Filed: Nov. 18, 2005
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1206 DENNIS TAYLOR, Plaintiff - Appellant, versus AMERISTEEL CORPORATION, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CA-03-43) Submitted: October 24, 2005 Decided: November 18, 2005 Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. John J. Korzen, Kernersvi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1206 DENNIS TAYLOR, Plaintiff - Appellant, versus AMERISTEEL CORPORATION, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (CA-03-43) Submitted: October 24, 2005 Decided: November 18, 2005 Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. John J. Korzen, Kernersvil..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1206
DENNIS TAYLOR,
Plaintiff - Appellant,
versus
AMERISTEEL CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CA-03-43)
Submitted: October 24, 2005 Decided: November 18, 2005
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Korzen, Kernersville, North Carolina, for Appellant. Gavin
S. Appleby, Jacqueline E. Kalk, R. Bradley Adams, LITTLER
MENDELSON, P.C., Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Taylor appeals the district court’s order
dismissing his civil action alleging employment discrimination due
to age and perceived disability, in violation of the Age
Discrimination in Employment Act and the Americans with
Disabilities Act. We have reviewed the record and find no
reversible error. Accordingly, we affirm substantially for the
reasons stated by the district court. See Taylor v. Ameristeel
Corp., No. CA-03-43 (W.D.N.C. Sept. 20, 2005).
In September 2001, Taylor was hired by Ameristeel as a
cutter/stacker in the caster section of the melt shop. At that
time, Taylor was forty-seven years old. Soon after being hired,
Taylor applied for and received a transfer to a vacant maintenance
mechanic position. While at this position, Taylor’s chain of
command included his direct supervisor, Joe Wright, and the general
supervisor of the maintenance department, Charlie Blubaugh.
Prior to his first performance evaluation, Taylor stated
that his employment at Ameristeel was relatively problem free. On
February 12, 2002, Taylor received his first performance
evaluation. His overall performance was rated “fair,” and it was
determined that “significant improvement” was needed in such areas
as “mechanical skills” and “problem identification.” Dissatisfied
with his rating, Taylor initiated grievance procedures in which he
alleged that his performance evaluation contained false,
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undocumented information. After review, it was concluded that the
performance evaluation was “a fair and accurate assessment” which
would not be overturned.
After Taylor’s first performance evaluation, Blubaugh
informed Taylor that he would no longer be assigned tasks involving
elevated heights due to the unsafe manner in which he walked.
Though Taylor was told that this restriction was for safety
concerns, Taylor believed it to be a result of his first
performance evaluation. Next, Taylor alleged that, at some
unidentified point in time, Wright and Blubaugh began harassing
him. Taylor stated that his supervisors frequently referred to him
as “old and slow” and stated that he “couldn’t do the job very
well” and could not “keep up with the[] other new employees.”
On April 26, 2002, Taylor received his second performance
evaluation, in which he was once again given an overall rating of
“fair.” The evaluation stated that Taylor needed to “continue to
work on speed and efficiency[, as well as,] increas[ing] knowledge
of equipment and overall operations.” It also noted that Taylor
had shown improvement since his prior evaluation. During a meeting
to discuss the second performance evaluation, Wright informed
Taylor that unless he improved, his employment could be terminated.
On May 24, 2002, Taylor filed his first complaint with
the Equal Employment Opportunity Commission (“EEOC”). In this
complaint, Taylor alleged that he was discriminated against because
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of his age and perceived disability. Specifically, he stated that
he was “told [he] could no longer perform a function of [his] job”
because he “walked funny.” Taylor further alleged that he was
given two poor work evaluations “allegedly due to work
performance.” However, Taylor categorically denied that his work
performance was poor.
On May 31, 2002, Taylor received his third performance
evaluation. In this evaluation, Taylor once again received an
overall “fair” rating. This evaluation contained a list of
specific examples used in the determination of his performance
characteristics. Furthermore, the evaluation contained the
following statement:
This review will allow Dennis [Taylor] 30 days to bring
his performance up to a satisfactory level. If it is
concluded anytime within the next 30 days that he is not
making satisfactory efforts for improvement or if he is
unable to meet expectations, it will most likely result
in his termination with Ameristeel.
