VIRGINIA EMERSON HOPKINS, District Judge.
This employment discrimination case was filed on May 3, 2012, by the plaintiff, Ryan D. Burch, against the defendant, Coca-Cola Bottling Company United, Inc. The complaint alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. (Count One). It also alleges retaliation in violation of those same laws. (Count Two). Finally, the complaint alleges that the defendant is liable for the Alabama state law claim of negligent supervision, hiring, and training. (Count Three). All counts arise out of the plaintiff's employment with and eventual termination by the defendant.
On August 1, 2013, the defendant moved for summary judgment on all counts. (Doc. 31). On January 16, 2014, the magistrate issued a report and recommendation and recommended
(Doc. 50 at 29-30). Both the plaintiff and the defendant have filed objections to the recommendation. (Docs. 58 and 59). Those objections are now before this court.
For the reasons stated herein, the magistrate's recommendation is
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 v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). 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 that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at
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.
After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir.1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir.1996)).
A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir.1990) (citing H.R.Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S.Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R & R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006).
"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982). "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir.2000)).
The court finds that the following facts, which are set out in the recommendation, and to which no objection has been made, are not clearly erroneous:
(Doc. 50 at 4-8).
In setting out the facts of this case, the magistrate also found: "No other Coke United route salesman has been terminated for leaving the premises without permission." (Doc. 50 at 8) (emphasis in original). In a footnote to that sentence, the magistrate wrote:
The plaintiff objects to several parts of the magistrate's statement of facts.
8. The plaintiff objects to the magistrate's finding that "there is no evidence of any other route salesman leaving the premises without permission." Burch argues that there is evidence that other salesmen left the premises without permission on the basis of testimony by Mark Clinkscales, Burch's first supervisor, who said that route salesmen never called him, "under any circumstance," to ask for "approval to come and go from the plant." (Doc. 43-5 at 60). Plaintiff alleges that a "reasonable inference" from this testimony is that route salesmen were either unaware
To support his suggested "reasonable inferences," the plaintiff seems to be relying on an evidentiarily unsupported assumption that some employees must have left the premises during the work day. However, Clinkscales testified in the same deposition that he never saw his salesmen leave the plant for lunch, and that he had no knowledge of whether salesmen supervised by other managers were leaving without permission.
11. This objection alleges that the magistrate failed to include in his statement of facts that when the plaintiff met with Taraysa Smith at some time between March 18 and April 12, 2010, he complained that Coke United employees were retaliating against him for his January 2010 and February 11, 2010 complaints about race discrimination. The only support cited by plaintiff is his own brief in opposition to summary judgment. However, "statements by counsel in briefs are not evidence." Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir.1980).
Plaintiff does, however, cite portions of his deposition where he testified that he complained to Smith after he had trouble getting his supervisors to tell him where all the machines were on Route 28. This testimony does not specifically state that he alleged retaliation then, but it does state that he complained that his supervisors were "just trying to set [him] up for termination" (doc. 33-1 at 79), and that he alleged race discrimination. Id. at 158.
The cited testimony is only relevant as evidence that Plaintiff's April 12, 2010 suspension was retaliatory. However, as the Court will discuss in III.A of this memorandum, the plaintiff's retaliation claim fails on other grounds, and so this objection is immaterial.
21. Plaintiff objects to the magistrate's finding that at least two white salesmen were present at the meeting in which David Lane accused a group of route salesmen of theft. Instead, plaintiff argues that "Lane had only called black route salesmen to his meeting about theft or perhaps he had brought in a token white route salesmen." The evidence given by plaintiff is as follows.
Plaintiff testified that in the meeting, "It was pretty much just all blacks in there, I don't remember any whites in there." (Doc. 33-1 at 77). Richardson's affidavit stated that the meeting had "almost exclusively African American route salesmen." (Doc. 43-2 at 5). Mitchell's affidavit said that "almost everyone there, except maybe two whites, were African American route salesmen." (Doc. 43-3 at 4). Plaintiff's qualifier "pretty much all" introduces vagueness, and Richardson's "almost exclusively" clearly indicates that at least some white salesmen were present at the meeting. The most precise description comes from Mitchell: "maybe two whites." The Court agrees that the magistrate was
Coke United objects to the Magistrate Judge's recommendation that summary judgment be denied on the plaintiff's claim that his two-day suspension in April 2010 was in retaliation for complaining about racial discrimination. (Doc. 54 at 1). Coke United objects to the magistrate's statement that,
Coke United contends that this analysis is mistaken because "there is no evidence that a Human Resources representative told Park that the plaintiff's earlier discipline for tardiness amounted to race discrimination." (Doc. 54 at 3).
