SHARON LOVELACE BLACKBURN, Chief District Judge.
This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 28.)
Pursuant to Fed. R. Civ. P. 56(c), summary judgment is appropriate when the record shows "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). The moving party bears the initial burden of showing no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are left to the jury, and, therefore, evidence favoring the non-moving party is to be believed and all justifiable inferences are to be drawn in his favor. See id. at 255. Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)).
Plaintiff, A.J. Williams, began working for Ogihara America Corporation, in October 1997. (Doc. 31-1 at 16.) In March 2003, he became a "Safety Specialist" for Ogihara. (Id. at 17.) Magna International of America, Inc., purchased the Ogihara plant in April 2008, and renamed it Kamtek. (Id. at 25; doc. 35-4 at 2.) Defendant Kamtek offered plaintiff a position as Safety Specialist subject to a 90-day "introductory period," (doc. 35-7), which plaintiff accepted, (doc. 31-1 at 15). The letter offering plaintiff a position with defendant stated, "At any time during the introductory period, the Company may, at its sole discretion, terminate your employment without cause without prior notice or payment in lieu thereof." (Doc. 35-7 at 2.)
Plaintiff reported to Mike Hartman, Human Resources Manager, who had also worked for Ogihara. (Doc. 31-1 at 23; doc. 34-1 at 55; doc. 35-1 at 15, 24.) Plaintiff testified that he did not believe Hartman had discriminated against him during the period of time he worked for defendant. (Doc. 31-1 at 210.) Hartman reported to defendant's General Manager, Alfred Friedl. (Doc. 35-1 at 102.)
According to the Ogihara Position Description Form for Safety Specialist, plaintiff's "primary job function" was —
(Doc. 32-16 at 2.) Plaintiff described his job duties as:
(Doc. 31-1 at 150.) After it purchased the Birmingham plant, defendant continued the practice of maintaining daily Action Registers. (Doc. 40-1 ¶ 2.)
On June 19, 2008, Ted Stolpe, a Safety Specialist Manager, visited the plant to meet with plaintiff and, according to plaintiff's notes, to perform a safety assessment of the plant. (Doc. 31-1 at 68-69; doc. 32-21 at 9.) Plaintiff testified that he and Stolpe —
(Doc. 31-1 at 70.) He testified that the Magna system was"a little more detailed" than the Ogihara system. (Id. at 71.) Plaintiff contends he "was never asked to meet any safety expectation required by Magna," and he "was repeatedly told to follow the safety expectation[s] and rules required by Ogihara." (Doc. 40-1 ¶ 19.)
In July 2008, Lormer McGinn, a Health and Safety Coordinator from one of the Magna facilities in Canada, came to Birmingham for several days. (Id. at 75-76.) During this time, he created a list of concerns, which plaintiff entered into an Action Register, dated July 11, 2008. (Id. at 187-88; doc. 32-2; doc. 32-3.) As time went by, Friedl, noticed that items on the Action Register were not being closed. (Doc. 35-1 at 98.) He testified:
(Id.)
On July 15, 2008, plaintiff e-mailed McGinn and asked him for "a copy of the [Magna] safety standard with example pictures." (Doc. 32-1 at 3.) A week later McGinn responded that a copy of the Magna Safety Standards was available on the company's intranet site. (Id. at 2.) McGinn also asked plaintiff if he had reviewed the items he had documented and if improvements had been made. (Id.) Plaintiff reported that he had developed an Action Register and a focus group, and that he was addressing the corrective actions in meetings every Monday. (Id.)
Around this same time, Friedl received the results of an anonymous survey of defendant's employees. (Doc. 31-3 at 441-43; Friedl Depo., Pl. Ex. 8.) The following comments were listed under the category "Safe and Healthful Workplace" for various departments —
After Friedl noticed that plaintiff was not closing items on the Action Register — sometime in July or August — defendant's two Assistant General Managers — John Hackett and Kevin McDonald — recommended that Friedl consider replacing plaintiff with Richard Wallace, a white male. (Doc. 35-1 at 96, 98; doc. 36-1 at 40-41, 42.)
