Benton v. City of Atlanta et al
Filing
39
OPINION AND ORDER adopting Magistrate Judge Linda T. Walkers Final Report and Recommendation 34 , overruling Plaintiff Joseph F. Benton, IIIs Objections 38 and granting Defendants City of Atlanta, Richard Mendoza, and Yvonne Cowser Yancys Motion for Summary Judgment 29 . Signed by Judge William S. Duffey, Jr on 8/9/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOSEPH F. BENTON, III,
Plaintiff,
v.
1:14-cv-2799-WSD
CITY OF ATLANTA, RICHARD
MENDOZA, Commissioner of
Public Works, and YVONNE
COWSER YANCY, Commissioner
of Human Resources,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [34] (“R&R”), recommending that the Court grant
Defendants City of Atlanta (“City of Atlanta” or the “City”), Richard Mendoza
(“Mendoza”) and Yvonne Cowser Yancy’s (“Yancy”) (together, “Defendants”)
Motion for Summary Judgment [29]. Also before the Court is Plaintiff
Joseph F. Benton, III’s (“Plaintiff”) Objections [38] to the R&R.1
1
Plaintiff is proceeding pro se. “A document filed pro se is to be liberally
construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal
quotation marks omitted).
I.
BACKGROUND
A.
Facts
1.
January 31, 2012 Incident
In January 2012, Plaintiff worked for City of Atlanta as an Environmental
Equipment Operator. (Defendants’ Statement of Undisputed Material Facts in
Support of Defendants’ Motion for Summary Judgment [29.1] (“Statement of
Undisputed Material Facts” or “DSMF”) ¶ 1). Plaintiff drove a sanitation truck
along a garbage collection route, carrying a team of laborers who placed the
garbage in the truck. (DSMF ¶¶ 1-2). The sanitation truck teams staged their
sanitation vehicles in a parking area before leaving at the end of their shifts.
(DSMF ¶ 3). Upon returning to the parking area after completing his route,
Plaintiff often streamed videos on his personal tablet. (DSMF ¶ 4).
On January 31, 2012, after completing his route, Plaintiff sat in his sanitation
truck watching a television show on his tablet. (DSMF ¶¶ 5-6). Plaintiff was
parked across from a sanitation truck belonging to co-worker John Summerour
(“Summerour”),2 and to the right of another truck belonging to co-worker
Kamar Bailey (“Bailey”). (DSMF ¶¶ 8-9). Bailey was seated in his truck.
(DSMF ¶ 9). Plaintiff overheard Summerour speaking loudly “about him having
2
Summerour was not in a supervisory role over Plaintiff. (DSMF ¶ 18).
2
sex, stuff with animals and with dead people and man pussy . . . and he dropped his
trousers.” (DSMF ¶ 7; Deposition of Joseph F. Benton, III, dated Jan. 26, 2016
[28] (“Benton Dep.”), at 35; Benton Dep., Ex. 4, at 4). Plaintiff did not perceive
that Summerour’s comments were directed at him, (DSMF ¶ 10), admits he had no
basis for believing Summerour was speaking to him, (Benton Dep. at 44-45; see
also Benton Dep., Ex. 4, at 12), and did not see Summerour pull down his pants or
expose himself, (Benton Dep., Ex. 4, at 4).
Following Summerour’s comments, Bailey exited his truck and began
arguing with Summerour. (DSMF ¶ 11). Another employee, Auburn Williams,
entered the scuffle to prevent Bailey from fighting with Summerour, but Bailey
and Summerour appeared to leave to obtain weapons. (DSMF ¶¶ 12-14). Plaintiff
exited his truck to get a better view of the fight. (DSMF ¶ 15).
After the altercation, Bailey told Plaintiff that Summerour’s words prior to
the fight were aimed at Plaintiff. (DSMF ¶ 16). Plaintiff had not previously, and
has not since, been involved in an incident with Summerour. (DSMF ¶ 17).
Plaintiff immediately reported the incident to his supervisors and sent an
email to the City of Atlanta’s Department of Human Resources (“HR”), requesting
an investigation. (DSMF ¶¶ 19-20). HR immediately met with Plaintiff and
placed him on paid administrative leave while they investigated his complaint.
3
(DMSF ¶¶ 22-24; see also Benton Dep., Ex. 4). The investigation resulted in
disciplinary action against Summerour, who was terminated, and three (3) other
employees, including Plaintiff. (DMSF ¶¶ 25, 27). Plaintiff testified at
Summerour’s Civil Service Board hearing after Summerour appealed his
termination. (DSMF ¶ 26). When Plaintiff returned to work, Summerour had been
removed from the workplace. (DSMF ¶ 27).