The Court has found no evidence to support the magistrate's above statement that on April 12, 2010, Park and Lane were told by Human Resources representatives that "the plaintiff's earlier disciplinary for tardiness amounted to racial discrimination." The Court must therefore determine whether there is any evidence that Park or Lane had learned of plaintiff's charges of racial discrimination before they made the decision to suspend him.
In his deposition, the plaintiff answered "yes" to the questions "Did you allege race discrimination in your complaints?" and, "Did those complaints involve David Lane?" (Doc. 33-1 at 158). The context of those questions leaves some uncertainty as to which complaints the plaintiff was describing, but the preceding testimony (id. at 156-57) indicates that the plaintiff was complaining about the lack of training that he received when he was reassigned to Route 28. Additionally, the record shows that the plaintiff did allege racial discrimination to human resources in February 2010 after receiving a disciplinary write-up for tardiness. (Doc. 33-4 at 23). Therefore, there is evidence that the plaintiff had made allegations of racial discrimination to Human Resources before the decision was made to suspend him.
However, the Court has found no evidence that Park or Lane, the two Coke United employees involved in the decision to suspend the plaintiff, were aware at the time the suspension decision was made that he had ever complained of racial discrimination to Human Resources. The plaintiff testified that he told Park, during the April 12, 2010, meeting that he had contacted HR "and told them that [he] couldn't get help." (Doc. 33-1 at 103). However, the plaintiff has not said that he mentioned his racial discriminations claims to Park or Lane. Lane testified that he never heard of the plaintiff's complaints to Human Resources of racial discrimination (doc. 33-3 at 100-01), and that HR "never let [him] know" of discrimination allegations filed against him by any employees (id. at 101-02). Park testified that he was aware that the plaintiff had complained to HR about the tardy write-ups on the basis of unfairness, but did not recall ever hearing that the plaintiff had alleged racial discrimination. (Doc. 33-8 at 93-94). The
Since there is no evidence that the employees who made the decision to suspend the plaintiff were aware that he had made allegations of racial discrimination, it is not possible for a reasonable jury to find that the decision to suspend him was in retaliation for these allegations.
Therefore, the Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claim relating to his suspension. The defendant's objection is
Plaintiff makes a large number of objections to the magistrate's recommendation. They will be discussed below using the numbering from his Amended and Substituted Objections to the Report and Recommendation of the Magistrate.
1. The plaintiff objected to the magistrate's failure to consider a retaliatory hostile work environment. However, the plaintiff's retaliation claims alleged only that he was terminated and given disciplinary warnings. (Doc. 1 at 15). The plaintiff never filed an amended complaint adding a claim of a retaliatory work environment. The magistrate could not be in error for failing to consider a nonexistent claim, and so this objection is rejected.
2. This objection incorrectly states that the magistrate found the plaintiff's suspension to be retaliatory. The objection goes on to say that, on that basis, the judge should also have found that relying on the previous write-up (on April 12, 2010) as a ground for termination was pretextual.
However, in his recommendation, the magistrate found that "plaintiff has shown circumstances from which a reasonable jury could determine that the suspension was for retaliation, not legitimate disciplinary reasons." (Doc. 50 at 28). This did not amount to deciding the retaliation claim in favor of the plaintiff, but merely finding that there were triable issues of material fact remaining for the claim. Since the objection's premise is incorrect, the conclusion argued by the plaintiff does not have support. Further, for the reasons set out supra, this Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claims relating to his suspension.
3. Plaintiff alleges that the magistrate failed to "consider the low probability, absent illegal discrimination and retaliation, of all the following incidents occurring," and lists ten pages of factual allegations concerning the case. The plaintiff has not provided a "specific written objection," as required by FED. R. CIV. PR. 72(b)(2). Rather, this is merely a "conclusive or general objection," which the Court will not consider. Nettles, 677 F.2d at 410 n. 8. The plaintiff is required to explain why he believes each piece of evidence is material to a claim, not merely make factual allegations and leave the court to guess why each is relevant.
