VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed by the plaintiff, Tracy O. Crane, against the defendant,
The case comes before the court on the cross motions for summary judgment by the parties. (Docs. 68, 70). For the reasons stated herein the plaintiff's motion (doc. 68) will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.
How the movant may satisfy its initial evidentiary burden depends on whether
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
"The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed." S. Pilot Ins. Co. v. CECS, Inc., No. 1:11 CV 3863 AT, 52 F.Supp.3d 1240, 1242-43, 2014 WL 4977805, at *2 (N.D.Ga. Sept. 12, 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir.2005)). "The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration." Id. "The Eleventh Circuit has explained that `[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.'" Id. (quoting United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984)). "Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts." Id. (quoting Oakley, 744 F.2d at 1555-56).
The FBI has a "diversity program" concerning Native Americans (doc. 69-1 at 17), which the plaintiff references in some of his claims. According to its website
(Doc. 69-1 at 18).
The plaintiff, Tracy O. Crane, is Native American. He also is a former FBI employee, who was assigned to the Birmingham Division of the FBI. Before he retired, the plaintiff was with the FBI for approximately seventeen (17) years, during which he served part of his time as a Supervisory Intelligence Analyst (SIA) for the FBI's Birmingham Division. In 2008, he retired from the FBI with a pay classification of "GS-14." At the time he retired, he commanded a Field Intelligence Group ("FIG").
Crane previously held the Paralegal Specialist/Asset Forfeiture Investigator position at issue in the instant case. After he held the Paralegal Specialist/Asset Forfeiture Investigator, he was assigned to the Birmingham Office as a Supervisory Administrative Specialist at the GS-12 pay grade before becoming the commander of a FIG as a GS-14. The plaintiff states in his affidavit that "a few days prior to my retirement in 2008, the previous [SAC] stated that the Birmingham Office would `direct hire' me at the GS-12, Step 10, pay grade if I would consider staying on instead of retiring." (Doc. 69-1 at 25, ¶ 12). The plaintiff declined this offer.
Crane's last Performance Evaluation Report ("PAR") prior to his retirement gave him an "Excellent" performance rating, and contained comments by the rating official about Crane's skills and resourcefulness.
(Doc. 69-1 at 41). On his ratings of "Critical Elements," Crane received the highest marks of "Outstanding" for "Relating with Others and Providing Professional Service," and "Maintaining High Professional Standards." (Doc. 69-1 at 40). On a scale of 1-5 (with 5 being the highest rating), out of eight critical elements his average rating was 4.13. (Doc. 69-1 at 40).
After January of 2009, Division Administrative Officer ("AO") Norman Odom filed an EEO complaint alleging mistreatment by his supervisors. (Doc. 74 at 34, ¶ 5). Crane and Odom were friends. In late 2009 or early 2010, Crane provided an affidavit which supported Odom. (Doc. 74 at 35, ¶ 6).
The parties agree that, in 2010, the need for a Paralegal Specialist/Asset Forfeiture Investigator occurred. It is also clear that the person holding the position would have been supervised by Raymond Zicarelli, the Chief Division Counsel ("CDC") at the FBI office in Birmingham, Alabama. (Doc. 69-1 at 50(13, 16)). However, there are varying accounts of how that position was filled.
The plaintiff states in his affidavit that, at some point (the affidavit does not say when), Zicarelli called him and "wanted to know if [Crane] was interested in a `direct hire'" for the position. (Doc. 69-1 at 24, ¶ 10). The parties appear to agree that a "direct hire" occurs when a position is not posted, there is no competition for it, and a
The plaintiff states in his affidavit:
(Doc. 69-1 at 25, ¶ 13). Crane also states that he "understood" that "direct hire" meant that there would be no competition for the position and that the FBI would hire him directly. (Doc. 69-1 at 25, ¶ 14). Crane states that he (Crane) "responded that he would accept the position." (Doc. 69-1 at 25, ¶ 15). Crane states in his affidavit that Zicarelli told Crane to come in to the FBI's Birmingham Office the following Tuesday, July 6, 2010, and "fill out paperwork." (Doc. 69-1 at 25, ¶ 16).
