HUGH LAWSON, Senior Judge.
Before the Court is the Motion for Summary Judgment (Doc. 21) filed by Defendant Cleaver-Brooks, Inc. ("Cleaver-Brooks"). For the reasons stated below, Cleaver-Brooks's motion is granted.
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see
The 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 a material fact."
This case arises from the termination of Plaintiff Calvin Register's ("Plaintiff") employment with Cleaver-Brooks on August 24, 2011. Cleaver-Brooks develops, manufactures, and distributes packaged boiler systems for commercial and industrial use. The company has operations throughout the United States, including in Thomasville, Georgia where Plaintiff worked. As of July 1, 2010, Cleaver-Brooks employed 173 individuals in Thomasville, with 105 of those employees being Caucasian and 60 employees being African American. (Defendant's Statement of Material Facts ("DSMF"), Doc. 22, ¶¶2-3, 5).
Plaintiff, who is African American, began working as a material handler at the Cleaver-Brooks facility in Thomasville, Georgia in May 2008 and continued in that hourly-wage position until he was discharged in 2011. As of June 2011, the Thomasville operation employed seven material handlers. In addition to his duties as a material handler, Plaintiff was expected to operate cranes and assist in loading and unloading trucks. During his last year at Cleaver-Brooks, Plaintiff's supervisor was Steve Marcum ("Marcum"), but he also took orders from his cell leader, Tony Porter ("Porter"). (
Under the drug policy that was in effect in 2011, Cleaver-Brooks might test employees for drugs after a reportable accident, after a work-related injury, based on reasonable suspicion, or randomly. (DMSF, ¶12; Declaration of William Lawing, Doc. 34, ¶2; Cleaver-Brooks Drug & Alcohol Abuse Policy, Ex. G to Lawing Declar., Doc. 34-1, pp. 2-3). Plaintiff was tested for drugs on three occasions, once after an accident, once after a workplace injury, and once randomly in 2011. He passed each test. Two white material handlers also had workplace accidents, and both were tested for drugs within days of their accidents. (DMSF, ¶¶15-20; Deposition of Plaintiff, Doc. 38, pp. 41-43). The plant manager, who is white, was randomly tested for drugs three times while Plaintiff worked for Cleaver-Brooks. (Declaration of Dennis Hettinger, Doc. 24, ¶11).
Although Plaintiff was disciplined on various occasions during his employment, this history was not a factor in Cleaver-Brooks's decision to fire him. He was written up several times for tardiness during his time at Cleaver-Brooks. In October 2009, he received a warning for perceived insubordination, failure to follow orders, and damage to property. Plaintiff also received a three-day suspension in April 2010 for failing to follow inventory instructions. (Plaintiff Depo., pp. 50-64, 94-96; Disciplinary Record, Ex. 10 to Plaintiff Depo., Doc. 50-3). According to Cleaver-Brooks's disciplinary policy, each warning only remained "active for a period of twelve (12) months." (Cleaver-Brooks Disciplinary Procedures, Plaintiff's Ex. 8 in Opposition to Summary Judgment, Doc. 28-8, p. 1). Cleaver-Brooks terminated Plaintiff's employment based on the events of August 24, 2011, not on his disciplinary history. (Deposition of William Lawing, Doc. 43, pp. 21-22).
When Cleaver-Brooks first hired Plaintiff, it started him at a lower hourly rate than was given to two white material handlers, Milton "Derrick" Bracewell ("Bracewell") and Donald Boyd ("Boyd"), who were hired around the same time. (DSMF, ¶¶33-35, 41). When the company hires a new material handler, his supervisor, the materials manager, and the human resources department collaborate in setting the starting pay. Prior work experience is a key factor for setting an employee's starting wage. (PMSF, ¶¶125, 130). When Cleaver-Brooks hired Bracewell and Boyd, it knew that they had previous experience as material handlers and that one of them had been a supervisor. Although Plaintiff had previously worked as a material handler, he did not disclose this on the Cleaver-Brooks application. (DSMF, ¶¶41, 80; PMSF, ¶¶41, 80; Plaintiff's Application, Ex. F to Hettinger Declar., Doc. 24-6).