4. This objection argues that the magistrate failed to consider an Eleventh Circuit case stating that three months is the limit of temporal proximity between protected activity and retaliation. Henderson v. FedEx Express, 442 Fed.Appx. 502, 506 (11th Cir.2011). Therefore, the plaintiff argues, the magistrate should have allowed several other events to be considered as proof of
The plaintiff is correct in his summary of Henderson. However, his objection is not relevant to the magistrate's articulated reasons for denying his retaliation claims on the basis of these incidents. The magistrate did not base his decisions on the length of time between the plaintiff's protected activities and the defendant's adverse employment actions. Accordingly, this objection is without merit.
First, plaintiff contends that his reassignment to Route 28 on March 11, 2010, and his disciplinary warning on March 18, 2010 were retaliations for a race discrimination complaint in early January. However, there is no evidence establishing that he ever complained of race discrimination at that time. When discussing the incident in his deposition, the plaintiff does not say that he alleged racial discrimination, only that he found Lane's accusation "insulting." (Doc. 33-1 at 77-78).
Second, plaintiff contends that his suspension on April 12, 2010, can be linked to his complaint of race discrimination on February 11, 2010. However, the magistrate actually determined that the plaintiff "provided sufficient evidence to establish a prima facie showing of retaliation with respect to the two-day suspension he received in April 2010." (Doc. 50 at 27). Thus, this objection is erroneous.
Third, the plaintiff contends that, because his termination came three months after Coke United received a subpoena from his prior employer and two months after Coke United received another letter concerning that subpoena, his termination could be considered retaliation for Coke United's having learned of the matter. The undisputed facts show that Lane recommended that the plaintiff be fired and Park made the final decision to terminate him. Park has testified that he had no knowledge of the plaintiff's lawsuit or EEOC charge against his former employer, nor awareness of the subpoena sent to Coke United until after the plaintiff was terminated by Coke United. Lane testified that he had heard in 2007 about the plaintiff's lawsuit against the plaintiff's former employer, but had no knowledge of the subpoena sent to Coke United in 2010 before the plaintiff was fired. (Doc 33-8 at 30). Plaintiff has provided evidence only that the subpoena was sent to Coke United, but no evidence to contradict Lane's and Park's respective testimonies that they did not know of the subpoena when the plaintiff was terminated.
5. This objection restates the previous objection's contention that, on the basis of temporal proximity, the plaintiff's termination could be considered retaliation for Coke United's having learned of the subpoena in his lawsuit against his prior employer. It is rejected on the basis of the same reasoning in the last paragraph of the court's response to Objection 4; there is no evidence that Lane and Park were aware of the subpoena at the time when the decision to terminate the plaintiff was made, so their decision cannot be construed as retaliation. Further, the time elapsed between Lane's knowledge of the plaintiff's lawsuit (2007) and the plaintiff's termination (2010) is too long to establish
6. Plaintiff argues that,
(Doc. 58 at 21). Plaintiff then argues that the rule in Coke United's Handbook against employees leaving the work premises during working hours without approval from a supervisor was never enforced, was not mentioned to the route salesmen, and was inconsistent with other practices at the company. On these facts, plaintiff argues, the policy that forbade salesmen to leave the plant during the day — the reason given for his termination — was "not really a policy in effect at Coke United." (Id. at 24).
The plaintiff does not explain the way in which this argument is relevant to a claim in the case. The court assumes he is saying that the defendant's stated reason for his termination was pretextual. However, as the magistrate correctly noted, the plaintiff failed to establish a prima facie showing of discrimination (doc. 50 at p. 19) and "he is unable to show that [Coke United's] articulated reasons for termination ... were mere pretext." (Id. at 22).
7. This objection cites many pieces of evidence and asserts that the magistrate did not consider these as "other indicia of race discrimination and of a retaliatory work environment." (Doc. 58 at 26). This objection has the same flaw as plaintiff's Objection 3; it does not challenge a specific finding, but merely makes a conclusive allegation that the magistrate failed to take into account a whole host of evidence.
Additionally, as to retaliatory hostile work environment, as the Court states in its discussion of plaintiff's Objection 1, the plaintiff never made a claim of retaliatory hostile work environment. The magistrate was not in error for failing to consider a claim that was never asserted.