Crane states that on June 27, 2010, Zicarelli called Crane to tell him that "funding problems" came up, and the hire would take place after the fiscal year, "most likely in the Fall of 2010." (Doc. 69-1 at 25, ¶ 17). Crane states that Zicarelli "stated that I should not report on Tuesday, July 6, 2010, due to this funding problem." (Doc. 69-1 at 26, ¶ 18). Crane states that "[i]n reliance on ... Zicarelli's statements, I waited until the Fall of 2010 before I enquired again about the position." (Doc. 69-1 at 26, ¶ 19).
Crane's wife, Stacy Crane, states in her affidavit that Zicarelli called her on June 23, 2010, and left a message. (Doc. 69-1 at 43, ¶ 3). She states that at some point (which is unstated in the affidavit) she returned his call and "[h]e said that he wanted to talk to me about Tracy Crane coming back to work at the FBI in the Paralegal Specialist/Asset Forfeiture Investigator position," and "asked [her] for [her] thoughts about Tracy Crane going back to work at the FBI." (Doc. 69-1 at 43-44, ¶¶ 6-7).
Mrs. Crane stated in her affidavit that she told Zicarelli that she would support her husband if he was interested in the position. (Doc. 69-1 at 44, ¶ 8). It was clear to Mrs. Crane that Zicarelli was talking about hiring her husband through the "direct hire" process. (Doc. 69-1 at 44, ¶ 10).
Odom states in his affidavit that "[i]n late June of 2010, ... Zicarelli ... approached [Odom] about the recruitment of Crane as a `direct hire,'" for the position at issue in this case. (Doc. 74 at 35, ¶ 8). Odom states that when Special Agent in Charge ("SAC") Patrick Maley "discovered that Zicarelli was recruiting Crane as a `direct hire' for the [position] ... Maley called me to his office." (Doc. 74 at 35,
In his deposition, Zicarelli stated that "for a while," as part of his job as CDC, he was "the special agent recruiter." (Doc. 69-1 at 50(13)).
Zicarelli confirms in his deposition that, before the position was posted, he "discussed the opportunity with a number of individuals that a position was coming open, and if they were interested, they should apply." (Doc. 69-1 at 51(17), 65(74, 76)). He also confirmed in his deposition that one of these people was Crane. (Doc. 69-1 at 51(18)).
Zicarelli stated that he initiated a phone call to Tracy Crane sometime in April, May, or June of 2010. (Doc. 69-1 at 61(60), 61(81)). He made the call "[t]o advise [Crane] of a position coming open. And that if he were interested, he should apply." (Doc. 69-1 at 62(61); see also, doc. 69-1 at 63(68), 64(70), 68(88), 69(89)). The position had not been posted at that time. (Doc. 69-1 at 69(89)). Zicarelli stated in his deposition that he "believes" this was the only conversation that he had with the plaintiff while they were trying to find a person to fill the position. (Doc. 69-1 at 63(65)).
Zicarelli denied having a conversation with Stacey Crane "about whether or not her husband should go back to work for the FBI." (Doc. 69-1 at 70(94-95)). Zicarelli stated in his deposition that he did call Mrs. Crane and that he "told her that he was trying to — [he] needed to get Tracey's number to advise him of an upcoming position. If he were interested, he should apply." (Doc. 69-1 at 70(95-96)). Zicarelli could not recall saying anything else. (Doc. 69-1 at 70(96)).
In his deposition, Zicarelli states that he was never "involved in any direct hire in the FBI," was not "involved in any direct hiring policy of procedures." (Doc. 69-1 at 79(132)). He states that he never spoke to Regan about a possible direct hire of the plaintiff for the instant position. (Doc. 69-1 at 78(128)). Zicarelli confirmed in his deposition that "as the former CDC ... it was not [his] job to perform any of the HR duties." (Doc. 69-1 at 79(131-132)).
As noted above, Zicarelli stated that, before the position was filled, he only spoke to the plaintiff the one time, in April, May, or June of 2010. The position was posted internally and externally on July 13, 2010. (Doc. 69-1 at 74(109)). Zicarelli states that he never called Crane back to tell him that the position had been posted. (Doc. 69-1 at 69(89)). Zicarelli
Zicarelli states that, at some point, "I received a call from Tracey. [sic] He did the talking. I did the listening." (Doc. 69-1 at 71(97)). Zicarelli could not remember the exact date of the conversation because he was sure that it occurred after Zicarelli had retired in September of 2010. (Doc. 69-1 at 71(97)). Zicarelli further confirmed that Crane contacted him about the position, that Zicarelli "only listened to what [Crane] said," and that Zicarelli "did not discuss the job." (Doc. 69-1 at 79(132)80(133)). Other than this conversation and the one in April, May, or June of 2010, Zicarelli could recall no other conversations with Mr. Crane. (Doc. 69-1 at 71(97)).
