Lang v. Bloomin' Brands, Inc. et al

Filing 41

ORDER granting 27 Motion for Summary Judgment. Plaintiff's claims are dismissed. The Clerk of Court is directed to close the case. Signed by Judge William T. Moore, Jr on 2/9/16. (wwp) Modified on 2/10/2016 (wwp).

F!

1

ii

RT
,

IN THE UNITED STATES DISTRICT COURTFOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CL E
EDWARD V. LANG,

FEB -.0'

Plaintiff,
CASE NO. CV414-196

V.

BLOOMIN' BRANDS, INC., and
OUTBACK STEAKHOUSE,
Defendants.

ORDER

Before the Court is Defendants' Motion for Summary Judgment
(Doc. 27) to which Plaintiff has filed a response (Doc. 31). For
the following reasons, Defendants' motion is
result Plaintiff's claims are DISMISSED.

GRANTED.

As a

The Clerk of Court is

DIRECTED to close this case.
BACKGROUND

Plaintiff is an African-American man who was employed as a
busser at an Outback Steakhouse ("Outback")

1

in downtown

Plaintiff moved to amend his complaint to add as defendants OS
Restaurant Services, Inc. d/b/a Outback Steakhouse and OSI
Restaurant Partners, LLC d/b/a Outback Steakhouse (Doc. 15), and
the Court granted the unopposed motion (Doc. 17) . Plaintiff,
however, never filed an amended complaint. Nevertheless, this
Court will treat the motion as sufficient to amend the
Complaint. Defendants objected to this amendment in their Motion
for Summary Judgment (Doc. 28 at 1) stating only that
"Defendants maintain their argument that OSRS was [Plaintiff's
employer, is the only entity that controlled the terms and
conditions of [Plaintiff's] employment, and the only proper

Savannah,

Georgia.

(Doc.

27,

Attach.

18

at

9.)

During

Plaintiff's employment, the restaurant was managed by Sarah
Miller, the Managing Partner; Jeremy Webb and Joshua Curry, both
Managers; and David Schultz the Kitchen Manager. (Doc. 27,
Attach. 21 at 13, 114.) The restaurant, in addition to several
others, was overseen by Eldridge ''Ridge" Sink, II. (Doc. 27,
Attach. 19 at 39-40.) As part of Sink's responsibilities, he
conducted training on Outback policies and procedures, and also
addressed serious issues of reported discrimination and
harassment. (Id. at 60-61.)
Plaintiff was hired on March 21, 2009 (Doc. 27, Attach. 4)
and, at the time of his hire, acknowledged receipt of the
Employee Handbook, which contained the Outback Discrimination
and Harassment Policy (Id. at 2-4) . Plaintiff alleges that his
initial hiring as a busser was only a temporary position and
that he was told by Mr. Shultz that he would be promoted when a
higher paying kitchen position became available. (Doc. 27,
Attach. 18 at 38.) When the position became available, however,

party to this action." (Id.) However, this conclusory statement
is insufficient to oppose Plaintiff's amendment. See S.D. Ga.
L.R. 7.5 ('Failure to respond within the applicable time period
shall indicate there is no opposition to a motion."); see Cont'l
Tech. Servs., Inc. v. Rockwell Intern. Corp., 927 F.2d 1198,
1199 (11th Cir. 1991) (holding issues waived where party offers
only conclusory statement without supporting argument) . For ease
of reference, all Outback entities will be jointly referred to
as "Outback" or "Defendants" throughout this order.