Just prior to losing his job, Plaintiff was earning a higher hourly rate than some white material handlers, and less than others. (Hettinger Declar., ¶¶14-20; Pay History of Material Handlers, Ex. C. to Hettinger Declar., Doc. 24-3). Cleaver-Brooks employees earn pay raises based on annual performance reviews as well as merit increases once they earn enough points, through additional training and other means, to move to the next pay grade. (DMSF, ¶¶30-31). As Plaintiff's supervisor, Marcum could recommend pay raises for him, but the plant manager made the final decision on a raise. Over the course of his employment, Plaintiff received one merit pay increase and three raises in connection with annual performance reviews, with Marcum recommending one raise. (
In the late spring of 2011, Plaintiff overheard Bracewell and another employee, Steve Chastain ("Chastain"), discussing their recent pay raises. Plaintiff did not know their hourly wages. Approximately two months later, assuming Chastain and Bracewell were making more money than he was since he had not received a pay raise, Plaintiff spoke with Marcum about the presumed pay disparity. He never claimed the difference was because of his race. Marcum told him how much the other employees were paid was none of his business. However, Marcum brought Plaintiff's concerns to Nora Wallace ("Wallace"), Marcum's superior and the then-material manager at the Thomasville facility, and told her Plaintiff said he was being paid less because of his race.
Other African American employees also perceived a pay disparity based on race. (See Deposition of Hiram Jackson, Doc. 48, pp. 8-10; Deposition of Terri McCall/Jones, Doc. 46, pp. 16-19; Deposition of Rufus Russ/Harper, Doc. 45, pp. 9-11). When Boyd received a merit pay increase and Felisa Hines, a black material handler, did not, Hines told Wallace she thought she was receiving less favorable treatment because of her race. Wallace said she would investigate the matter, but she never discussed the issue with Hines again. (Deposition of Felisa Hines, Doc. 47, pp. 9-11).
After Marcum joined Cleaver-Brooks in August 2010 as a supervisor in the materials department, he did not get along well with some of the African American employees. Marcum supervised approximately fourteen employees. When Marcum first started working at Cleaver-Brooks, he did not talk to black employees very much and never socialized with them. The supervisor excluded Plaintiff from conversations and never shook his hand, although he did shake hands with white employees. He appeared to prefer working with white employees rather than with African American employees. (PMSF, ¶¶114, 119-20). Some of the white employees working under Marcum received recognition for perfect attendance despite absences from work, whereas black employees who left work early were questioned. (McCall/Jones Depo., pp. 10-11, 22-23).
The events leading to Plaintiff's termination began on the morning of August 24, 2011. After Plaintiff started work at 6 a.m., his cell leader Tony Porter provided him with a list of parts to collect for production because assembly employees were waiting on the parts. The parts were stored in different buildings spread across Cleaver-Brooks's plant. Plaintiff began collecting the parts with a forklift, but he could not work very quickly because some of the parts were heavy. (PMSF, ¶134).
While Plaintiff was pulling the parts on his list, he received a radio call from Doug Peek ("Peek"), another material handler, asking for help unloading a truck driven by Emory Lutes ("Lutes"), who worked for one of Cleaver-Brooks's suppliers. Plaintiff told Peek he would help unload the truck once he had completed his list. Material handlers are expected to give higher priority to pulling parts for production than to unloading delivery trucks. About a minute after Plaintiff spoke with Peek, Marcum radioed Plaintiff and told him to assist Peek with unloading the truck. Plaintiff explained that he had been given a production assignment by Porter and that other employees were waiting for the parts on his list. Marcum told him to quickly finish the list so he could help with the truck. (
About fifteen minutes later, Marcum called a second time because Plaintiff was still working on the parts list. The supervisor said, "Calvin, ain't you through with that pick list yet?" When Plaintiff said he was not yet done, Marcum replied, "Hurry up and get around here." Plaintiff said he would be there as soon as he had pulled the parts on his list. He also told Marcum, "You don't have to talk to me that way. You're not my daddy, you're just my supervisor." Marcum's rejoinder was that "When you get around here, we'll talk about this." (
Once Plaintiff finished collecting the parts on his list, he drove his forklift to where Peeks was unloading the delivery truck. Plaintiff drove at a normal speed with the forks two to three inches above the ground, which was proper. When Plaintiff reached the area where the truck was being unloaded, he braked to a stop and then dropped the forks all the way to the ground. The forklift did not skid or slide. Peek and another material handler named Logan
