WILLIAM H. STEELE, Chief Judge.
This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 41). The Motion has been briefed and is ripe for disposition at this time.
Plaintiff, Lewis Sharpe, an African-American male, brought this action for employment discrimination and retaliation against defendant, Global Security International d/b/a Global Security Glazing ("GSG"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. The well-pleaded allegations of the Complaint assert that GSG discriminated against Sharpe on the basis of his race by "paying him lower wages than his white co-workers and whites reporting to him, by demoting him, assigning him harder tasks, by laying him off and by not timely recalling him from layoff." (Complaint (doc. 1), ¶ 17.) As for Sharpe's retaliation claim, the Complaint alleges that plaintiff engaged in protected activity by complaining internally of racially discriminatory pay discrepancies and by filing an EEOC Charge, for which GSG retaliated against him by demoting him, assigning him harder tasks, laying him off, and delaying his recall. (Id., ¶¶ 23-26.)
Defendant now seeks entry of summary judgment in its favor as to all of plaintiff's claims. In the course of briefing the Motion for Summary Judgment, GSG filed a Motion to Strike (doc. 51) the declarations
Defendant's Motion to Strike seeks excision of several of plaintiff's witnesses' declarations from the record on three grounds, to-wit: (i) plaintiff failed to disclose the identities of witnesses Leroy Chisenall, Arthur Kelly and Matt Anderson in a timely manner; (ii) the declarations of those three witnesses deviate from statutory requirements because they are not handwritten; and (iii) the declarations of Chisenall, Kelly, Anderson and Justin Brown contain inadmissible hearsay and are improperly conclusory. Each category of objection shall be addressed in turn.
GSG's first objection is that Sharpe "blind-sided" it by submitting declarations of Chisenall, Kelly and Anderson with his response to the Motion for Summary Judgment, because Sharpe had neither disclosed these witnesses previously nor placed defendant on notice of his intent to utilize them in support of his claims. Because of plaintiff's omission, GSG laments, it "is stuck in a position where it cannot depose the Declarants, gather any follow-up information based on the Declarations, or refute their testimony." (Doc. 51, at 6.) On that basis, defendant requests that these three declarations be stricken pursuant to Rule 37(c), Fed.R.Civ.P., as a sanction for plaintiff's untimely disclosure.
Exhibits appended to the Motion to Strike confirm that Sharpe did not identify Chisenall, Kelly and Anderson as persons believed to have discoverable information in either his initial disclosures or his written discovery responses. (Doc. 51, Exhs. A & B.) Those exhibits further demonstrate that plaintiff did not serve Supplemental Rule 26 Disclosures on defendant listing these three witnesses, their contact information, and the type of discoverable information each was believed to have until December 21, 2010, four days after plaintiff filed his response to the Motion for Summary Judgment and long after the discovery deadline. (Doc. 51, Exh. C.)
The Federal Rules of Civil Procedure provide that if a party fails timely to identify a witness as required by Rule 26(a) or 26(e), "the party is not allowed to use that . . . witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless." Rule 37(c)(1); see also Mee Industries v. Dow Chemical Co., 608 F.3d 1202, 1221 (11th Cir.2010) ("Rule 37(c) of the Federal Rules of Civil Procedure provides for sanctions against a party that fails to disclose information required under Rule 26(a) or (e)."). In determining whether an undisclosed witness should be excluded under this Rule, courts typically consider "the explanation for the failure to disclose the witness,
Under the circumstances presented here, the Court exercises its broad discretion by
Defendant's second objection to the Anderson, Kelly and Chisenall declarations is that they are "due to be stricken because they are not hand-written." (Doc. 51, at 10.) According to defendant, 28 U.S.C. § 1746 prohibits typewritten or computer-generated declarations, but instead mandates that the entire declaration must be handwritten to be properly considered. Because the body of each of these declarations is typewritten, with only the signature and date being handwritten, GSG maintains that all these declarations must be stricken.
This argument is a novel one. After all, this Court routinely reviews and considers typewritten declarations on summary judgment, and in fact greatly prefers that format to handwritten declarations that may be afflicted by legibility and penmanship infirmities. The Court does not recall ever fielding an objection that § 1746 mandates exclusion of any declaration whose body is typewritten or computer-generated. If defendant is correct, then the entire bar of this District Court has been doing it wrong for all these years and the judges of this District Court have erred innumerable times by weighing improper
Nor do applicable procedural rules bolster defendant's position. The Federal Rules of Civil Procedure provide that a party may use an "affidavit or declaration" in support of or in opposition to a Rule 56 motion, provided that such an affidavit or declaration "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Rule 56(c)(4), Fed.R.Civ.P. Nowhere does that rule demand that all declarations be handwritten to be eligible for consideration on summary judgment.
