Carreker v. International Longshoremen's Association et al

Filing 47

ORDER granting the Defendants' 27 and 29 Motions for Summary Judgment; directing the Clerk to enter Final Judgment in favor of the Defendants; and directing that the Clerk shall terminate all deadlines and motions, and close the case. Signed by Judge J. Randal Hall on 11/20/2014. (jah)

IN THE UNITED

STATES DISTRICT

SOUTHERN DISTRICT OP

COURT

FOR THE

GEORGIA

BRUNSWICK DIVISION

BRUCE CARREKER,

*

Plaintiff,

*

V.

*

INTERNATIONAL LONGSHOREMEN'S

*

ASSOCIATION;

2:13-CV-081

*

LOCAL # 1423;

GEORGIA STEVEDORE ASSOCIATION,

*

INC.; SSA COOPER, LLC; ATLANTIC
RO-RO STEVEDORING, LLC; and
PORTS AMERICA,

*
*
*
*

Defendants.

*

ORDER

On June 17, 2013, Plaintiff filed suit against several of his

former employers, the employers' association,1 and his union.
1,

"Compl.")

In

his

complaint,

he

asserts

claims

(Doc.
of

age

discrimination, retaliation, breach of contract, and breach of the

duty of

damages.
summary

fair representation,

(Id.)

Now before the Court are two defense motions for

judgment.

(Docs.

27,

issues

and

claims,

concurrently,

and

for

similarity of
motions

as well as a claim for punitive

29.)

the

the

Given
Court

reasons

the

substantial

addresses

the

stated herein,

two
both

motions are GRANTED.

1

Plaintiff

concedes

in

his

sur-reply

brief

association, the Georgia Stevedore Association, Inc.

that

the

employers'

("GSA"), does not have

the requisite number of employees to be held liable under the ADEA and Title

VII.

Thus, claims against Defendant GSA under Counts I and II are hereby

DISMISSED.

I.

A.

BACKGROUND

Factual Background

For

approximately

twenty-five

was

as

("Plaintiff")

employed

Brunswick in Georgia.

a

(25)

years,

longshoreman

Bruce
at

Carreker

the

Port

(Pi. Dep., Doc. 27, Ex. A at 9-13.)

of

During

that time, Plaintiff belonged to the International Longshoreman's

Association,

Local # 1423 ("the Union"),

the recognized collective

bargaining agent for longshoremen at the Port of Brunswick.
at 9;

Nixon Aff.,

Executive Board,

Doc. 29,

2)

The Union is operated by an

which is made up of a President, Vice President,

and other members.2

stevedoring

Ex.

(Id.

(Nixon Aff.

companies

operate

1 2.)

out

of

A number of shipping and

the

Port

of

Brunswick,

including Defendants SSA Cooper, LLC ("SSA Cooper"), Atlantic Ro-Ro

Stevedoring,

Inc.

("Atlantic

Ro-Ro"),

(collectively, the "Port Employers").

and

Ports

(Compl. U 11.)

America

Throughout

his twenty-five (25) years at the Port of Brunswick, Plaintiff has
worked for each of the Port Employers.

(Id. H 12.)

The Union provides longshore workers to the Port Employers

through a hiring hall,

system.

and all hiring is based on a seniority

(Pi. Dep. at 13-14.)

This seniority system is organized

alphabetically, meaning those members with the highest seniority
are part of category "A," and the next most senior members are
category "B" and so on.

(Id.)

Plaintiff was a category "E"

employee, which by all accounts is a high seniority position.
at 12.)
2

(Id.

Each day, union members would go to the hiring hall, line

According to Plaintiff, Freddie Sams and Mike McDuffie are two such

members.

(Pi. Dep. at 73.)
2

up

based

Union's

business

agent would call out the available positions for the day.

(Id. at

13-14.)

on

their

seniority category,

Based on his

and

long tenure in the

the

industry,

Plaintiff had

his pick of the available jobs and could work as many hours as he
wished.

(Id. at

employment,

position.
as

a

12-13.)

Plaintiff

was

For the last six or seven years of his

usually

(Id. at 16-17, 26.)

supervisor,

"making

a

"field

foreman,"

In that role,

sure

everybody

a

support

Plaintiff would act

does

what

[are]

they

supposed to do and if there's any problem that [arose] in the field
concerning the men,
(Id.

at

17.)

vessels,

[he would]

step in and []

Plaintiff

which

primarily

required

driving

worked

the

take care of it."

on

cargo

so-called

(usually

"ro-ro"

cars

bulldozers) off the ship and into designated vehicle fields.
at

15-16.)

More

specifically,

Plaintiff

was

or

(Id.

responsible

for

ensuring the other members went to the ship, drove the vehicle or
other cargo off the ship and onto the designated field, and then
returned to the ship to pick up the next vehicle.
The

Port

Association,

Employers
Inc.

are

("GSA"),

members
an

of

the

association

(Id. at 18-19.)
Georgia
that

Stevedore

acts

as

a

representative for the Port Employers in negotiating collective
bargaining agreements
H1I 11-12.)

("CBA")

with the Union.

(Doc.

27,

Ex.

C

To handle grievances filed by or against union members,

the CBA between the Union and the Port Employers provided for a

joint labor-management port grievance committee ("the PGC"), which
is made up of representatives from the Union and Port Employers, as
well as a non-voting representative from GSA.

(Doc. 27, Ex. B at

38-39.)

The CBA specifically authorizes the

final decisions on reported grievances.

On

May

31,

2012,

Atlantic

PGC to make binding,

(Id.)

Ro-Ro

filed

a

grievance

against

Plaintiff and Daniel Wynn ("Wynn"), alleging that the two failed to
ensure that drivers rolled up windows on the cars before returning

to the ship, which resulted in damage to the cars after it rained.
(Doc. 29, Ex. 4.)

Wynn was acting as Plaintiff's assistant on that

day and "occasionally" worked as a field foreman, but had only been
in the industry approximately thirteen (13)

146.)

years.

(Pi.

Dep.

at

That grievance was heard by the PGC on August 7, 2012, and

the PGC unanimously voted to issue disciplinary action against both

Plaintiff and Wynn.

(Doc. 27, Ex. J at 2-3.)

Plaintiff received a

seven (7) day suspension without pay and a six (6) month suspension
from support jobs, such as field foreman.

a regular foreperson,
without pay.

(Id.)

Wynn, who was not

received just a seven (7)

day suspension

(Id.)

Plaintiff alleges that this suspension was merely pretext for

age discrimination and retaliation.
Plaintiff

claims

that

"[t]here

are

As to the age discrimination,
too

many

[instances

of

age

discrimination] to list" as "it was constant" and "they just did a

lot of talking."