When Plaintiff stepped down from the forklift, he approached Marcum and said, in normal tones, that he had gotten to the truck as fast as he could. Marcum, with his voice raised, asked, "What the hell is wrong with you today?" When Plaintiff replied that nothing was wrong with him, Marcum said, "I ought to write your ass up for insubordination." Plaintiff responded with "I ain't did nothing." Unsatisfied, Marcum replied, "I'll tell you what, go in there and clock your ass out for the day. You're suspended for the day." At some point during the conversation, Plaintiff said that nobody talks to him like that. (
Plaintiff clocked out of work and then, because it was not yet 8 a.m., waited for William Lawing ("Lawing") to arrive. Lawing was the human resources manager at the Thomasville facility but had only been in that position for four months. Plaintiff briefly described what had happened with Marcum and asked whether he was going to be fired. He said Marcum was racist and that the reason Marcum had suspended him was because of his race. (
Once Plaintiff went home, Lawing began his investigation. He spoke with the material handlers working under Marcum about whether their supervisor treated African American employees differently on the basis of race. (Lawing Declar., ¶5). Although Lawing claims to have spoken with the material handlers about the incident between Marcum and Plaintiff, at least one material handler denies that he did. (
Completing his investigation, Lawing decided that Plaintiff had been insubordinate and unsafe in driving the forklift and that the situation warranted serious discipline. Lawing asked Marcum what discipline he would recommend, and the supervisor suggested either termination or some other serious discipline. Lawing also read through Cleaver-Brooks's disciplinary file on Plaintiff. Marcum had never disciplined Plaintiff prior to that day. After speaking with the manager of the Thomasville facility and the human resources director in Cleaver-Brooks's corporate office, Lawing eventually decided that Plaintiff's termination was necessary. Lawing called Plaintiff about 4:15 or 4:20 on the afternoon of August 24 and told him he was fired, without explaining the reasons for the termination. (Lawing Investigation Summary, Doc. 28-14; Lawing Depo., 16-22; PMSF, ¶¶111, 113, 165, 168-72). Several months later, when Peek inquired about why he was being deposed in this lawsuit, Lawing told him that "it's a black thing." (Peek Depo, pp. 11-12).
Plaintiff brought suit against Cleaver-Brooks in this Court on January 21, 2013. His complaint alleges that the company discriminated against him on the basis of a physical disability and his race and also retaliated against him for reporting unlawful employment practices. More specifically, Plaintiff alleges that he suffered discrimination when Cleaver-Brooks subjected him to multiple drug tests, made him perform additional work, failed to provide assistance from other workers, paid him less than white material handlers, and ultimately fired him. He also contends that he was discharged in retaliation for complaining about his pay and telling Lawing that Marcum was a racist. (Complaint, Doc. 1, Counts I-III).
The motion for summary judgment must be granted for each of Plaintiff's claims because the undisputed factual record demonstrates that Cleaver-Brooks is entitled to judgment as a matter of law.
The Court grants summary judgment on the claims of disparate treatment and retaliation in violation of the Americans with Disabilities Act. Because Plaintiff has abandoned these claims,
Summary judgment is also granted on Plaintiff's claim of race discrimination. Title VII of the Civil Rights Act of 1964 prohibits various forms of employment discrimination on the basis of race, including termination of employment or actions affecting an employee's "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). A claim of unlawful disparate treatment may be established either with direct evidence of discrimination or through circumstantial evidence that allows for an inference of discrimination. See
The Supreme Court has developed a burden-shifting approach for analyzing disparate treatment claims based on circumstantial evidence.
If Plaintiff presents a prima facie case of disparate treatment, then the
Although Plaintiff is able to establish the first three elements of a prima facie case of disparate treatment, his failure to prove the final element is fatal to his claim that Cleaver-Brooks discriminated against him. Cleaver-Brooks does not dispute that, as an African American, Plaintiff belongs to a protected class. The first element of the prima facie case has been met.
Plaintiff has also established the second element. Cleaver-Brooks concedes that Plaintiff's termination was an adverse employment action. Plaintiff also alleges that the company paid him less than similarly-situated white employees. Cleaver-Brooks agrees such treatment would fall under Title VII, but it denies having paid Plaintiff less because of his race.