2.
Plaintiff’s Termination
Plaintiff often video-recorded interactions in the workplace. (DMSF ¶ 30;
Benton Dep. at 88:6-8). Prior to the January 31, 2012, incident, Plaintiff’s
supervisor, Douglas Raikes, warned Plaintiff that he was prohibited from filming
in the workplace. (DMSF ¶ 29; Benton Dep, Ex. 4, at 5, 9). The investigation into
Summerour’s conduct revealed that Plaintiff continued to film co-workers in the
workplace and during garbage collection routes. (DMSF ¶ 28; Benton Dep., Ex. 4,
at 5, 11). As a result of this prohibited filming, Plaintiff was suspended for five (5)
days without pay. (DMSF ¶ 31; Benton Dep., Exs. 6, 10).
On February 16, 2012, following his suspension without pay, Plaintiff filed,
with the Equal Employment Opportunity Commission (“EEOC”), a discrimination
charge against City of Atlanta. (DSMF ¶ 32). The charge stated:
4
On January 31, 2012, I was subjected to a sexually hostile work
environment, which I immediately reported to my supervisors and
which was subsequently reported to the Human Resources Manager
and Safety Officer. On February 1, 2012 I was placed on
administrative leave with pay. On February 15, 2012, I was accused
of recording the sexually hostile work environment, which I deny, and
was suspended without pay for five days.
The reason provided for the administrative leave was pending an
investigation. The reason provided for the suspension was that I
recorded the sexually hostile work environment.
I believe that I have been discriminated against because of my sex
(male) and retaliated against for having engaged in a protected
activity, in violation of Title VII of the Civil Rights Act of 1964, as
amended.
(DSMF ¶ 33; Compl. at 15).
A year later, on February 7, 2013, Plaintiff recorded a training session at the
City Department of Public Works’ Lakewood Facility. (DSMF ¶ 34). On
July 22, 2013, City of Atlanta terminated Plaintiff’s employment for filming in the
workplace after prior warnings and a suspension. (DSMF ¶ 35; Benton Dep.,
Ex. 12). At the time of his termination, Plaintiff was serving a driving suspension
after having two (2) accidents in his sanitation vehicle, in May and June 2013.
(DSMF ¶ 36). On January 6, 2014, the Civil Service Board, on appeal, upheld
Plaintiff’s discharge. (DSMF ¶ 37; Benton Dep., Ex. 8).
5
B.
Procedural History
On May 27, 2014, after a referral from the EEOC, the United States
Department of Justice (“DOJ”) declined to file suit on Plaintiff’s discrimination
charge. (Compl. at 10). On June 5, 2014, Plaintiff received notice, from the DOJ,
of his right to sue within ninety (90) days. (Compl. at 4, 10). On August 29, 2014,
Plaintiff, proceeding pro se, filed his Application for Leave to Proceed
in Forma Pauperis [1] (“Application”), attaching his Complaint [1.1]. On
September 17, 2014, the Magistrate Judge granted [2] Plaintiff’s Application and
Plaintiff’s Complaint [3] was entered. The Complaint asserts claims, under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5, for
retaliation and a sexually hostile work environment. (Compl. ¶¶ 1, 12-13).
Plaintiff seeks the reinstatement of his employment, back pay, $2,500,000 in
damages, and litigation costs and fees. (Compl. at 8).
On May 12, 2015, the Magistrate Judge issued her Notice to Pro Se
Plaintiff [17] (“Notice”), advising Plaintiff that he must comply with the Local
Rules and the Federal Rules of Civil Procedure. The Notice advised Plaintiff that a
motion is deemed unopposed where the nonmoving party does not file a response
within the time allotted. See LR 7.1(B), NDGa. The Notice further advised
Plaintiff that, on a motion for summary judgment, Plaintiff’s failure to controvert
6
Defendants’ statement of material facts would be taken as an admission of those
facts. See LR 56.1(B)(2), NDGa. On November 24, 2015, the Magistrate Judge
issued her Order on Joint Motion to Extend Time for Filing Dispositive
Motions [25], listing the deadlines for dispositive motions and responses. On
November 24, 2015, the Magistrate Judge issued her Scheduling Order and
Guidelines for Discovery and Summary Judgment Practice [26]. The Magistrate
Judge provided detailed instructions for summary judgment practice, explained the
rules governing statements of undisputed material facts, and warned that Plaintiff’s
failure to comply could result in sanctions, including dismissal of his Complaint.