In light of the foregoing, this Court will not adopt GSG's unduly strained interpretation of § 1746. To endorse defendant's position would be to overturn decades of practice in this District Court. Furthermore, it would read into the statute a requirement that is not there, would insist on a pointless anachronism in an age where the use of computers and word processing software is ubiquitous in the legal practice, would impute to Congress a technophobia that does not appear to exist, and would prove deleterious to judicial and litigant eyesight given the indecipherable nature of many witnesses' handwriting. This objection is
Defendant's third objection to all four declarations is that they contain inadmissible hearsay and conclusory statements not based on the witnesses' personal
With respect to witness Justin Brown, defendant argues that his statements concerning GSG employees' job titles are conclusory, and that his statements reciting what GSG plant manager Mark Woods told him are inadmissible hearsay. The Court disagrees on both fronts. Brown, who worked at GSG on the same line that Sharpe did, can testify about his personal observations and understandings concerning which employees performed what jobs and what their job titles were. Defendant's skepticism concerning the depth of Brown's familiarity with leadman job descriptions and the structural hierarchy of GSG may provide fertile ground for cross-examination, but it does not warrant wholesale exclusion of testimony which appears to be rationally based on the witness's perceptions. And Brown's testimony concerning what Woods told him appears not to be hearsay at all, but rather to be a "statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Rule 801(d)(2), Fed. R.Evid.
Defendant's objections to the declarations of Kelly and Chisenall on grounds that certain statements therein are conclusory or lack sufficient detail fail for the same reasons as those for the other declarations; therefore the Court will not replicate its previous analysis.
For all of the foregoing reasons, defendant's Motion to Strike (doc. 51) is
GSG is a security glass manufacturer employing 80 to 100 workers at its facility in Selma, Alabama. (Cotton Dep., at 142; Woods Dep., at 87.) In particular, GSG manufactures laminated glass and polycarbonate products for the security and military industries. (Woods Dep., at 20.) During all relevant times, a nonparty company called Bullet Resistant Glass, USA, LLC ("BRG") leased space from GSG at its Selma facility to manufacture bullet-resistant glass. (Franks Aff. (doc. 41, Exh. D), ¶¶ 1-2.)
Sharpe came to work for GSG in December 2007, when defendant hired him through a temp agency as a general laborer on the BRG line. (Sharpe Dep., at 36, 39; Franks Aff., at 3.) Sharpe had no prior experience in the glass manufacturing industry, and his most recent employment had been in a non-managerial position in a shipping department. (Sharpe Dep., at 14-21, 27-28.) As a laborer, Sharpe worked under Josh Batchelor, a white male whom defendant designated as the "lead man" on the BRG line. (Sharpe Dep., at 40; Batchelor Dep., at 64; Franks Aff., at 2.) Batchelor's job duties as lead man included training employees to perform their jobs on the BRG line. (Batchelor Dep., at 19.) Batchelor in turn reported to Mark Woods, GSG's plant manager responsible for supervising all production operations. (Batchelor Dep., at 10-11; Franks Aff., at 2; Woods Dep., at 84.) Batchelor characterized Sharpe as an employee in whom he felt a certain level of "trust and confidence" to help him with the crew, and indicated that Sharpe would help out to a greater degree than other laborers. (Batchelor Dep., at 20, 21-22, 63.) According to Batchelor, Sharpe always did good work and whenever Batchelor asked him to do something, he would do it. (Id. at 25.)
There is considerable divergence between the parties concerning Sharpe's job title after he became a permanent employee in spring 2008. In the light most favorable to plaintiff, the record shows that Sharpe was designated a lead person on the BRG line. (Sharpe Dep., at 29 ("I was the lead man at BRG.").) In particular, Sharpe testified that, sometime after he became a permanent employee in March 2008, both Hilton Franks (the owner of BRG) and plant manager Woods informed him that he was a lead person (otherwise known as "leadman") on the BRG line. (Id. at 43, 61-63.) This testimony is corroborated by other evidence of record, and will be accepted as true for summary judgment proposes.
Although his job duties have changed and he experienced a layoff in 2009 for a period of several months, Sharpe evidently remains employed at GSG as a laborer today.
Because plaintiff's claims include allegations of racially discriminatory pay practices, the wage history of Sharpe and the alleged comparators is of some significance.
When Sharpe first arrived at GSG as a temporary worker, he was paid at the rate of $8.00 per hour. (Defendant's Exh. H.) Sharpe received a $1.00 hourly raise (to $9.00 per hour) when he became a permanent employee in March 2008. (Sharpe Dep., at 40; Woods Dep., at 283.) Sharpe received a 50-cent raise in May 2008, another 25-cent raise in September 2008, and a 10-cent raise in April 2009. (Woods Dep., at 284.)
According to Sharpe, two white employees that he supervised, including Justin Brown and "[t]his guy named Matt," were paid more than he was. (Sharpe Dep., at 65-67.) With respect to the "guy named Matt," a white employee named Matthew Anderson worked as a laborer for defendant, and was paid the hourly rate of $9.50 during the period of August 2008 through March 2009. (Plaintiff's Exh. 33.) As for Brown, in January 2009, defendant rehired a white employee named Justin Brown to be a laborer on the BRG line. (Cotton Dep., at 67-69.) Brown had previously worked for GSG as "a supervisor with plant-wide responsibilities," such that Lance Cotton, GSG's President of Operations, "trusted him to make decisions." (Id. at 69.)