(Pi. Dep. at 110-11.)

As best the Court can

discern from Plaintiff's deposition, the possible instances of age
discrimination follow:

• Plaintiff claims that he ran a crane for about twenty

(20)

years and "they would always say 'You need to move over and
let us - let us young people have this.7"

(Id. at 109-10.)

"They" in this instance referred to "people like Mr. Maxwell
and then there were people on the executive board like that

McDuffie cat .

. . and . . . Freddie Sams,

a

bunch of them."3

(Id.)

•

Plaintiff alleges that when a
power,
they would say things
regime[.]"
(Id. at 111.)

•

Plaintiff was denied a job when he was told by "Shawn" with
Atlantic Ro-Ro that "I wasn't doing nothing so he didn't need
me."
(Id. at 67-68.)
That statement, according to Plaintiff,
was

"a

broad

statement,

and

new Executive Board came to
like "give way to the new

it

could

cover

age."

(Id.

at

165.)

•

Plaintiff

claims

December 2011,

that he ran for president

and his name was

taken off

of

the Union in

the ballot because

the Union believed he had not paid his dues.
However, after
Plaintiff demonstrated his dues were paid, his name was put

back on the ballot.4
•

(Id^ at 114-17.)

Plaintiff
complains
that
Defendants
would
"nitpick[,]"
claiming that he performed certain aspects of his job
incorrectly and Atlantic Ro-Ro
would
"complain[]
about

everything[.]"

(Id. at 147, 164.)

Plaintiff claims this was

"because they wanted to get rid of me because of my age."
(Id.

at 164.)

Over the course of his deposition, Plaintiff was asked "Do you have

any

evidence

that

discriminated

responded

pressed

you

against

"No,

not

again

for

can describe
you

because

of

to my knowledge."

specific

Plaintiff said "I don't know.
sometimes."5

that

evidence

your

(Id.

of

[the

Port

age?"

to

Employers]
which

at 163.)

age

he

And when

discrimination,

It's just the attitude,

the comments

(Id. at 164.)

3
As noted above, Sams and McDuffie were both members of the Executive
Board in 2012. There is no indication in the record who "Mr. Maxwell" is or
what role he played, if any, in the operations of the Union.
4

Plaintiff claims that those elected were younger than him (PI. Dep. at

118); however, he provides no specific information as to their ages.
5

The

"comments"

refers

Plaintiff was not needed.

to

the

above-mentioned

comment

saying

that

As

to

the

retaliation

claim,

Plaintiff

alleges

that

his

suspension resulted from his testifying on behalf of a co-worker
who

filed a

sexual

harassment

claim against

other Union members.

Plaintiff testified at a meeting of the Executive Board on July 16,

2012,

regarding

that

Following the meeting,

sexual

Dep.

Board,

at 96-97.)

Plaintiff

claim.

(Compl.

^23.)

the Executive Board wrote up a grievance on

the sexual harassment claim,

(PI.

harassment

which the PGC heard on August 7, 2012.

After the July meeting of the Executive

alleges

that

Freddie

Sams,

a

member

of

the

Executive Board, told him "We're going to get you; we're going to

run you off; we're going to get rid of you."

(Id. at 93-94.)

On

August 7, 2012, following the PGC hearing on the sexual harassment
claim,

Plaintiff claims that Mike McDuffie also told him that he

was going to get rid of him.

(Id. at 98-99.)

Plaintiff additionally cites other "harassment," seemingly to

support a claim for constructive discharge, which the Court lists
below.

•

Plaintiff alleges that on some unspecified day,

the sergeant-

at-arms was directed by the president of the Union to write
Plaintiff up for talking and disturbing the hiring process for
the day.

•

Plaintiff

(Id^_ at 84, 100.)

claims

that

requiring

members

to

attend

sexual

harassment training is harassment because "if they are going

to give that class and they are going to teach you one thing
and do another, then what's the difference."

Plaintiff ultimately retired on September 1,

(Id. at 71-72.)

2012,

a decision he

claims to have been forced into given the constant harassment he

was facing at work.

(Id^ at 180 ("[I]t still was like forced.

With all the harassment,

I just - I got short patience.
6

I got a

short fuse, so rather than get into something else,

I took the easy

road out.").)

B.

Procedural Background

Plaintiff received a Notice of Right to Sue from the EEOC with

respect

to

his

(Compl. ^1 20.)
June 17, 2013.

ADEA

and

retaliation

claims

on

March

28,

2013.

Plaintiff then filed his complaint in this Court on
GSA and the Port Employers

("the GSA Defendants")

and the Union filed separate motions for summary judgment on July
21,

2014,

to which Plaintiff has responded.

all the briefs and exhibits in this matter,

Having reviewed the

the motions for summary

judgment are ripe for the Court's review.

II.

SUMMARY JUDGMENT

STANDARD

Summary judgment is appropriate only if "there is no genuine
dispute as to any material

fact and the movant

judgment as a matter of law."

Fed. R. Civ. P.

is entitled to

56(a).

Facts are

"material" if they could affect the outcome of the suit under the
governing substantive law.
U.S. 242, 248 (1986) .

Anderson v.

Liberty Lobby,

Inc.,

477

The Court must view the facts in the light

most favorable to the non-moving party, Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all

justifiable inferences in [its]
Real

Prop.,

941

F.2d

1428,

favor."
1437

U.S. v. Four Parcels of

(11th

Cir.

1991)

(en

banc)

(internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court,

by reference to materials on file,

the basis

for the motion.

Celotex Corp.

this burden

v. Catrett,

depends

477 U.S.

317,

323

(1986) .

on who bears the burden

How to carry

of proof

at trial.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
When the

non-movant has the burden of proof at

trial,

the movant

may carry the initial burden in one of two ways — by negating an
essential element of the non-movant's case or by showing that there

is no evidence to prove a fact necessary to the non-movant's case.
See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08

1991)

(11th Cir.

(explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)

and Celotex Corp.

v.

Catrett,

477 U.S.

317

(1986)).

Before the

Court can evaluate the non-movant's response in opposition, it must
first

consider whether

the

movant

has

met

its

initial

burden of

showing that there are no genuine issues of material fact and that
it is entitled to judgment as a matter of law.
Columbus, 120 F.3d 248, 254 (11th Cir. 1997)

Jones v. City of

(per curiam).

A mere

conclusory statement that the non-movant cannot meet the burden at
trial is insufficient.

Clark,

929 F.2d at 608.

If - and only if - the movant carries its initial burden, the

non-movant may avoid summary judgment only by "demonstrat[ing] that
there

is indeed a material

judgment."
trial,
which

Id.

issue of fact

that precludes

summary

When the non-movant bears the burden of proof at

the non-movant must tailor its response to the method by
the

movant

carried

its

initial

burden.