Considering next whether Plaintiff was a qualified employee, the third element of the prima facie case, the Court concludes that he was. Cleaver-Brooks maintains that Plaintiff's disciplinary history and his actions on the day he was terminated demonstrate he was unqualified as a material handler, but this argument is unconvincing. Plaintiff disputes the factual basis for his discipline in October 2009, and his tardiness and failure to follow inventory procedures are not significant enough to suggest he was unqualified. More importantly, Cleaver-Brooks not only continued employing Plaintiff after these incidents but also raised his pay. Plaintiff might not have been an ideal employee, but he was certainly qualified to be a material handler. As for his behavior on August 24, 2011, Plaintiff denies that he drove the forklift unsafely or that he was insubordinate to Marcum.
Turning to the final element of the prima facie case for disparate treatment, the Court concludes that Plaintiff has not provided sufficient evidence to create a factual question on discriminatory intent. Plaintiff cannot produce a similarly-situated employee of another race whom Cleaver-Brooks treated more favorably,
Nor is there evidence Cleaver-Brooks denied Plaintiff a pay raise because of his race. Marcum recommended at least one pay raise for Plaintiff, and there is no evidence from which a jury could reasonably infer Marcum withheld additional recommendations because of Plaintiff's race. There is no evidence that Plaintiff, unlike Boyd, ever requested the cross-training that would have made him eligible for additional pay raises,
The evidence is also lacking that any other decisionmaker at Cleaver-Brooks limited Plaintiff's pay because of his race. Several African American employees at Cleaver-Brooks have complained about unfavorable treatment, but when broken down, their testimony provides little more than evidence that employees may have been treated differently because of nepotism, favoritism, or personal animosity. (See Russ/Harper Depo., pp. 9-12; McCall/Jones Depo., pp. 16-18; Hines Depo., pp. 9-12). Title VII is not concerned with whether an employment decision was made for a good reason, a bad reason, or no reason at all, so long as it was not an unlawful reason.
Plaintiff has also failed to present a convincing mosaic of circumstantial evidence from which a jury could reasonably infer that his termination was the result of unlawful discrimination. Lawing was the Cleaver-Brooks employee who decided Plaintiff's fate, and there is no evidence his decision was animated by racial prejudice. Many months after the decision to fire Plaintiff had been made, Lawing did tell Doug Peek "it's a black thing" in response to Peek's demand to know why he was being deposed in this lawsuit. Lawing denies ever making the comment, and Peek admitted in his deposition he does not know exactly what Lawing meant to convey. (Lawing Declar., ¶8; Peek Depo., pp. 11-12). A reasonable interpretation would be that Lawing was describing the nature of Plaintiff's lawsuit—race discrimination, but even if something more sinister is perceived in the statement, this would hardly be sufficient to create a factual question for whether Cleaver-Brooks fired Plaintiff because of his race. Lawing made the statement well after Plaintiff was fired.
Plaintiff's alternative argument for establishing a prima facie case of discriminatory intent for his termination also fails. Plaintiff argues that Lawing was merely the "cat's paw"
Nor is the fact that Lawing only spoke with one employee who overheard the earlier radio exchange between Plaintiff and Marcum particularly troubling. David Dennis, with whom Lawing spoke, described Marcum's tone during the exchange as "forceful" but "not offensive." (Lawing Investigation Notes and Summary, Doc. 28-11, 28-14). Conversely, some African American employees who overheard Marcum have testified that his tone was disrespectful and insulting. (McCall/Jones Depo., pp. 14-15; Hines Depo., pp. 6-7; Hiram Jackson Depo., pp. 6-8; Robert Jackson Depo., pp. 16-17). Regardless, Plaintiff admitted to Lawing he had told Marcum "you're my supervisor, not my daddy," and a reasonable person in Lawing's position might have perceived this remark as disrespectful on its face. Certainly Robert Jackson, the African American who was previously Plaintiff's cell leader at Cleaver-Brooks, did. (
Furthermore, while Lawing did ask Marcum what an appropriate punishment for Plaintiff might be, the record does not indicate Lawing blindly followed the supervisor's recommendation. Plaintiff has not provided evidence to dispute that Lawing spoke with the employees under Marcum's supervision concerning his treatment of racial minorities. Moreover, Lawing checked Plaintiff's disciplinary history and learned that in 2009 Robert Jackson had also perceived him as being insubordinate. Lawing discussed the potential termination with both the plant manager and the human resources officer in Cleaver-Brooks's corporate office before making his final decision. The question for the Court is not whether Plaintiff was, in fact, insubordinate or unsafe but only whether Lawing's decision was sufficiently well-grounded to show it was made independent of Marcum's alleged racial prejudice. The undisputed evidence shows that it was. Therefore, because Plaintiff was lawfully terminated, he has failed to establish a prima facie case of disparate treatment.