When he became leadman on the BRG line in approximately May 2008, Sharpe's job was to "[m]ake everything just run
There came a time when defendant ousted Sharpe from his leadman position. Indeed, in January 2009, Sharpe was taken aback when Justin Brown, a white subordinate whom Sharpe had trained, directed him to get on a forklift and move a crate. (Sharpe Dep., at 74-76, 80.) Sharpe complained to Woods that Brown should not be telling him what to do. In response, Woods confirmed that he had demoted Sharpe and replaced him with Brown. (Id. at 76-77, 87.) The Court understands that defendant's evidence conflicts with the foregoing; however, Sharpe's testimony is unequivocal that defendant placed Brown in his lead person position. (Id. at 86.) For summary judgment purposes, then, it will be assumed that Sharpe was a leadman from May 2008 through January 2009, at which time defendant removed him from that position and assigned his duties to a white employee (Brown) that Sharpe had previously supervised and trained.
The change from leadman to laborer was not the only adverse job action that Sharpe confronted at that time. Later in January 2009, defendant moved Sharpe off the BRG line and onto the bagging station on the laminating line on the GSG side of the operation. (Woods Dep., at 268, 280.) In explaining this decision, Woods testified that Sharpe "was a good worker most of the time," but he "was just not as focused as often as he should be" and "[h]e was a complainer." (Id. at 279.) On that basis, Woods decided that "a change of scenery" might be beneficial and that maybe Sharpe's "attitude would change" with a new assignment. (Id.) Sharpe's new job entailed "bagging glass, checking glass, wrap the glass, tape glass, and bagging." (Sharpe Dep., at 101-02.) In the bagging department, Sharpe did not oversee anyone else's work, but simply had to "do what they told [him] to do." (Id. at 103.) According to Sharpe, the bagging job was more unpleasant and more onerous than his previous job duties because his hands blistered, it was so hot in that area that workers would "cramp up," the fan at that location provided no relief from the heat, and the work entailed lifting heavy glass, sometimes without aid of a crane or hoist. (Id. at 104.) Sharpe further testified that there was only one white employee in the entire bagging section. (Id. at 111.) By all appearances, Sharpe remains employed in GSG's bagging station on the laminating line at this time.
Plaintiff complained to defendant for quite some time that "White employees make more than [he]" did. (Sharpe Dep., at 72.) Sharpe's testimony was that he complained internally about alleged race discrimination by defendant no later than December 2008. (Id. at 74-79.)
Many of Sharpe's internal complaints centered on his perception that defendant was not paying him enough. Indeed, defendant acknowledges that, even before his discrimination charge, Sharpe objected to GSG's human resources manager that another employee on his line was being paid substantially higher wages than he was, and that he wanted a raise. (P. Woods Dep., at 80-81.) At that time, however, the HR manager did not understand Sharpe to be complaining of race discrimination. (Id. at 81.) Likewise, in late January 2009, Sharpe complained to Lance Cotton about his pay, saying that he needed more money because he could not pay his bills. (Cotton Dep., at 17-18, 106.) At that time, Sharpe also complained to Cotton about his reassignment to the bagging area, which he felt was "unfair." (Id. at 19, 106.) This evidence does not reveal a racial dimension to these particular internal complaints.
On or about February 9, 2009, Sharpe filed a Charge of Discrimination against GSG with the Equal Employment Opportunity Commission. (Plaintiff's Exh. 34.) In that Charge, Sharpe complained of race discrimination and retaliation, on grounds that (a) he was paid less than certain white employees that he supervised; and (b) Woods became hostile to him after he complained about racially discriminatory pay, by threatening him and demoting him. The EEOC sent notice of Sharpe's Charge to GSG's offices in Selma on February 10, 2009. (Id.) Woods was notified of Sharpe's EEOC Charge after GSG's human resources office received it in the mail. (Woods Dep., at 171; P. Woods Dep., at 56-57.) In late February 2009, Cotton met with Woods and the HR manager to inform them of Sharpe's EEOC Charge. (Cotton Dep., at 27-30.) As such, Woods and other GSG officials on-site in Selma were unquestionably aware of plaintiff's EEOC Charge as of late February 2009.
Even after filing his EEOC Charge, Sharpe continued to complain about pay to
Beginning in fall 2008, GSG documented a series of difficulties with Sharpe's job performance and demeanor. In October 2008, Woods placed a memo in Sharpe's file indicating that Batchelor had complained that Sharpe was not helping him to direct the employees. (Defendant's Exh. I.) In November 2008, Woods placed a second memo in Sharpe's file stating that Batchelor continued to express dissatisfaction with Sharpe's failure to direct workers' activities. (Defendant's Exh. K.)