If

the

movant

presents evidence affirmatively negating a material fact, the nonmovant

"must

respond

with

evidence

sufficient

to

withstand

a

directed verdict motion at trial on the material fact sought to be
8

negated."

Fitzpatrick,

2 F.3d at 1116.

absence of evidence on a material fact,
show

that

the

record

contains

If the movant shows

an

the non-movant must either

evidence

that

was

"overlooked

or

ignored" by the movant or "come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on

the alleged evidentiary deficiency."

Id. at 1117.

The non-movant

cannot carry its burden by relying on the pleadings or by repeating

conclusory allegations contained in the complaint.
Ross,

663 F.2d 1032,

1033-34

(11th Cir. 1981).

See Morris v.

Rather,

the non-

movant must respond with affidavits or as otherwise provided by
Federal Rule of Civil Procedure 56.

In this action, the Clerk gave Plaintiff appropriate notice of
the motions

for summary judgment and informed him of the summary

judgment rules, the right to file affidavits or other materials in
opposition,
Therefore,

and

the

consequences

of

default.

(Docs.

the notice requirements of Griffith v.

31-32.)

Wainwright,

772

F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied.

III.

Plaintiff

discrimination;

to

raises

(2)

six

DISCUSSION

counts

retaliation;

(3)

fairly and adequately represent

breach of contract;

damages.

in

his

complaint:

(1)

age

the Union's breach of a duty

Plaintiff;

(4)

the Union's

(5) GSA's breach of contract; and (6) punitive

The Court will address each claim in turn.

A.

Age Discrimination (Count I)

Under the Age Discrimination in Employment Act of 1967

("the

ADEA"), it is "unlawful for an employer to fail or refuse to hire

or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions,
or privileges of employment,
Chapman v.

AI Transport,

because of such individual's age."

229

(citing 29 U.S.C. § 623(a) (1)).

F.3d 1012,

1024

(11th Cir.

2000)

A plaintiff may "establish a claim

of illegal age discrimination through either direct evidence or
circumstantial evidence."

Cnty.

Comm'rs,

Van Voorhis v. Hillsborough Cnty. Bd. of

512 F.3d 1296,

1300

(11th Cir.

2008);

Collins v.

Compass Grp., Inc., 965 F. Supp. 2d 1321, 1333 (N.D. Ala. 2013)

("A

plaintiff may establish a prima facie case of age discrimination by
(1)

providing

defendant,

direct

(2)

discrimination

evidence

presenting
by

the

of

discriminatory

statistical
defendant,

proof
or

(3)

of

intent
a

by the

pattern

providing

of

other

circumstantial evidence.").

When a plaintiff relies on circumstantial evidence to prove
discrimination under the ADEA,

burden-shifting framework.

courts employ the McDonnell-Douglas

Chapman, 229 F.3d at 1024.

Under this

framework, a plaintiff must first establish a prima facie case of
discrimination.

(1)

a member of

Id.

A plaintiff may do so by showing that he was

the protected age group,

adverse employment action,

(2)

subjected to an

(3) qualified to do the job, and (4)

subjected to disparate treatment because of membership in the
protected class.

Caraway v. Sec'y, U.S. Dep't of Transp., 550 F.
10

App'x 704,
Veneman,

709

(11th Cir.

313 F.3d 1270,

If

a

plaintiff

2013)

1275

(per curiam)

(11th Cir.

(citing Kelliher v.

2002)).

successfully establishes a

prima

facie

case,

the burden of production shifts to the employer to articulate some

legitimate,

non-discriminatory

Coats & Clark,

Inc.,

reason

990 F.2d 1217,

intermediate burden is

for
1227

its

action.

(11th Cir.

"exceedingly light,"

Clark v.

1993).

This

and once the employer

offers a justification, the plaintiff must prove by a preponderance
of

the

evidence

that

the

employer's

proffered

reason

for

its

actions is pretextual and that the employer did in fact intend to
discriminate.

1573,
1334

1578

Ward

(S.D.

(11th Cir.

v.

Ga.

Gulfstream

1995)

Aerospace

Corp.,

(citing Batey v.

894

Stone,

F.

Supp.

24 F.3d 1330,

1994)) .

The parties do not dispute that the first three elements of

the prima facie case are met:

(1)

Plaintiff is fifty-eight

(58)

years old and thus a member of the protected class (Compl. H 40) ;6
(2)

Plaintiff

received

a

suffered

seven-day

an

adverse

suspension

employment

without

pay

action

and

a

when

he

six-month

suspension from support positions (Doc. 27, Ex. D 1 35) ;7 and (3)

6

There is some confusion regarding Plaintiff's age.

While his complaint

says he is fifty-eight (58) years old, his Charge of Discrimination to the
EEOC states that he is fifty-two (52) years old.
(Compare Compl. H 40 with
Doc.

3 9,

Ex. C. )

7
Plaintiff also alleges that he was constructively discharged from his
position.
The Eleventh Circuit has recognized constructive discharge as an
adverse employment action: "The general rule is that if the employer
deliberately makes an employee's working conditions so intolerable that the

employee is forced into an involuntary resignation, then the employer has
encompassed a constructive discharge and is as liable for any illegal conduct
involved therein as

Doe

v.

Dekalb

Cnty.

if

it had formally discharged the aggrieved employee."

Sch.

Dist.,

145

(internal quotation marks omitted).
11

F.3d

1441,

1450

(11th

Cir.

1998)

Plaintiff was otherwise qualified because he worked at the Port of

Brunswick

since

Supermarkets of

1987
Fla.,

(Compl.
Inc.,

^j 22).

196

See

F.3d 1354,

Damon

1360

v.

Fleming

(11th Cir.

1999)

("Our precedent holds that if a plaintiff has enjoyed a long tenure
at a certain position, we can infer that he or she is qualified to

hold

that

particular

position.").

Thus,

question

is whether Plaintiff has met

the

suffered

disparate

of

treatment

because

the

only

remaining

fourth prong:
his

that he

membership

in

the

protected class.

To

establish

a

disparate

treatment

claim

under

the

plain

language of the ADEA a plaintiff must prove that age was the "but

for"

cause of the employer's adverse decision.

Servs.,

Inc.,

557 U.S.

167,

176

(2009).

Gross v.

That is,

prove that age was not just a motivating factor,
the

this

reason

as

a

for

the

action.

possibility.

Plaintiff's

In his

own

complaint,

a plaintiff must

but that age was

pleadings

he

FBL Fin.

alleges

foreclose

that

his

suspension was the result of both (1) retaliation for testifying at
a

sexual harassment hearing and

(2)

age discrimination.