On February 29, 2016, Defendants timely filed their Motion for Summary
Judgment, attaching their Statement of Undisputed Material Facts. Defendants
argue that summary judgment should be granted on Plaintiff’s claims against
Defendants Mendoza and Yancy because individuals are not liable under Title VII.
Defendants also argue that Plaintiff’s hostile work environment claim fails because
(1) Plaintiff has not established a sufficiently severe or pervasive hostile work
environment, and (2) City of Atlanta took immediate action to remedy Plaintiff’s
concerns about the workplace. Finally, Defendants argue Plaintiff cannot establish
a prima facie case of retaliation under Title VII because Plaintiff (1) has not
offered evidence that he opposed a practice he reasonably believed was made
7
unlawful under Title VII, and (2) cannot establish that his participation in an
activity protected by Title VII was the reason for any adverse employment action.
On March 1, 2016, the Clerk of Court mailed to Plaintiff a Notice to Respond to
Summary Judgment Motion [30]. Plaintiff did not file a response to the summary
judgment motion and Defendant’s Motion for Summary Judgment is deemed
unopposed. See LR 7.1(B), NDGa; cf. Case v. Eslinger, 555 F.3d 1317, 1329
(11th Cir. 2009) (“A party ‘cannot readily complain about the entry of a summary
judgment order that did not consider an argument [he] chose not to develop for the
district court at the time of the summary judgment motions.’” (quoting Johnson v.
Bd. of Regents, 263 F.3d 1234, 1264 (11th Cir. 2001)));
Cit Bank, N.A. v. Andrews, No. 2:15-cv-0091, 2016 WL 3439859, at *8 (N.D.
Ala. June 23, 2016) (“A party who aspires to oppose a summary judgment motion
must spell out his arguments squarely and distinctly, or else forever hold his
peace.” (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260
(1st Cir. 1999) (internal quotation marks omitted))).
On July 11, 2016, the Magistrate Judge issued her R&R, recommending that
Defendants’ Motion for Summary Judgment be granted. On July 20, 2016,
Plaintiff moved [36] for an extension of time to respond to the R&R. On
July 22, 2016, the Court granted [37] Plaintiff’s motion and permitted him to file,
8
on or before August 1, 2016, his objections to the R&R. On August 1, 2016,
Plaintiff filed his Objections.
II.
LEGAL STANDARDS
A.
Motion for Summary Judgment
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. See Fed. R. Civ. P. 56. “An issue of fact is material if it ‘might affect the
outcome of the suit under the governing law.’” W. Grp. Nurseries, Inc. v. Ergas,
167 F.3d 1354, 1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Id. at 1361
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The party seeking summary judgment bears the initial 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). “The
movant[] can meet this burden by presenting evidence showing there is no dispute
of material fact, or by showing that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate
9
burden of proof.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82
(11th Cir. 1999). Once the moving party has met this burden, the nonmoving party
must demonstrate that summary judgment is inappropriate by designating specific
facts showing a genuine issue for trial. Id. at 1282. The nonmoving party “need
not present evidence in a form necessary for admission at trial; however, he may
not merely rest on his pleadings.” Id.
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 v. Harris, 550 U.S.
372, 380 (2007) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)). “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.” Id. “When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for 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.
10
“If the non-movant in a summary judgment action fails to adduce evidence
which would be sufficient, when viewed in a light most favorable to the
non-movant, to support a jury finding for the non-movant, summary judgment may
be granted.” Herzog, 193 F.3d at 1247; see Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002) (a party is entitled 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” (quoting
Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (internal
quotation marks omitted))).
B.
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 specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. See Garvey v. Vaughn, 993 F.2d 776,
11
779 n.9 (11th Cir. 1993); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983) (per curiam).
Plaintiff objects that the R&R omits material facts because it fails to state
(1) that a “medical issue” prevented him from working as a laborer after his
driving privileges were suspended, (2) that his employer “refused to acknowledge
this fact,” (3) that his employment was terminated about a month after he filed a
disability charge with the EEOC, and (4) that his disability charge was later
“upgraded” to a retaliation charge. (Objections at 1). These objections are
meritless for several reasons. First, Plaintiff does not explain the significance of
these alleged facts to his sexually hostile work environment and retaliation claims.