After Zicarelli's initial discussions with Crane
In his sworn statement, Maley stated as follows:
(Doc. 69-1 at 107-108).
Maley states that he "also sought the advice of Supervisory Intelligence Analyst (SIA) Stephen Robert Forsyth, who directly worked for Crane on the Field Intelligence Group." (Doc. 69-1 at 107). According to Maley, Forsyth "described Crane in a manner similar to ASAC Regan and did not recommend Crane for the position." (Doc. 69-1 at 107). Maley states that he does not recall Forsyth mentioning anything to him about Crane's national origin, or any of Crane's EEO activities. (Doc. 69-1 at 107).
Maley noted that, when he learned from either Regan or Forsyth (he could not remember which), that Odom and Crane were friends, "that exacerbated the situation," "because the direct hiring of Crane would be perceived by division personnel as possibly underhanded or nefarious." (Doc. 69-1 at 107). Maley states that, based on all of the information he received, he directed Odom and Zicarelli to post the position both internally and externally. (Doc. 69-1 at 108). He states that his motivation in doing so was "to have a fair and open posting to allow internal candidates to have an opportunity to compete for the job in complete transparency." (Doc. 69-1 at 108).
In Regan's sworn statement, he states that when Maley spoke to him he recalls that he told Maley that he "viewed Crane as lazy, that he had a history of being late for work, and that he was a disruptive influence within the office." (Doc. 69-1 at 3). He also states that he told Maley that "it was a good day when [Crane] resigned from the FBI." (Doc. 69-1 at 3). He also recalls mentioning to Maley that Odom and Crane were personal friends. (Doc. 69-1 at 3). He states that he did not mention to Maley "anything regarding Crane's national origin, or anything relative to Crane having any involvement, at anytime, in EEO protected activities." (Doc. 69-1 at 3).
Forsyth states in his sworn statement that he "was not contacted, and did not speak, with ... Maley, concerning the potential direct hiring, or hiring of Crane." (Doc. 69-1 at 131). He does not recall ever having any discussion with Maley regarding Crane. (Doc. 69-1 at 131). Forsyth states that Maley did not ask him if he "would recommend or not recommend Crane to fill the Paralegal Specialist position." (Doc. 69-1 at 131).
On or about July 13, 2010, the Birmingham Office advertised the Paralegal Specialist/Asset
Although there is some discussion in the evidence of an entity called the "career board," the parties have presented no evidence or argument regarding which person or what entity was the "decisionmaker" in this case. However, it is undisputed that an FBI employee, Dan Russell, a Caucasian male FBI motor pool mechanic, was selected (by someone or something) for the position. There is evidence that Russell was the No. 2 candidate overall, and No. 3 on Zicarelli's list of candidates. (Doc. 69-1 at 69(90)). Zicarelli could not recall what discussions he had with the career board about who was most qualified for the position. (Doc. 69-1 at 58(46)). Russell had been unsuccessfully considered before for the same position on at least 3 different occasions.
On November 17, 2010, Crane asked the Administrative Officer ("AO") of the Birmingham Office what progress was being made to solve the funding problem. The AO informed Crane that the Birmingham Office had filled the position through a competitive hiring process on or about the prior August of 2010. This was the first time that Crane knew about the FBI's use of the posting process instead of the "direct hire" process to fill the job.
Crane had served on the Career Board, or selection panel, on one or more of those occasions, and Crane was familiar with the mechanic's qualifications. In his affidavit, Crane notes:
(Doc. 69-1 at 26).
Regan knew the plaintiff was Native American.
Zicarelli confirmed in his deposition that was "aware that the FBI places an emphasis on Native American hiring." (Doc. 69-1 at 66(79)). Zicarelli also agreed that "to the best of our ability," it is "the duty of every FBI employee to make sure that FBI policies, procedures, directives, and guidelines are followed." (Doc. 69-1 at 68(88)). Zicarelli retired on or about September 1, 2010.
