color, or
any other classification protected by Title VII or Section 1981.4 (R&R at 20). The
4

The Court notes that Plaintiff claimed in his Response to Defendants’ Motion for
Summary Judgment that he made unspecific, general verbal complaints to Toy
about “favoritism of a white manager-in-training over a black manager-intraining.” (R&R at 22). The Magistrate Judge considered this argument and
concluded that it was unsupported by any evidence in the record and was
insufficient to raise a genuine issue of fact on this claim because, even if true, those
comments could not be construed as a complaint about racial discrimination in
scheduling to rise to the level of protected activity. (Id. at 22-23). The Court notes
that Plaintiff stated in a letter to the EEOC on July 1, 2009, his understanding that
his generic claims of hostile work environment, retaliation, and harassment—
without any assertion that the actions were based on his membership in a protected
12

Court finds Plaintiff’s complaints to Defendants do not constitute protected activity
and cannot serve as the basis for his claims of pre-resignation retaliation.
Plaintiff also cannot demonstrate any causal connection between his
statutorily-protected activity in complaining to the EEOC and any adverse action
taken against him by Defendants. It is undisputed that Defendants did not know
about his written complaint to and meetings with the EEOC.
The Court finds that Plaintiff failed to demonstrate a causal connection
between any protected activity and adverse action because his pre-resignation
internal complaints are not protected activity and Defendants did not know of his
statutorily-protected EEOC activity before his resignation. See Birdyshaw, 308 F.
App’x at 436-37; Higdon, 393 F.3d at 1220 (quoting Shotz v. City of Plantation,
Fla., 344 F.3d 1161, 1180 n.3 (11th Cir. 2003)) (“‘A plaintiff satisfies this [causal
connection] element if [s]he provides sufficient evidence’ of knowledge of the
protected expression and ‘that there was a close temporal proximity between this
awareness and the adverse . . . action.’”). Plaintiff’s first Objection is overruled.

class—are not actionable under Title VII. See (Ex. M to Pl.’s Aff.). The Court
specifically finds that the Magistrate Judge did not plainly err in her analysis and
that these comments, even if they were supported by the record, do not constitute
protected activity.
13

2.

Summary judgment on Plaintiff’s post-resignation retaliation
claims

Plaintiff generally objects to the recommendation that summary judgment be
granted to Defendants on his post-resignation retaliation claims on the basis that
the Magistrate Judge was “unable to conclude that a reasonable worker would be
dissuaded from opposing discrimination or filing a charge of discrimination
because his or her employer may report accurate information to the [Department of
Labor].” Plaintiff claims the Magistrate Judge incorrectly found that Plaintiff
failed “to assert any facts tending to show that McGuffin was responsible for
securing the attendance of Plaintiff’s witnesses, that McGuffin knew the identity of
Plaintiff’s witnesses, or was on notice that Plaintiff expected McGuffin to secure
Plaintiff’s witnesses’ attendance.” (Pl.’s Objections at 6; R&R at 29-30). Plaintiff
also claims summary judgment is inappropriate based on the manner in which his
unemployment benefits hearing was conducted, to include the failure by
Defendants to provide certain documents and to procure the attendance of
witnesses. (Pl.’s Objections at 6-7).
Defendants reported to the Department of Labor that Plaintiff resigned
because he told them he was returning to school. Plaintiff claims further that
Defendants were responsible for assisting Plaintiff to produce and present

14

Plaintiff’s evidence at the unemployment benefits hearing and that failure to do so
provides bases for some sort of federal claim.
Plaintiff does not offer any evidence that Defendants had any responsibility
to provide him any assistance at his unemployment benefits hearing. Plaintiff
specifically has not shown that Defendants were obligated to arrange for witnesses
to attend the hearing to assist Plaintiff or were even aware of “Plaintiff’s
witnesses.” Even if Defendants had some duty to help Plaintiff at the
unemployment benefits hearing in the manner that he claims—and the Court is not
aware of any such duty—the Court determines that a rational trier of fact could not
find that a failure to procure and provide witnesses and documents constitutes a
materially adverse action which might dissuade a reasonable worker from making
or supporting a discrimination charge. See Burlington N. Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006).
Plaintiff’s second Objection is overruled.
3.