Plaintiff did not file a formal application and that position
ultimately went to Brian Lowry, a white male. (Id. at 38-42.)
In October of 2009, Plaintiff sent a complaint 2 to Mr. Sink
about racist behavior towards African-Americans in the downtown
Savannah Outback. (Doc. 27, Attach. 8.) Generally, the complaint
alleged (1) "diabolical blatant anti-Black practice[s] at
outback steakhouse downtown Savannah"; (2) a 'totally improper
statement to [Plaintiff] regarding cleaning [a] table"; (3) that
Annie Miller

wtalk[ed] loud and unprofessionally to [Plaintiff]"

concerning cleaning tables; (4) that once Jeremy Webb
confronted [Plaintiff] . . . in an extremy [sic] negative
manner pointing to another table as if [Plaintiff] was his
slave"; (5) that on one occasion Mr. Webb 'became argumentative
with [Plaintiff];" (6) Mr. Webb harassed Plaintiff about not
performing his work adequately, (7) that the managers were
'using outback to implement a clandestine and/or questionable
business practice/ethic toward Blacks;" (8) that Plaintiff was
not receiving proper pay; and (9) that Plaintiff was not
receiving proper tips or wages. (Id.) Upon receipt of the
complaint, Mr. Sink contacted Robert Donovan, an in-house
employment attorney for Outback. (Doc. 27, Attach. 9 at 2.) Mr.

The complaint was styled as an "affidavit" and notarized. (Doc.
27, Attach. 8.)
Sarah Miller's sister and an employee at the Downtown Savannah
Outback. (Doc. 27, Attach. 8.)
2

3

Donovan directed Mr. Sink to investigate the complaint. (Id.)
Mr. Sink spoke with Sarah Miller and Plaintiff as part of his
investigation. While Mr. Sink was unable to substantiate
Plaintiff's complaints, he did discuss the allegations with
Plaintiff. (Id. at 5.) In his discussion, Mr. Sink noted that
Plaintiff believed Mr. Webb had improved since his letter. (Id.
at 4.) Although Mr. Sink believed that the situation was
improving, Plaintiff alleges that, in fact, the situation for
African-American employees at Outback deteriorated after his
complaint and that Mr. Sink spent very little time with him
discussing his complaint. (Doc. 1.)
On January 11, 2010, Plaintiff filed a Request for
Assistance with the Equal Employment Opportunity Commission
('EEOC"), simultaneously sending a copy to Defendants. (Doc. 27,
Attach. 11.) Plaintiff again alleged that there was a 'hostile
atmosphere for Blacks" at the restaurant; that Mr. Webb engaged
in an argument and became unprofessional with another
individual; that Mr. Schultz was assigning African-Americans to
multiple jobs, but not their white counterparts; that white
employees were allowed to smoke outside while African-American
employees were not; that managers allowed white employees to
make disparaging remarks about African-American employees; that
in a fight between an African-American employee and a white
employee only the African-American employee was terminated; and

4

that a white employee was placed in a position for which the
Plaintiff was qualified. (Id.) Plaintiff also claimed that one
employee, Phillip Meyer, admitted to telling Plaintiff "Yeah,
you earn that paycheck, boy!" and that Jeremy Webb used the term
"monkey" in front of him. (Doc. 1 at 40-41; Doc. 27, Attach.
13.) Finally, Plaintiff alleged that Mr. Curry told him to take
his "black behind and go clean tables." (Doc. 27, Attach. 11;
Doc. 27, Attach. 18 at 26-29.)
This time, Mr. Donovan and Mr. Jolly, another senior
Outback executive, took the lead in investigating Plaintiff's
allegations. (Id.) They were particularly concerned about the
"boy" comment (id.), and were informed that Mr. Webb reviewed
the incident with Plaintiff and Mr. Meyer, whom had been
verbally reprimanded for the comment (Id.) . Messrs. Donovan and
Jolly also investigated Plaintiff's claim that only the AfricanAmerican employee had been fired as a result of an altercation
between an African-American and white employee. (Doc. 27,
Attach. 11.) After reviewing the incident, the white employee
was also terminated. (Doc. 27, Attach. 20 at 102.) The
investigation also revealed other reports of "racial tension,"
and some claims of sexual harassment in which Plaintiff was not
involved (Id. at 41; Doc. 32, Attach. 1 at 10.)
On January 16, 2010, after Plaintiff filed his complaint
with the EEOC, one of Plaintiff's co-workers came forward with