9. The plaintiff objects to the recommendation's determination that all claims before May 3, 2010, are time-barred.
10. The plaintiff objects to the magistrate's statement (doc. 50 at 32) that the plaintiff did not allege racial discrimination when he complained to Coke United's human resources office about a meeting prior to 2009 in which Lane accused route salesmen of stealing from the company. The plaintiff refers to two portions of his deposition (doc. 33-1) to establish that he did allege racial discrimination with regard to
In the first portion of this evidence, the plaintiff does not say anything about racial discrimination, only that he found Lane's accusation "insulting." (Id. at 77-78). In the second portion, the plaintiff answered "yes" to the questions "Did you allege race discrimination in your complaints?" and, "Did those complaints involve David Lane?" (Id. at 158). However, neither these questions nor the surrounding testimony indicate that those complaints were made in response to the meeting where Lane made accusations of theft. The preceding testimony (id. at 156-57) seems to indicate that these complaints were the ones the plaintiff made about the lack of training that he received when he was reassigned to Route 28. Therefore, the cited evidence does not establish that the plaintiff complained about race discrimination regarding the meeting led by David Lane.
12. This objection alleges that the magistrate did not "properly consider several other instances of protected activity." The magistrate did, in fact, consider those other instances, and he explained why he did not judge them to be protected activities. (Doc. 50 at 24, fn. 1). The plaintiff refers to three different instances that he contends are protected activities. He argues that he had made a complaint of race discrimination to Coke United's human resources department in January 2010 regarding Lane's accusing route salesmen of theft. As the Court discussed in response to Objection 10, the plaintiff's cited evidence does not establish that he complained of race discrimination in that meeting.
The plaintiff asserts that the second and third events, his complaints of retaliation to human resources between March 18 and April 12, 2010, and Coke United's receipt of letters regarding the subpoena from the plaintiff's former employer, should also be considered protected activity. However, he does not provide any argument for this, merely citing to paragraphs from Objection 3, which themselves merely make factual allegations. This portion of the objection fails to be anything more than a "general or conclusive" objection. It is overruled.
13. The plaintiff next argues that
The plaintiff then simply refers to portions of his 11-pages-long third objection to "show" six instances of temporal proximity between an action by the plaintiff and an action by Coke United. This objection is not material: the magistrate did not limit any of the plaintiff's grounds for a retaliation claim on the basis of too much time between the events. Since a lack of temporal proximity was not a ground for his recommendations, this objection fails to give a relevant argument.
14. The plaintiff objects to the magistrate's statement that Park was Coke United's decisionmaker. The plaintiff argues that Lane was the true decisionmaker, and Park was a "catspaw." The testimony by Park cited by the plaintiff supports the conclusion that Park terminated the plaintiff after Lane recommended his termination, but it does not give any basis for the plaintiff's contention that Park always followed Lane's recommendations. The plaintiff also offers testimony by Stacye Collier, Coke
The only evidence on point that plaintiff submits is Coke United's response to the plaintiff's EEOC charge, where Coke United said that "the decision to terminate him was made by Corey Pounders and David Lane." (Doc. 45-15 at 4). This is in tension with the magistrate's finding that Park made the final decision on termination, but even assuming that Lane played the main role in deciding to terminate the plaintiff, this issue is not material. Plaintiff has not given sufficient evidence to support a finding that his departure from the premises without permission was only a pretext, rather than the real reason for firing him.
15. The plaintiff attacks the magistrate's conclusion that the plaintiff could not produce a comparator "with respect to the disciplinary treatment he received." (Doc. 50 at 16). The plaintiff points to testimony regarding two white men who did not receive warnings for being tardy. However, this is insufficient to establish that these men were comparators for the plaintiff's race discrimination claim. The plaintiff's disciplinary warnings for tardiness were rescinded by Coke United after he complained to the human resources department. Coke United determined that Clinkscales was inconsistently applying the company's policy that all late arrivals receive a written warning by declining to give warnings to salesmen who called in to report that they would be tardy. The plaintiff has not produced evidence indicating that Clinkscales actually discriminated on the basis of race in his tardy warnings. Therefore, simply showing that two white employees did not receive warnings for being tardy is insufficient to make them comparators for the plaintiff's racial discrimination claim.
16. Plaintiff objects that the magistrate "erred in finding that there was insufficient evidence of racial animus by Coke United." The rest of the objection recites a list of factual allegations, with the only supporting cites made to plaintiff's previous briefs, which are not evidence, and to other portions of his objections, which for the most part also cite only his previous brief.
However, the Court will still consider each incident plaintiff alleges demonstrates racial discrimination. First, the plaintiff mentions the meeting in which Lane accused a group of salesmen of theft. The magistrate correctly concluded that because at least two white salesmen were present at the meeting, and because the plaintiff did not allege racial discrimination in his complaints to Coke United's human resources office about the meeting, this incident does not serve as circumstantial evidence of racial discrimination.
