White v. Crystal Mover Services, Inc
Filing
46
OPINION AND ORDER that Magistrate Judge Justin S. Anand's 39 Final Report and Recommendation is ADOPTED AS MODIFIED. The Defendant's 42 Objection to the R&R is SUSTAINED, and Defendant's 29 Motionfor Summary Judgment is GR ANTED on Plaintiff's claim that Defendant failed to promote Plaintiff to an Engineer position in 2011 because of Plaintiff's race. IT IS FURTHER ORDERED that the Plaintiff's 43 Objections to the R&R are OVERRULED. IT IS FURTHER ORDERED that this action is DISMISSED. Signed by Judge William S. Duffey, Jr on 9/18/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LEROY WHITE,
Plaintiff,
v.
1:13-cv-01452-WSD
CRYSTAL MOVER SERVICES,
INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s
Non-Final Report and Recommendation (“R&R”) [39] on Defendant Crystal
Mover Services Inc.’s (“Crystal Mover”) Motion for Summary Judgment [29].
I.
BACKGROUND
A.
Facts1
On June 1, 2009, Plaintiff Leroy White (“Plaintiff”) was hired as a
Technician by Defendant Crystal Mover to service the Automated People Mover
(“APM”) system at the Atlanta Hartsfield-Jackson International Airport
1
The facts are taken from the R&R and the record. The Court finds no plain error
in the facts. To the extent that the parties have not objected to any specific facts
determined in the R&R, the Court adopts them. See Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993).
(“Airport”). Alford McCarthy (“McCarthy”), an African-American site manager,
was responsible for Operations and Maintenance of the APM system at the Airport.
On July 22, 2009, McCarthy promoted Plaintiff to the position of a Lead
Technician. Crystal Mover’s employees were assigned to one of three shifts at the
Airport. The first shift began at 6:00 a.m. and ended at 2:30 p.m. The second shift
began at 2:00 p.m. and ended at 10:30 p.m. The third shift began at 10:00 p.m. and
ended at 6:30 a.m. In October 2009, McCarthy assigned Plaintiff to work on the
third shift. Plaintiff was responsible for retrieving, repairing, and performing
maintenance on the trains at the Airport.
At the end of 2009 and in the beginning of 2010, Plaintiff complained to
McCarthy that Caucasian employees at Crystal Mover conversed with AfricanAmericans by raising their voices and speaking in “hostile tones.” Plaintiff
testified at his deposition that, in 2010, McCarthy told Plaintiff to “leave the white
boys alone.” Plaintiff claims that Caucasian employees had complained to
McCarthy because Plaintiff sent two African-American employees to train in the
central control room. Employees in the central control room use computer
televisions and cameras to monitor the tracks and stations. Plaintiff further
testified that, in February, 2011, McCarthy told a number of employees that “the
difference between a white worker and a black worker [is that] a black worker
2
wants to work four hours and sit down for four hours . . . [A] white worker is a
good worker. A white worker will work with you all day. He will help you in any
way he can. He is a good worker.” Def.’s Statement of Material Facts at ¶ 83;
Pl.’s Dep. at 53-55.
On March 31, 2011, Crystal Mover solicited applications for two Engineer
positions that required potential candidates to perform “backup supervisory or
managerial services” for the APM system at the Airport. Def.’s Statement of
Material Facts at ¶ 50. Applicants for the Engineer positions were required to hold
a “Bachelor’s degree in Electrical or Mechanical engineering or equivalent
experience.” Id. Plaintiff applied for the Engineer position by submitting a cover
letter, resume, and a list of the training he had received at Crystal Mover. John
Champ (“Champ”), Vice-President of Operations and Maintenance, and Bob
Mihalco (“Mihalco”), Vice President of Human Resources, reviewed the
applications for the Engineer positions.
McCarthy, Michael Marshall, an African-American Engineer in Operations
and Maintenance, and Akiko Yoshida, an Asian-American Administrative
Assistant in Human Resources (“HR”), provided advice on the selection of
candidates to interview for the Engineer positions. Champ and Mihalco decided to
interview two Caucasian employees and two African-American employees for the
3
Engineer positions. Champ, Mihalco and McCarthy interviewed the applicants,
and selected Chad Perret (“Perret”), a Caucasian Lead Technician, and Gus Bush
(“Bush”), an African-American Technician, for the Engineer positions. Bush was
selected because he has a college degree and 23 years of experience working for
the Metropolitan Atlanta Transit Authority (“MARTA”). At MARTA, Bush
attained experience in supervisory roles. Perret was selected because he has a
Bachelor’s degree in Electrical Engineering, nine years of experience in the
engineering field, and supervised other employees as an assistant project manager
at another company before he started working at Crystal Mover.