5

allegations

that

Plaintiff

had

made

several

sexually

inappropriate remarks to her. (Doc. 27, Attach. 20 at 77; Doc.
27, Attach. 10.) Like Plaintiff's second complaint, this claim
was escalated to Messrs. Donovan and Jolly. (Id.) During the
course of the investigation, other female employees came forward
stating that Plaintiff had made sexual comments to them. (Doc.
27, Attach. 20 at 193-95.) Plaintiff admits to calling one of
the employees 'Next Top Model" and 'Miss Pretty Feet," and notes
that he commented on one employee's lips, although he also
states that none of the women complained to him about his
comments. (Doc. 27, Attach. 18 at 165-167.) Mr. Sink attempted
to contact Plaintiff to discuss the accusations, however,
Plaintiff did not respond. (Id. at 170.) Plaintiff's hours were
reduced until he agreed to speak with Sink about the
allegations. (Doc. 31, Attach. 3.) Ultimately, Plaintiff's
employment was terminated on February 16, 2010 as a result of
the sexual harassment claims and his failure to communicate with
Mr. Sink. (Doc. 27, Attach. 19 at 122.)
After

his

termination,

Plaintiff

requested

state

unemployment compensation. (Doc. 27, Attach. 6.) Defendants
responded, as required under Georgia law, stating that Plaintiff
had been terminated due to a violation of company policy. (Doc.
27, Attach. 7 at 2.) After Plaintiff's request was denied (Doc.
1 at 49), he successfully appealed and was awarded unemployment

benefits (Doc. 27, Attach 7 at 2) . On September 10, 2014,
Plaintiff filed this case under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. (Doc. 1.) Plaintiff
alleges that he suffered a hostile work environment, and
Defendants retaliated against him for bringing the complaints by
reducing his work hours and eventually firing him. (Id. at 6.)
Plaintiff alleges further that Defendants failure to rehire him
and opposition to Plaintiff's unemployment benefits constitutes
retaliation. Plaintiff also alleges indirectly that Defendants
failed to promote him on the basis of race and that there was
violence in the work place. (Id.) Defendants, maintain however,
that Plaintiff was terminated as a result of his sexual
harassment of co-workers and that Plaintiff did not suffer from
a hostile work environment or any violence in his workplace.
(Doc. 27,)
ANALYSIS

I.

SUMMARY JUDGMENT STANDARD
According to Fed. R. Civ. P. 56(a),

w[a] party may move for

summary judgment, identifying each claim or defense—or the part
of each claim of defense—on which summary judgment is sought."
Such a motion must be granted 'if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to assess the

7

proof in order to see whether there is a genuine need for
trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U. S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes)
Summary judgment is appropriate when the nonmovant 'fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) . The substantive law governing
the action determines whether an element is essential. DeLong
Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505
(11th Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears the
initial responsibility of informing the district
court of the basis for its motion, and identifying
those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if. any, which it
believes demonstrate the absence of a genuine issue
of material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts material to the nonmovant's
case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991)

E

The Court must review the evidence and all reasonable
factual inferences arising from it in the light most favorable
to the nonmovant. Matsushita, 475 U.S. at 587-88. However, the
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Id. at 586. A
mere "scintilla" of evidence, or simply conclusory allegations,
will not suffice. See, e.g., Tidwell v. Carter Prods., 135 E'.3d
1422, 1425 (11th Cir. 1998) . Nevertheless, where a reasonable
fact finder may "draw more than one inference from the facts,
and that inference creates a genuine issue of material fact,
then the Court should refuse to grant summary judgment."
Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989)
II. HOSTILE WORK ENVIRONMENT CLAIM
Title VII prohibits an employer from "discriminat[ing]
against any individual with respect to his compensation, terms,
conditions or privileges of employment because of such
individual's race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-2 (a) (1) . To establish a hostile work environment
claim under Title VII, the Plaintiff must prove the following:
(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

Pon

under either a theory of vicarious or of direct
liability.
Miller v.