Second, these facts are immaterial because Plaintiff does not allege disability
discrimination, he asserts claims only under Title VII, and “Title VII does not
proscribe disability discrimination, nor does it give protected status to disabled
persons.” Harris v. Potter’s House Family & Children Treatment Ctr., No. 1:13cv-2563, 2013 WL 5436775, at *1 (N.D. Ga. Sept. 27, 2013) (quoting
Lewis v. Zilog, Inc., 908 F.Supp. 931, 953 n.11 (N.D. Ga. 1995)) (internal
quotation marks omitted); (see Compl. at 1-2, 6-8). Third, as Plaintiff repeatedly
was warned, compliance with Local Rule 56.1 is the “only permissible way . . . to
establish a genuine issue of material fact.” Reese v. Herbert, 527 F.3d 1253, 1268
12
(11th Cir. 2008). Plaintiff’s objections are overruled.
Plaintiff’s other objections do not have merit, and are conclusory and
vague.3 The Court reviews the R&R for plain error because Plaintiff’s objections
are “[f]rivolous, conclusive, or general” and do not “specifically identify those
findings objected to.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
III.
DISCUSSION
A.
Undisputed Material Facts
A movant for summary judgment must provide a “separate, concise,
numbered statement of the material facts to which the movant contends there is no
3
Plaintiff asserts, without explanation, the following conclusory objections:
(1) “My rights as an employee and citizen have been violated and my rights were
taken away,” (2) “My employer did not follow rules for investigated [sic] my
charge of Sexual Harassment,” (3) “My employers did not follow the steps for
adverse action against an employee,” and (4) “I have endured a hostile workplace
since January 31, 2012.” (Objections at 2). Plaintiff also asserts that (1) he was
unable to obtain certain (unspecified) documents before filing his objections, (2) he
did not depose any witnesses due to costs, and (3) his “defense is limited” because
he is not a “legal expert.” (Objections at 2). These do not constitute specific
objections to any portion of the R&R and do not excuse Plaintiff’s failure to
respond to the Motion for Summary Judgment after being repeatedly warned about
the consequences of not filing a response. Plaintiff also was granted an extension
of time to file his objections, and did not request a further extension. Finally,
Plaintiff attaches to his Objections approximately fifty (50) pages of documents,
the relevance of which he does not coherently explain. The Court addresses below
Plaintiff’s objection, construed liberally, that he was suspended for video-recording
the incident on January 31, 2012.
13
genuine issue to be tried.” LR 56.1(B)(1), NDGa. The respondent must then file a
response to the movant’s statement:
(1)
This response shall contain individually numbered, concise,
nonargumentative responses corresponding to each of the
movant’s numbered undisputed material facts.
(2)
This Court will deem each of the movant’s facts as admitted
unless the respondent: (i) directly refutes the movant’s fact
with concise responses supported by specific citations to
evidence (including page or paragraph number); (ii) states a
valid objection to the admissibility of the movant’s fact; or
(iii) points out that the movant’s citation does not support the
movant’s fact or that the movant’s fact is not material or
otherwise has failed to comply with the provisions set out in
LR 56.1 B.(1).
LR 56.1(B)(2)(a), NDGa.
Compliance with Local Rule 56.1 is the “only permissible way . . . to
establish a genuine issue of material fact” in response to the moving party’s
assertion of undisputed facts. Reese, 527 F.3d at 1268; see Hampton v. Atzert, 590
F. App’x 942, 944 (11th Cir. 2014) (“[A] district court will accept each of the
movant’s facts admitted at summary judgment unless the nonmovant directly
refutes these facts with concise responses.”). “The proper course in applying Local
Rule 56.1 at the summary judgment stage is for a district court to disregard or
ignore evidence relied on by the respondent—but not cited in its response to the
movant’s statement of undisputed facts—that yields facts contrary to those listed in
14
the movant’s statement.” Reese, 527 F.3d at 1268; cf. Johnson v. City of Fort
Lauderdale, Fla., 126 F.3d 1372, 1373 (11th Cir. 1997) (“[W]e are not obligated to
cull the record ourselves in search of facts not included in the statements of fact.”);
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)
(courts need not “comb the record” looking for evidence to establish a party’s
contentions on summary judgment); Carolina Acquisition, LLC v. Double Billed,
LLC, 627 F. Supp. 2d 1337, 1340 (S.D. Fla. 2009) (“Federal judges are not
archaeologists . . . . We possess neither the luxury nor the inclination to sift
through that mound of obfuscation in hopes of finding a genuine issue of material
fact to deny summary judgment.”); Grisham v. Phillip Morris, Inc., 670 F. Supp.
2d 1014, 1044 (C.D. Cal. 2009) (“Plaintiff is misguided in his apparent belief that
it can defeat summary judgment through a conclusory reference to its voluminous
submissions.”); Pries v. Lexington Ins. Co., 508 F. Supp. 2d 1061, 1068 (S.D. Ala.
