Goode v. Wild Wing Cafe
Filing
170
OPINION AND ORDER adopting the 164 Final Report and Recommendation and granting the Defendant's 111 Motion for Summary Judgment. The Plaintiff's 135 Motion for Summary Judgment is denied. The 146 Motion to Strike is denied as moot. The 153 Motion to Strike and 158 Motion for Order are denied. Signed by Judge William S. Duffey, Jr on 3/13/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHARLES W. GOODE,
Plaintiff,
v.
1:11-cv-1337-WSD
WINGS OF ALPHARETTA, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation (“Final R&R”) [164] on Wings of Alpharetta’s
(“Defendant” or “Wings”) Motion for Summary Judgment [111], Charles Goode’s
(“Plaintiff”) Motion for Summary Judgment [135], Defendant’s Motion to Strike
Plaintiff’s Motion for Summary Judgment [146], Plaintiff’s Motion to Strike the
Affidavit of Gregory Dockery [153], Plaintiff’s Motion for a Court Order [158],
and on Plaintiff’s Corrected “Appeal of the Courts Final Report and
Recommendation and Order” [sic] [167].
I.
BACKGROUND1
On or about October 25, 2009, Plaintiff began working as a dishwasher at
Wild Wing Café in Alpharetta, Georgia. Plaintiff was qualified for and performed
his job satisfactorily. Plaintiff also claims that, until two weeks before his
termination, he had a good working relationship with his managers.
In May 2010, Plaintiff revealed to a coworker that he was “part AfricanAmerican.” (Am. Compl. at 7). Another coworker told Plaintiff that there had
subsequently been discussion by unidentified employees about Plaintiff’s “true
racial identity,” apparently because he had “fair complexion,” “freckle[s],” “hazel
eyes,” and an “ash-blond mustache.” (Id.). Plaintiff reiterated that “he did in fact
have some African-American ancestry.” (Id. at 7-8). After this disclosure,
Plaintiff claims that his relationship with his supervisors deteriorated.
On or about May 28, 2010, Plaintiff arrived late to work because he had not
noticed that the most recent schedule had moved his shift to earlier in the day.
This tardiness was treated as a “no call, no show,” which, according to company
policy, was a terminable offense. (Id. at 9). Under all the circumstances of
Plaintiff’s employment conduct, Plaintiff was discharged when he did not show up
for work as scheduled. (Id.).
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The parties have not objected to the facts set out in the Final R&R and, finding no
plain error, the Court adopts them.
2
Plaintiff states that he “timely filed an EEOC complaint for violation of Title
VII because of disparate treatment . . . .” (Id. at 11). Plaintiff claims that three
white employees were not fired for similar “no call, no show” offenses: a kitchen
manager, A.J. Siska, was demoted and transferred; a dishwasher, Dylan Fracek,
was given a warning; and a third employee, Jennifer Gerster, was given a warning.
(Id. at 9-10).
Plaintiff also alleges his supervisors retaliated against him for filing his
complaint with the EEOC by “wrongly oppos[ing] Plaintiff’s unemployment claim
and as a result Plaintiff did not receive unemployment benefits.” (Id. at 11).
On April 26, 2011, Plaintiff filed his original Complaint against “Wild Wing
Café, d/b/a Tapps Two LLC” (“Tapps Two”). Plaintiff alleged that the conduct of
his supervisors at Wild Wing Café violated Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981.
The Complaint contained a Motion for Conditional Class Certification to certify a
class of similarly situated employees for a collective action under the Fair Labor
Standards Act (“FLSA”), as amended, 29 U.S.C. § 201 et seq.
On May 18, 2011, Plaintiff amended his Complaint to add six additional
Defendants: Wendy Tapp, Dean Tapp, Wings of Alpharetta, Inc., Greg Dockery,
Vipul Patel, and “other John Doe(s) owners.” (Id. at 1). The Amended Complaint
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alleges violations of Title VII; 42 U.S.C. § 1981; the FLSA; and
O.C.G.A. § 34-7-2.
Plaintiff also alleges that Wings “regularly alters, redacts, and under reports
[sic] hours worked by its non-exempt hourly employees to avoid payment of
regular and overtime” wages. (Id. at 12). The Amended Complaint also included
the same Motion for Conditional Class Certification that was in the original
Complaint. (Id. at 13).