At various times before Sharpe was transferred off the BRG line, GSG's human resources manager personally observed Sharpe displaying an "unwillingness to be a team member, to try to fix the problems that were going on." (P. Woods Dep., at 75-76.) The HR manager witnessed Sharpe being angry on the BRG line and grumbling that "you can't work with these folks," but refusing to provide specifics. (Id. at 76.)
According to defendant, the problems with Sharpe's attitude and cooperativeness became more pronounced over time. In January 2009, Sharpe attended a meeting with Woods and several other people concerning a specific production defect.
Woods characterized Sharpe as an employee who often complained about "external things," such as "[w]hat somebody else was getting paid, who's working harder than someone else." (Woods Dep., at 268.)
In or about April 2009, defendant singled Sharpe out by reading his unflattering performance evaluation to him on the floor, in the presence of other line employees. (Defendant's Exh. U; Sharpe Dep., at 154-57.) Sharpe said that he was "down and upset" after this incident, which he likened to an "assault," with "everybody laughing and thought it was a joke" at his expense. (Sharpe Dep., at 155-56.) In this regard, Sharpe was treated differently than his co-workers. (Id. at 157.) Plaintiff contends that defendant doubled his raise (from 5 cents to 10 cents) after he objected to this unfair and humiliating treatment with respect to the public airing of his performance evaluation.
Finally, because Sharpe imputes discriminatory or retaliatory intent to his layoff and the timing of his recall, the Court summarizes the record facts concerning those events.
With respect to the June 2009 layoffs, defendant's evidence is that Lance Cotton decided layoffs were needed at the GSG facility in Selma. (Cotton Dep., at 77.) In implementing that layoff, however, Mark Woods was the decision-maker, deciding in "his discretion ... specifically which department or which people would be laid off" after Cotton indicated that layoffs were necessary. (Id. at 46.) Similarly, when it was appropriate to call employees back from layoff, it was Woods who "decide[d] to call them back." (Id. at 49.) Cotton was hands-off in this implementation process, and neither decided nor was consulted about specific persons or the racial composition of those selected for layoff; indeed, he did not even learn that Sharpe had been laid off and recalled until after this lawsuit commenced. (Id. at 78, 151.) Those decisions were made solely by Woods. (Id. at 151.) GSG does not have any specific guidelines or policies governing implementation of layoffs. (Woods Dep., at 318-19.)
Sharpe was a victim of that June 2009 layoff. (Sharpe Dep., at 165.) Defendant's records show that Sharpe was laid off on June 2, 2009, and recalled on September 21, 2009. (Plaintiff's Exh. 24.) Of the nine employees (including Sharpe) who were laid off on June 2, 2009, six were black, three were Asian, and zero were white. (Id.) More broadly, defendant laid off 32 employees (of whom 21 were black, 8 were white, and 3 were Asian) on June 2 and 3, 2009, and recalled all 32 of them during the following four months. (Id.) Some 26 of those laid-off employees (i.e., all but six) were recalled by no later than mid-July 2009. (Id.) All six of the employees recalled after July 21, 2009 were African-American. (Id.) Sharpe was one of three employees recalled on September 21, 2009, and just two employees were recalled after that date, with one of those individuals turning down the recall because he had accepted other work. (Id.) As such, Sharpe was one of the last employees to be recalled, and his recall date was more than two months later than that of most of his colleagues (and all of his white colleagues). Upon his recall, Sharpe was returned to the bagging job he had held previously. (Sharpe Dep., at 169.)
Summary judgment should be granted only if "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factual determinations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted).
The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, "the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." Id. at 1086 (citation omitted).
The Complaint frames plaintiff's claims as sounding under both Title VII and § 1981; however, the same analysis governs both sets of claims. "Because the legal standards governing each of these categories of claims are the same, it is unnecessary to evaluate separately the Title VII ... and the Section 1981 causes of action." Pears v. Mobile County, 645 F.Supp.2d 1062, 1089 (S.D.Ala.2009); see also Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985) (for disparate treatment claims under both Title VII and § 1981, "the legal elements of the claims are identical" such that the two categories of claims need not be discussed separately).
Absent direct evidence of discrimination or retaliation, Sharpe must make a showing of circumstantial evidence that satisfies the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Rather than working through each prong of the McDonnell Douglas analysis sequentially, defendant attacks three discrete aspects of Sharpe's claims on summary judgment. Because the briefing is framed in this manner, the Court will not sua sponte navigate the McDonnell Douglas framework from beginning to end, parsing the record to expand on movant's arguments or to formulate new ones, but will instead focus on the particular grounds for summary judgment advanced by GSG.