In his affidavit, the plaintiff states that when he first met Regan, Regan made derogatory comments about Native Americans. (Doc. 69-1 at 23). The plaintiff states that, at their first meeting, Regan stated, "I don't want any Wounded Knee sympathizers in my command." (Doc. 69-1 at 23). At some later point, the plaintiff states that Regan referred to a former co-worker, Jane Turner, and complained that she was never in the FBI's Minneapolis Office because she was "always out in Indian land"-using the phrase "in Indian land" as an expression of disdain. (Doc. 69-1 at 23). The plaintiff states that during a later "career counseling" session between
Odom stated in his affidavit that, "[i]n previous conversations prior to ... Crane's retirement in 2008," Regan "and others" told him "that ... Crane was doing an excellent job .... Regan and others told [Odom] that Crane did an excellent job until his retirement in 2008." (Doc. 74 at 34, ¶ 2).
The plaintiff never applied for the Paralegal Specialist position. The plaintiff never submitted a resume or application in response to the Paralegal Specialist position posting. The plaintiff was never formally offered the position and never received anything in writing offering him the Paralegal Specialist position in 2011.
Plaintiff first contacted the FBI's EEO office on December 27, 2010, and filed a charge of discrimination ("COD") or about February 7, 2011. (Doc. 20-1 at 1-2). The COD indicates that the "[m]ost [r]ecent [a]lleged [d]iscrimination [t]ook [p]lace" on January 24, 2011. (Doc. 20-1 at 1). In the COD, the plaintiff only checked the boxes for National Origin (Native American) and Reprisal discrimination. (Doc. 20-1 at 1). Plaintiff did not check the box to indicate a claim for Sex, Age, Religion, or any other type of discrimination. (Doc. 20-1 at 1).
In response to the COD's Question No. 7 asking how he was discriminated against, the plaintiff attached a single-spaced document to explain his claim of discrimination. (Doc. 20-1 at 4-6). In his EEO complaint, in answer to the question asking how he was discriminated against, the plaintiff attached a two page, single spaced document which discussed the factual allegations contained herein, including Zicarelli's attempts to recruit the plaintiff as a direct hire, Zicarelli's alleged statement about the "budget issue" preventing Crane from being directly hired right away, the posting of the position, and the subsequent filling of the position with someone outside of his protected class. (Doc. 20-1 at 4-6). By letter dated April 12, 2011, the defendant notified the plaintiff that it had accepted for investigation:
(Doc. 12-2 at 1). On April 12, 2011, the plaintiff was notified, in writing, that only the above-referenced issue was accepted for investigation. (Doc. 12-2 at 1-2). The plaintiff was also notified that if he believed "the bases or allegation described in [his] EEO complaint has not been properly identified," he could appeal this in writing, "within 15 calendar days after [his] receipt of this letter." (Doc. 12-2 at 2).
The Amended Complaint alleges that the defendant discriminated against the plaintiff on account of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA") (Count Eight). (Doc. 16 at 21-22). However, in his brief in opposition to the defendant's motion for summary judgment, the plaintiff states that he "is not pursuing an Age Discrimination Claim."
The law is clear that
Grier v. Sec'y of Army, 799 F.2d 721, 724 (11th Cir.1986); see also, Tillery v. U.S. Dep't of Homeland Sec., 402 Fed.Appx. 421, 425 (11th Cir.2010) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999)) (prior to filing a Title VII action, a federal employee must timely exhaust his administrative remedies). In order to exhaust his administrative remedies, the plaintiff must first "seek relief in the agency that has allegedly discriminated against him." Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). The Eleventh Circuit has noted that
Basel v. Sec'y of Def., 507 Fed.Appx. 873, 875-76 (11th Cir.2013)
In this case, although the plaintiff initially sought relief from the Department of Justice by filing a charge of discrimination on or about February 7, 2011, the charge did not allege disparate impact discrimination and did not discuss the plaintiff's current allegations that "[t]he FBI is woefully deficient in the hiring of Native Americans." (Doc. 69 at 5 (proffered fact 5)). Those allegations are not "like or related to" the administrative complaint's allegations, nor could they be expected to "grow out of" them. For this reason, the disparate impact claims must be dismissed.