Second, the plaintiff refers to the differing use of disciplinary write-ups of route salesmen showing up late to work. As the discussion of the previous objection stated, these warnings were rescinded, and do not show discriminatory animus, and so are not relevant. Third, plaintiff also argues that Coke United's decision to rescind those write-ups indicates race discrimination. However, there is no evidence to suggest that Clinkscales had been inconsistently applying the company's tardy policy in a racially discriminatory manner, rather than, as Coke United's investigation determined, that Clinkscales had been excusing tardies when a worker called in to notify
17. This objection argues that the magistrate erred in finding sua sponte that several statements attributed to senior salesman Bobby King should be excluded as hearsay. Anthony Mitchell has testified that King told him that Pounders and Martin wanted King to report the plaintiff as incompetent. Hearsay is a statement that: (1) the declarant makes outside of the current proceeding or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. FED.R.EVID. 801(c). Since King has not testified as to this statement, his statement meets the first requirement for hearsay. The second requirement is also met, as the plaintiff is clearly using it to show the truth of the matter asserted: that Pounders and Martin asked King to report the plaintiff as incompetent. However, the plaintiff makes six arguments for why the statements are admissible.
The magistrate's finding of hearsay is correct, and this objection is rejected.
18. Plaintiff argues that the magistrate erred in ruling that the February warning to the plaintiff for being tardy "cannot be attributed to the employer as an act of retaliation" because it was later removed by Coke United after the plaintiff's complaint led the human resources department to investigate Clinkscales's inconsistent application of the company's tardy policy. Plaintiff argues that the write-up should be considered as retaliation for his complaint of race discrimination in early January 2010
19. Plaintiff objects to the magistrate's recommendation of summary judgment on plaintiff's retaliation claim in association with his termination. The plaintiff again contends that, on the basis of temporal proximity, his termination could be considered retaliation for Coke United's having learned of the subpoena in his lawsuit against his prior employer. It is rejected on the basis of the same reasoning in ¶ 4 of the court's response to Objection 4; there is no evidence that Lane and Park were aware of the subpoenas at the time when the decision to terminate Burch was made.
20. This objection argues that the magistrate wrongly made inferences against the plaintiff when he stated in the report, "on his March 2010 written warning ... [plaintiff] does not deny that shortages existed, but only that they could have been cause[d] by any number of other employees, including new route salesmen or supervisors, not him." (Doc. 50 at 17). Plaintiff suggests that the magistrate should have concluded more strongly in plaintiff's favor, arguing
(Doc. 58 at 41). Although the plaintiff does point to testimony that money shortages were common at Coke, and that stealing from vending machines by persons other than the assigned route salesmen had been observed in the past, the plaintiff has not provided evidence to justify the conclusion that, in this case, the money shortages "were not [plaintiff's] fault." The court agrees with the magistrate's determination here.
22. Plaintiff objects to two factual statements by the magistrate. First, plaintiff says that the meeting called by Lane was not prior to 2009, but, rather, shortly before
Second, plaintiff objects to the magistrate's statement that the meeting was attended "mostly" by black route salesmen, and contends that the meeting was "almost exclusively" attended by black route salesmen. This disagreement is trivial; whatever difference in meaning exists between "mostly" and "almost exclusively" is not material in this case.
23. This objection alleges that "the magistrate incorrectly accepted that [the January 2010 and March 2010 disciplinary warnings] against the plaintiff were actually for failure to properly service machines." The magistrate did not decide the factual disputes as to whether the plaintiff's supervisor told him to let the supply dwindle in the machines at the high school and as to whether he or another party was responsible for money shortages in machines on his former route. Rather, the magistrate accurately summarized the plaintiff's contentions and decided that, even if true, they did not show racial discrimination. The court agrees with the magistrate's recommendation; even taking the plaintiff's factual allegations to be true, these incidents do not indicate that Coke United was treating him a certain way because of his race.
24. The plaintiff objects to the magistrate's conclusion that the plaintiff failed to show circumstantial evidence linking his disciplinary actions to race. He alleges that there was sufficient circumstantial evidence in the form of the meeting where Lane accused the salesmen of theft, plaintiff's claimed complaint [the existence of which is not supported by the record] to Human Resources alleging that this was race discrimination, and his write-up on January 5 for failing to fill drink machines at the high school.