Friedl decided to terminate Williams, based on "[h]is lack of getting the items closed off from the action register and feedback from employees." (Doc. 35-1 at 69.) Plaintiff conceded that a number of items on the July 11, 2008, Action Register did not show any progress as of August. (See doc. 31-1 at 201-203.) He testified, "I had put some dates in here as far as where we were [in August]. Maybe I didn't have time to put them in, I'm not sure." (Id. at 203.) He also testified, "I was never equipped with an outline of the specific measures that needed immediate action as a result of McGinn's visit," or "given a timetable regarding when any measures needed to be address[ed] or instructed that [he] needed to correct any problems." (Doc. 40-1 ¶ 16.)
On or about August 19-22, 2008, BSI, an independent third-party, conducted an audit of the plant. This type of audit occurred regularly to allow defendant to maintain certification under certain industry standards. (Doc. 35-1 at 382-83; doc. 36-1 at 20-22.) BSI's final assessment cited no safety violations and listed two "Minor Nonconformities Arising from this Assessment." (Williams Depo, Def. Ex. 27 at 5 [filed under seal].) The Assessment Report stated:
(Id.) Plaintiff testified that Brian Thorpe, Materials Manager, had volunteered to clean the oil room so plaintiff had listed him as the "owner" on the item on the Action Register. (Doc. 31-3 at 422-23.)
The auditor presented her findings at a meeting on August 22, 2008. (Id. at 421, 434.) In response to comments about the uncleaned oil shed, Thorpe presented a copy of the Action Register, from which he had removed his name and added plaintiff's name as the owner of the oil-shed item. (Id. at 422.) Thorpe denied any responsiblity for the oil-shed item. (Id.) Plaintiff testified that Thorpe's removal of his name from the Action Register was a falsification of a company document. (Id.) After the auditor left, Hackett expressed his disappointment about the nonconformity. (Id. at 432.) During his deposition, plaintiff testified:
(Doc. 31-3 at 433-35.)
Plaintiff testified that he had never made a complaint of race discrimination at Kamtek. (Doc. 31-1 at 109; doc. 41 at 6.) However, he believed the changing of the Action Register was race related. When asked why he believed the third-party audit issue involving Thorpe was race related, plaintiff explained it was because Thorpe is white and he is black and Thorpe had whited out his name on the Action Register and written in plaintiff's name. (Doc. 31-3 at 430-31, 433.) "There were four other white males in that room, and I was targeted on the simple issue as oil storage tank that they were all agreed and was made aware of. When the thing ended, everything was pointed at me." (Id. at 431.)
On Tuesday, August 26, 2008, Jack Stewart, a Human Resources Manager from Kentucky, and Hartman told plaintiff that his employment with defendant had ended, and they gave plaintiff a letter from Friedl. (Doc. 31-1 at 26-27; doc. 40-4.) Defendant contends that it discharged plaintiff because he "failed to effectively resolve, improve[,] or close[ ] open safety violations that existed throughout the plant." (Doc. 28 at 4.) Friedl testified that he decided to terminate plaintiff based on "[h]is lack of getting the items closed off from the action register and feedback from employees." (Doc. 35-1 at 53, 69.)
Wallace was offered employment by letter dated August 22, 2008. (Doc. 35-9 at 2.) He accepted the offer on August 27, 2008. (Id. at 2, 5.) Subsequently, Wallace was terminated for "not meeting the expectations of the management team." (Doc. 36-1 at 36.)
Plaintiff's Complaint alleges that defendant terminated him because of his race in violation of Title VII and § 1981. The Complaint also alleges, "The jurisdiction of this Court is invoked to secure protection for and to redress deprivation of rights secured by Title VII, § 704(a), 42 U.S.C. § 1981, and [§] 1981(a) and (b)[,] providing for injunctive and other relief against race discrimination and retaliation in employment." (Doc. 1 ¶ 1.) Also, he contends that "Plaintiff . . . is subjected to a continuing and on-going campaign of racial harassment and discrimination in his workplace," (id. ¶ 19), and that "The Defendant is liable for race discrimination perpetrated by its supervisors on plaintiff, and is liable for engaging in a pattern and practice of failing to remedy racial and sexual discrimination in the workplace," (id. ¶ 23).