Defendant asserts that Plaintiff was not selected for an interview because
Plaintiff did not have supervisory experience, and Defendant was not aware when
the interview decision was made that Plaintiff had previous experience in a
supervisory role.2
Plaintiff claims that, in 2009, McCarthy offered Plaintiff an Engineer
position in Miami, but Plaintiff did not accept McCarthy’s offer because he did not
2
Plaintiff contends that he previously owned his own company where he
supervised over 50 employees. Plaintiff admits that he did not list any supervisory
experience on the resume that he submitted for the Engineer position. Plaintiff
believes that McCarthy, Mihalco and Champ were aware of Plaintiff’s supervisory
experience because he informed them about his prior experience during his initial
interview with Crystal Mover in June 2009.
4
want to relocate to Miami. Defendant states that McCarthy was not authorized to
offer Plaintiff a position in Miami, and that Plaintiff was not formally offered a
position in Miami in 2009.
Plaintiff believes that he was not selected for an interview for the Engineer
position because McCarthy was involved in the selection of candidates. On
May 2, 2011, Plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”), in which he alleged that Crystal Mover discriminated
against him because of his race and national origin.
On March 5, 2012, Crystal Mover solicited applications for one Engineer
position after Bush left the company. Plaintiff applied for this position by
submitting the same application materials that he submitted for the Engineer
position in 2011. Plaintiff also included certificates of relevant training that he had
completed at various institutions and employers. Crystal Mover interviewed all the
candidates that applied for the Engineer position. Mihalco, Champ, McCarthy,
Marshall, Yosihda and Perret interviewed Plaintiff. Joseph Nelson, an AfricanAmerican, was selected for the Engineer position because he has an associate’s
degree in electronics, twenty-eight years of electrical-mechanical experience, and
supervisory experience from his previous jobs. Defendant asserts that Plaintiff was
not selected for the Engineer position because he does not have a college degree or
5
relevant supervisory experience, and Plaintiff did not impress the interview panel
during the interview process. Plaintiff believes that he was not chosen for the
Engineer position in 2012 because he filed a charge of racial discrimination against
Crystal Mover with the EEOC.
Plaintiff also claims that, in 2011, he was denied opportunities to work
overtime because of his race, even though Caucasian employees were given
opportunities to work overtime. On October 28, 2010, McCarthy informed all
employees that overtime opportunities would be reduced at Crystal Mover, and
employees could not work overtime unless they were scheduled to do so by the
company. In January 2011, Champ emailed McCarthy and stated that overtime at
the Airport was “off the charts,” and there was no way that “excessive overtime”
could continue. As a result, Crystal Mover implemented a seniority-based system
(the “matrix system”) for the distribution of overtime opportunities.
According to Defendant, when there was an overtime opportunity, the
Engineer on the shift looked at the matrix, and asked the employee on the top of
the list if the employee was available to work, and the Engineer would move down
the list until an available employee was found. Plaintiff argues that overtime
opportunities were not distributed pursuant to the matrix system, and that certain
Caucasian employees continued to work overtime. Plaintiff had the highest
6
number of overtime hours worked by a Technician in 2009, and the second highest
number of overtime hours worked by a Technician in 2010. In 2011, four AfricanAmerican employees had the second, third, fourth, and fifth highest number of
overtime hours. Overall, the overtime hours worked by Crystal Mover’s
employees decreased from 10,682.87 hours in 2010 to 4,821 hours in 2011.
Defendant asserts that the majority of overtime hours are worked during the
third shift because only half of the system is operational at that time, which allows
for maintenance to be performed without interfering with the system’s availability.
Christopher Hite, a Caucasian Technician, had the highest number of overtime
hours in 2011. Defendant explains that Hite was required to work overtime
because there were problems with the Daily Recording and Reporting System
(“DRR”) and the Power Distribution System (“PDS”). Hite was an expert in DRR
and PDS. Tim Fox, an Asian-American Technician, had the second highest
number of overtime hours, in part, because he worked on the second shift.