To establish a prima facie case of either disparate treatment or retaliation, Sharpe must show an adverse action. See, e.g., Butler v. Alabama Dep't of Transp., 536 F.3d 1209, 1212-13 (11th Cir.2008) ("To establish a claim of retaliation under Title VII or section 1981, a plaintiff must prove that ... he suffered a materially adverse action ....") (citations omitted); Crawford, 529 F.3d at 970 ("To make out a prima facie case of racial discrimination a plaintiff must show ... she was subjected
As a threshold matter, it is important to recognize that the "adverse action" test applied to retaliation claims is distinct from that applied to disparate treatment claims. Defendant's principal brief does not recognize this distinction but instead urges application of the stricter disparate treatment iteration to all of plaintiff's claims. Such an approach would be improper and contrary to binding precedent. See Crawford, 529 F.3d at 973-74 & n. 14 (explaining that under new test for adverse action in retaliation context, "the type of employer conduct considered actionable has been broadened," the new standard for adverse action in retaliation cases is "decidedly more relaxed" and "accords an employee protection from a wider range of retaliatory conduct," and "while the new standard ... applies to Title VII retaliation claims, it has no application to substantive Title VII discrimination claims"); Pears, 645 F.Supp.2d at 1094 (recognizing a "more stringent standard for adverse employment actions in discrimination claims" and a "more liberal standard applicable in the retaliation setting"). It is therefore instructive to delineate separately the proper tests for this element of the race discrimination prima facie case and the retaliation prima facie case.
In the Title VII discrimination context, "[n]ot all employer actions that negatively impact an employee qualify as adverse employment actions." Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir.2010) (citation and internal quotation marks omitted). Rather, "only those employment actions that result in a serious and material change in the terms, conditions, or privileges of employment will suffice.... [T]he employment action must be materially adverse as viewed by a reasonable person in the circumstances." Id. (citations and internal quotation marks omitted).
By contrast, the test for an adverse employment action in retaliation cases is whether the employer's conduct "might deter a reasonable employee from pursuing a pending charge of discrimination or making a new one." Crawford, 529 F.3d at 974. Thus, in the retaliation context, a "materially adverse action" is one that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. (citation omitted). In this regard, the Eleventh Circuit has read applicable Supreme Court precedent as "strongly suggest[ing] that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered `materially adverse' to him and thus constitute adverse employment actions." Id. at 973 n. 13.
The adverse actions identified by Sharpe are his removal from the position of leadman and subsequent reassignment as a laborer in the bagging department. Defendant argues that these allegations are legally insufficient to constitute an adverse employment action because (i) Sharpe was never a leadman so he could not have been demoted, (ii) the alleged demotion predates his EEOC Charge and therefore could not be retaliatory, (iii) if it occurred, the demotion is not an adverse employment action as a matter of law, and (iv) a lateral transfer to the bagging department is not an adverse employment action as a matter of law. These contentions are not persuasive.
With respect to defendant's argument that Sharpe was never a leadman and therefore was never demoted, the record in the light most favorable to plaintiff is to the contrary. Plaintiff's testimony is unequivocal that defendant employed him as a leadman, that Woods (the plant manager) specifically notified him of this job title,
GSG's next argument is that Sharpe's demotion and ensuing transfer to the bagging section cannot support his retaliation claim because those events predated his EEOC Charge. Defendant's chronology is correct, as is its reasoning that an employer cannot be held liable for Title VII retaliation when the alleged retaliatory acts preceded the protected conduct. See, e.g., Griffin v. GTE Florida, Inc., 182 F.3d 1279, 1284 (11th Cir.1999) ("[a]t a minimum, [a plaintiff] must show that the adverse act followed the protected conduct"). But the EEOC Charge is not the only protected conduct invoked by Sharpe here; rather, his evidence is that he began complaining internally of race discrimination no later than December 2009. Internal complaints of discrimination
GSG also maintains that the demotion and transfer do not meet the legal definition of adverse employment actions because those kinds of personnel actions are not materially adverse. Recall that plaintiff's evidence is that he went from being a leadman in a position of responsibility and prestige, directing and inspecting the work of other employees on the BRG line, to being a mere laborer, and was subsequently transferred to the bagging section, where he gives orders to no one and performs backbreaking labor that blisters his hands in an uncomfortably hot, unpleasant environment. The demotion, in and of itself, is plainly an adverse employment action under even the more stringent standard applicable to substantive discrimination claims. See, e.g., Crawford, 529 F.3d at 970 (adverse employment actions include "ultimate employment decisions... such as termination, failure to hire, or demotion"). And a transfer can meet the threshold of material adversity "if it involves a reduction in pay, prestige or responsibility." Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821, 829 (11th Cir.2000). Plaintiff's record facts show that his transfer to the bagging section was accompanied by a substantial loss of prestige and responsibility, and a substantial increase in physical demands. Considering the demotion and transfer in the aggregate, as applicable law requires, the Court readily concludes that plaintiff has presented sufficient evidence of an adverse employment action to satisfy his prima facie burden. See McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1078 (11th Cir.1996) (adverse employment action requirement satisfied where supervisor was reassigned to janitorial duties and then transferred to shipping department, where he was required to perform physically strenuous tasks); Jackson v. Winn-Dixie, Inc., 2008 WL 5435576, *5-6 (S.D.Ala. Dec. 31, 2008) (reasonable factfinder could find that plaintiff experienced adverse employment action where plaintiff "was transferred to an entirely different and less prestigious job in a different department, with substantially different duties, on a permanent basis").