Kenworth of Dothan, Inc., 277 F.3c1 1269, 1275 (11th

Cir. 2002) . Disrespectful, unprofessional, and harassing conduct
will not suffice to show a hostile work environment unless a
link between that conduct and Plaintiff's status in a protected
category can be shown. Turner v.

Ga.

Sec'y of State, 848 F.

Supp. 2d 1361, 1381 (M.D. Ga. 2012) . An isolated racial comment,
without more, does not prove racial motivation for all other
conduct. In fact, comments and conduct that do not reference
race are generally not considered in a hostile work environment
claim. See Reeves v. DSI Sec. Servs., Inc., 395 F. App'x 544,
546 (11th Cir. 2010) ("We do not consider statements or conduct
that are unrelated to the [Plaintiff's] race.")
The facts of this case clearly satisfy the first and second
elements of the prima facie hostile work environment claim.
Plaintiff is African-American and suffered some level of
harassment at the hands of his co-workers. However, even if the
conduct of Plaintiff's co-workers was motivated by Plaintiff's
race, this Court is unable to conclude that Plaintiff
experienced harassment that was severe or pervasive. To satisfy
this element for a hostile work environment, the harassment must
be "both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that

10

the victim in fact did perceive to be so." Faragher

V.

City of

Boca Raton, 524 U.S. 775, 787 (1998); see also Miller, 277 F.3d
at 1276 (noting that the severity requirement has 'both an
objective and subjective component") . Courts should consider the
totality of the circumstances rather than acts in isolation.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).
A court must evaluate four factors when addressing the
objective hostility of the conduct:

'

1

(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.' " Walton v.
Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1285 n.12 (11th
Cir. 2003) (quoting Mendoza, 195 F.3d at 1246). The Supreme
Court has held that"'simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
employment." Clark Cnty. Sch. Dist.

V.

Breeden, 532 U.S. 268,

271 (2001) (internal citations and quotations omitted); see also
Johnson v. Booker T. Washington Serv. Inc., 234 F.3d 501, 509
(11th Cit. 2000)
In this case, Plaintiff has provided evidence of, at most,
four racial comments: Mr. Webb's use of the term 'monkey" in
reference to Plaintiff; a coworker's statement 'Yeah, you earn

11

that paycheck Boy;" and Mr. Curry's comment directing Plaintiff
to take his "black behind and go clean tables." (Doc. 27,
Attach. 11; Doc. 27, Attach. 18 at 26-29.) Plaintiff also
alleges that white waitresses would make comments about the
dining room "getting dark" when African-American patrons came
into the restaurant. (Doc. 27, Attach. 18 at 29.) While this
Court acknowledges that these kinds of incidents are
inappropriate, it is unable to conclude that these isolated
incidents from three different people over the course of
approximately eleven months renders the conduct pervasive. 4
Plaintiff also makes a number of allegations unrelated to
his race, including that Mr. Webb in particular would get
"'aggressive" with him and that Mr. Sink also behaved in an
"aggressive manner." (Id. at 28-29.) However, Plaintiff neither
provides support for his allegation that these actions were the
result of a racial bias nor states that in these "aggressive"
altercations any person 'use[d] any other terminology specific
to [Plaintiff's] race." (Id.) Again, statements unrelated to
Plaintiff's race do not impact an analysis of claims based on a
hostile work environment. Reeves, 395 F. App'x at 546 (11th Cir.
2010); see also Baldwin v. Blue Cross/Blue Shield of Ala., 480
F.3d 1287, 1301-02 (11th Cir. 2007) ("Title VII does not
This conclusion is supported by the fact that the speaker of
the "boy" comment apologized to Plaintiff when Plaintiff
reported the incident. (Doc. 27, Attach. 21 at 60.)
12

prohibit profanity alone, however profane,. It does not prohibit
harassment alone, however severe and pervasive. Instead, Title
VII