The court notes at the outset of its discussion of plaintiff's discrimination claims that the record contains no direct evidence of discrimination. Without direct evidence, plaintiff must prove his case using circumstantial evidence under the McDonnell Douglas framework and, as an initial step, establish a prima facie case of discrimination. See Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008)(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If plaintiff establishes a prima case of discrimination, the burden then shifts to defendant to articulate a legitimate, non-discriminatory reason for its decision. Id. If defendant is able to meet this burden, plaintiff then has the opportunity to demonstrate that defendant's proffered reason for the adverse employment action is merely a pretext for discrimination. Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)(citing McDonnell Douglas, 411 U.S. at 804).
In this circuit —
Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)(quoting Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973))(internal quotations omitted); see also Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006).
The evidence is undisputed that defendant terminated plaintiff, a qualified, African-American male, and replaced him with a white male. This evidence is sufficient to establish a prima facie case of race discrimination with regard to his termination. See Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005); Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1290 (11th Cir. 1998); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984).
Defendant contends that it discharged plaintiff because he "failed to effectively resolve, improve[,] or close[ ] open safety violations that existed throughout the plant." (Doc. 28 at 4.) Friedl testified that he decided to terminate plaintiff based on "[h]is lack of getting the items closed off from the action register and feedback from employees." (Doc. 35-1 at 53, 69.)
Plaintiff contends that "the defendant has not offered a legitimate non-discriminatory/nonretaliatory explanation for [his] termination," because it has "falsely assert[ed] that [he] admitted in his deposition that dozens of photographs taken by Lormer McGinn showed uncorrected safety violations, and that little was done to correct those violations." (Doc. 41 at 21.) However, defendant's articulated reason for plaintiff's termination is not that McGinn took pictures of uncorrected safety violations and it is not based on plaintiff's alleged "admission."
Defendant is required to offer proof of the basis for the decision at issue — not that it correctly decided to terminate plaintiff. As the Eleventh Circuit has held:
Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990).
Defendant's articulated reasons — that Friedl decided to terminate plaintiff based on his failure to get items off the Action Register and comments made about safety in the employee feedback — are sufficient to satisfy defendant's burden to articulate a legitimate, nondiscriminatory reason for its decision.
Because defendant has articulated a legitimate, nondiscriminatory reason for its decision to terminate plaintiff, the burden shifts to plaintiff to rebut defendant's reasons either (1) by presenting evidence that discrimination was the real reason for the decision, or (2) by presenting evidence that defendant's reasons are "unworthy of credence." See Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied 546 U.S. 960 (2005).
Vessels v. Atlanta Independent School System, 408 F.3d 763, 771 (11th Cir. 2005)(internal quotations and citations omitted). "If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it." Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)). "If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment." Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007)(citing Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000)).
In response to defendant's Motion for Summary Judgment, plaintiff argues:
(Doc. 41 at 22-23 [footnote added; original footnote omitted].) Plaintiff's arguments do not address "head-on" defendant's reasons for his termination — (1) he did not clear items off the Action Register and (2) he received many negative comments from his coworkers. Plaintiff steadfastly maintains that he was told to follow Ogihara's safety standards and the plant did not have safety violations. However, he concedes that items remained on the Acton Register in August that were entered in July. Also, he does not dispute that Friedl received negative comments early in July regarding plaintiff's job performance, that the comments were accurate statements, or that Friedl relied on these comments in deciding to terminate him.
Moreover, the offer letter to Wallace in August 2008, appears to be the same letter sent to plaintiff in May 2008, with only the name, address, and date on the first page changed. (Compare doc. 31-5 with doc. 35-9.) The court finds the clerical error in Wallace's offer letter and the fact that Wallace was interviewed before plaintiff was terminated are not substantial evidence of "weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in [defendant's] proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence." See Vessels, 408 F.3d at 771. The June 2008 date in the offer letter is clearly a clerical error. Nothing in the record indicates that anyone discussed the Health, Safety & Environmental Coordinator position with Wallace before July — including offering him the position before August 22, 2008. Moreover, plaintiff has not presented evidence to dispute the fact that Friedl had issues with his job performance before he met Wallace. The court finds that a reasonable factfinder would not find defendant's reasons for terminating plaintiff to be unworthy of belief merely because defendant interviewed Wallace before plaintiff was terminated and defendant used an old offer letter without changing the response date.