In E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263 (11th Cir.2000), the Eleventh Circuit explained:
E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274-75 (11th Cir.2000) (emphasis by underlining added); see also, Turner v. City of Auburn, 361 Fed.Appx. 62, 65 (11th Cir.2010) ("To establish a prima facie case of disparate impact discrimination, a plaintiff must show (1) a significant statistical disparity among members of different racial groups; (2) a specific facially-neutral employment policy or practice; and (3) a causal nexus between that specific policy or practice and the statistical disparity."); Johnson v. Bd. of Trustees of Univ. of Ala., 191 Fed.Appx. 838, 843 (11th Cir.2006) (discussing the burden shifting framework of disparate impact cases).
In the instant case, the plaintiff argues only that "Native Americans only account for .40% of the Special Agents (i.e., 55 Special Agents out of 13,766 total agents) and only 0.51% of the Profession Staff Employees (i.e., 111 Professional Staff Employees out of 21,863 total professional staff employees)." (Doc. 69 at 17; doc. 74 at 17-18). However, the singular fact that a small number of Native Americans are employed at the FBI is not, alone, evidence of a significant statistical disparity between the proportion of Native Americans in the available labor pool and the proportion of Native Americans hired. Further, the plaintiff fails to even allege a specific facially-neutral employment policy or practice and a causal nexus between that specific policy or practice and the statistical disparity.
The plaintiff's discussion of Regan's alleged comments regarding Native Americans, his alleged opinions regarding that group of individuals, and his statements regarding the plaintiff's work history (doc. 69 at 19-20, 22-23; doc. 74 at 20, 22-23), are irrelevant in a disparate impact scenario, which does not focus on intent.
Summary judgment is appropriate in favor of the defendant on Count Two.
The court has found this claim especially difficult to resolve because the plaintiff constantly presents a moving target as the basis for this claim.
In his EEO complaint, in answer to the question asking how he was discriminated
(Doc. 12-2 at 1).
As has been noted:
Miccosukee Tribe of Indians of Florida v. United States, 716 F.3d 535, 559 (11th Cir.2013). Considering the EEO complaint, the totality of the factual allegations in the judicial complaint, and the broad wording of Count One, the court determines that the plaintiff has not alleged new claims in his briefs from those alleged in his Amended Complaint. Instead, the court determines that there is only one claim of disparate treatment national original discrimination-that the defendant hired a non-Native American for the position over the plaintiff. The events surrounding the "direct hire," the posting of the position, the failure to inform the plaintiff that the position was posted, and all other factual allegations, merely support this one claim.
Title VII provides:
42 U.S.C.A. § 2000e-2(a)(1). "In evaluating disparate treatment claims supported by circumstantial evidence, we use the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004). Under that framework,
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir.2013).
Similar to the arguments regarding disparate impact, both motions for summary judgment begin the disparate treatment argument by incorrectly articulating the required elements of a prima facie case.
The defendant argues: "In a prima facie case of discrimination for an alleged non-selection case, a plaintiff meets his prima facie burden of proof by establishing that (1) he is a member of a protected class; (2) he was qualified for the position; (3) he was subjected to an adverse employment action; and (4) he was treated less favorably than a similarly situated person out-side his protected class." (Doc. 71 at 16). The plaintiff's motion sets out, for the most part, the exact same elements. (Doc. 69 at 17). While these are the standard elements for a disparate treatment case, see E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.2000), the Eleventh Circuit has noted that "[t]he methods of presenting a prima facie case are not fixed; they are flexible and depend to a large degree upon the employment situation." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004) (emphasis
The correct articulation of the elements in a failure to hire national origin discrimination case is: "(1) that [the plaintiff] is a member of a protected class, (2) that [he] applied and was qualified for the job, (3) that despite [his] qualifications, []he was rejected, and (4) that the position remained open or was filled by a person outside the protected class." Coutu v. Martin Cnty. Bd. of Cnty. Comm'rs, 47 F.3d 1068, 1073 (11th Cir.1995) (failure to hire national origin discrimination); see also, Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S.Ct. 2363, 2378, 105 L.Ed.2d 132 (U.S.1989) ("[plaintiff must] prove by a preponderance of the evidence that she applied for and was qualified for an available position, that she was rejected, and that after she was rejected respondent either continued to seek applicants for the position, or, as is alleged here, filled the position with a white employee"); McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817 ("[plaintiff must prove] (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications"); Lane v. Broward Cnty., Florida, 411 Fed.Appx. 272, 273 (11th Cir. 2011) (same); Childress v. Caterpillar Logistics Servs., Inc., 369 Fed.Appx. 95, 96 (11th Cir.2010) (same but stating the fourth element as "the defendant filled the position with a person outside the protected class").