(Compl.

"A constructive discharge occurs when a discriminatory employer imposes

working conditions that are xso intolerable that a reasonable person in [the
employee's] position would have been compelled to resign.'" Fitz v. Pugmire
Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (quoting Poole v.
Country Club of Columbus, Inc. , 129 F.3d 551, 553 (11th Cir. 1997)).
Plaintiff does not come close to meeting this high burden.
He states that he
retired because of "harassment" but, as described in depth below, he presents
no evidence that would lead the Court to characterize his situation as

"intolerable."

Plaintiff appears to rely on unsubstantiated allegations that

two union members were convicted felons and did not properly represent him

and that no reasonable person would continue working under those conditions.
(Doc. 39 at 8.)
Moreover, Plaintiff freely admits that he has a short fuse,
so rather than get into more confrontations he "took the easy road out."
(PI. Dep. at 180.)
See Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539
(11th Cir. 1987) ("Part of an employee's obligation to be reasonable is an

obligation not

to assume the worse,

and not

fast." ) .
12

to jump to conclusions too

HU 23-26.)
when

It is axiomatic that age is not the "but for" cause

Plaintiff

claims

"the real

reasons for

his

suspension were

retaliation for protected activity and age discrimination."

(Doc.

39 at 2 (emphasis added).)
Even assuming Plaintiff's own admissions do not foreclose his

claims,

he has

failed to show that

action because of his age.

workplace,

evidence.
record,

time,

(2)

find no

other

made

was

by

comments

an

Plaintiff

younger people

that

take over.

comment

was

action or if
process.

it

Thus,

made

and

relate

to

However,

out

it

is

comparator

having scoured the

age,

individual

needed to move

(3)

at

of

save one.
an

The

unidentified

the

way and

entirely unclear if

in any reasonable proximity to the

adverse

that statement cannot constitute direct evidence in

1989)

See Carter v.

("[O]nly the

City of Miami,

most

blatant

870 F.2d 578,

remarks,

whose

LLC,

401

evidence

statements

direct

F.
does

by

evidence.");

Supp.
not

2d

1205,

include

Standifer v.

1215

stray

non-decisionmakers

or

Sonic-Williams

(N.D.

Ala.

remarks

in

omitted).

13

the

statements

unrelated to the decisional process itself.")

2005)

by

582

intent

could be nothing other than to discriminate on the basis of age
constitute

let

was made by someone involved in his disciplinary

Plaintiff's favor.

(11th Cir.

adverse

referring to comments made to

"harassment,"

unidentified

that

that

(1)

As to the comments made, the Court,

can

comment,

employer took the

Plaintiff attempts to prove this causal

element by three separate means:

him in the

his

[]

Motors,

("[D]irect

workplace

or

decisionmakers

(internal quotations

Stray remarks,

comments

—

"give

such as the one above as well as the other two

way

to

the

new

regime"

and

"you

aren't

doing

nothing" — may "when read in conjunction with the entire record []
constitute

circumstantial

discriminatory

Harvey,

attitude"

if

made

of

by

a

the

"Shawn"

nothing" comment.

And while

v.

(internal quotations

from Atlantic Ro-Ro made the

hearing

"Shawn"

the

Truss

"you aren't doing

However, no one by that name participated in the

grievance

allege that

decisionmakers'

decisionmaker.

179 F. App'x 583, 587 (11th Cir. 2006)

omitted).

August

evidence

the

PGC,

and

played any part in the

"give way

Executive

Board members,

inference

of

age

before

to the new
given

its

discrimination,

elected Executive Board.

but

In fact,

does

not

disciplinary decision.

regime"
context

Plaintiff

comment was made
it

rather

does

not

refers

to

raise

a

by
an

newly

Plaintiff does not provide any

argument to refute this interpretation.
Plaintiff

ballot

also

alleges

that

his

for Union President in 2011,

name

was

removed

from

the

but he does not dispute that

his name was put back in time to be considered by the membership.8
Simply

stating

that

insufficient

to

against

because

him

deposition,

prove

claims

about everything he
complained that,

younger
that
of

his

people

the

were

Union

age.

elected

purposefully

Finally,

over

him

is

discriminated

Plaintiff,

in

his

that Atlantic Ro-Ro would nitpick and complain

did on the

under

job.

Plaintiff's

For example,

supervision,

the

Atlantic Ro-Ro
other workers

8
Plaintiff's name was removed because the Union believed he had not paid
his dues, but once he showed that the dues had been paid his name was put
back on the ballot.

14

left vans out on the field.

to see how this
when

no

(Pi. Dep. at 147-48.)

The Court fails

is probative of age discrimination,

age-related

comments

were

made

in

particularly

connection

with

the

interaction and there are no allegations that comparators did not

face the same "nitpicking."9
or

argument

that

discrimination,

these

Plaintiff provides no factual context
complaints

that

the

10

F.

plaintiff

discrimination

result

of

age

job performance because they wanted to

get rid of him because of his age.
Fla.,

the

beyond stating in conclusory fashion that Atlantic

Ro-Ro complained about his

Cnty.

were

in

Supp.

2d

1314,

failed

part

See Mize v. School Bd. of Polk

to

1318

meet

because

he

(M.D.

the

Fla.

prima

offered

1998)

facie

"only

(holding

case

the

of

age

conclusory

allegations that the person hired in his place was younger and less
senior").

Thus,

the

provided.

As

Court

will

detailed

focus

above,

on

when

the

comparator

relying

on

evidence

circumstantial

evidence of discrimination,

a plaintiff may satisfy the prima facie

case by "showing that

was subjected to an adverse employment

action

in

contrast

protected class."

478

(11th

Cir.

(emphasis

that

his

with

or

the

similarly situated

employees

Johnson v. Miller Brewing Co.,

2009)

added).

discipline,

[he]

In

prima

her

(per

curiam)

fact,

facie

employer

(internal

"[i]n

case

cases

requires

treated people

outside

341 F. App'x 477,

quotations
involving

the

the

workplace

plaintiff

outside

the

omitted)

to

show

plaintiff's

9
When pressed about comparators in his deposition, the questioning
related to discipline against other workers for leaving car windows down, not
general "nitpicking."

(See Pi. Dep. at 121-26.)
15

protected

class

misconduct."
Fla.

2002)

1989)).
and

more

favorably

when

Carroll v. Neumann,

they

engaged

204 F. Supp.

(citing Jones v. Gerwens,

in

2d 1344,

874 F.2d 1534,

similar

1353

1540

(S.D.

(11th Cir.

To avoid second guessing an employer's reasonable decision

"confusing

apples

comparators must be
Johnson,

with

oranges[,]"

"plaintiff

similarly situated in all

341 F. App'x at 478-79

and

relevant

the

aspects."