Employees on the first and second shift have more opportunities to work overtime
because the majority of overtime opportunities occur during the third shift.3
Plaintiff claims that, because of his race, towards the end of 2011 and the
3
An employee who works on the first or second shift would have opportunities to
perform the more available overtime on the third shift. Fox, a second shift
employee, could incur overtime by continuing to work into the third shift.
7
beginning of 2012, he was not allowed to clock in to work 15 minutes early, and
was not paid for this additional time. Plaintiff alleges that Hite and Fox were able
to clock in 15 minutes early and were paid for this additional time. From August
2010 to July 2012, Plaintiff clocked in 15 minutes early, and he was paid for this
additional time on 62 days. During the same time period, Fox and Hite clocked in
15 minutes early, and they were paid for the additional time on 45 and 41 days,
respectively. On October 1, 2011, Crystal Mover instructed its employees not to
clock in 15 minutes earlier than their start time. On November 14, 2011, Crystal
Mover sent a memorandum to all employees stating that all employees are required
to work from their scheduled start time to their scheduled end time, and that
employees will only be paid for the time they were scheduled to work. The
memorandum also stated that the policy was being implemented because a recent
audit showed that clocking in early was “causing a significant impact on the
budget” of the site. Def.’s Statement of Material Facts at ¶ 218.
B.
Procedural History
On April 30, 2013, Plaintiff filed this action against Crystal Mover, asserting
numerous claims of race-based discrimination and unlawful retaliation under 42
U.S.C. § 1981(a). On January 15, 2014, Crystal Mover moved for summary
judgment. On June 24, 2014, Magistrate Judge Justin Anand issued his R&R on
8
the summary judgment motion. In the R&R, the Magistrate Judge recommended
that (i) Defendant’s Motion for Summary Judgment be denied on Plaintiff’s claim
that Defendant failed to promote Plaintiff to the Engineer position in 2011 because
of his race, and (ii) Defendant’s Motion for Summary Judgment be granted on
Plaintiff’s remaining claims for race-based discrimination and unlawful retaliation.
On July 9, 2014, Defendant objected to the R&R on the ground that the
Magistrate Judge’s recommendation that summary judgment not be granted on
Plaintiff’s claim that Crystal Mover failed to promote Plaintiff to the Engineer
position in 2011 because of his race, should be overruled. On July 11, 2014,
Plaintiff objected to the R&R on the ground that there are genuine issues of fact
regarding Plaintiff’s race-based discrimination claims for (ii) the denial of
overtime opportunities, (ii) the failure to pay Plaintiff for clocking in earlier than
his scheduled time; and (iii) the failure to promote Plaintiff to an Engineer position
in 2012 because Plaintiff filed a discrimination complaint with the EEOC. Plaintiff
claims that summary judgment should not be granted on these claims. Neither
party objected to the Magistrate Judge’s findings and conclusions regarding
Plaintiff’s other claims for race-based discrimination.
9
II.
DISCUSSION
A.
Legal Standards
1.
Standard of Review for R&Rs
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) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). 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). If no party has objected to the report and recommendation, a
court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
2.
Summary Judgment Standard
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the
burden of demonstrating the absence of a genuine dispute as to any material fact.
Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the
10
moving party has met this burden, the non-movant must demonstrate that summary
judgment is inappropriate by designating specific facts showing a genuine issue for
trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
The non-moving party “need not present evidence in a form necessary for
admission at trial; however, he may not merely rest on his pleadings.” Id.
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Where the record tells two
different stories, one blatantly contradicted by the evidence, the Court is not
required to adopt that version of the facts when ruling on summary judgment. Id.
“[C]redibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party
opposing summary judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.’” Scott, 550 U.S. at 380 (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A party is entitled
11
to summary judgment if “the facts and inferences point overwhelmingly in favor of
the moving party, such that reasonable people could not arrive at a contrary
verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (internal quotations omitted).
B.
Analysis
1.
Unobjected-to Findings of the R&R
The Magistrate Judge found that Plaintiff failed to establish a prima face
case of discrimination based on allegations that (i) Plaintiff’s workplace was
pervasively permeated with discriminatory intimidation, ridicule, and insult, (ii)
Plaintiff was not promoted in 2012 because of his race, (iii) Plaintiff was denied
the opportunity to train in central control in 2011 because of his race; (iv) Plaintiff
was disciplined disproportionately compared to Caucasian employees; and (v)
Plaintiff was disciplined for tardiness at work in retaliation for submitting a
complaint to the EEOC. Neither party objected to the Magistrate Judge’s
recommendation that Plaintiff failed to meet his burden to show a prima facie case
of race-based discrimination and unlawful retaliation regarding the five claims
listed above. The Court finds no plain error in these findings, and the Defendant’s
Motion for Summary Judgment is granted on the five claims listed above.