prohibits

discrimination,

including

harassment

that

discriminates based on a protected category.") . Nevertheless,
even if this Court were to include all facially race-neutral
conduct that Plaintiff believes occurred as a result of his
race, the harassment still does not appear to be particularly
frequent. See, e.g., Adams v. Austal, U.S.A., LLC, 754 F.3d
1240, 1254 (11th Cir. 2014) (denying claim for hostile work
environment where plaintiff "frequently saw racist graffiti
• the Confederate flag • . . [and heard] the slur ni[**]er,'.
• a few times over several years") . Based on its review of the
record, this Court concludes that the evidence produced by
Plaintiff at the most indicates that Plaintiff experienced
harassment with moderate frequency.
With respect to the second factor, the severity of the
harassment complained of by Plaintiff is also insufficient to
impose liability on Defendants. The Supreme Court and the
Eleventh Circuit have noted that a hostile work environment is
only created when the workplace is

IN 'permeated with

discriminatory intimidation, ridicule and insult,' not where
there is the 'mere utterance of an . . epithet.' " Miller, 277
F.3d at 1276-77 (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)). Here, the majority of Plaintiff's allegations

13

relate to undisclosed "aggression" and intermittent commentary
by wait-staff concerning patrons in the restaurant. While these
events may be unpleasant, Title VII does not impose a general
civility code. See Wynn v. Paragon Sys., Inc., 301 F. Supp. 2d
1343, 1352 (S.D. Ga. 2004) (holding that Title VII is not "a
general civility code"). And the Court is hard pressed to impose
liability for comments occasionally made by wait staff directed
to patrons, rather than directed towards Plaintiff. Instead,
w[ r

] ac i a l slurs spoken by co-workers ha[ve] to be so

'commonplace, overt and denigrating that they create an
atmosphere charged with racial hostility.' " Edwards v. Wallace
Cmty. Coil., 49 F.3d 1517, 1521 (11th Cir, 1995) (quoting
E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th
Cir. 1990)) . Even when these charges are coupled with the
referenced instances involving racial comments made to Plaintiff
about his race, the harassment is still insufficiently severe to
support a claim under Title VII. See, e.g., Barrow v. Ga. Pac.
Corp., 144 F. App'x 54, 57 (11th Cir. 2005) (finding
insufficient severity so as to alter the terms of working
environment despite multiple supervisors calling plaintiff
ni[**]er, "boy," and "black boy" on multiple occasions over
course of year and threatening to "kick [plaintiff's] black
ass")

14

As to the third factor, the allegedly offensive conduct
does not appear physically threatening or particularly
humiliating. While Plaintiff complains of "aggression," there is
no indication that such conduct was related to Plaintiff's race
or that Plaintiff felt physically threatened. Furthermore,
Plaintiff notes that except for the incident described in
Section IV below—which occurred several years after Plaintiff's
termination—he never experienced any violence in the workplace
based upon race. (Doc. 27, Attach. 18 at 110.) Consequently,
this factor weighs against finding that the harassment was
objectively severe.
As to the fourth factor, even if the Court were to conclude
that the offensive conduct interfered with Plaintiff's job
performance—an allegation Plaintiff has failed to make—the
remaining three factors all weigh in favor of finding that the
conduct experienced by Plaintiff was not objectively severe
enough to find a hostile work environment. The harassing conduct
was simply too infrequent; did not permeate the workplace with
discriminatory intimidation, ridicule, and insult; and was not
physically threatening or humiliating. As a result, Defendants
are entitled to summary judgment on this claim.

