White v. Sears, Roebuck Co.

Full title: JERRY G. WHITE, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Aug 21, 2006

Civil Action No. 1:03-cv-00002-GET (N.D. Ga. Aug. 21, 2006)

Opinion

Civil Action No. 1:03-cv-00002-GET.

August 21, 2006

ORDER

G. TIDWELL, District Judge

The above-styled matter is presently before the court on:

1) the Magistrate Judge's Report and Recommendation ("R R") [docket no. 79] recommending that defendant's motion for summary judgment [docket no. 65] be granted;

2) Plaintiff's objections to the R R [docket no. 83];

3) Plaintiff's motion for leave to file a motion to compel discovery [docket no. 84];

4) Plaintiff's motion for oral argument [docket no. 86].

On November 12, 2002, plaintiff filed the instant action in the State Court of Fulton County, Georgia, alleging that defendant discriminated against plaintiff based on his race, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and asserting a state law claim for breach of contract. On January 2, 2003, defendant removed the case to federal court pursuant to 42 U.S.C. § 1331.

On March 31, 2005, plaintiff filed his amended and restated complaint alleging that defendant discriminated against him on the basis of his race and sex, and unlawfully retaliated against him for opposing such discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e,et seq., and 42 U.S.C. § 1981 ("Section 1981"). Plaintiff also asserted a state law breach of contract claim and a claim against defendant under the Employee Retirement Income Security Act of 1974 ("ERISA"). Defendant filed its motion for summary judgment on October 21, 2005. On November 14, 2005, plaintiff filed his response to defendant's motion for summary judgment and voluntarily dismissed his breach of contract claim against defendant.

On May 9, 2006, the Magistrate Judge issued his final Report and Recommendation ("R R") recommending that defendant's motion for summary judgment be granted. Plaintiff was granted additional time to file objections to the Magistrate Judge's R R, and filed his objections on June 26, 2006. On the same date, plaintiff also filed a motion for leave to file a motion to compel discovery and a motion for oral argument. On July 11, 2006, defendant filed a response to plaintiff's motion for leave to file a motion to compel discovery. After receiving a grant of additional time to file its response to plaintiff's objections to the Magistrate Judge's R R, defendant filed its reply on July 17, 2006. Magistrate Judge's R R

Standard

Pursuant to 28 U.S.C. § 636(b) (1), each party may file written objections, if any, to the R R within ten (10) days of the receipt of an order. If any party serves and files written objections, the district court is required to conduct 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) (C).

Discussion

Plaintiff does not object to the Magistrate Judge's statement of the law under Title VII and Section 1981 as it applies to plaintiff's claims. This court agrees with the Magistrate Judge's statement of the law as it applies to plaintiff's claims and hereby adopts it as unopposed. Plaintiff also fails to object to the Magistrate Judge's finding regarding the appropriate statute of limitations for his Title VII and Section 1981 claims, and this court also adopts those findings as unopposed. Plaintiff does, however, object to several of the factual conclusions made by the Magistrate Judge, and this court will consider each in turn.

Discriminatory Discipline Discharge

Plaintiff objects to the Magistrate Judge's finding that there is no direct evidence to support plaintiff's discriminatory discipline and discharge claims under Title VII and Section 1981. Plaintiff outlines a number of actions taken by defendant with respect to plaintiff during his employment at Sears, including plaintiff's lateral transfer, the denial of a pay raise, and disputes that arose between plaintiff and his co-workers. None of these actions, however, rise to the level of direct evidence of discrimination.

Direct evidence is that which "establishes the existence of discriminatory intent behind the employment decision without any inference or presumption." EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000) (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1330, 1334 (11th Cir. 1994)). None of the actions that plaintiff cites in his objection demonstrate discriminatory intent on the part of defendant on their face. All of the actions could by inference or presumption have more than one possible meaning, and thus are not direct evidence of discrimination. See Harris v. Shelby County Bd. Of Educ., 99 F.3d 1078, 1083 n. 2 (11th Cir. 1996).