12
2.
Failure to Promote in 2011
“A plaintiff establishes a prima facie case of discriminatory failure to
promote by showing that (1) he is a member of a protected class; (2) he was
qualified and applied for the promotion; (3) he was rejected despite his
qualifications; and (4) other equally or less qualified employees who were not
members of the protected class were promoted.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1080 (11th Cir. 2005). For the purpose of the Court’s review of the
R&R, the Court assumes that Plaintiff established a prima facie case of
discrimination. Defendant articulated a legitimate, nondiscriminatory reason for
declining to interview Plaintiff for the Engineer position in 2011. Defendant
contends that Plaintiff did not have supervisory experience, and Defendant was not
aware of Plaintiff’s previous experience in a supervisory role. Under the
McDonnell Douglas framework, the burden is on the Plaintiff to demonstrate that
Crystal Mover’s articulated reason is a pretext for unlawful discrimination.
Plaintiff must show “such weaknesses, implausibilities, inconsistencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997). An employer’s
reason is not a pretext for unlawful discrimination “unless it is shown both that the
13
reason was false, and that discrimination was the real reason.” Brooks v. County
Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) (internal
citations and quotation marks omitted) (emphasis in original).
“In the context of a promotion, a plaintiff cannot prove pretext by simply
arguing or even by showing that he was better qualified than the [person] who
received the position he coveted. A plaintiff must show not merely that the
defendant’s employment decisions were mistaken but that they were motivated by
race.” Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1349
(11th Cir. 2007). A plaintiff is also required to show that “the disparities between
the successful applicant’s and his own qualification were ‘of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff.’” Id. (internal quotation
marks and citations omitted).
The Magistrate Judge concluded that there was a genuine issue of fact
regarding whether Defendant failed to promote Plaintiff to an Engineer position in
2011 because of Plaintiff’s race. This finding was principally based on the
discriminatory comments that McCarthy had allegedly made in February, 2011.
McCarthy allegedly told a number of employees that “the difference between a
white worker and a black worker [is that] a black worker wants to work four hours
14
and sit down for four hours . . . [A] white worker is a good worker. A white
worker will work with you all day. He will help you in any way he can. He is a
good worker.” Def.’s Statement of Material Facts at ¶ 83; Pl.’s Dep. at 53-55.
Even though McCarthy is an African-American, his alleged statements regarding
the work ethic of African-Americans are, for the purposes of this Motion, deemed
to be discriminatory.
Discriminatory comments, however, that are unrelated to an adverse
employment action, are insufficient to establish pretext in the absence of “some
additional evidence supporting a finding of pretext.” Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002) (internal quotation marks and
citations omitted). McCarthy’s alleged statement regarding the work ethic of
African-Americans is an isolated comment that did not relate to an adverse
employment action required to be taken against Plaintiff or any other AfricanAmerican employee at Crystal Mover. Isolated comments that are unrelated to an
adverse employment action are required to be “read in conjunction with the entire
record” and “considered together with” the other evidence in the case. Id. at 122930.
McCarthy was not the only manager that provided advice on the selection of
candidates to interview for the Engineer position. Marshall, an African-American
15
Engineer, and Yoshida, an Asian-American HR employee, also advised on the
selection of candidates to interview for the Engineer position. Plaintiff does not
contend, and he has not presented any evidence, that Yoshida and Marshall shared
McCarthy’s allegedly discriminatory outlook or harbored racial animus towards
African-Americans in the interview selection process. Champ and Mihalco
ultimately decided to interview four candidates for the Engineer position. Two
African-Americans and two Caucasians were selected to be interviewed.