Summary judgment on Plaintiff’s negligence-based retaliation
claims

In his third Objection, Plaintiff challenges the Magistrate Judge’s legal
conclusion that Plaintiff’s negligence-based retaliation claim is not actionable
under Title VII because Plaintiff “cannot establish a Title VII retaliation claim
derived from Defendants’ failure to adequately investigate his complaints to
15

management.” (Pl.’s Objections at 7, R&R at 30-31). Plaintiff argues that he
“triggered the protections of Title VII against retaliation once he submitted his
internal complaint alleging [unspecified] harassment and retaliation,” and this
action “put [his] employer on notice and [it] failed to stop the harassment and
retaliation.” (Pl.’s Objections at 7).
The Court finds, as did the Magistrate Judge, that Defendants’ alleged
negligent failure to investigate Plaintiff’s generic harassment complaints to
management cannot serve as a basis for a claim for retaliation under Title VII.5
See Ricci v. DeStefano, 129 S. Ct. 2568, 2672 (2009) (Title VII protects against
intentional discrimination and conduct that creates a disparate impact); St Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (in employment discrimination
cases, plaintiff has ultimate burden of proving intentional discrimination); Walker
v. NationsBank of Fla., N.A., 53 F.3d 1548, 1555 (11th Cir. 1995) (plaintiff must
prove intentional discrimination). The Court finds that Plaintiff has not offered
any evidence that Defendants knew or should have known of any alleged
retaliation or harassment and failed to stop it from occurring such that vicarious
liability under Title VII would exist. See, e.g., Burlington Indus. v. Ellerth, 524
U.S. 742, 756 (1998) (Title VII is based on intentional conduct and an employer is
5

The Court notes that an investigation was conducted into Plaintiff’s March 17th
Internal Complaint.
16

not liable unless it knew or should of known of unlawful conduct by an employee
and failed to stop it); Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir.
2001) (party seeking to prove negligence based employment discrimination claim
must prove employer’s conduct unreasonable). Plaintiff’s third Objection is
overruled.
4.

Summary judgment on Plaintiff’s failure to promote
claim

In his fourth Objection, Plaintiff objects to the Magistrate Judge’s finding
and recommendation that summary judgment should be granted to Defendants on
his claim of discrimination based on a failure to promote. (Pl.’s Objections at 7-8).
Plaintiff claims the Magistrate Judge incorrectly found that Plaintiff cannot make
out a prima facie case of racial discrimination based on circumstantial evidence
under the McDonnell Douglas framework, even though it is undisputed that the
position Plaintiff claims he should have been promoted into “was not available [to
him] and was not filled [by him] because it remained occupied by [another
employee]” and there is no evidentiary support for any argument that the position
was intentionally not made available to deny Plaintiff a promotion opportunity.
(Pl.’s Objections at 7-8; R&R at 34-35). Plaintiff also objects to the Magistrate
Judge’s finding that there is no direct evidence of discrimination or evidentiary

17

support for finding a discriminatory pattern or practice in Defendants’ promotion
policies. (Pl.’s Objections at 7-8, R&R at 35).
Plaintiff claims that his promotion in July 2009 to a supervisory position is
direct evidence of discrimination. Plaintiff claims his July 2009 promotion is
consistent with his contention that Defendants had a custom or practice of
automatically promoting personnel into senior supervisory positions. The July
2009 promotion, in Plaintiff’s mind, shows that Defendants deviated from that
practice when, two month earlier, in May 2009, Plaintiff was not promoted. The
Court disagrees with this tortured logic.
The Eleventh Circuit has defined “direct evidence of discrimination as
evidence which reflects a discriminatory or retaliatory attitude correlating to the
discrimination . . . complained of by the employee.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999)) (internal
quotation marks omitted).
The standard for showing direct evidence is a stringent one and only the
most blatant comments will serve to prove such intent. Earley v. Champion Intern.
Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990). The direct evidence must relate
to the specific employment decision at issue without any inference or presumption.