For all of these reasons, the Court finds that the Motion for Summary Judgment is not meritorious insofar as defendant maintains that Sharpe did not experience an adverse employment action in January 2009 as needed to establish a prima facie case of race discrimination or retaliation.
Among Sharpe's claims is one for race discrimination in pay. To establish a prima facie case of intentional discrimination in compensation, Sharpe must establish that: (i) he belongs to a racial minority; (ii) he received low wages; (iii) similarly situated comparators outside the protected class received higher compensation; and (iv) he was qualified to receive the higher wage. See Cooper v. Southern Co., 390 F.3d 695, 735 (11th Cir.2004). On summary judgment, GSG seizes on the "similarly situated comparators" requirement, and maintains that Sharpe cannot make such a showing.
As a general proposition, "[w]hen comparing similarly situated individuals to raise an inference of discriminatory motivation, the individuals must be similarly situated in all relevant respects besides race." Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1273 (11th Cir.2004). In the context of a wage discrimination claim brought under Title
The record reflects that GSG hired Anderson in May 2008 as a laborer on a temporary basis, paying him $8.50 per hour. (Plaintiff's Exh. 11, at 3.) Defendant gave Anderson a raise to $9.50 in August 2008, when it hired him as a permanent worker. (Id. at 2; Plaintiff's Exh. 33, at 3.) Sharpe contends that Anderson's pay history reflects race discrimination because when plaintiff was hired as a temporary employee in December 2007, he was paid just $8.00 per hour (rather than the $8.50 paid to Anderson), and when he became a permanent employee in March 2008 Sharpe received a raise to just $9.00 per hour (rather than the $9.50 paid to Anderson). So for Sharpe's first five months on the job (until he finally received a raise to $9.50 in May 2008), he was consistently paid $0.50 per hour less than Anderson was during Anderson's first five months on the job. Defendant's records show that both Sharpe and Anderson were classified as laborers during that period. (Plaintiff's Exh. 11.)
Defendant's response is twofold. First, according to GSG, Sharpe should be barred under Rule 37(c), Fed.R.Civ.P., from relying on Anderson as a comparator because he did not identify him as such in his original discovery responses. (Defendant's Exh. M, at # 8.) This contention is unavailing. Rule 37(c) provides that if a party fails to provide information in a timely manner as required by the Federal Rules of Civil Procedure, "the party is not allowed to use that information ... on a motion, at a hearing, or at trial, unless the failure was substantially justified
On the merits, GSG's only argument about Anderson is that, because their start dates and raises were staggered, at no given point in time was Anderson being paid a higher wage than Sharpe was receiving. This analysis glosses over a clear disparity. The record shows that when Sharpe started working for defendant in December 2007, he was paid $8.00 per hour. When Anderson started working for defendant in May 2008, he was paid $8.50 per hour. When Sharpe became a permanent employee in March 2008, he was paid $9.00 per hour. When Anderson became a permanent employee in August 2008, he was paid $9.50 per hour. Thus, at identical points of their employment (in terms of service time and temporary/permanent status), Anderson was consistently paid more than Sharpe. Although defendant insists that this kind of claim should not be actionable wage discrimination under Title VII, it does not identify a single authority that supports that proposition. Nor would this distinction make sense. How is it any less discriminatory for an employer to hire black employees at 50 cents-per-hour less than white employees, when their start dates are staggered by five months, than for an employer to pay a particular black employee 50 cents less than it pays a particular white employee at a particular moment in time? There is no logical difference between the two scenarios that the Court can perceive, and defendant fails to identify any legal support for its contention that only the latter (and not the former) can establish a prima facie case of wage discrimination.
Defendant makes no further arguments concerning Anderson. It does not offer a legitimate nondiscriminatory explanation for paying Sharpe less than Anderson at similar points of their employment at GSG/BRG. Because defendant does not take issue with Sharpe's ability to satisfy the other prongs of his prima facie burden, the burden shifts to GSG to "offer legitimate, nondiscriminatory reasons for the employment action to rebut the presumption" of discrimination created by plaintiff's prima facie showing. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1331 (11th Cir.1998). Under the McDonnell Douglas test, a defendant's burden of production is light, but it "is not so ethereal as to be nonexistent." Hollingshead v. Windley, 2008 WL 4809221, *9 (S.D.Ala. Oct. 31, 2008); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (to show a legitimate nondiscriminatory reason, "defendant must clearly set forth, through the introduction of admissible evidence, the reasons for" the challenged personnel decision).
The other comparator on whom Sharpe relies for his disparate pay claim is Justin Brown, whom defendant rehired as a laborer on the BRG line in January 2009 at a starting wage of $10.00. At that time, Sharpe's pay was $9.75 per hour; thus, defendant paid Brown more than both Sharpe's starting wage of $8.00 per hour and his then-current wage of $9.75. The record shows that defendant increased Brown's pay to $10.35 in April 2009, at which time Sharpe received a raise to just $9.85 per hour, for a 50-cent differential.