Plaintiff assumes that McCarthy influenced Champ and Mihalco to disregard
Plaintiff’s application because of Plaintiff’s race, but this assumption is not
supported by any evidence. There is no evidence that Champ and Mihalco
considered race as a factor in selecting candidates for the interview. The evidence,
in fact, shows that Champ and Mihalco’s selection of candidates was not motivated
by race. This is ultimately confirmed by the fact that Bush, an African-American
Technician—and a member of Plaintiff’s protected class—was selected for the
Engineer position because he has a college degree and 23 years of experience at
MARTA, including experience attained in supervisory roles.4
4
Plaintiff seeks to have it both ways, arguing that he was qualified for the Engineer
position because McCarthy offered him an Engineer position in Miami in 2009,
but, in 2011, McCarthy manipulated four different managers to disregard
Plaintiff’s application because of his race. That McCarthy allegedly offered
Plaintiff an Engineer position in Miami, even though Plaintiff does not have a
16
Plaintiff has failed to present evidence of pretext in this matter sufficient to
create a dispute of fact to avoid summary judgment. “Read in conjunction with the
entire record” and “considered together with” the other evidence, McCarthy’s
alleged statement regarding the general work ethic of African-Americans is
insufficient to establish that Defendant’s failure to promote Plaintiff in 2011 was
motivated by unlawful discrimination. Id. at 1229-30.
Plaintiff also has failed to show that the “disparities between the successful
applicant’s and his own qualifications were ‘of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff.’” Springer, 509 F.3d 1349 (internal quotation
marks and citations omitted). Perret, a Caucasian Lead Technician, was selected
for the Engineer position because he has a Bachelor’s degree in Electrical
Engineering, nine years of experience in the engineering field, and supervised
other employees as an assistant project manager at another company before
working at Crystal Movers. Plaintiff does not have a college degree. Plaintiff
claims that he was qualified for the Engineer position because he supervised 50
employees at his own company, but he did not list this fact on the resume he
college degree or the requisite supervisory experience, undermines Plaintiff’s
allegations of racial discrimination against McCarthy.
17
submitted for the Engineer Position. At his deposition, Plaintiff ultimately
conceded that he worked only with subcontractors at his own company, and that
his company did not have any formal employees. White Dep. at 98:5-25.
Considering the entire record, the Court concludes that Plaintiff has failed to
present evidence that “no reasonable person, in the exercise of impartial judgment,
could have chosen [] [Perret] over the plaintiff.” Springer, 509 F.3d at 1349.
Defendant’s objection to the R&R is sustained, and Defendant’s Motion for
Summary Judgment is granted on Plaintiff’s claim that Defendant failed to
promote Plaintiff to an Engineer position in 2011 because of Plaintiff’s race.
3.
Overtime Opportunities
To establish a prima facie case based on the denial of an employment
opportunity, a plaintiff must show that (1) he is a member of a protected class, (2)
he was subjected to an adverse employment action by his employer, (3) he was
qualified to do the job in question, and (4) his employer treated similarly situated
employees of a different race more favorably than it treated him.
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Crystal Mover’s records
indicate that, in 2011, Plaintiff worked 112 hours of overtime, Hite, a Caucasian
Technician, worked 606 hours of overtime, and Tim Fox, an Asian-American
Technician, worked 396 hours of overtime. Based on these facts, the Magistrate
18
Judge concluded that Plaintiff established a prima facie case of discrimination
because two Technicians outside Plaintiff’s protected class were treated more
favorably regarding overtime pay in 2011.5 The Court finds no plain error in this
finding.
Plaintiff objects to the Magistrate Judge’s determination that there is no
evidence of pretext regarding Crystal Mover’s proffered reasons for the disparity in
overtime pay. In 2011, Crystal Mover implemented the matrix system for the
distribution of overtime opportunities. This matrix was based on a random method
for assignment of overtime opportunities that was utilized by the Engineer on a
particular shift. The Engineer looked at the matrix, asked the employee on the top
of the matrix if the employee was available to work, and then moved down the list
until an available employee was found. Plaintiff does not dispute the existence of
the matrix system, but he argues that the matrix should be disregarded because two
5
Plaintiff also claims that Matt Lowe, an employee of Desmear, had higher
overtime hours and is, therefore, a relevant comparator for the purpose of
analyzing this discrimination claim. Desmear is a subcontractor of Crystal Mover
that provides supplemental staff at the Airport. Crystal Mover does not employ
Lowe. Plaintiff has not presented any evidence that Crystal Mover distributed
overtime opportunities to Lowe. The Court concludes that Lowe is not a relevant
comparator, or a similarly situated employee, for the purpose of analyzing
Plaintiff’s discrimination claim based on the denial of overtime in 2011.