The fact that the parties both argued the wrong set of elements for the plaintiff's prima facie case means that summary judgment on that issue is inappropriate for either side. The Eleventh Circuit has admonished that "`[s]ummary judgment is such a lethal weapon, depriving a litigant of a trial on the issue, caution must be used to ensure only those cases devoid of any need for factual determinations are disposed of by summary judgment.'" Chapman v. AI Transp., 229 F.3d 1012, 1069 (11th Cir.2000) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 952-53 (11th Cir.1986)). Further, it is "[t]he party moving for summary judgment [who] `bears the initial responsibility of informing the district court of the basis for its motion.'" Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314-15 (11th Cir.2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). The court cannot see how either movant satisfied its burden when both fail to set out, or argue, the proper elements of the plaintiff's prima facie case.
Nor does the court feel that it can properly grant summary judgment sua sponte on this issue. The Eleventh Circuit has previous stated that a party against whom summary judgment is granted, even if done sua sponte, must have been given "adequate notice that they must present all of their evidence." Imaging Bus. Machines, LLC. v. BancTec, Inc., 459 F.3d 1186, 1191 (11th Cir.2006). Here, neither side can be said to have adequate notice that they must present all their evidence on elements not even raised by the other side.
In addition to the above reasons for not granting summary judgment the state of the evidence suggests multiple genuine issues of material fact that preclude summary judgment. A reasonable jury could conclude that Zicarelli "offered" and the plaintiff "accepted" the position at issue, which was ultimately taken away from the plaintiff, posted, and given to a person outside the plaintiff's protected class. The plaintiff was certainly qualified for the position, as he had held it before. This alone seems to satisfy the elements of the plaintiff's prima facie case.
Albeit in reference to the wrong elements, the defendant argues that Zicarelli had no authority to offer the plaintiff the position. Indeed, Zicarelli states that he was never "involved in any direct hire in the FBI," and was not "involved in any direct hiring policy or procedures." (Doc. 69-1 at 79(132)). Zicarelli confirmed in his deposition that "as the former CDC ... it was not [his] job to perform any of the HR duties." (Doc. 69-1 at 79(131-132)). However, Maley confirmed in his affidavit that Zicarelli and Odom had "recruited" the plaintiff, "were attempting a direct hire," and, by the time Maley found out about it, "the direct hiring process was well underway." (Doc. 69-1 at 106). Based on this evidence, a reasonable jury could conclude that Zicarelli had the authority to and did directly hire the plaintiff.
The defendant, again focusing on the wrong elements, argues that the plaintiff did not suffer "an adverse employment action." (Doc. 71 at 16-19; doc. 75-1 at 28). He writes:
(Doc. 71 at 18) (emphasis added). He also writes:
(Doc. 75-1 at 28) (emphasis added). Even if the court construes this misplaced argument as attacking the (correct) prima facie element, which requires the plaintiff to have applied for the position, the argument
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-34 (11th Cir.1984) (emphasis added); see also, Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1276 (11th Cir.2002) ("Under Carmichael, an employee may be excused from the application requirement of a prima facie case `as long as he establishes that the company had some reason or duty to consider him for the post.'"). In the instant case, the evidence, when cast in the light most favorable to the plaintiff, establishes that Zicarelli was attempting to directly hire the plaintiff for the position, the plaintiff accepted the position, and then Zicarelli told the plaintiff that "funding problems," would cause a delay and that the hire would take place after the start of the new fiscal year. Of course, in reality, Maley, once he found out what was happening, ordered that the position be posted, and it was, on June 13, 2010.