Plaintiff also alleges that several statements made by various co-workers rise to the level of direct evidence of discrimination on the part of defendant. Plaintiff asserts that the statement of Carlos Evans that he "would wear a dress to work, if Sears paid" him and the statements of his supervisor, Paul Cheek, that plaintiff was the "spokesman for everyone" and "could not get along with anyone" demonstrate direct evidence of discrimination.

While statements may provide direct evidence of discriminatory intent, "only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citations and quotations omitted). The statements presented by plaintiff do not present direct evidence of discriminatory intent on the part of defendant because they are subject to more than one possible meaning. Further, plaintiff fails to show that these remarks were made in the context of an adverse employment decision taken against him. See Standard, 161 F.3d at 1330 ("[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination."); see also Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). While Carlos Evans did participate in plaintiff's interview for the Team Manager position in June, 2001, plaintiff does not allege that Mr. Evans' statement about wearing a dress to work was made during or around the time of the promotion decision. Plaintiff further fails to show that the comments by Paul Cheek were made in conjunction with an adverse employment decision.

Plaintiff also objects to the Magistrate Judge's finding that plaintiff fails to present a prima facie case establishing his discriminatory discipline and discharge claim through circumstantial evidence. Under the test set forth by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) andTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981) ("McDonnell Douglas-Burdine"), a plaintiff sets forth a prima facie case of unlawful discrimination in violation of Title VII, and thus under Section 1981, by showing: 1) he is a member of a protected class; 2) he was subjected to an adverse employment action by his employer; 3) he was qualified to do the job in question; and 4) the employer treated similarly situated employees outside his protected class more favorably than it treated him. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Joe's Stone Crab, 220 F.3d at 1286. The Magistrate Judge found that plaintiff's claim fails under the fourth prong of this test because plaintiff fails to identify a similarly situated comparator employee for either his discriminatory discipline or discharge claims.

While plaintiff failed to identify a comparator employee anytime before the Magistrate Judge issued his R R, plaintiff asserts in his objections to the Magistrate Judge's R R for the first time that Brenda Callaway is a similarly situated employee for his discriminatory discipline and discharge claims. Plaintiff contends that Ms. Callaway is an appropriate comparator employee because she yelled and cussed at plaintiff during an August, 2001 incident and did not receive any warning or other disciplinary action, but that when plaintiff was accused of similar conduct he was subject to discipline.

Contrary to plaintiff's assertions, Ms. Callaway is not a similarly situated employee to plaintiff because she is not "similarly situated in all relevant respects." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In determining whether an employee is similarly situated, "the quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Defendant contends in its Statement of Material Facts ("SMF"), and plaintiff did not deny in his response, that "[n]o other Sears employee, regardless of race or gender, received as many written warnings and reprimands regarding insubordination, violence and intimidation" as plaintiff. SMF ¶ 35; Pl. Resp. SMF ¶ 35. Even accepting plaintiff's version of the August, 2001 incident with Brenda Callaway as true, he fails to identify a similarly situated employee who, like plaintiff, was the subject of numerous complaints by co-workers and managers. Plaintiff also fails to identify a similarly situated female or non-African American employee who had a similar history of complaints as plaintiff who was not also terminated. Because of this, summary judgment is appropriate on the discriminatory discipline and discharge claims. See Holifield, 115 F.3d at 1562 ("If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.")

Plaintiff's final objection to the Magistrate Judge's finding regarding plaintiff's discriminatory discipline and discharge claim is that additional circumstantial evidence exists which shows defendant's intent to discriminate against plaintiff. Plaintiff further alleges that he attempted to invoke Rule 56(f) in his response to defendant's motion for summary judgment to require defendant to produce information of additional circumstantial evidence. Plaintiff failed to file a timely Rule 56(f) motion to compel defendant to produce additional information. Regardless of whether such evidence does exist, plaintiff's claims still fail because he was unable to identify a similarly situated employee who committed similar acts but was not disciplined in the same manner as plaintiff.