Subsequently, Taylor filed his second grievance, in which he once
again stated that his performance review contained false
statements. After review, it was once again recommended that the
evaluation stand “as is.”
A fourth performance evaluation was prepared by Wright on
June 19, 2002. In this evaluation, Wright recommended that Taylor
be “terminated from Ameristeel for poor performance.” Though the
evaluation was prepared, it was not given to Taylor due to the
pending resolution of his second grievance. In early July 2002, a
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meeting was held in which Wright’s recommendation that Taylor’s
employment be terminated was agreed upon. As a result, on July 16,
2002, Taylor’s employment was terminated. On July 24, 2002, Taylor
filed his second EEOC complaint. In this complaint, Taylor alleged
that Ameristeel denied him incentive pay, gave him a poor
evaluation, and ultimately discharged him in retaliation for
engaging in a protected activity in violation of Title VII.
On January 31, 2003, Taylor initiated litigation by
filing a complaint alleging employment discrimination. Ameristeel
filed a motion for summary judgment on January 16, 2004. Pursuant
to 28 U.S.C. § 636(b)(1)(B) (2000), the case was referred to a
magistrate judge for review and recommendation (“R&R”). Though the
magistrate recommended that summary judgment be granted on the
retaliatory discharge claim, he recommended that it be denied on
the ADEA and ADA claims. Ameristeel filed objections to the R&R.
Taylor, who was represented by counsel, did not file any objections
regarding the recommended grant of summary judgment on his
retaliatory discharge claim. On January 18, 2005, the district
court adopted the magistrate judge’s recommendation as to the
retaliatory discharge claim, but disagreed with the recommendation
on the ADEA and ADA claims. Accordingly, judgment was entered on
January 20, 2005, granting summary judgment for Ameristeel on all
claims, and Taylor timely appealed.
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On appeal, Taylor alleges the following: (1) that the
district court erred in its conclusion that the testimony of Morris
VanVleet was hearsay; (2) that the district court improperly
concluded that Taylor was not discriminated against on the basis of
age; (3) that the district court improperly concluded that Taylor
was not discriminated against on the basis of perceived disability;
and (4) that the magistrate judge plainly erred in its
recommendation that summary judgment be granted for Ameristeel on
Taylor’s retaliation claim.
We review a district court’s grant of summary judgment de
novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We construe
the evidence and draw all reasonable inferences in the light most
favorable to the non-movant. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
In his first claim, Taylor alleges that the district
court erred in its determination that the deposition testimony of
Morris VanVleet, an individual with whom Taylor worked for
approximately three weeks, was inadmissible hearsay. VanVleet
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recounted that several co-workers made fun of the way Taylor
walked. He also testified that Wright and Blubaugh were
occasionally present while Taylor’s co-workers made fun of him and
did nothing to stop them. VanVleet recalls that Wright and
Blubaugh had grins on their faces during these incidents. The
district court determined that VanVleet’s testimony consisted
primarily of inadmissible hearsay. As “[e]vidence of this type is
neither admissible at trial nor supportive of an opposition to a
motion for summary judgment,” Greensboro Prof’l Fire Fighters
Ass’n v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995), see also
Fed. R. Civ. P. 56(e), the district court excluded the testimony.
Taylor argues that VanVleet’s testimony was not hearsay
as it related to nonverbal conduct and was not offered to prove the
truth of the matter asserted. Taylor states the testimony was
offered “to show that the grins were made by [Taylor’s] supervisors
in the first place, not that there was any true reason for making
fun of [Taylor].”
We review a district court’s application of evidentiary
rulings to the facts of a case for abuse of discretion. Precision
Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951
F.2d 613, 619 (4th Cir. 1991). Because the supervisors’ grins are
irrelevant unless offered to prove they condoned the comments made
by employees, the district court did not abuse its discretion in
excluding the evidence.