Defendant's initial objection to plaintiff's designation of Brown as a comparator is that the two are not similarly situated in terms of experience. As stated supra, however, a prima facie case of disparate pay does not necessitate a showing that the two workers are identical in all respects other than race; rather, a comparator in a Title VII wage case is established so long as the plaintiff shows that he "occupies a job similar to that of higher paid" persons outside the protected class. Meeks, 15 F.3d at 1019; see also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 n. 18 (11th Cir.1992) (in pay discrimination context, "[f]actors such as experience and education operate as a defense to liability rather as part of a plaintiff's prima facie case"). That criterion is unequivocally satisfied here. Defendant's records reflect that both Brown and Sharpe were laborers on the BRG line in early 2009, and that Brown was paid more. Accordingly, defendant's assertion that plaintiff cannot make a prima facie case of wage discrimination because Brown is not a similarly situated comparator is not well taken.
With respect to Brown (unlike Anderson), defendant continues with the McDonnell Douglas analysis by proffering a legitimate nondiscriminatory reason for paying Brown a higher wage than Sharpe. According to defendant's evidence, Woods (in consultation with Cotton) decided to pay Brown a higher starting wage than is typically granted to new laborers because Brown had previously worked for GSG as a supervisor with plant-wide responsibilities, had proven himself to be dependable and trustworthy in that stint of employment, and had left on good terms. Thus, defendant explains that it paid Brown more than Sharpe because Brown possessed a sterling reputation for being a "good dependable solid person" and a "go-getter" with experience in supervising plant-wide operations for GSG's business, albeit not on the particular BRG line for which he was rehired in 2009. This showing plainly suffices to satisfy defendant's modest burden of production in the McDonnell Douglas analysis. See generally Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997) ("To satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.") (citations omitted).
Defendant having come forward with a legitimate nondiscriminatory reason for the challenged action, "the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination." Crawford, 529 F.3d at
To demonstrate pretext, Sharpe offers a combination of direct and indirect evidence. The direct evidence includes proof that, at unspecified times, Woods (the key decisionmaker for that pay differential) referred to African-American employees as "monkeys," told a white employee (Justin Brown) that Woods "was looking for people like [Brown] to change the face of the company," and disparagingly referred to a black employee as "this." The law is clear that, in a circumstantial proof case, "such comments may provide circumstantial evidence to support an inference of discrimination." Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir.1998). Of course, the record is lacking important details concerning the context and timing of these remarks, so this direct evidence may be insufficient to show pretext by itself.
Plaintiff's pretext evidence is not limited to purported statements of racial animus by Woods. Rather, that evidence must be considered in conjunction with plaintiff's indirect evidence of pretext. To the extent that GSG maintains it paid Brown more than Sharpe because of Brown's prior supervisory experience, plaintiff points out that Brown was not hired as a supervisor in January 2009, but was instead hired as an entry-level laborer on the BRG line, a line on which he had never worked before. Plaintiff's evidence is that Sharpe trained Brown on the BRG line, and effectively supervised Brown in Sharpe's capacity as leadman, at least until defendant flip-flopped their roles by promoting Brown to the very position that Sharpe had previously held and demoting/transferring Sharpe to an undesirable glass-bagging job.
In short, on this record, GSG's stated reasons for the challenged personnel action are suspect, and genuine issues of fact linger. Plaintiff has met his burden of showing such weaknesses and implausibilities in defendant's proffered reasons for
Finally, GSG seeks entry of summary judgment on Sharpe's discrimination and retaliation claims pertaining to his layoff in June 2009 and his subsequent recall in September 2009 (two months after most of his colleagues—including all of his white colleagues—had been recalled to work). In lieu of a rigorous application of McDonnell Douglas principles to these claims, defendant posits four discrete arguments in favor of dismissal. The Court will consider each in turn.
First, defendant maintains that neither the layoff nor the recall decisions are actionable on a retaliation theory because plaintiff cannot show a causal connection between his protected activity and those adverse actions. To establish a prima facie case of retaliation, Sharpe must show that "(1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action." Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir.2009); see also Butler, 536 F.3d at 1212-13 ("To establish a claim of retaliation under Title VII or section 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a materially adverse action, and there was some causal relation between the two events.") (citation omitted). With respect to the causal link element, the law is clear that "close temporal proximity may be sufficient to show that the protected activity and the adverse action were not wholly unrelated." McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir.2008). Defendant argues that there is insufficient temporal proximity to establish a causal link here, inasmuch as the EEOC Charge was filed in February 2009 and Sharpe's layoff did not occur until early July 2009, more than three months after defendant learned of the Charge in late February. Case authorities support the proposition that, without more, a three-month period between protected activity and adverse action is insufficient to show a causal connection. See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) ("A three to four month disparity between the statutorily protected expression and the adverse employment action is not enough."); Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir.2004) (three month period, by itself, "does not allow a reasonable inference of a causal relation between the protected expression and the adverse action").