Discriminatory Failure to Promote

Plaintiff objects to the Magistrate Judge's finding that there is no direct evidence of discrimination on the part of defendant for its failure to promote plaintiff to Team Manager in June, 2001. Plaintiff alleges that Carlos Evans' statement that he "would wear a dress to work, if Sears paid" him constitutes such direct evidence and that Evans was one of the two management representatives that interviewed plaintiff for the Team Manager position. As previously addressed by this court, this statement is not direct evidence of discrimination because it is subject to more than one possible interpretation and does not necessarily show discriminatory intent on the part of defendant. In addition, plaintiff fails to demonstrate that this remark was related to the decision not to promote plaintiff to the Team Manager position, as plaintiff cannot isolate the date that Mr. Evans' statement was made and does not contend that the statement was made during the time of the promotion decision.

Plaintiff also asserts that circumstantial evidence supports his discriminatory failure to promote claim and merely references the events he detailed in the discriminatory discipline and discharge section of his objection. Plaintiff neglects to respond to the Magistrate Judge's finding that plaintiff fails to allege a prima facie case under McDonnell Douglas-Burdine because the person who received the promotion instead of plaintiff, David Swain, is a member of a protected class. In order to establish a prima facie case, a plaintiff must show that the person who received the promotion over the plaintiff was not a member of a protected class. Walker v. Mortham, 158 F.3d 1177, 1193 (11th Cir. 1998), reh'g denied, 167 F.3d 542 (11th Cir. 1998). Because plaintiff does not dispute that David Swain, who received the Team Manager position over plaintiff, is an African American male, and thereby a member of a protected class, his discriminatory failure to promote claim must fail.

Hostile Work Environment

Plaintiff objects to the Magistrate Judge's finding that plaintiff fails to establish a prima facie case for his hostile work environment claim. A plaintiff establishes a hostile work environment claim under Title VII, and also Section 1981, by showing:

(1) [T]hat he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee, such as national origin; (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 v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The Magistrate Judge found that plaintiff fails to present sufficient evidence that he was subject to harassment that was so severe as to alter the conditions of plaintiff's employment or create an abusive work environment.

Plaintiff objects to the Magistrate Judge's finding, arguing that the disparate treatment he was subjected to did, in fact, alter the conditions of his employment because he was required to do additional tasks, such as heavy lifting and servicing machines, that female employees were not required to do. Plaintiff alleges that the Magistrate Judge overlooked direct evidence supporting his hostile work environment claim, including the fact that defendant knew that removal of the trash bins was a material term of employment and that it altered plaintiff's terms of employment to require him to remove the trash from female employees' machines and not give him additional compensation.

The test to determine whether the evidence of harassment presented by a plaintiff is sufficiently severe or pervasive to alter a term or condition of his employment contains both objective and subjective components. Id. at 1276 (citingHarris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)). The alleged harassing behavior must have been perceived by the victim as abusive and also be such that a reasonable person would find the behavior hostile or abusive.Id. Several factors are considered in determining the objective severity of the alleged harassing behavior, including: "(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."Id. (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997)).

While plaintiff may have subjectively perceived the alleged harassment, in the form of defendant's difference in treatment of plaintiff from other female employees, to be severe and pervasive, this evidence does not objectively support the same finding. It is not apparent to this court that defendant's requiring plaintiff to do additional tasks that other employees were not required to do constitutes harassment based on plaintiff's race and/or sex, nor that the other differences in treatment plaintiff alleges permeated the workplace with "`discriminatory intimidation, ridicule, and insult'" that was sufficiently severe and pervasive so as to alter a term or condition of plaintiff's employment.Harris, 510 U.S. at 21, 114 S. Ct. at 301 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986)). As the Magistrate Judge properly found, plaintiff's complaints "involve fairly minor difference in treatment." R R, p. 41. Plaintiff also fails to produce any evidence of how the alleged harassment, in the form of the difference in treatment, altered the terms and conditions of his employment and unreasonably interfered with his job performance.

Plaintiff also alleges that the statement of Carlos Evans that he "would wear a dress to work, if Sears paid" him constitutes direct evidence to support his hostile work environment claim. This statement, viewed in isolation or in totality with the other alleged acts of harassment, is insufficient to establish a hostile work environment claim. See Faragher v. City of Boca Raton, 524 U.S. 775, 778, 118 S. Ct. 2275, 2283 (1998) (noting that offhand comments and isolated incidents do not constitute discriminatory changes in the terms or conditions of employment).