(internal quotation marks omitted).

"If a plaintiff fails to show the existence of a similarly situated
employee,

summary judgment is appropriate where

of discrimination is present."
F.3d 1079,

1092

(11th Cir. 2004)

In Plaintiff's briefs,

comparator.10

(Doc.

same day and for
(7)

day

no

Plaintiff,

suspension

Wynn is not a valid comparator.

Potter,

10,

No.

2009)

failed

4:08-CV-108,

(finding

in

part

(including all

that

the

because

amendments

376

Wynn, who was disciplined on the

from

received a

support

First,

to

2009

WL 4781811,

plaintiff's

age

at

positions.

*4

See Pastures
(S.D.

Ga.

discrimination

" [n]either

[plaintiff's]

it)

response

nor his

seven

Plaintiff does not

provide the Court with information as to Wynn's age.11
v.

Inc.,

he asserts that Daniel Wynn is a valid

37 at 5.)

but

B/E Aerospace,

(internal quotations omitted).

the same conduct as

suspension

However,

Wilson v.

no other evidence

Dec.

claim

complaint

to the

summary

10
In Plaintiff's deposition, he discusses many other employees, but does
not provide any evidence as to their ages, background, or work history.
(PI.
Dep. at 120-26.)
Thus, the Court focuses only on that person described in
the briefs.

11
The only reference Plaintiff makes is in his response to the GSA
Defendants' motion for summary judgment, wherein he states that "Brad [sic]

Wynn,

[is]

a younger Ship Foreman similarly situated to Plaintiff but with

less experience[.]"

(Doc. 3 9 at 3.)
16

judgment motion indicates the ages (neither exact age in years, nor
age

with

relation

to

[the

plaintiff] )

of

any

specific

co

Plaintiff

has

workers .") .

Assuming

Wynn

more than twenty
(13) .

In fact,

is

(20) years'

like

the past seven (7) years.

fact

that

protected class,

experience and Wynn only has thirteen

(Pi. Dep.

support position —

the

the

Wynn was not a regular foreperson and only did the

job "occasionally."
in a

outside

at 146.)
field

Plaintiff,

foreperson —

(Id. at 26.)

Plaintiff

and

Wynn

however,

worked

consistently for

Defendants rely heavily on

were

levels and often did different jobs.12

of

different

Plaintiff,

experience

in his briefs,

attempts to rebut this argument by stating that years of experience
is synonymous to age, and thus a genuine issue of fact exists as to
whether the

harsher punishment was issued because of

or advanced experience.

The Court is not persuaded.

advanced age

In fact, the

Eleventh Circuit has clearly held that experience is a valid factor
for courts to consider and the comparator "must be nearly identical

to

the

plaintiff

reasonable
(emphasis

(11th

were

Cir.

not

to

decision
added);

2006)

by

prevent
the

courts

employer."

Beard v.

84

Lumber

(holding

that

the

similarly

situated

where

from
Wilson,

Co.,

206

plaintiff

the

Edwards v.

Inc.,

1216

12

F.

Supp.

As Defendants argue,

2d

1202,

376
F.

(S.D.

F.3d at

App'x

and his

plaintiff

experience than the comparator);
439

second-guessing

had

852,

a

1091
857

comparator

much

more

Niles Sales & Serv.,
Fla.

2006)

("[The]

"barring Wynn from accepting positions that he was

usually not offered would be nonsensical and illustrates clearly why he is
not a valid comparator."

(Doc. 29, at 7.)
17

difference

in

experience

comparator]

were not similarly situated for purposes of Plaintiff's

prima facie case.").

demonstrates

that

Plaintiff

Plaintiff's own testimony -

and

[his

that Wynn was his

assistant on the day in question — reinforces this point.13
Remarkably,
Defendants'

that

the

age."

Plaintiff even admits in his response to the GSA

Statement

port

(Doc.

of

Material

Facts

that

he

employers

discriminated against

38

Doc.

H 83;

28

H 83.)

The

evidence certainly bears out this statement.

"has

no

evidence

him because

lack

Simply,

of

of

his

probative

Plaintiff has

failed to set forth a prima facie case of age discrimination as to
any of the named defendants and the Court finds that his claim must
fail

as a

B.

matter of

law.

Retaliation

(Count II)

As with age discrimination claims,

claim

of

retaliation

establish a

F.3d 1457,

a

prima

1460

under

facie

case.

(11th Cir.

presumption of

Title

1998).

plaintiff

must

Taco

Corp.,

Bell

first
141

If this prima facie case is met,

retaliation arises and the burden shifts to the

adverse employment action."
reason,

the

Olmstead v.

defendant to "proffer a legitimate,

a

VII

to successfully set forth a

Id.

non-retaliatory reason for the

If the defendant sets forth such

the presumption disappears and the plaintiff must

show

that the reasons stated were merely a pretext. Id.; Masso v. MiamiDade Cnty., 465 F. Supp. 2d 1260, 1264-65 (S.D. Fla. 2006).
13
Moreover,
Plaintiff provides no indication of Wynn's disciplinary
background.
While Plaintiff asserts in his complaint that Plaintiff "never
received any criticism of his job performance until after he testified"
(Compl. H 23), Defendants filed approximately ten (10) prior grievances
against Plaintiff.
(Doc. 27, Ex. H.)
The only indication of Wynn's
disciplinary record was Plaintiff's assertion that Wynn had only faced
grievances for "simple stuff."
(PI. Dep. at 166-67.)
18

"A prima

facie

case of

'first,

the

second,

the plaintiff

finally,

plaintiff

retaliation contains

engaged

in

statutorily

suffered an

adverse

three

protected

employment

the adverse action was causally related to

expression.'"

Williams

(11th Cir. 2002)
F.3d 1322,

1336

v.

Motorola,

Inc.,

elements:

303

conduct;

action;

and

the protected

F.3d

1284,

1291

(quoting Farley v. Nationwide Mutual Ins. Co., 197
(11th Cir. 1999)).

In determining whether activity

is statutorily protected, the Supreme Court and Eleventh Circuit

have

recognized' two categories

of activity:

protected from discrimination if (1)
made

an

unlawful

opposition

clause)

assisted,

or

proceeding,
clause)."

employment

or

(2)

participated

has

by

this

made

in any manner

a

Clover v. Total Sys. Servs.,

subchapter'

charge,

in

or hearing under this subchapter'

(11th Cir. 1999)

employee

is

'he has opposed any practice

practice

'he

"An

Inc.,

an

(the

testified,

investigation,

(the participation
176 F.3d 1346,

1350

(quoting 42 U.S.C. § 2000e-3(a)).