19
employees outside his protected class had higher overtime hours than Plaintiff.6
Hite had the highest number of overtime hours because there were problems
with DRR and PDS, and Hite is an expert on those systems. Fox worked on the
second shift. Employees on the first and second shift are given more opportunities
to work overtime because the majority of overtime hours are worked during the
third shift. Plaintiff worked on the third shift. As a result, Plaintiff’s ability to
work overtime was limited. Based on these uncontested facts, the Court concludes
that the Plaintiff has failed to show that the Defendant’s reasons for the disparity in
overtime pay in 2011 are a pretext for unlawful discrimination. Combs 106 F.3d at
1528.
An employer’s reason is not a pretext for unlawful discrimination “unless it
is shown both that the reason was false, and that discrimination was the real
reason.” Brooks, 446 F.3d at 1163 (internal citations and quotation marks omitted)
(emphasis in original). Plaintiff relies on the fact that two individuals outside his
protected class had higher overtime hours to assume that he was denied overtime
6
Plaintiff also relies on his own testimony to argue that McCarthy “approved”
overtime hours, and McCarthy’s alleged statement about the work ethic of AfricanAmericans is evidence of discrimination regarding Plaintiff’s overtime claim.
Even if the Court assumes that McCarthy ultimately “approved” the assignment of
overtime hours, there is no dispute that McCarthy did not “assign” overtime hours.
Overtime hours were assigned, based on the matrix system, by an Engineer
responsible for the Technicians on a particular shift.
20
opportunities because of his race. Plaintiff has failed to rebut the Defendant’s
legitimate, nondiscriminatory reasons for the allocation and assignment in
overtime pay opportunities, and Plaintiff has not presented any evidence that
“discrimination was the real reason” for the allocation and assignment of overtime
work. Plaintiff’s objection is overruled, and Defendant’s Motion for Summary
Judgment is granted on Plaintiff’s overtime claim.
4.
Clocking in Early
In his Opposition to Crystal Mover’s Motion for Summary Judgment,
Plaintiff alleged that Fox and Hite were able to clock in up to 15 minutes early and
were paid for the additional time, but African-American employees, including
Plaintiff, were not paid for additional time if they clocked in earlier than their
scheduled time for work. The Magistrate Judge found that Plaintiff failed to
establish a prima facie case of discrimination because, from August 2010 through
December 2011, Plaintiff was paid for clocking in early on 62 days, Fox was paid
for clocking in early on 45 days, and Hite was paid for clocking in early on 41
days. The Magistrate Judge concluded that Plaintiff failed to establish a prima
facie case of discrimination because he was treated more favorably than Hite and
Fox.
Plaintiff objects to the Magistrate Judge’s findings regarding this claim and
21
asserts, for the first time in his Objections to the R&R, that he was directed to stop
clocking in early, but Hite and Fox were allowed to keep doing so. There is no
evidence to support this assertion. Plaintiff claims to know that Hite and Fox were
able to clock in 15 minutes early because he saw their time sheets, but Plaintiff
does not remember the date or month of the time sheets. Plaintiff also has not
presented any evidence that Hite and Fox were able to clock in 15 minutes early,
but Plaintiff was not able to do so, after the Defendant implemented a policy that
discouraged employees from clocking in early to get paid for additional time.
Plaintiff’s conclusory allegations are insufficient to raise an inference of
intentional discrimination. See Young v. General Foods Corp., 840 F.2d 825, 829
(11th Cir. 1988). Plaintiff’s objection to the R&R regarding this claim is
overruled, and Defendant’s Motion for Summary Judgment is granted.
5.
Failure to Promote in 2012
To establish a prima facie case of unlawful retaliation, a plaintiff must show
that (1) he engaged in a protected activity or expression, (2) he received an adverse
employment action, and (3) there is a causal link between the protected activity or
expression and the adverse action. See Wideman v. Wal-Mart Stores, Inc., 141
F.3d 1453, 1454 (11th Cir. 1998).
Plaintiff claims that he was not promoted to an Engineer position in 2012
22
because he filed a charge of discrimination against the Defendant with the EEOC.
On May 2, 2011, Plaintiff filed a charge with the EEOC, in which he alleged that
Defendant discriminated against him because of his race and national origin. On
March 5, 2012, Defendant solicited applications for an Engineer position after
Bush left the company. On May 29, 2012, Plaintiff was informed that he was not
selected for the Engineer position.