Plaintiff further alleges that defendant failed to disclose pay records for its employees. Plaintiff fails to appropriately object to defendant's failure to produce this evidence. Even if these documents were produced, it would not support a hostile work environment claim because it would not present evidence of harassment, nor would it prove that the alleged difference in treatment that defendant engaged in between plaintiff and its female employees was so severe and pervasive to alter a term or condition of plaintiff's employment.

Retaliation

Plaintiff objects to the Magistrate Judge's finding that there is no direct evidence to support plaintiff's retaliation claim. Plaintiff fails to state what this direct evidence is, but this court has previously addressed why the statement of Carlos Evans does not present direct evidence of plaintiff's discrimination claims. The Magistrate Judge appropriately found that the only protected activity that plaintiff engaged in which had a temporally related adverse employment decision was the internal complaint plaintiff filed on August 7, 2001 and defendant's subsequent termination of plaintiff. Plaintiff fails to show that the statement of Mr. Evans was made in conjunction with either his August 7, 2001 internal complaint, or his September 12, 2001 termination.

Plaintiff further alleges that the Magistrate Judge "overlooked" the September 14, 1998 event where plaintiff filed a written complaint of discrimination and retaliation with defendant. To establish a prima facie case of discriminatory retaliation, a plaintiff must show: (1) he participated in an activity protected by Title VII; (2) he suffered an adverse employment action; and (3) a causal connection exists between the plaintiff's participation in the protected activity and the adverse employment action. Gupta v. Fla. Bd. Of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

Contrary to plaintiff's objection, the Magistrate Judge did consider the September 14, 1998 internal complaint that plaintiff filed alleging discrimination based on his race and sex and found it to be a protected activity under the first prong of the test. The Magistrate Judge found, however, that the next adverse employment action that plaintiff suffered after engaging in the protected activity was not until August, 1999, when several co-workers lodged a complaint against plaintiff. The Magistrate Judge properly found that the gap between plaintiff filing the internal complaint in September, 1998, and being disciplined in August, 1999, was too great to create the necessary causal connection to establish a retaliation claim. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001) (noting that the temporal proximity of events must be extremely close).

Because the Magistrate Judge did find that the August 7, 2001 internal complaint filed by plaintiff constituted a protected activity, and that his subsequent termination on September 14, 2001 constituted an adverse employment action in close enough temporal proximity, the Magistrate Judge held that plaintiff presented a prima facie case of discriminatory retaliation, and then determined whether the defendant had sufficient non-discriminatory or non-retaliatory reasons for terminating plaintiff. The Magistrate Judge found that defendant presented ample evidence of non-discriminatory reasons for its decision to terminate plaintiff. Plaintiff objects to this finding, alleging that the Magistrate Judge failed to consider Plaintiff's "unrebutted explanations for many of the complaints" filed against him during his employment with Sears. Plaintiff provides several examples of incidents which he claims he was wrongly written up and/or disciplined for and alleges that because he has rebutted the underlying facts of these events that summary judgment is not appropriate.

The Magistrate Judge's R R outlines the numerous complaints lodged against plaintiff by his co-workers and managers during plaintiff's employment with Sears. While plaintiff disputes the facts that gave rise to these complaints, he did not dispute that the complaints were filed. Pl. Resp. SMF ¶¶ 8, 9, 10, 11, 12, 13, 18, 22, 25, 27, 33. Defendant alleged, and plaintiff did not refute, that no other employee received as many warnings or reprimands as plaintiff. SMF ¶ 35; Pl. Resp. SMF ¶ 35. Contrary to plaintiff's contention, the fact that he has a different version of the events leading up to the complaints being filed against him by his co-workers and managers does not create an issue of material fact for a jury to decide. Even if plaintiff's version of the events is true, defendant properly rebuts the evidence of retaliatory discharge by demonstrating that it honestly believed that plaintiff engaged in the activities.Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). "For an employer to prevail, the jury need not determine that the employer was correct in its assessment of the employee's performance; it need only determine that the defendant in good faith believed plaintiff's performance to be unsatisfactory."Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (internal quotations and citations omitted). Defendant has sufficiently demonstrated that it believed plaintiff violated company policy and gave plaintiff numerous warnings with regard to his behavior. Because of this, defendant has met its burden of demonstrating non-discriminatory reasons for terminating plaintiff.