2007) (“Parties may not, by the simple expedient of dumping a mass of evidentiary
material into the record, shift to the Court the burden of identifying evidence
supporting their respective positions.”).
The Court must then review the movant’s statement of undisputed facts and
ensure—by, “[a]t the least, . . . review[ing] all of the evidentiary materials
submitted in support of the motion for summary judgment”—that the movant’s
15
statement of facts is supported. Reese, 527 F.3d at 1269 (quoting
United States v. One Piece of Real Property, 363 F.3d 1099, 1101-02 (11th Cir.
2004)) (internal quotation marks omitted). “The Court will not consider any fact:
(a) not supported by a citation to evidence (including page or paragraph number);
(b) supported by a citation to a pleading rather than to evidence; (c) stated as an
issue or legal conclusion; or (d) set out only in the brief and not in the movant’s [or
respondent’s] statement of undisputed facts.” LR 56.1B(1), NDGa.
On February 29, 2016, Defendants filed their Statement of Undisputed
Material Facts, to which, in violation of the Local Rules, Plaintiff did not respond.
The Magistrate Judge deemed undisputed the facts asserted in Defendants’
Statement of Undisputed Material Facts and, having conducted both a plain error
and de novo review of the record, the Court agrees. (R&R at 7); see
LR 56.1(B)(2)(a)(2), NDGa. Plaintiff’s pro se status does not prevent this
conclusion, particularly given the Magistrate Judge’s warnings to comply with the
Local Rules. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(“[A]lthough we are to give liberal construction to the pleadings of pro se litigants,
‘we nevertheless have required them to conform to procedural rules.’ (quoting
Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002))); Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (noting that a pro se party “is subject to the relevant
16
law and rules of court, including the Federal Rules of Civil Procedure,” and may
be sanctioned “for failure to comply with court orders”); Ephraim v. Pantry, Inc.,
899 F. Supp. 2d 1205, 1206 (N.D. Ala. 2012) (“Although [pro se plaintiff] must be
cut some slack, this does not mean that she is excused from the rules that control
decision-making under Rule 56, Fed. R. Civ. P.”); Williams v. Aircraft Workers
Worldwide, Inc., 832 F. Supp. 2d 1347, 1351 (S.D. Ala. 2011) (“[P]laintiff’s
pro se status does not entitle her to special treatment on summary judgment, nor
does it exempt her from compliance with Rule 56 and the orders of this
Court. . . . [Plaintiff’s] decision not to proffer argument, evidence or authority in
response to defendant’s Motion for Summary Judgment is at her peril.”);
Mack-Muhammad v. Cagle’s Inc., No. 4:08-cv-11, 2010 WL 55912, at *1 (M.D.
Ga. Jan. 4, 2010), (“[Pro se plaintiff] did not respond to Defendants’ statement of
material facts. Accordingly, the Court deems Defendants’ statement of undisputed
facts to be admitted pursuant to Local Rule 56.” (internal citation omitted)), aff’d
sub nom. MackMuhammad v. Cagle’s Inc., 379 F. App’x 801 (11th Cir. 2010);
Brandon v. Lockheed Martin Aeronautical Sys., 393 F. Supp. 2d 1341, 1358 (N.D.
Ga. 2005) (“[P]ro se litigants are still required to conform to the procedural
rules.”); cf. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (“[A] pro se
litigant does not escape the essential burden under summary judgment standards of
17
establishing that there is a genuine issue as to a fact material to his case in order to
avert summary judgment.”).
In deciding this summary judgment motion, the Court adopts the facts stated
in the R&R, which were largely derived from Defendant’s Statement of
Undisputed Material Facts. The parties do not argue that these facts are incorrect4
and, having reviewed the record, the Court finds that they are supported by the
evidentiary materials in this case. See Reese, 527 F.3d at 1269
B.
Plaintiff’s Claims against Defendants Mendoza and Yancy
“The relief granted under Title VII is against the employer, not the
individual employees whose actions would constitute a violation of the Act.”
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); see
Hinson v. Clinch Cnty Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000). Any
Title VII claim against an employee or supervisor in his or her individual capacity
is “inappropriate” and subject to dismissal. Busby, 931 F.2d at 772; see
Canty v. Fry’s Elecs., Inc., No. 1:09-cv-3508, 2010 WL 3516834, at *6 (N.D. Ga.
Sept. 1, 2010); Aque v. Home Depot U.S.A., Inc., 629 F. Supp. 2d 1336, 1342
(N.D. Ga. 2009). The Magistrate Judge found that, because Plaintiff was
4
Although Plaintiff objects that the R&R omits certain facts—an argument
already addressed and rejected by the Court—he does not argue that any specific
facts in the R&R are wrong.