18

EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000); Carter v.
City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989) (“Direct evidence of
discrimination [is] evidence which, if believed, would prove the existence of a fact
without inference or presumption.”).
The Court finds that the July 2009 “proof” of Plaintiff’s promotion is
insufficient to constitute direct evidence of discrimination because it does not,
directly or inferentially, show that Plaintiff was discriminatorily denied a
promotion in May 2009.
A prima facie case of discrimination under McDonnell Douglas requires that
a plaintiff demonstrate that a position was available that Plaintiff applied for, was
qualified for, and for which Defendant was accepting applications or trying to fill;
or, that other equally or less qualified employees outside Plaintiff’s protected class
were promoted. See Wilson, 376 F.3d at 1088; Schoenfield v. Babbitt, 168 F.3d
1257, 1267 (11th Cir. 1999). It is undisputed that the position Plaintiff claims he
should have been promoted into “was not available and was not filled because it
remained occupied by [another employee].” As a result, there is no evidentiary
support for Plaintiff’s argument that the position was intentionally not made
available to deny Plaintiff a promotion opportunity. Plaintiff failed to make a

19

prima facie case for his failure to promote claim based on circumstantial evidence.
(Pl.’s Objections at 7-8; R&R at 34-35).
The Court also finds that the circumstantial evidence offered by Plaintiff in
support of this claim is otherwise insufficient to establish a disputed issue of fact.
See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)
(“plaintiff will always survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent”).
Plaintiff’s fourth Objection is overruled.
5.

Granting of summary judgment in light of Plaintiff’s allegation
that Defendants failed to comply with discovery obligations

In his fifth Objection, Plaintiff objects to the finding and recommendation of
the Magistrate Judge that his request to deny summary judgment based on
insufficient discovery be denied. Plaintiff appears also to object to the Magistrate
Judge’s finding that Defendants complied with their discovery obligations,
Plaintiff cannot identify any documents that exist and have not been produced, and,
even if unproduced documents existed, Plaintiff cannot show they are relevant to
establish a causal connection between any decision to schedule him for work shifts

20

and any protected activity that occurred prior to his resignation.6 (Pl.’s Objections
at 8-9, R&R at 36-37).
“The law in this circuit is clear: the party opposing a motion for summary
judgment should be permitted an adequate opportunity to complete discovery prior
to consideration of the motion.” Jones v. City of Columbus, Ga., 120 F.3d 248,
253 (11th Cir. 1997).
In Snook v. Trust Co. of Ga. Bank of Savannah, N.A., the Eleventh Circuit
stated:
The party opposing a motion for summary judgment has a right to
challenge the affidavits and other factual materials submitted in
support of the motion by conducting sufficient discovery so as to
enable him to determine whether he can furnish opposing
affidavits . . . . If the documents or other discovery sought would
be relevant to the issues presented by the motion for summary
judgment, the opposing party should be allowed the opportunity to
utilize the discovery process to gain access to the requested
materials . . . . Generally summary judgment is inappropriate
when the party opposing the motion has been unable to obtain
responses to his discovery requests.
859 F.2d 865, 870 (11th Cir. 1988) (citations omitted).
Plaintiff had the opportunity to conduct the discovery he asserts he needed to
adequately respond to Defendants’ Motion for Summary Judgment. There is no
6

The Court notes that Plaintiff claims in his Objections that his Motion to Compel
[104] was never decided, however it was denied as moot by Magistrate Judge
Walker on June 30, 2011, at the discovery conference he attended [126].
21

indication that Defendants failed to comply with their discovery obligations other
than Plaintiff’s unsupported assertions that he did not receive the documents to
which he feels he is entitled. The Court observes that the Magistrate Judge
conducted a discovery conference in June 2011 to address all the issues Plaintiff
now raises, denied his Motion to Compel as moot based on responses from
Defendants, and addressed the remaining discovery issues that were relevant to this
action. Plaintiff did not move to reconsider this order and he did not file any
additional challenges to Defendants discovery.
The Court finds Plaintiff had full access to the discovery process and that the
parties met their discovery obligations. The Court specifically finds that Plaintiff
was permitted a more than “adequate opportunity to complete discovery prior to
consideration of the motion.” Jones, 120 F.3d at 253. Plaintiff’s objection that
summary judgment is inappropriate due to a lack of complete discovery is
overruled.
6.