"But close temporal proximity is not the only means by which a plaintiff can establish a causal connection." Pears, 645 F.Supp.2d at 1095-96; see also Thomas, 506 F.3d at 1364 (explaining that substantial delay does not establish causal link "in the absence of other evidence tending to show causation"). After all, the "causal link" element is construed "broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir.2008) (citations and quotation marks omitted); see Boandl v. Geithner, 752 F.Supp.2d 540, 562, 2010 WL 4321573, *13 (E.D.Pa. Nov. 2, 2010) (plaintiff can show causal connection through "timing plus other evidence,
Here, Sharpe has come forward with evidence that Mark Woods, who made the layoff and recall decisions and who had actual knowledge of his EEOC Charge and his internal race discrimination complaints, viewed Sharpe as "a complainer" and based his earlier decision to transfer Sharpe to the less desirable bagging assignment in part on that fact. (Woods Dep., at 279-80.) A reasonable factfinder could construe Woods' "complainer" statement as one evincing retaliatory animus, particularly where it had been a motivating force for at least one of the alleged materially adverse actions (i.e., the transfer to the bagging area). Thus, the evidence supports a reasonable inference that Woods was predisposed against Sharpe because Sharpe had complained about matters including race discrimination. That evidence, in combination with the passage of three months between notice of EEOC Charge and layoff, and the chain of intervening retaliatory conduct (including the April 2009 write-up and the public humiliation of Sharpe) satisfies Sharpe's light burden of showing as part of his prima facie case that the protected activity and layoff were not "wholly unrelated."
Second, defendant contends that Sharpe cannot pursue retaliation or discrimination claims predicated on his recall because "[h]is re-hire at his former pay
This argument misses the point. Sharpe is not objecting to GSG's decision to recall him; rather, he is complaining that defendant delayed from early June 2009 until late September 2009 to do so, even after recalling the vast majority of his laid-off colleagues in July 2009. Simply put, it is defendant's failure to recall Sharpe in a timely manner, rather than the recall itself, that forms the backbone of this claim.
Third, defendant argues that even if Sharpe can make a prima facie case of discrimination or retaliation concerning the layoff and untimely recall, GSG has legitimate nondiscriminatory reasons for placing
The threshold problem is that GSG does not proffer evidence showing why it chose to lay off Sharpe (as opposed to some other employee) and why it waited so long before recalling him.
With regard to the second point (i.e., the paucity of evidence explaining the timing of recall), defendant attempts to argue that Sharpe's treatment with respect to the layoff and the timing of his recall was prompted by his disciplinary history with GSG. But defendant fails to point to any statement by Woods (the decisionmaker for the layoff and rehire) indicating that Sharpe's disciplinary record had any bearing on his decisions. To show that plaintiff had a history of write-ups at GSG is not equivalent to showing that Woods relied on such write-ups as his reason for including Sharpe in the June 2009 layoff and making Sharpe one of the very last employees to be recalled to work. As things stand,
Simply put, the record (as cited by defendant in its briefs) does not identify any evidence explaining Sharpe's inclusion in the June 2009 layoff or his status as one of the very last employees to be recalled from such layoff, months after dozens of his peers (and all of his white peers) had been restored to work. Accordingly, defendant has not satisfied its burden of production, and is not entitled to summary judgment on these claims.
Fourth and finally, defendant contends that it is entitled to summary judgment because the same decisionmaker (Woods) decided to layoff and to rehire Sharpe. The Eleventh Circuit has recognized that such "same actor" evidence "constitutes evidence that a jury may consider in deciding the ultimate issue of intentional discrimination. Evidence that the same actor both hired and fired the plaintiff, in some circumstances, may help to convince a jury that the defendant's proffered legitimate reasons for its decision are worthy of belief." Williams v. Vitro Services Corp., 144 F.3d 1438, 1443 (11th Cir.1998).
The "same actor" line of authority does not bolster defendant's Rule 56 Motion. This is not a case where the same actor is alleged to have hired (a positive personnel action) and subsequently fired (a negative personnel action) the plaintiff. Rather, plaintiff's evidence is that Woods placed Sharpe on temporary layoff (a negative personnel action) and delayed for a period of months before recalling Sharpe (which delay was also a negative personnel action). Defendant does not identify a single authority in which the Eleventh Circuit has extended the "same actor" inference to a circumstances of layoff, followed by delayed recall, nor does any such extension of the doctrine appear logical. Again, the record reflects that GSG ultimately recalled every single employee that it laid off in June 2009. Defendant's suggestion that Woods' decision to recall Sharpe (albeit long after most of his colleagues had been recalled) somehow dissipates the taint of the previous adverse decision to lay off Sharpe in the first place does not appear to be grounded in logic or law. Even if the "same actor" inference did apply here, it would not entitle GSG to summary judgment because the law is clear that "it is the province of the jury rather than the court . . . to determine whether the inference created by `same actor' is strong enough" for the defendant to carry the day. Williams, 144 F.3d at 1443 (declining to accord to "same actor" evidence a "presumption that discrimination necessarily was absent").
For all of the foregoing reasons, it is
DONE and ORDERED.