15

II. RETALIATION CLAIMS

Because Plaintiff has proffered only circumstantial
evidence of discrimination, 5 he must show that "(1) [he] engaged
in an activity protected under Title VII; (2) [he] suffered an
adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse employment
action." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)
(citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001)). Once a plaintiff makes such a showing, the
burden shifting analysis of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), comes into play, requiring a defendant to
show a non-retaliatory reason for its actions. Brown v. Ala.
Dep't of Transp., 597 F. 3d 1160, 1181 (11th Cir. 2010). If a
defendant does provide evidence of a non-retaliatory reason for
its actions, a plaintiff is then required to show that ' 'the
proffered reason really is a pretext for unlawful
discrimination.' " Brooks v. Cty. Cornm'n of Jefferson Cty.,

'Direct evidence of discrimination is evidence, that, if
believed, proves the existence of a fact at issue without
inference or presumption . . . [D]irect evidence is composed of
only the most blatant remarks, whose intent could be nothing
other than to discriminate on the basis of some impermissible
factor." Rohas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir.
2002) (quoting Schoenfeld v. Babbit, 168 F.3d 1257, 1266 (11th
Cir. 1999)). Here, Plaintiff has not provided evidence that
Defendants made any racial comments in regards to either the
reduction of his hours, his termination, or application for
unemployment benefits.

Ala., 446 F. 3d 1160, 1162 (11th Cir. 2006) (quoting E.E.O.C. v.
Joe's Stone Crab, Inc., 296 F.3d 1265, 1272-73 (11th Cir.
2002)).
A. Retaliatory Opposition To Unemployment Benefits
Plaintiff first claims that Defendants retaliated against
him by opposing his application for unemployment benefits. (Doc.
1.) In Georgia, an employer may challenge the award of
unemployment benefits to an employee on the basis that the
employee was discharged for failure to obey orders, rules, or
instructions, or for failure to discharge the duties for which
the employee was employed. O.C.G.A. § 34--157 (b) (1) . An
employer that fails to respond to any inquiries by the Georgia
Department of Labor may be charged for benefits awarded if the
former employee was not entitled to them. O.C.G.A. § 34-8157 (b) (2) (E) . As a result, employers are legally required to
involve themselves in employee initiated unemployment benefit
requests. Id. Here, Defendants responded in opposition when
Plaintiff initiated his request for unemployment benefits. 'Such
opposition was clearly the employer's right and duty and not
retaliatory in nature, since Plaintiff initiated the
unemployment benefits process and the employer participated as
required." Baker v. Summit Unlimited, Inc., 855 F. Supp. 375,
376 (M.D. Ga. 1994), see also Gaddis v. Russell Corp., 242 F.
Supp. 2d 1123, 1144-45 (M. D. Ala. 2003) ('Plaintiff cannot

17

sustain a cause of action under Title VII based on Defendant's
opposition to her request for unemployment benefits because she
has not established that this conduct constitutes unlawful
employment action.") As a result, Plaintiff has not made a
sufficient showing on prongs two and three of his prima fade
case. Plaintiff fails to identify any evidence in the record
that Defendants' legally mandated participation in the
unemployment benefits review was either related to his
engagement in a protected activity or constituted an unlawful
employment action.
B. Retaliatory Reduction In Work Time, Suspension, And
Termination
Plaintiff next alleges that Defendants retaliated against
him by reducing his work hours and eventually terminating his
employment. (Doc. 1.) As an initial matter, Plaintiff has
provided this Court with no evidence to show that his hours were
reduced when he made his initial claim of discrimination.
Plaintiff indicates that he worked roughly 40 hours per time
sheet prior to his complaints. (Doc. 27, Attach. 18 at 65.) The
record indicates that Plaintiff actually worked more in the
weeks following his initial report of discrimination. (Doc. 31,
Attach. 4.) However, Plaintiff has noted that the first time
that his hours were reduced was January 31, 2010, a few weeks
after his second claim of discrimination and roughly two weeks

after the initial charges of sexual harassment were made against
Plaintiff. (Doc. 27, Attach. 18 at 154; Doc. 31, Attach. 4.)
Furthermore, Plaintiff has alleged that he was unlawfully
suspended and terminated as a result of his filing a second
complaint of racial discrimination. (Doc. 1.) As a result, the
Court concludes that Plaintiff has pled a prima facie case of
retaliation by showing that he complained both to his employer
and the EEOC about racial discrimination at his workplace and
that, slightly thereafter, his hours were reduced and he was
terminated.
Defendants,

however,

have

provided

evidence

that

Plaintiff's hours were reduced, he was suspended, and ultimately
fired as a result of multiple complaints made against him for
sexual harassment. Moreover, while Plaintiff quibbles with
whether all of the allegations made against him are accurate, he
admits that he did engage in at least some of the activity for
which he was terminated. (Doc. 27, Attach. 18 at 70-75.) Even
assuming Plaintiff's statements are true, and he did not engage
in any sexual harassment, Defendants would still be protected.
Where

"[a]n employer

[.