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Next, Taylor claims that the district court improperly
concluded that he was not discriminated against based on age. We
have determined that “a plaintiff may avert summary judgment and
establish a claim for intentional . . . age discrimination through
two avenues of proof.” Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 284 (4th Cir. 2004), cert. dismissed, 125 S.
Ct. 1115 (2005). These avenues include: (1) a mixed-motive
framework, in which “it is sufficient for the [plaintiff] to
demonstrate that the employer was motivated to take the adverse
employment action by both permissible and forbidden reasons”; and
(2) a pretext framework, in which a plaintiff, “after establishing
a prima facie case of discrimination, demonstrates that the
employer’s proffered permissible reason for taking an adverse
employment action is actually a pretext for discrimination.”
Id.
at 284-85. We agree with the district court’s conclusion that
Taylor’s ADEA claim does not avert summary judgment under either
framework.
In his third claim, Taylor alleges that the district
court improperly concluded that he was not discriminated against on
the basis of perceived disability. To establish wrongful discharge
under the ADA, a plaintiff must show that: “(1) he is within the
protected class; (2) he was discharged; (3) at the time of his
discharge, he was performing the job at a level that met his
employer’s legitimate expectations; and (4) his discharge occurred
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under circumstances that raise a reasonable inference of unlawful
discrimination.” Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696,
702 (4th Cir. 2001). Taylor, however, does not contend that he was
disabled under the ADA, but rather alleges that he was regarded as
being so. Specifically, Taylor contends that Ameristeel regarded
him as substantially limited in the major life activity of walking
because he was excluded from work assignments involving higher
elevations. See
id. We agree with the district court’s conclusion
that Taylor failed to establish Ameristeel regarded him as being
substantially limited in the major life activity of walking because
his other job responsibilities required walking.
Taylor’s final claim is that the magistrate judge plainly
erred in his recommendation that summary judgment be granted for
Ameristeel on Taylor’s retaliatory discharge claim. Though he
admits he failed to file objections to the magistrate judge’s
report and recommendation, Taylor argues that this court should
“review his retaliation claim in the interests of justice.” In
support, Taylor points to a single error in the R&R and asserts
that it “was the basis for the magistrate’s conclusion that Taylor
could not satisfy the ‘causal connection’ element of his
retaliatory discharge claim . . . .”
As a general rule, we have recognized that “a party who
fails to object to a magistrate’s report is barred from appealing
the judgment of a district court adopting the magistrate’s
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findings.” Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985);
see also Thomas v. Arn,
474 U.S. 140 (1985). Furthermore, this
Court has determined that
[b]efore [it] can exercise [its] discretion to correct an
error not raised below in a civil case, at a minimum,
. . . [it must be established that] (1) there is an
error; (2) the error is plain; (3) the error affects
substantial rights; and (4) the court determines, after
examining the particulars of the case, that the error
seriously affects the fairness, integrity or public
reputation of the judicial proceedings.
Taylor v. Virginia Union Univ., 193 F.3d 219, 239-40 (4th Cir.
1999) (en banc).
Here, the magistrate judge undeniably erred in his
conclusion regarding who was aware of Taylor’s EEOC charge. The
deposition testimony of Blubaugh indicates that Marie Gilmore,
human resources manager, informed him of the EEOC charge at some
unknown time prior to Taylor’s filing suit. However, this does not
establish that the error affected Taylor’s substantial rights as
Blubaugh was not determined to be the decisionmaker responsible for
Taylor’s termination. In spite of this, Taylor speculates that
Wright also knew about the EEOC charge. These speculations,
however, fail to recognize that there is nothing in the record to
indicate that Wright had knowledge of the EEOC charge. Since a
genuine issue of material fact cannot be created through mere
speculation or compilation of inferences, see Runnebaum v.
NationsBank, 123 F.3d 156, 164 (4th Cir. 1997) (en banc), Taylor
has not met the requirements of Taylor and has therefore waived
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review of the magistrate judge’s recommendation regarding his
retaliation claim. Accordingly, we affirm the judgment of the
district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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