18
employed by Defendant City of Atlanta, summary judgment is required on
Plaintiff’s claims against Defendants Mendoza and Yancy. (R&R at 14-15). The
Court finds no plain error in this finding.5
C.
Plaintiff’s Sexually Hostile Work Environment Claim
Plaintiff claims that, because of the incident involving Summerour on
January 31, 2012, he “was subjected to a sexually hostile work environment” in
violation of Title VII. (Compl. at 1, 6, 15). To establish a prima facie hostile work
environment claim under Title VII, a plaintiff must show:
(1) that he belongs to a protected group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment [was] based on a
protected characteristic of the employee . . . ; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working
environment; and (5) that the employer is responsible for such
environment under either a theory of vicarious or of direct liability.
Miller, 277 F.3d at 1275; see Lara v. Raytheon Tech. Serv. Co., LLC, 476 F.
App’x 218, 220-221 (11th Cir. 2012). To establish these elements, a plaintiff must
present concrete evidence of specific facts. Davis v. United States Postmaster
Gen., 190 F. App’x 874, 877 (11th Cir. 2006).
To demonstrate the fourth prima facie element, a plaintiff must show that his
5
Plaintiff’s claims against Mendoza and Yancy also fail for the reasons
explained below.
19
work environment was “permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). “To
evaluate the objective severity of the alleged harassment, [courts] look to: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Lara, 476 F. App’x at 221. “[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal citation and quotation marks omitted).
Plaintiff’s hostile work environment claim is based on a single statement
made by a co-worker about having “sex, stuff with animals and with dead people
and man pussy,” whereupon the co-worker dropped his trousers. Plaintiff did not
contemporaneously perceive this remark to be directed at him, admitted he did not
have a basis to believe the comment was directed at him, did not see Summerour
pull down his pants or expose himself, and the conduct did not interfere with
Plaintiff’s job performance. (See Benton Dep. at 34 et seq. (no indication that the
20
co-worker, Summerour, physically exposed his genitalia); Benton Dep., Ex. 4, at 4
(Plaintiff did not see Summerour pull down his pants or expose himself)). The
Magistrate Judge found that this isolated incident was not “sufficiently severe or
pervasive to alter the conditions of [his] employment and create an abusive
working environment.” Harris, 510 U.S. at 21 (internal citations and quotation
marks omitted); (R&R at 17). The Court finds no plain error in this finding. Cf.
Guthrie v. Waffle House, Inc., 460 F. App’x 803, 804-05, 807-08 (11th Cir. 2012)
(finding insufficient “a few dozen” vulgar comments or actions, including physical
touching, over eleven months); Latrece Lockett v. Choice Hotels Int’l, Inc., 315 F.
App’x 862, 866-67 (11th Cir. 2009) (finding insufficient frequent vulgar remarks
and multiple touching incidents over the course of four months);
Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999) (en banc) (finding
insufficient “‘constant’ following and staring,” sexual comments, physical
touching, and suggestive gestures).
Plaintiff also fails to establish the fifth prima facie element of a hostile work
environment claim, which requires a plaintiff to show his employer is vicariously
or directly liable for the harassment. An employer is vicariously liable for a hostile
environment “created by a supervisor with immediate (or successively higher)
authority over the employee.” Miller, 277 F.3d at 1278 (quoting Faragher, 524
21
U.S. at 807) (internal quotation marks omitted). “Where the perpetrator of the
harassment is merely a co-employee of the victim, the employer will be held
directly liable if it knew or should have known of the harassing conduct but failed
to take prompt remedial action.” Id.
The alleged perpetrator here is Plaintiff’s co-employee, not a supervisor, and
vicarious liability does not apply. The Magistrate Judge found that the City of
Atlanta also is not directly liable for Summerour’s alleged harassment because the
City immediately investigated Plaintiff’s complaint, terminated Summerour’s
employment after the two-week investigation concluded and, when Plaintiff
returned to work after paid administrative leave, the City had removed Summerour
from the workplace. (R&R at 19). The Court finds no plain error in the Magistrate
Judge’s finding that Plaintiff has not established a hostile work environment claim.
Defendants are entitled to summary judgment on Plaintiff’s sexually hostile work
environment claim.
D.
Plaintiff’s Retaliation Claim
Plaintiff claims City of Atlanta suspended him in retaliation for complaining
internally about the Summerour incident on January 31, 2012. (Compl. at 6-7).