.

.

1 fires an employee under the

mistaken but honest impression that the employee violated a work
rule," that employer is not liable for any unlawful conduct.
Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1363 n.3
(11th Cir. 1999)

19

Because Plaintiff has sufficiently proved his prima facie
case and Defendants have proffered a reasonable non-retaliatory
basis for the termination, it falls to Plaintiff to show that
the non-retaliatory basis is mere pretext. A plaintiff may make
such a showing by citing to " 'weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions' in the
proffered explanation." Brooks, 446 F.3d at 1163 (quoting
Jackson v. Ala. State Tenure Coinm'n, 405 F.3d 1276, 1289 (11th
Cir. 2005)). However, this Court is "not in the business of
adjudging whether employment decisions are prudent or fair.
Instead [its] sole concern is whether unlawful discriminatory
animus motivates a challenged employment decision." Damon, 196
F.3d at 1361 (citing Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d
1181, 1187 (11th Cir. 1984)). Notably,

"[a] reason is not

pretext for discrimination 'unless it is shown both that the
reason was false, and that discrimination was the real reason.'
Brooks, 446 F.3d at 1163 (quoting St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993)). Plaintiff has failed to carry
this burden. Plaintiff admitted that he did indeed make the
comments that formed the basis of the sexual harassment
allegations, and he signed documents attesting to his knowledge
of Outback's sexual harassment policy. (Doc. 27, Attach. 4.)
Thus, Plaintiff's claim must fail because he is unable to show
that the reason proffered by Defendants for his termination was

20

false. See, e.g. Chavez v. Credit Nation Auto Sales, LLC,
App'x

Jr

2016 WL 158820,

F.

*4 (11th Cir. 2016) (concluding that

employer's reason for firing was not pretext when employee was
fired for sleeping on the clock and plaintiff admitted this
conduct.)
C. Retaliatory Failure To Rehire
Plaintiff also alleges that Defendants' decision not to
rehire him was improper retaliation. However, Plaintiff's claim
is barred because he has failed to exhaust his administrative
remedies. Failure to rehire is a separate and discrete
discriminatory act. See Caetio v. Spirit Coach, LLC, 992 F.
Supp. 2d 1199, 1210 (N.D. Ala. 2014)( " '[D]iscrete acts of
discrimination that occur after an administrative filing must
first be administratively reviewed before a plaintiff may obtain
judicial review of those same acts.' Termination, failure to
promote, denial of transfer, or refusal to hire are readily
identifiable examples of such discrete discriminatory acts."
(quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002); Basel v. Sec'y of Def., 507 F. App'x 873, 876 (11th
Cir. 2013))). Furthermore, it 'is clear that a discrete incident
of discriminatory treatment, . . . is its own unlawful
employment practice for which administrative remedies must be
exhausted.' " Haugabrook v. Valdosta City Schs., 2012 WL
1014789,

*5 (M.D. Ga. Mar. 22, 2012) (quoting Martinez v.