Regardless of whether Zicarelli had authority to hire the plaintiff, a jury could determine that the reason the plaintiff never applied for the job was because he did not know that he needed to. Indeed, casting the evidence in the light most favorable to the plaintiff, Zicarelli led the plaintiff to believe that the job was already his. Further, Maley admits that he knew about the attempts to directly hire the plaintiff when he ordered that the job be posted. Despite Maley's knowledge of the interaction between the plaintiff and Zicarelli, no one informed the plaintiff that the job would be posted and that the plaintiff needed to apply.
Of course, as noted, the above cited evidence is cast in the light most favorable to the plaintiff. There remains a genuine issue of material fact as to what occurred in the conversations between Zicarelli and the plaintiff and Zicarelli and Mrs. Crane. Other evidence referenced above is also disputed. Accordingly, summary judgment also is not appropriate for the plaintiff on this claim.
The defendant alleges that the plaintiff cannot establish a prima facie case of retaliation.
The plaintiff's initial and reply briefs in support of his motion for summary judgment do not discuss retaliation. The plaintiff's entire argument on this issue can be
(Doc. 74 at 31-32). This argument is vague, but seems to suggest that "the discriminatory employment decision" at issue is only the failure to directly hire the plaintiff. However, none of the retaliation counts assert that claim.
Still, in light of the court's analysis determining that the plaintiff's direct hire discrimination allegations are merely part of his larger failure to hire discrimination allegations, the court reaches the same conclusion here regarding the plaintiff's retaliation claims, and holds that the plaintiff's argument is in support of Count Four. However, the court will deem all
The Eleventh Circuit has noted that
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008). The Crawford case continues:
Crawford, 529 F.3d at 970.
The defendant moves for summary judgment on the retaliation claims, arguing that the plaintiff cannot establish a prima facie case of discrimination because: 1) the plaintiff did not engage in prior protected activity; and 2) the plaintiff suffered no adverse employment action. (Doc. 71 at 16-21).
Assuming that the plaintiff "has established a prima facie case of discrimination, the burden shifts to the employer to produce `legitimate, nondiscriminatory reasons for the challenged employment action.'" Conner v. Lafarge N. Am., Inc., 343 Fed.Appx. 537, 541 (11th Cir.2009) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997)). Similarly,
Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir.2008). Assuming the defendant has proffered a legitimate non-discriminatory reason, "[i]n order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered nondiscriminatory reasons is pretextual." Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir.2000). The Eleventh Circuit has noted that
Garcia v. DS Waters of Am., Inc., 372 Fed.Appx. 925, 927 (11th Cir.2010).
Summary judgment is not appropriate for the defendant
The defendant does not give any reasons why Crane was not: 1) told about the position's being posted; 2) considered for the position after it was posted; or 3) ultimately hired when someone outside of his protected class was.
Based on the foregoing, the plaintiff's motion for summary judgment is
(Doc. 69 at 6-7, ¶ 14). The citation to Zicarelli's deposition does not support this fact. Indeed, elsewhere in his deposition Zicarelli stated that he does not know the difference between a "direct hire or regular posting." (Doc. 69-1 at 64(69)). This "fact" will not be included.
(Doc. 69 at 10). The citations given by the plaintiff do not support the conclusory and vague statement that Maley "relied on Regan's false information about Tracy Crane," or that the decision to post the position was based on "Regan's adverse comments."
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008). He then states, without citation to authority, that "[t]he ... elements hold true for both individual and disparate impact cases." (Doc. 69 at 17; doc. 74 at 17). Crawford is a disparate treatment case. The elements cited apply only to those cases. Confusingly, in one of his briefs, the defendant also cites the Crawford statement of the prima facie case. (Doc. 71 at 15). However, in another brief, he cites the correct elements. (Doc. 75-1 at 35). The use of the incorrect legal framework by both parties has contributed to the court's difficulty in resolving these motions.
(Doc. 16 at 20 (quoting Count Four))
(Doc. 16 at 20 (quoting Count Five)).
(Doc. 16 at 21 (quoting Count Six)).
(Doc. 16 at 21 (quoting Count Seven)). Each quoted portion cited above constitutes the entirety of the count except for the following language which appears at the beginning of each count: "Plaintiff re-alleges and incorporates by reference the above paragraphs with the same force and affect as if fully set forth herein, and further states as follows[.]"