Plaintiff also claims the City terminated his employment in retaliation for filing an
22
EEOC charge and participating in the subsequent investigation. (Compl. at 6).6
Under Title VII, it is unlawful for an employer to retaliate against an
employee because the employee (1) “has opposed any practice made an unlawful
practice by [Title VII]” or (2) “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
[Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of Title VII
retaliation, “a plaintiff must show that: (1) [he] engaged in statutorily protected
expression; (2) he suffered an adverse employment action; and (3) the adverse
action was causally related to the protected expression.” Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998); see Watkins v. Sec’y Dep’t of
Homeland Sec., 401 F. App’x 461, 467 (11th Cir. 2010); Dixon v. The Hallmark
Companies, Inc., 627 F.3d 849, 856 (11th Cir. 2010).
Where, as here, the plaintiff lacks direct evidence of retaliation, he may rely
on circumstantial evidence under the burden-shifting framework of McDonnell
6
In his Objections, Plaintiff suggests that, on June 17, 2013, he filed a
disability charge with the EEOC for which he suffered retaliation. (See Objections
at 1). As explained above, these allegations are immaterial because Plaintiff does
not allege disability discrimination, asserts claims only under Title VII, and “Title
VII does not proscribe disability discrimination, nor does it give protected status to
disabled persons.” Harris, 2013 WL 5436775, at *1 (quoting Lewis v. Zilog, Inc.,
908 F.Supp. 931, 953 n.11 (N.D. Ga. 1995)) (internal quotation marks omitted);
(see Compl. at 1-2, 6-8).
23
Douglas Corp. v. Green, 411 U.S. 792 (1973).7 See Watkins, 401 F. App’x at 466.
“Under this framework, when the plaintiff presents only circumstantial evidence of
a retaliatory motive, the plaintiff bears the burden to present evidence of each
element of his prima facie case. If the plaintiff does so, the burden shifts to the
employer to proffer a non-retaliatory reason for the adverse action, after which the
burden shifts back to the plaintiff to show that the reason is pretext for retaliatory
conduct.” Bush v. Raytheon Co., 373 F. App’x 936, 940 n.6 (11th Cir. 2010)
(internal citation omitted).
To establish the first prima facie element in a claim based on opposition to
an unlawful employment practice, plaintiff must show he opposed an employment
practice based on a good faith, reasonable belief that the employment practice
violated Title VII. Bryant v. United States Steel Corp., 428 F. App’x 895, 897-98
(11th Cir. 2011); see Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th
Cir. 1999); Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th
7
Direct evidence establishes retaliation without any inference or presumption.
See Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).
“Only the most blatant remarks whose intent could be nothing other than to
discriminate constitute direct evidence.” Clark v. Coats & Clark, Inc., 990 F.2d
1217, 1223 (11th Cir. 1993). Evidence that merely “suggests” discrimination,
Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990), or that
is subject to more than one interpretation, see Harris v. Shelby County Bd. of
Educ., 99 F.3d 1078, 1083 n.2 (11th Cir. 1996), does not constitute direct evidence.
24
Cir.1998) (“In order to state a retaliation claim, the plaintiff need only show that he
had a ‘reasonable belief’ that an unlawful employment practice was occurring, and
is not required to show that the employer actually engaged in an unlawful
employment practice.”); Little v. United Tech. Carrier Transicold Div., 103 F.3d
956, 960 (11th Cir. 1997). “[T]he conduct opposed [need not] actually be sexual
harassment, but it must be close enough to support an objectively reasonable belief
that it is.” Clover, 176 F.3d at 1351.
Given the high standard for establishing a hostile work environment under
Title VII, the Magistrate Judge found that Summerour’s isolated conduct did not
support an objectively reasonable belief that Plaintiff was subjected to unlawful
sexual harassment. (R&R at 22-23). The Court finds no plain error in this
conclusion. See Clover, 176 F.3d at 1351 (“The [sexual harassment] conduct
Clover described misses the mark by a country mile. It follows that Clover’s belief
the conduct created a sexually hostile environment for Waters was not objectively
reasonable.”); Henderson v. Waffle House, Inc., 238 F. App’x 499, 502-03 (11th
Cir. 2007) (finding that plaintiff lacked a good faith, reasonable belief that she was
subjected to sexual harassment even though her manager pulled her hair, called her
“Dolly,” made a comment about her large breasts in front of a customer, told her
she looked like she was going to burst when she wore a new shirt, told her “they
25
did not make aprons ‘big enough for boobs like [hers],’” and told her not to stand
so close to him because she made him nervous and he would get in trouble if he
told her why).