On June 22, 2011, Dockery moved to dismiss this action for failure to state a
claim upon which relief could be granted. On July 21, 2011, Plaintiff voluntarily
dismissed Tapps Two, Wendy Tapp, and Dean Tapp. On July 25, 2011, Dockery
moved to strike the Motion for Conditional Class Certification from the Amended
Complaint on the grounds that Plaintiff had failed to show: (1) that other
employees were similarly situated; (2) that similarly situated employees wished to
join his suit; and, (3) that Plaintiff had violated the Local Rules for submitting
motions by including it within the body of his Amended Complaint. On August 2,
and August 3, 2011, respectively, Wings and Patel filed their own motions to
dismiss.
On September 13, 2011, the Magistrate Judge issued his Non-Final R&R.
The Magistrate Judge recommended that: (1) Dockery’s Motion to Strike [25] be
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granted and the Motion for Conditional Class Certification [6] be stricken; (2)
Plaintiff’s Title VII and § 1981 claims against all Defendants, except Wings, be
dismissed with prejudice; (3) the FLSA claims against all Defendants be dismissed
without prejudice; (4) the state law nonpayment of wages claims be dismissed with
prejudice as to Dockery, and without prejudice as to all other Defendants. (NonFinal R&R at 31). The Magistrate Judge concluded that the only claims that
should remain were Plaintiff’s Title VII and § 1981 claims against Wings. (Id. at
31-32).
On November 4, 2011, the Court reviewed the findings and
recommendations in the Non-Final R&R and concluded plain error was not
committed in reaching them. The Court dismissed all claims except for Plaintiff’s
Title VII and § 1981 claims against Wings and struck Plaintiff’s Motion for
Conditional Class Certification. (Order of Nov. 4, 2011, at 6-7).
On January 18, 2013, after discovery was completed and the parties filed
numerous motions, the Magistrate Judge issued his Final R&R. The Magistrate
Judge recommends that Defendant’s Motion for Summary Judgment be granted
because Plaintiff is unable to satisfy his burden of proof in demonstrating
discrimination under Title VII by direct or circumstantial evidence. (Final R&R at
2). The Magistrate Judge concluded that Plaintiff was unable to satisfy his burden
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of showing the fourth element of his prima facie case, disparate treatment or some
other evidence of discriminatory intent, under the McDonnell Douglas burdenshifting framework for a Title VII claim. (Id. at 22). The Magistrate Judge found
no disparate treatment because Plaintiff’s replacement was African-American, as
were the two other dishwashers who were hired after his replacement, and the
conduct and circumstances of non-protected class employees, Caucasians, who
were not fired for being a “no call / no show” were not nearly identical to those of
Plaintiff. (Id. at 22-30).
The Magistrate Judge also found that Plaintiff’s proffered proof of
discriminatory statements by decision makers were insufficient to show
discriminatory intent because they did not relate to the decision to fire Plaintiff for
not showing up at work or any other employment decisions. (Id. at 30-34). The
Magistrate Judge further found that summary judgment should be granted to
Defendant because Plaintiff has not pointed to any evidence to rebut Defendant’s
claim that it terminated Plaintiff for the legitimate, non-discriminatory reason that
he failed to show up for work or call in to explain why he was unable to come in.
(Id. at 34-40).
Because Plaintiff’s Section 1981 claim involves the same elements as his
Title VII claim, the Magistrate Judge also recommended that summary judgment
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be granted for Defendant on the remaining claim. (Id. at 40). The Magistrate
Judge further recommended that Plaintiff’s other various motions all be denied.
(Id. at 41-48).
On February 4, 2013, Plaintiff filed his “(Corrected) Plaintiff’s Appeal of the
Court’s Final Report and Recommendation and Order” [167] (“Objections”).
Although styled as an “Appeal,” the Court presumes that Plaintiff intended his
filing to constitute his objections to the Final R&R. Plaintiff offers three
objections to the Final R&R: (1) the Magistrate Judge erred by failing to examine
Plaintiff’s comparators in detail; (2) the Magistrate Judge erred because “[a]n
employer may violate Title VII if it takes action against an employee because of
the employee’s association with a person of another race;” and, (3) the Magistrate
Judge applied the wrong legal standard to the analysis of Plaintiff’s claims because
Plaintiff was not required to show that he was not replaced by a non-African
American. (Pl.’s Objections at 6-20).
II.
DISCUSSION
A.
Standard of review of a Magistrate Judge’s R&R
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.
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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 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 Board of Educ. of Ga., 896 F.2d 507, 512
(11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2d 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.