21

Potter, 347 F.3d 1208 (10th Cir. 2003) (internal quotations
omitted) . Plaintiff has not presented his failure to rehire
claim to the EEOC and may not present that claim here.
III. FAILURE TO PROMOTE
While not clear from the complaint, 6 it appears that
Plaintiff also alleges that Defendants discriminated against him
by failing to promote him as initially promised. (Doc. 27,
Attach. 18 at 38.) Plaintiff claims that when he was first
hired, it was with the understanding that he would be promoted
when a higher paying position became available. (Id.) Plaintiff
however, failed to submit an application for the position,
relying on his previous statements of interest in his initial
applications for employment and claims that the advertisement
for the position occurred secretly. (Id. at 39.) Defendants
hired another individual when a higher paying kitchen position
became available. (Id. at 38.)
Plaintiffs seeking to make claims for failure to promote
"carry the initial burden under the statute of establishing a
prima facie case of racial discrimination." McDonnell Douglas,
411 U.S. at 802. In the failure-to-promote context, a 'plaintiff
6

Plaintiff claims that "[t]he acts Lang complained of concerned
the termination of his employment, failure to promote, demotion,
suspension, retaliation and hostile work environment." (Doc. 31,
Attach. 8 at 1.) However, beyond this, Plaintiff has provided no
support for his failure to promote claim. However, as explained
herein, to whatever extent Plaintiff is making a failure to
promote claim it must also fail.
22

may demonstrate that he is a member of a protected class and
that he was qualified and applied for the promotion but was
rejected despite his qualifications in favor of an equally or
less qualified employee who was not a member of the protected
class." Jefferson v. Burger King Corp., 505 F. App'x 830, 833
(11th Cir. 2013) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1089 (11th Cir. 2004)) . 'In order to make a valid
comparison, the plaintiff must show that he and the comparator
are similarly situated in all relevant respects" Id. (citing
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997.)
In this case, however, Plaintiff has not established a
prima facie case. While Plaintiff alleges that he was not hired
for the position because he was black, Plaintiff fails to allege
that he was even qualified for the position, and he certainly
does not state that he had superior qualifications to the
individual whom was eventually hired. As a result, Plaintiff's
failure to promote claim must also fail. See Burger King, 505 F.
App'x at 835 (upholding grant of summary judgment where
Plaintiff "failed to carry his burden of demonstrating that
Burger King rejected him for a promotion in favor of another
individual who was equally or less qualified")
IV. VIOLENCE IN THE WORKPLACE

Plaintiff's final claim is for ''violence in the work place
based upon race." (Doc. 1 at 16.) In his complaint, Plaintiff

23

relies upon the experiences of another individual—Anthony Drew—
whom Plaintiff claims suffered physical violence at the hands of
Mr. Webb. (Doc. 27, Attach. 18 at 110.) This incident occurred
on or around May 26, 2012, several years after Plaintiff was
employed at the Outback restaurant in downtown Savannah. (Id. at
57) . As an initial matter, to whatever extent Plaintiff is
trying to argue that he suffered violence at the hands of
Outback employees, the Court can discern no evidence in the
record of such activity.
The Court acknowledges that threatening behavior towards
individuals may form the basis of a hostile workplace claim.
Miller, 277 F.3d at 1275. Unfortunately for Plaintiff, he cannot
prove the fourth prong for alleging a discriminatory workplace
claim—"that the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a
discriminatorily abusive working environment," because Plaintiff
was not employed by Defendants at the time the event took place.
Id. at 1275. Furthermore, allegations of events that Plaintiff
did not experience generally do not create evidence of a hostile
work environment. See, e.g., Adams, 754 F.3d at 1253-54
(granting summary judgment in favor of employer where employees
knew about, but did not personally observe, nooses in bathroom.)

24

As a result, Plaintiff's claim for violence in the workplace
must likewise fail. 7
CONCLUSION

For the foregoing reasons, Defendants' Motion for Summary
As a result Plaintiff's claims

Judgment (Doc. 27) is GRANTED.
are DISMISSED.

The Clerk of Court is

DIRECTED

to close this

case.
SO ORDERED this /

day of February 2016.

WILLIAM T. MOORE, JP.,-'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

To the extent Plaintiff is alleging that Defendants maintained
a pattern or practice of discrimination towards African-American
employees, his claim must fail as it was not brought as a class
action. Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 969 (11th
Cir. 2008) abrogated on other grounds by Lacroix v. W. Dist. of
F. App'x
, 2015 WL 5673018 (11th Cir. 2015)
25