Plaintiff finally objects to the Magistrate Judge's finding that plaintiff fails to establish the requisite pretext necessary to rebut the defendant's legitimate, non-discriminatory reasons for terminating plaintiff. Plaintiff merely references all other sections of his objections and does not specifically point to any evidence that demonstrates pretext on the part of defendant or plaintiff's supervisor, Paul Cheek. To meet his burden, plaintiff "must present `significantly probative' evidence on the issue to avoid summary judgment." Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 2552-54 (1986)). "Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [a defendant] has offered extensive evidence of legitimate, non-discriminatory reasons for its actions."Young, 840 F.2d at 830.

Plaintiff fails to provide the court with specific evidence that goes beyond mere allegation that defendant and Mr. Cheek acted with pretext in disciplining, refusing to promote, or terminating plaintiff. Plaintiff merely references the other sections of his objection to the R R and fails to isolate specific evidence of pretext. Regardless, none of the evidence cited by plaintiff in his objection to the R R demonstrates pretext on the part of defendant or its management. Plaintiff fails to point to any evidence that defendant or its employees manufactured or mischaracterized the complaints filed against plaintiff. The record is also bare of evidence suggesting that plaintiff's supervisor, Paul Cheek, harbored a retaliatory animus against plaintiff or attempted to retaliate against plaintiff through discipline, denial of the Team Manager promotion, or plaintiff's termination.

ERISA

Plaintiff objects to the Magistrate Judge's findings with respect to his ERISA claim, alleging that defendant failed to provide documents that are necessary to plaintiff's proof of this claim. Plaintiff also alleges that the affidavits filed with defendant's motion for summary judgment are "conclusory hearsay on the issue," which are insufficient evidence to support defendant's motion for summary judgment.

The documents defendant produced in response to plaintiff's ERISA claims are sufficient to warrant summary judgment for defendant on the claim. Plaintiff does not dispute that he received a distribution of $3,522.11 from the 401(K) savings plan he had with defendant. Defendant provided the affidavit of Karl Koenig, Director of Human Resources Financial Management for defendant, which states that plaintiff was vested in both a pension plan and a 401(K) Savings Plan prior to his termination in September, 2001. Koenig decl. ¶ 4. In its reply brief in support of its motion for summary judgment, defendant also produced its Associate Handbook, which states that employees become vested in the company pension plan after five years of service. Tully decl. ¶ 3. Defendant also produced plaintiff's Designation of Beneficiary Form for plaintiff's 401(K) Savings Plan. Plaintiff fails to provide any evidence to rebut defendant's claim that plaintiff already was vested in the company's pension plan when he was terminated. Plaintiff further fails to demonstrate that he was entitled to any further retirement benefits, in addition to the $3,522.11 that he was paid. Thus, plaintiff's ERISA claim must fail.

Therefore, plaintiff's objection [docket no. 8] to the Magistrate Judge's R R is OVERRULED. The Magistrate Judge's R R GRANTING defendant's motion for summary judgment [docket no. 79] is ADOPTED. Defendant's motion for summary judgment [docket no. 65] is GRANTED.

Plaintiff's Motion for Leave to File Motion to Compel

Due to the grant of summary judgment in favor of defendant, plaintiff's motion for leave to file a motion to compel [docket no. 84] is hereby DENIED AS MOOT.

Plaintiff's Motion for Oral Argument

The court concludes that oral argument is not required or necessary in this case. Plaintiff's motion for oral argument [docket no. 86] is hereby DENIED.

Summary

1) Plaintiff's objection [docket no. 83] to the Magistrate Judge's R R [docket no. 79] is OVERRULED. The Magistrate Judge's R R GRANTING defendant's motion for summary judgment [docket no. 79] is ADOPTED. Defendant's motion for summary judgment [docket no. 65] is GRANTED.

2) Plaintiff's motion for oral argument regarding his motion for leave to file a motion to compel [docket no. 86] is DENIED.

3) Plaintiff's motion for leave to file a motion to compel [docket no. 84] is DENIED AS MOOT.