Plaintiff’s Objections
1.
Plaintiff’s First Objection
Plaintiff conclusorily states that the Court failed to examine his comparators
in detail to determine if they were similarly-situated in all relevant respects. (Pl.’s
Objections at 5-9). Plaintiff’s first objection is meritless because the Magistrate
Judge evaluated Plaintiff’s comparators in detail and made an assessment of
whether they supported his claim of disparate treatment. (Final R&R at 23-30). If
Plaintiff asserts that the Court was required to examine, as comparators, the
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persons Defendant identified as examples of employees who were fired for being a
“no call / no show,” the Magistrate Judge explicitly stated that he did not rely upon
the persons identified by Defendant in making his conclusions and
recommendations regarding Plaintiff’s claims because a “list of non-exclusive
‘examples’ does not supply the Court with enough information” to consider those
persons as comparators. (Id. at 30 n.5). The Court finds that none of the persons
identified as comparators by Plaintiff are similarly-situated to him in all relevant
respects such that disparate treatment of Plaintiff has been shown. See Stone &
Webster Constr. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012);
Brown v. Jacobs Eng’g, Inc., 401 F. App’x 478, 480 (11th Cir. 2010); Knight v.
Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316-17 (11th Cir. 2003). Plaintiff’s
first objection is overruled.
2.
Plaintiff’s Second Objection
Plaintiff next claims that “[a]n employer may violate Title VII if it takes
action against an employee because of the employee’s association with a person of
another race.” (Pl.’s Objections at 10). This objection is unfounded. Plaintiff’s
Title VII claim was based on his alleged discharge for discriminatory reasons
based on his race. The Magistrate Judge properly analyzed Plaintiff’s claim as a
Title VII claim based on racial discrimination and determined that he did not
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establish a prima facie case under the McDonnell Douglas burden-shifting
framework and found that Plaintiff was discharged for legitimate, nondiscriminatory reasons. (Final R&R at 34, 40). Even if Plaintiff’s Title VII claim
was based on Defendant’s disapproval “of interracial association”—which it was
not—Plaintiff’s second objection does not challenge the conclusions and
recommendations of the Magistrate Judge, and for all these reasons Plaintiff’s
second objection is overruled.2
3.
Plaintiff’s Third Objection
In Plaintiff’s third objection, he asserts that the Magistrate Judge applied the
wrong legal standard to the analysis of Plaintiff’s claims because Plaintiff was not
required to show that he was not replaced by a non-African American. (Pl.’s
Objections at 10-20). Plaintiff’s objection is without merit. The Magistrate Judge
evaluated Plaintiff’s claims by applying the correct standard of law under the
McDonnell Douglas framework. (Final R&R at 17-21). The Magistrate Judge did
not require Plaintiff to show that he was “replaced by a non-African American” to
2
Plaintiff did not object to the Magistrate Judge’s conclusion that Plaintiff’s
termination was motivated by legitimate, non-discriminatory reasons and was not a
pretext for a discriminatory adverse employment action. (Final R&R at 40). The
Court finds that the Magistrate Judge did not plainly err and this conclusion is
adopted by the Court. Thus, even assuming Plaintiff made out a prima facie case
of discrimination under a racial discrimination or “interracial association” theory,
he is unable to prevail on his Title VII or Section 1981 claims and summary
judgment for Defendant is appropriate.
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establish a prima facie case of discrimination. (Id. at 21-22). The Magistrate
Judge stated: “[n]otably, Plaintiff was not terminated in favor of a non-African
American hire,” and conducted his analysis of Plaintiff’s claim by assessing
whether Plaintiff had shown disparate treatment or some other evidence of
discriminatory intent in making his prima facie case. (Id. at 22-34). The Court
finds the Magistrate Judge did not require Plaintiff, to make his prima facie case,
to show he was replaced by a non-African American. The Magistrate Judge
correctly evaluated Plaintiff’s Title VII racial discrimination claim, and Plaintiff’s
third objection is overruled.
III.
CONCLUSION
Having conducted its de novo review, the Court determines that the
Magistrate Judge did not plainly err in his findings and recommendations.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Objections [167] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Justin S. Anand’s
Final R&R [164] is ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [111] is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike the
Affidavit of Gregory Dockery [153] and Motion for a Court Order [158] are
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [135] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s
Motion for Summary Judgment [146] is DENIED AS MOOT.
SO ORDERED this 13th day of March, 2013.
_________________________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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