The Magistrate Judge also found that Plaintiff cannot establish a casual
connection between his EEOC charge and his termination. (R&R at 23-24). To
establish a causal connection, Plaintiff must show that his employer was aware of
the protected conduct and that the protected activity and adverse action were not
wholly unrelated. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008).
“The burden of causation can be met by showing close temporal proximity
between the statutorily protected activity and the adverse employment action. But
mere temporal proximity, without more, must be very close.” Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citations and internal
quotation marks omitted).
On February 16, 2012, Plaintiff filed his EEOC charge against the City of
Atlanta. On July 22, 2013, the City terminated Plaintiff’s employment. The
Magistrate Judge found that this seventeen (17) month gap is too long to establish
causation and that Plaintiff does not offer any other non-speculative evidence of a
causal connection. (R&R at 24). The Court finds no plain error in this
determination. See Thomas, 506 F.3d at 1364 (“A three to four month disparity
26
between the statutorily protected expression and the adverse employment action is
not enough. Thus, in the absence of other evidence tending to show causation, if
there is a substantial delay between the protected expression and the adverse
action, the complaint of retaliation fails as a matter of law.” (internal citations
omitted)).
Even if Plaintiff could establish a prima facie case of Title VII retaliation,
his retaliation claim still fails under the burden-shifting framework of McDonnell
because Plaintiff does not raise a genuine issue of material fact as to whether the
reasons given for his suspension or termination were pretextual. If a plaintiff
establishes a prima facie case, “the burden shifts to the defendant to rebut the
presumption of retaliation by producing legitimate reasons for the adverse
employment action.” Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059
(11th Cir. 1999). “If the defendant offers legitimate reasons, the presumption of
retaliation disappears,” and “[t]he plaintiff must then show that the employer’s
proffered reasons for taking the adverse action were actually a pretext for
prohibited retaliatory conduct.” Id.
The week before the January 31, 2012, incident, Plaintiff’s supervisor, John
Raikes, warned Plaintiff that he was prohibited from filming in the workplace. The
investigation into Summerour’s conduct revealed that Plaintiff continued to film
27
co-workers in the workplace and during garbage collection routes. As a result,
Plaintiff was suspended for five (5) days without pay. A year later, on
February 7, 2013, Plaintiff recorded a training session at the City Department of
Public Works’ Lakewood Facility. On July 22, 2013, City of Atlanta terminated
Plaintiff’s employment for filming in the workplace after prior warnings and a
suspension. The Magistrate Judge found that Plaintiff’s persistent filming at work
represents a non-discriminatory reason for his suspension and termination, and that
Plaintiff offers no evidence that the proffered reason is pretextual. (R&R at 26).
The Court finds no plain error in this determination or in the Magistrate Judge’s
recommendation that Plaintiff’s retaliation claim be dismissed. Defendants are
entitled to summary judgment on Plaintiff’s retaliation claim.8,9
8
In his Objections, Plaintiff asserts that City of Atlanta told him he “recorded
an incident of Sexual Harassment that took place outdoors in the public in the
equipment parking lot of my employer.” (Objections at 2). Plaintiff claims “[a]s
an employee [he] was bound to report this incident of violence that created a
hostile work place under the law.” (Objections at 2). The Court overrules this
objection for several reasons. First, Plaintiff does not explain how these
allegations support his claims, offers no specific citations to the record, and fails to
explain the legal basis of his alleged duty to report the incident or how this duty
required him to record the incident. Second, Plaintiff offers allegations but does
not “specifically identify” any findings in the R&R to which he objects. Marsden,
847 F.2d at 1548. Third, to the extent Plaintiff now seeks to introduce facts for
consideration on summary judgment, he impermissibly circumvents Local
Rule 56.1, which is the “only permissible way . . . to establish a genuine issue of
material fact.” Reese, 527 F.3d at 1268. Fourth, to the extent Plaintiff asserts he
28
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [34] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff Joseph F. Benton, III’s
Objections [38] are OVERRULED.
IT IS FURTHER ORDERED that Defendants City of Atlanta,
Richard Mendoza, and Yvonne Cowser Yancy’s Motion for Summary
Judgment [29] is GRANTED.
SO ORDERED this 9th day of August, 2016.
was suspended in retaliation for video-recording the January 31, 2012, incident, he
does not establish a retaliation claim because the incident he recorded and reported
did not violate Title VII. See 42 U.S.C. § 2000e-3(a). As explained above, the
January 31, 2012, incident did not constitute sexual harassment or support an
objectively reasonable belief of sexual harassment.
9
The Court would reach the same conclusions expressed in this Order even
on a de novo review. Defendants are entitled to summary judgment on each of
Plaintiff’s claims.
29
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