Summary judgment on Plaintiff’s constructive discharge claim

In his sixth and final Objection, Plaintiff notes that the Magistrate Judge did
not address his constructive discharge claim and argues that it should survive
summary judgment because Defendants had sufficient time to correct the issues he

22

complained of between the filing of his internal complaint in March 2009 and his
resignation in August 2009. (Pl.’s Objections at 9-10).
When, on July 30, 2009, Plaintiff filed his charge of discrimination with the
EEOC, he did not assert a constructive discharge claim because he had not yet
resigned. Based on this, the Court previously stated that “[s]ummary judgment is
also appropriate for Plaintiff’s constructive discharge claim, to the extent that it is
brought under the ADEA or Title VII, since it was asserted, if at all, after the filing
of the Questionnaire and EEOC Charge” and Plaintiff failed to exhaust his
administrative remedies, as required under the ADEA or Title VII, with regard to
his claim of a constructive discharge. (Order of Sept. 1, 2010, at 18 n.10). After
issuance of the September 10, 2010, Order, Plaintiff filed his Third Amended
Complaint, in which Plaintiff asserts that his constructive discharge claim is
brought under Title VII. (Third Am. Compl. at 12).
A charge of racial discrimination must ordinarily be filed with the EEOC
within 180 days of the alleged unlawful employment practice as a condition
precedent to bringing a Title VII action since administrative review of any Title
VII claim by the EEOC is a prerequisite to judicial review of such a claim. See
29 U.S.C. § 626(d)(1)(A); 42 U.S.C. § 2000e-5(e)(1); Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1317 (11th Cir. 2001); Chanda v. Engelhard/ICC, 234 F.3d 1219,

23

1225 (11th Cir. 2000); Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir.
2000), overruled on other grounds by, Manders v. Lee, 338 F.3d 1304, 1328 n. 52
(11th Cir. 2003) (en banc).
EEOC regulations state that charges should contain, among other things, “[a]
clear and concise statement of the facts, including pertinent dates, constituting the
alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). The
Supreme Court has found that an intake questionnaire may be sufficient to
constitute an EEOC charge for the purposes of an ADEA or Title VII claim if the
document reasonably can be construed as a request for agency action and
appropriate relief on the employee’s behalf. See Fed. Express Corp. v. Holowecki,
552 U.S. 389, 403-04 (2008). Although this Circuit liberally construes EEOC
charges that are prepared without the assistance of counsel, “a plaintiff’s judicial
complaint is limited by the scope of the EEOC investigation which can reasonably
be expected to grow out of the charge of discrimination.” Gregory v. Ga. Dep’t of
Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (quoting Alexander, 207
F.3d at 1332).
In this case, Plaintiff did not file a charge of discrimination asserting a
constructive discharge claim under Title VII with the EEOC in either his July 30
EEOC Charge or Intake Questionnaire. Plaintiff’s objection is thus required to be

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overruled and summary judgment for Defendants is granted because Plaintiff failed
to exhaust his administrative remedies and failed to meet the requirements for
asserting this claim under Title VII.
Having conducted a de novo review of the issues to which Plaintiff has
objected and finding that all of Plaintiff’s objections are overruled, and having
reviewed the remainder of the R&R and finding that the Magistrate Judge did not
plainly err, the Court adopts the R&R.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge

Linda T. Walker’s Final Report and Recommendation [145] and Plaintiff’s
Objections to the R&R [148] are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [110] is GRANTED.
IT IS FURTHER ORDERED that Defendant Toy’s Motion to Dismiss or,
Alternatively, for Summary Judgment [131] is GRANTED as to the Motion for
Summary Judgment and his alternative Motion to Dismiss is DENIED.

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SO ORDERED this 26th day of March, 2012.
_________________________________________

WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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