For this count,

Plaintiff states that (1)

similarly situated,

younger co-workers were treated more favorably than him; (2) he was
falsely accused of performing his duties in a negligent manner; (3)
he

was

constructively

retaliation;
of

the

(Compl.

because

of

the

acts

of

(4) he suffered adverse employment actions as a result

retaliation

constructive

discharged

(unwarranted

discharge);

H1I 49-56.)

and

(5)

he

discipline,

lost

income

demotion,

as a

and

result.

Before addressing the merits of Plaintiff's

claim, a brief timeline of events is helpful.

19

•

On May 31, 2012, Atlantic Ro-Ro filed a grievance against
Plaintiff and Wynn for leaving car windows open.
(Doc. 29,
Ex.

•

4 .)

On July 16,
2012,
Plaintiff testified at his co-worker's
sexual harassment hearing before the Executive Board, where
Plaintiff claims a member of the board told him that they were

going to get rid of him.
•

On August 7,

2012,

(Compl. U 23; Pi. Dep. at 93-94.)

Plaintiff and Wynn appeared before the PGC

and were disciplined for leaving the car windows down.
27,

•

Ex.

Later on August 7,

2012,

harassment complaint.14
•

(Doc.

J.)

the PGC heard the co-worker's sexual

(Pi. Dep. at 178.)

Following his testimony at the co-worker's hearing, Plaintiff
alleges a second member of the Executive Board made a threat
to get rid of him and that the Vice President questioned what
he was doing.
i.

Prima Facie Case

The parties do not challenge that Plaintiff has met the first
two elements of the prima facie case:

conduct

by

testifying

on his

(1)

he engaged in protected

co-worker's

behalf15

and

(2)

suffered an adverse employment action with his suspension.16
facts notwithstanding,

forth

a

prima

facie

he

Those

Defendants claim that Plaintiff cannot set

case

because

he

is

unable

show

that

the

suspension was causally related to his testimony on behalf of his

14

Although Plaintiff is unclear as to which hearing occurred first,

testifies that after the co-worker's hearing,

he

he consoled her and then went

home, meaning his own hearing occurred first.
(Id. at 176-77, 179.)
This
order of events is supported by the grievance filings (Doc. 27, Ex. D) , and
so the Court presumes Plaintiff's hearing was followed by the sexual
harassment hearing.

15

Plaintiff alleges in his complaint that he is proceeding under the

opposition clause, but his briefs assert a claim under the participation
clause.

However,

because

the

Court

finds

that

Plaintiff's

claim

fails

regardless of the clause, the Court need not address which clause applies.
16

For the same reasons as above,

Plaintiff fails

constructive discharge.
20

to state a claim for

co-worker.

Plaintiff

counters that

between the

comments made by members

testimony for his co-worker,
merits of

the

given the
of

temporal

proximity

the Executive Board,

his

and his own suspension as well as the

suspension itself,

he has

met

the prima facie case

for retaliation.17

The Supreme Court recently held that, as in age discrimination
claims,

plaintiffs

mixed motives,
cause"

of

the

Nassar,

133

assert

that

but

asserting
must

adverse

S.

Ct.

two

action,

prove

that

action.

2517,

2528

claims

retaliation

Univ.

of

(2013) .

Tex.

may
was
S.W.

not
the
Med.

rely
"but

on
for

Ctr.

v.

Plaintiff here attempts to

reasons — age discrimination and retaliation for

testimony at a sexual

adverse

retaliation

making

harassment hearing —

neither

Plaintiff's claim is not,

the

again,

"but

resulted in the

for"

cause.

same

Assuming

foreclosed by his pleadings,

to

meet the third prong of the prima facie case

a plaintiff need only establish that the protected
activity
and
the adverse action
were
not
wholly
unrelated. At a minimum,
a plaintiff must generally
establish that the employer was actually aware of the

protected expression at the time it took adverse
employment action. The defendant's awareness of the
protected statement, however, may be established by
circumstantial evidence.

Goldsmith v. City of Atmore, 996 F.2d 1155,
And

while

true

that

"[c]ausation

may

be

1163 (11th Cir. 1993).
inferred

from

close

temporal proximity between the protected activity and the adverse

17
Plaintiff vehemently disputes the cause for his suspension, claiming
that checking windows was not in his job description.
In Smith v. City of
Fort Pierce, Fla., 565 F. App'x 774, 779 (11th Cir. 2014), the Eleventh
Circuit held that "the key inquiry is whether [the employer] took the adverse
action based on a retaliatory reason."
Thus, the determination of the job
duties is "of no consequence."

Id.
21

action . . . temporal
unrebutted

evidence

proximity
shows

that

alone
the

is

not

sufficient

decisionmaker

knowledge of the employee's protected conduct."
Co. , 522

F. App'x 560,

must show:

conduct

562

(11th Cir.

and

493

not

have

Dent v. Ga.

2013) .

In short,

the

Power

Plaintiff

"(1) that the decisionmakers were aware of the protected

(2)

that

the

protected activity and

were not wholly unrelated."
491,

did

when

(11th Cir.

Godby v. Marsh USA,

the

adverse

Inc.,

act

346 F. App'x

2009).

Plaintiff relies heavily on the threatening statements made by
Sams

and

present

McDuffie,

at

the

July

harassment claim.

or

McDuffie

who

had

were

members

meeting

of

the

regarding

There is no evidence,

any

influence

in

the

Executive

the

Board

co-worker's

however,

sexual

that either Sams

disciplinary

action

against Plaintiff in response to Atlantic Ro-Ro's grievance.
prove

the

discipline

Plaintiff must

and

testimony

are

and

causally

related,

rely on the Union President and Vice

taken

To
then,

President's

presence at both the July Executive Board meeting and the August

PGC hearing.18

The PGC minutes indicate that the Union President

and Vice President were both representing the Union at Plaintiff's

grievance

hearing,

decisionmakers

18

were

and
aware

therefore
of

at

Plaintiff's

least
July

Plaintiff's co-worker alleged that Freddie Sams,

some

of

the

testimony

when

Purnell Harrington,

and Terry Carmena sexually harassed her.
(Doc. 37 at 2.)
Although it
appears from the record that Purnell Harrington was present at the PGC, there
has been no reference to any role he played in the decisions.
B.)
22

(Doc. 37, Ex.

deciding

to

discipline

decisionmakers knew of
the

day,

PGC

would

be

him.19

Moreover,

because

those

the July testimony and presumably knew that

hearing

the

sexual

harassment

claim

later

that

it stands to reason that they were aware that Plaintiff could

testify later in the afternoon as well.