In his opposition to the Defendant’s Motion for Summary Judgment,
Plaintiff did not contend that temporal proximity provides evidence of a causal link
between his EEOC complaint and Defendant’s decision not to select Plaintiff for
the Engineer position. The Magistrate Judge found that there was no evidence of
temporal proximity because Plaintiff filed a complaint with the EEOC over a year
before Defendant selected Nelson for the Engineer position. In his Objections to
the R&R, Plaintiff now argues that there is evidence of temporal proximity because
McCarthy received a written disciplinary warning on February 27, 2012. This
argument is untimely since it is offered in response to the R&R and was not raised
before. See Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009). Even if
the argument is considered, it does not have merit.
In July, 2011, Mihalco, and Fumi Takashina, a manager in the
Compensation and Benefits Department, conducted an internal investigation in
23
response to Plaintiff’s EEOC complaint. Mihalco and Takashina determined that
there was no evidence that unlawful discrimination or harassment had taken place
at the Airport. Following the investigation, McCarthy was orally reprimanded “for
poor performance discovered during the investigation, specifically, employee
relations, some inappropriate comments, and poor judgment when interacting with
employees.” Mihalco Aff. at ¶ 42. The February 27, 2012, letter, “address[ed] the
same issues,” that were verbally discussed with McCarthy in July, 2011, and it
specifically stated that employees had complained that McCarthy “made
insensitive remarks regarding the difference between how black and white workers
do their jobs.” Id.; Ex. 6, attached to Mihalco Affidavit.
There is no dispute that McCarthy was verbally counseled ten months before
Crystal Mover decided to promote Nelson to the Engineer position. Even if the
Court considered the February 27, 2012, disciplinary letter, Plaintiff cannot rely on
it for the speculative claim that McCarthy retaliated against Plaintiff because
McCarthy had been disciplined in July, 2011, almost ten months before the
decision to hire an Engineer was made in May, 2012. McCarthy’s impact on the
selection of candidates was minimal because he was one of six managers that
interviewed Plaintiff for the Engineer position in 2012, and Plaintiff has failed to
present evidence that McCarthy influenced or manipulated five other managers not
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to select Plaintiff because of his race.
Plaintiff’s reliance on McCarthy’s disciplinary letter also is misplaced. A
plaintiff can establish temporal proximity by showing that the challenged decision
followed almost immediately after the protected expression to support the logical
inference that the two events are related. See Clark v. County Sch. Dist. V.
Breeden, 532 U.S. 268, 273 (2001). A gap of three months or more between the
protected activity and the challenged action is too long to support an inference that
the two events are connected. See Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007). In this matter, the gap between the protected activity
and the adverse action exceeded a year. Plaintiff’s objection to the R&R is
required to be overruled because he failed to show a causal link between the filing
of his EEOC complaint and Defendant’s decision to promote Nelson to the
Engineer position. In his Objections to the R&R, Plaintiff claims that he has
shown a prima facie case of unlawful retaliation because he was denied
opportunities for overtime and clocking in earlier than his scheduled time due to
his race. As discussed above, these claims are without merit.
The Court also concludes that Plaintiff failed to show that the Defendant’s
reasons for not selecting Plaintiff are a pretext for unlawful retaliation. Nelson, an
African-American, was selected for the Engineer position because he has an
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associate’s degree in electronics, twenty-eight years of electrical-mechanical
experience, and supervisory experience from his previous jobs. Plaintiff was not
selected for the Engineer position because Plaintiff does not have a college degree
or relevant supervisory experience, and Plaintiff was not impressive during the
interview. Plaintiff has failed to rebut these reasons. Plaintiff has failed to present
any evidence that he was not selected for the Engineer position because Defendant
intended to retaliate against Plaintiff for filing a discrimination complaint with the
EEOC.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [39] is ADOPTED AS MODIFIED. The
Defendant’s Objection to the R&R [42] is SUSTAINED, and Defendant’s Motion
for Summary Judgment [29] is GRANTED on Plaintiff’s claim that Defendant
failed to promote Plaintiff to an Engineer position in 2011 because of Plaintiff’s
race.
IT IS FURTHER ORDERED that the Plaintiff’s Objections to the R&R
are OVERRULED [43].
IT IS FURTHER ORDERED that this action is DISMISSED.
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SO ORDERED this 18th day of September, 2014.
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