The circumstantial evidence must present "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker." Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011). "Unless something links the actions to the employee's race, that a decisionmaker singles an employee out does not permit a jury to infer intentional discrimination based on race." Turner v. Florida Prepaid Coll. Bd., 522 Fed.Appx. 829, 833 (11th Cir.2013). The meeting where Lane made accusations of theft apparently included some white salesmen, as discussed in the response to Objection 21, and so does not give evidence of discriminatory intent. The court has already determined
The plaintiff also contends that there is sufficient "circumstantial evidence linking Lane's disciplinary actions to Burch's race" to justify a finding that those events comprise retaliation. The plaintiff refers only to his write-up for being tardy, and says that this was retaliation for making complaints against Lane for race discrimination.
25. The plaintiff next argues that "[t]he Magistrate erred in requiring Burch to be able to point to a caucasian route salesman with a similar disciplinary history because given all the various discriminatory acts against him no comparator was available." (Doc. 58 at 51). The court first notes that the magistrate did not require anything. He merely noted, correctly, that there was no comparator cited, writing:
(Doc. 50 at 17). Part of the plaintiff's prima facie case requires him to show that he was "treated less favorably than a similarly situated employee outside of his protected class." Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). The magistrate correctly pointed out that the plaintiff had not made such a showing.
27. The plaintiff next argues that,
(Doc. 58 at 52). This statement, which incorrectly quotes the magistrate, makes no sense. However, elsewhere in this section of the plaintiff's argument he writes: "That African American and Caucasian route salesmen left the premises without the permission of their supervisors and were not terminated strengthens Burch's argument that he was retaliated against for his prior protected activity." (Doc. 58 at 52). Apparently the plaintiff is complaining that the magistrate erred when he failed to find retaliation.
The court notes that the section of the recommendation to which the plaintiff objects was not addressing the retaliation claims. It only addressed the discrimination claims. The magistrate wrote:
(Doc. 50 at 18-19). The magistrate's recommendation on this issue was sound and correct under de novo consideration.
28. The plaintiff next argues that
(Doc. 58 at 53). The plaintiff argues that there is evidence "that Burch did not understand" what he was being asked when he was questioned about leaving the plant and that was why, on at least two occasions, he stated that "he did not know what [Pounders] was talking about." (Doc. 58 at 55). In other words, the plaintiff is arguing that the magistrate, instead of "insinuating" that the plaintiff lied to Pounders, should have found that the plaintiff merely was confused.
The plaintiff's argument misses the point. It is true that "[o]n summary judgment, we have written that the `work rule' defense is arguably pretextual when a plaintiff submits evidence ... that she did not violate the cited work rule." Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir.1999). However,
Damon, 196 F.3d at 1366, n. 3 (11th Cir. 1999); see also, Moore v. ITT Technical Inst., 226 Fed.Appx. 869, 871 (11th Cir. 2007) ("`An employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct.'") (quoting Damon). Even if the decisionmaker in this case was mistaken, the plaintiff has presented no evidence that the decisionmaker did not honestly believe that the plaintiff had lied.
29. Finally, the plaintiff argues conclusorily that
(Doc. 58 at 57). This underdeveloped argument fails to discuss at all how the "mosaic" was created. For that reason, and for all the reasons previously stated in this opinion, the objection is without merit.
Based on the foregoing, the defendant's objection will be
The magistrate judge filed a report and recommendation on January 6, 2014, recommending that the defendant's motion for summary judgment be granted in part and denied in part. The defendant and
Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation, the Court is of the opinion that the magistrate judge's report is due to be and is hereby
1. The Court ADOPTS the magistrate's findings of fact.
2. The Court REJECTS the magistrate's finding that material questions of fact remain as to whether the plaintiffs April 12, 2010, suspension was retaliation by the defendant for plaintiffs protected activities.
The magistrate's recommendation is also
1. The Court ADOPTS the magistrate's recommendation that the defendant's Motion for Summary Judgment be granted as to the plaintiffs racial discrimination claim and the retaliation claim as related to all actions other than the suspension.
2. The Court REJECTS the magistrate's recommendation that the defendant's Motion for Summary Judgment be denied as to the retaliation claim as related to the suspension.
The Court
(Doc. 58 at 51-52) (footnotes omitted). The court notes that the magistrate's opinion was limited only to the warnings cited, and correctly noted that no comparators were cited. The court also notes that the Eleventh Circuit has acknowledged that:
Turner v. Florida Prepaid Coll. Bd., 522 Fed. Appx. 829, 832 (11th Cir.2013) (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011) (internal quotation marks omitted)). After finding that there was no comparator, the magistrate also considered whether a "convincing mosaic of circumstantial evidence" had been shown.