Given the close temporal

proximity

and

fact

the

cannot

between

Plaintiff's

decisionmakers

say as

were present

a matter of

"not wholly unrelated."
ii.

testimony

law that

See Godby,

at

discipline,

both

hearings,

and
the

the

Court

testimony and punishment

are

346 F. App'x at 4 93.

Legitimate, Non-Discriminatory Reason

Consistent

with

Title

VII's

burden

shifting

framework,

Defendants have presented a legitimate, non-retaliatory reason for

the suspension.
his

co-worker,

car

windows

August,
evidence

Plaintiff

were

Terry
to

On May 31,
was

closed.

O'Neal,

this

an

2012,

before Plaintiff

written up

At

effect.

for failing to make

Plaintiff's

Atlantic

Ro-Ro

("O'Neal

testified for

Aff."

grievance

hearing

employee,
Doc.

sure

29,

in

presented
Ex.

D.)

Plaintiff was unanimously found "guilty of shirking of work" and
was suspended.

(Doc.

39,

Ex.

B.)

Terry O'Neal, Norman Massey,

Gary Miles, and John Walsh - who were all present at Plaintiff's
grievance hearing - state that the disciplinary decision was based
entirely on Plaintiff's failure to perform his job in the manner

19

The "protected activity" refers to the July hearing, as it appears from

the record that Plaintiff was disciplined before he testified before the PGC
regarding the co-worker's sexual harassment.
23

expected of a veteran field foreman.20

(Doc.

27,

Exs.

C-F.)

The

Court finds that this evidence is more than sufficient to set forth

a legitimate, non-retaliatory reason.
iii.

Pretext

Having determined that Defendants met their burden of showing
a

non-retaliatory reason,

the burden shifts

present sufficient evidence "to permit a

back

to

Plaintiff

reasonable fact

finder to

conclude that the reasons given by the employer were not
reasons for the adverse employment decision."

Patterns,

106

allegations

F.3d

will

not

1519,

1528

suffice,

(11th

and

the

proffered reason head on and rebut it."

of State of Ga. ,

324 F.

App'x 818,

quotation marks omitted).
of pretext."

Id.

826

Combs v.

Cir.

(11th Cir.

Conclusory

must

Gerard v.

the real

Plantation

1997).

plaintiff

to

Bd.

"meet

the

of Regents

2009)

(internal

"Unsupported assertions are not evidence

(emphasis added).

Plaintiff's briefs do not

address pretext;

rather,

he

rebuts

arguments raised in the motions for summary judgment related to the

prima

facie

Plaintiff's

case.21
deposition,

Upon
the

review
Court

of

the

believes

record,
that

his

particularly
evidence

pretext rests on:

(1) the comments made by Sams and McDuffie,

comment

the

20

made

Moreover,

by

Union

Vice

President,

Kenny

of

(2) a

Thorpe,

(3)

an e-mail sent from Terry O'Neal in November 2011 — months

prior to the Atlantic Ro-Ro grievance - makes clear that Defendants honestly
held the belief that Plaintiff failed to properly perform his job.
Aff., Ex. A.)
In that e-mail, O'Neal writes that Atlantic Ro-Ro

(O'Neal
expects

Field Foremen to check windows and tell all drivers to make sure windows are
up.
(Id.)

21

To the extent

Plaintiff seeks to use the temporal proximity from the

prima facie case to support his claim for pretext, that claim must fail.
Jackson v. Hennessy Auto, 190 F. App'x 765, 768 (11th Cir. 2006)
that temporal proximity alone is insufficient to establish pretext).
24

See

(holding

Plaintiff's assertion that checking windows was not part of his job
(4)

the harsher punishment received by Plaintiff

in relation to Wynn.

For reasons more fully developed below, none

description,

and

are sufficient to prove pretext.
First,

neither Sams nor McDuffie

were

decisionmakers

involved

in the disciplinary process and so their comments are insufficient
to

prove

pretext.

Trustees,

188

App'x

F.

discriminatory

(Pi.

Dep.

at
816

810,

97-98.)
(11th

See
Cir.

Kincaid v.

2006)

statements by non-decisionmakers

Bd.

(finding

were

not

of

that

evidence

of pretext).

Second,

Plaintiff claims that Kenny Thorpe — who was present

at the July Executive Board meeting and represented the Union at
the August PGC hearing — made a comment to him after he testified

on behalf of the co-worker.22
said

"What

testifying

you

for

testimony nor
for

this

got

to

her."
his

statement

Specifically, Plaintiff claims Thorpe

do?"

(Pi.

and

Dep.

Plaintiff

at

briefs present any
and

the

Court

interaction is probative of either

responded

"Man,

I'm

178.)

Neither

factual

context or argument

fails

(1)

to

see

how

Plaintiff's

this

limited

the falsity of Defendants'

stated reason for the suspension or (2) a retaliatory motive.

Third,

Plaintiff challenges the circumstances giving rise to

the May 2012 grievance, arguing that it was not his responsibility
to

check

First,

another

hearing,
22

the

windows.

employee,

This

argument

fails

in

three

respects.

who did not testify at the co-worker's

was also punished for the same activity.

Second,

the

It is unclear from the record whether this statement was made after the

July Executive Board meeting or the August PGC hearing.
25

grievance

was

filed

well

before

Executive Board's July meeting.
clear

that

" [i] f

reasonable

the

given

employer,

the

Plaintiff's

And third,

reason

is

plaintiff

Thus,

at

the

the Eleventh Circuit is

one

that

cannot

quarreling with the wisdom of that reason."
at 1265.

testimony

may

motivate

succeed

simply

a

by

Masso, 465 F. Supp. 2d

when it comes to the specific job duties at issue,

it is not the Court's place to "second guess the business judgment
of the employer."

Finally,
Plaintiff

and

claims

because he

maintain

in

relation to

that

he

the

received

severity of

harsher

Plaintiff's

the

senior

difference
status

in

(See Doc.

to

Wynn

Plaintiff

cannot

Wynn

Defendants

was

a

result

and

the

fact

of
that

support positions whereas Wynn only
29,

Exs.

C-F.)

Plaintiff does not

present any evidence to contradict this assertion.
then,

than

Again,

punishment

relation

worked regularly in

did so on occasion.

in

his punishment,

punishment

testified on his co-worker's behalf.

that

Plaintiff

Id.

demonstrate

that

Without more,

Defendants

expressed

or

held any retaliatory motive in suspending him, and he is left only
with the fact that his testimony in July was just weeks before his

August

disciplinary

hearing.

But,

as

stated

proximity alone is insufficient to prove pretext.

above,

temporal

Johnson,

190 F.

App'x at 768.

As

such,

reasons
thus

were

his

Brooks

v.

Plaintiff has failed to show either that the stated
false

claim

Cnty.

or

that

retaliation

for retaliation must

Comm'n of

fail

Jefferson
26

was

the

as a

Cnty.,

true

reason,

matter of

Ala.,

446

law.