Because plaintiff does not rebut — head-on — defendant's reasons for his termination the court finds he has not demonstrated that defendant's articulated reason is unworthy of belief. Therefore, defendant is entitled to judgment as a matter of law as to plaintiff's race discrimination claim based on his termination. Defendant's Motion for Summary Judgment will be granted.
Plaintiff's Complaint alleges, "The jurisdiction of this Court is invoked to secure protection for and to redress deprivation of rights ecured by Title VII, § 704(a), 42 U.S.C. § 1981, and 1981(a) and (b) providing injunctive and other relief against race discrimination and retaliation in employment." (Doc. 1 ¶ 1.) Section 704(a) of Title VII is the anti-retaliation provision. 42 U.S.C. § 2000e-3(a). Plaintiff alleges, "In 2008, there was a safety audit by an outside entity. The outside entity found only one minor safety violation. When the plaintiff complained that the white manager responsible for correcting the minor safety violation did not correct said violation, Kamtek started to retaliate against the plaintiff." (Doc. 1 ¶ 14.) Despite alleging that defendant had a pattern or practice of "discourag[ing] the timely filing of EEOC and/or other Civil Rights charges," (id. ¶ 24), he does not allege that he was discouraged from filing an EEOC charge and or that he was terminated in retaliation for engaging in protected activity. Indeed, plaintiff's Complaint repeatedly alleges that he was terminated "based on his race." (Id. ¶¶ 21, 25(a), 31, 35(a).)
The court finds that plaintiff's Complaint does not state a claim of retaliation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, both parties address the retaliation claim in their briefs. Rule 15(b)(2) provides, "When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings." Fed. R. Civ. P. 15(b)(2). Therefore, the court will address the claim herein.
In order to establish a prima facie case of retaliation in violation of Title VII, plaintiff must establish: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal link between the protected expression and the adverse action. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993). Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a) protects two general types of activity — (1) participation and (2) opposition.
Plaintiff's deposition testimony indicates that he did not complain about race discrimination and he was terminated before he filed an EEOC charge. Therefore, the court finds plaintiff did not engage in any protected activity. "Although an employee need not use the magic words ["race"] or ["racial discrimination"] to bring [his] speech within Title VII's retaliation protections, `[he] has to at least say something to indicate [his race] is an issue. An employee can honestly believe [he] is the object of discrimination, but if [he] never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints.'" Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 727 (7th Cir. 2003)(quoting Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000)). Therefore, complaints of unfair treatment alone — without mention of discrimination on the basis of a protected class — are not protected activity. Murphy v. City of Aventura, 383 Fed. Appx. 915, 918 (11th Cir. 2010)("A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.")(quoting EEOC Compl. Man. (CCH) §§ 8-II-B(2) (2006))[unpublished]; see also Birdyshaw v. Dillard's Inc., 308 Fed. Appx. 431, 436-37 (11th Cir. 2009)[unpublished]; Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1202-03 (10th Cir. 2008); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006); Hunt v. Nebraska Public Power Dist., 282 F.3d 1021, 1028-29 (8th Cir. 2002); Coutu v. Martin County Board of County Commissioners, 47 F.3d 1068, 1074 (11th Cir. 1995).
Plaintiff testified that he did not complain about racial discrimination before his termination. (Doc. 31-1 at 109.) Also, although he argues that the Thorpe incident was discriminatory, he did not complain that the incident was race related. (See doc. 31-3 at 434-35.) Nevertheless, plaintiff contends:
(Doc. 41 at 25.) Plaintiff's deposition testimony recounting his complaint to Hartman does not mention that he complained about race.
The court finds that a reasonable jury could not find that plaintiff engaged in protected activity. Therefore, plaintiff's retaliation claims will be dismissed.
Defendant's Motion for Summary Judgment seeks an Order dismissing a pattern or practice claim, a hostile environment claim, and gender discrimination claims. Plaintiff's Complaint does not adequately allege these claims,
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and defendant is entitled to judgment as a matter of law. An Order granting defendant's Motion for Summary Judgment will be entered contemporaneously with this Memorandum Opinion.
42 U.S.C.A. § 2000e-3(a).