Assuming Plaintiff could present a prima facie case for discrimination, under the
The burden now swings back to Plaintiff to show that the proffered reasons are pretexts and that Cleaver-Brooks was really motivated by racial prejudice. He could demonstrate pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence."
Plaintiff has not shown that Cleaver-Brooks's proffered explanation for his rate of pay was a pretext for racial discrimination. His argument suffers from his failure to identify which employees at Cleaver-Brooks decided to pay him less because of his race. Even if the Court were to assume Marcum and Nora Wallace made this decision, there is no evidence to rebut Cleaver-Brooks's proffered explanation for Plaintiff's pay. Although Plaintiff tries to gain traction by arguing that he had as much prior experience as Boyd and Bracewell, who started at a higher pay, there is no evidence that Cleaver-Brooks was aware of his qualifications. Nor is there evidence Plaintiff had ever worked as a supervisor, as at least one of the white employees had. Moreover, the record reveals that Cleaver-Brooks raised Plaintiff's pay on multiple occasions, never denied a request that he receive the cross-training that would have made him eligible for additional raises, and paid him a higher wage than some white material handlers received. Although Marcum did suggest that Bracewell receive additional training, there is no evidence that he made similar suggestions to other white employees or that race was a factor.
Plaintiff is equally unconvincing in arguing that Cleaver-Brooks's explanation for why it fired him is pretextual. There is no evidence that Lawing made the decision to terminate Plaintiff's employment because of racial animus. Lawing's comment that "it's a black thing" was ambiguous, to say the least, but more importantly it was made several months after Plaintiff was fired. Regardless of whether Plaintiff was, in fact, insubordinate or unsafe in handling the forklift, Cleaver-Brooks had a solid basis for concluding he had been. Plaintiff has failed to create a triable issue on whether the proffered explanation for his dismissal was really a smokescreen for racial discrimination.
Cleaver-Brooks's motion for summary judgment on the disparate treatment claim is granted. Plaintiff has failed to present a prima facie case under Title VII. Even if he had met this burden, he has not provided sufficient evidence to cast doubt on Cleaver-Brooks's proffered reasons for firing him.
Cleaver-Brooks is also entitled to judgment as a matter of law on Plaintiff's retaliation claim. It is unlawful for an employer to retaliate against an employee for opposing a practice that is prohibited by Title VII.
Plaintiff has not made out a prima facie case for retaliation in relation to his complaints of pay disparity. Even assuming Plaintiff actually conveyed to Marcum his belief that he was being paid less because of his race, despite the fact that Plaintiff testified that he did not make a race-based complaint, there is no causal connection between this complaint and Plaintiff's termination. Plaintiff has not shown, as he is required to do, that Lawing was aware of the pay complaints when the termination decision was made. See
Plaintiff has not shown that a discriminatory motive more likely motivated Lawing, the decisionmaker for Cleaver-Brooks, than his own explanations for discharging Plaintiff. There is no evidence that Cleaver-Brooks fabricated or staged Plaintiff's confrontation with Marcum on August 24, 2011. See
Nor can the Court conclude that Cleaver-Brooks's proffered reasons for firing Plaintiff are unworthy of credence. The evidence from both of the disinterested witnesses to the confrontation between Marcum and Plaintiff is that the material handler drove the forklift unsafely. Furthermore, regardless of whether Plaintiff was actually insubordinate, the record is clear that both African American and Caucasian employees at Cleaver-Brooks perceived him as having attitude problems, both before and during the confrontation. (Hines Depo., p. 15; Robert Jackson Depo., pp. 20-21, 23, 26-27; Peek Depo., p. 15). Even subjective perceptions of an employee's attitude may "serve[] as a legally sufficient reason for an adverse employment action."
Because Plaintiff has not shown that Cleaver-Brooks's proffered reasons for discharging him were pretexts for unlawful motives, his retaliation claim is dismissed.
For the foregoing reasons, Cleaver-Brooks's Motion for Summary Judgment (Doc. 21) is granted, and this case is dismissed.