F.3d

and
See

1160,

1163

(11th Cir.

must

2006)

introduce

("To avoid summary judgment

significantly probative

evidence

the

plaintiff

showing

that

asserted reason is merely a pretext for discrimination.

the

A reason

is not pretext for discrimination unless it is shown both that the
reason

was

(internal

and

false

that

quotation marks

Plaintiff

again

Defendants'

admits

Statement

statement that

based

on

solely

was

the

real

and citations omitted)).
as

of

" [t] he

[retaliation]

much

Material

decision of

in

his

the

[Plaintiff's]

Perplexingly,

response

Facts.

When

[PGC]

reason."

to

the

responding

GSA

to

the

on August 7,

to

failure

2012 was

the

perform

job

expectations of a veteran field foreman which resulted in damage to
cargo," Plaintiff writes that he "cannot refute the facts contained

in [that paragraph.]"
C.

Breach

(Doc. 38, H 73.)

of

Plaintiff

Duty
(Count

to

Fairly

III)

and

Adequately

and Breach

of

Represent

Contract

(Count

V)

by the Union

In

Counts

III

and

V,23

Plaintiff

alleges

that

the

Union

breached its duty to fairly and adequately represent him and that
it breached the terms of the CBA as well.
claims

that

the

Union

(1)

failed

to

Specifically,

represent

interests at the hearing on his grievance,
to a fair hearing,

(3)

referred to

rights

claims

(Compl.

against

the

23

Plaintiff also raises this breach of

57-61.)

(4)

The Supreme

employer and Union for

The complaint does not assert a "Count IV."

24

M

and

denied him a right

demoted him under false pretenses, and

breached the terms of the CBA.24
Court has

(2)

his

Plaintiff

CBA claim against GSA,

who never

actually employed Plaintiff but rather negotiated the CBA on behalf of the
Port Employers.

(Massey Aff. M

11-12.)
27

breach of the CBA and duty of fair representation as "inextricably

interdependent"
claims."

164-65

and,

(183)

sues

one,

§

Bros,

the

to

other,

breach

or

of

both.

contract

private

to

Mitchell,

the

under

claim,

settlement

451 U.S.

limitations

169-171;

§

U.S.

thus

3 01,

amounting

of

151,

not

a

[]

but

a

a

direct

to

disputes

under

the

(internal citations and quotation

but

must

also

56,

66-67

carry

the

discharge
burden

of

United Parcel Serv.

(1981).

the Supreme Court adopted a six-month statute

for these hybrid cases.

Coppage v.

Cir. 2002).

is

must not only show that [his]

contract

In DelCostello,
of

462

"hybrid

sue one defendant

suit

demonstrating a breach of duty by the Union."
v.

as

"To prevail against either the company or the

. . . [the employee]

contrary

The

suit

representation

the

marks omitted)).25

was

Teamsters,

if he chooses,

collective-bargaining agreement."

Union,

of

them

but the case he must prove is the same whether

301/fair

challenge

Int'l

characterizes

("The employee may,

straightforward

hybrid

such,

DelCostello v.

and not the other;
he

as

U.S.

Postal Serv.,

DelCostello,

281

F.3d 1200,

462

U.S.

1204

at

(11th

Thus, a plaintiff seeking to assert such a claim must

file suit within six months from "the date

[he]

knew or should have

known of the Union's final action or the employer's final action,
whichever

is

later."

Adams

A.F.L.-C.I.O. , 189 F.3d 1321,

v.

1322

United

Paperworks

(11th Cir.

1999).

Int'l

Union

The final

25
Plaintiff does not explicitly refer to his claim as a hybrid claim;
however, because he is filing a suit under the National Labor Relations Act
for both breach of the CBA and breach of the duty of fair representation,

the

Court construes his argument as such, just as Defendants did in their briefs.
Plaintiff has not disputed this characterization.
28

action is referred to as "the point where the grievance procedure
was

exhausted

or

disadvantage."

otherwise

broke

to

the

Proudfoot v. Seafarer's Int'l Union,

1559 (11th Cir. 1986); Youngblood v.
1314-15

down

(M.D. Ala.

2003)

employee's

779 F.2d 1558,

Potter, 262 F. Supp. 2d 1309,

(ruling that a plaintiff had six months to

file his lawsuit from the date he "discovers,

or in the exercise of

reasonable diligence should have discovered,

the acts constituting

the alleged violation"
Here,

at

September 1,

the

2 012,

(internal quotation marks omitted)).

absolute

latest,

when Plaintiff

the

retired.

file his complaint until June 17, 2013,

that

action.

Plaintiff

appears

"final

to

He

action"

did not,

was

on

however,

more than nine months after

claim

that

he

appealed

the

grievance filed against him but was not notified of a hearing and

was not permitted to participate.
puts it,
this

he

thing

that

day,

Nobody contacted me,

freely

admits

retirement.26

As Plaintiff

breach

that

he

the whole —

and I never heard anything back
nothing."

dropped

(Pi. Dep.

that

at

90.)

grievance

from

However,

before

his

(Id. at 100 ("As - when it came up, I dropped it.").)

For this reason,

for

37 at 6.)

he "filed an appeal against the whole thing,

whole

them.

(Doc.

of

the Court holds that his claims against the Union

the

duty

to

fairly

represent

him

and

breach

of

contract are both time barred and fail as a matter of law.

26
Before Plaintiff retired, he filed a grievance against Atlantic Ro-Ro
for "double standards of work, ethics invoked on specific individual, single

or called out repetitiously [sic] regarding work performance."
(Doc. 39, Ex.
B.) However, Plaintiff dropped said grievance on August 7, 2012.
(Id.)
29

D.

Breach of Contract by GSA (Count VI)

Plaintiff concedes in his response to Defendant GSA's motion
for summary judgment that he does not have sufficient evidence to

maintain a breach of contract claim against GSA.

Accordingly, that

claim is hereby DISMISSED.
E.

Punitive Damages (Count VII)

Because the Court has

found that,

as a matter of law,

all of

Plaintiff's claims fail, it need not address any claim for punitive
damages.

IV.

For

the

reasons

set

CONCLUSION

forth

above,

Defendants'

summary judgment (Docs. 27, 29) are GRANTED.
to

enter

FINAL

JUDGMENT

in

favor

terminate all deadlines and motions,

of

motions

for

The Clerk is DIRECTED

Defendants.

The

Clerk

shall

and CLOSE the case.

ORDER ENTERED at Augusta, Georgia, this <^><Cl/ day of November,
2014.

HONORABLE J.

RANDAL HALL

HH'EySTATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

30