LYNWOOD SMITH, District Judge.
Plaintiff, Michael Burnett, filed this case on August 29, 2013, asserting claims for race-based disparate treatment, race-based hostile work environment, and race-based discriminatory termination pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981, against The Harvard Drug Group ("Harvard Drug"), his former employer.
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
Defendant asks the court to strike portions of the April 26, 2013 declaration of Demetria White. Defendant asserts that portions of the declaration are conclusory, speculative, and opinion-based, and that other portions of the declaration constitute inadmissible hearsay.
As an initial matter, the motion is confusing, because Ms. White's declaration actually was submitted as part of defendant's evidentiary submission (the declaration was an exhibit to the deposition of John Evans).
Defendant, The Harvard Drug Group, LLC ("Harvard Drug"), is a nation-wide distributor of pharmaceuticals.
Harvard Drug requires all new employees to submit to a drug test and background check prior to commencing employment.
The pertinent provision of Harvard Drug's Employment Policy states that, due to the nature of the company's business,
Harvard Drug's activities also are subject to regulation by the United States Drug Enforcement Administration ("DEA").
The DEA regulation cited in Bencetic's affidavit, 21 C.F. R. § 1301.90, provides that:
21 C.F.R. § 1301.90. Additionally, Julie Mathis, Harvard Drug's Human Resources Manager, testified that Harvard Drug's company policy prohibited hiring any prospective employee with a prior felony conviction, any drug-related charge, or a current warrant out for his arrest. However, she did not know whether that policy was tied to any particular DEA regulation, and she acknowledged that her understanding differed from the written policy.
Plaintiff's position at Harvard Drug was that of a Chemical Packaging Technician. The primary responsibilities of such a position were defined by Stephen Bencetic as follows:
The packaging of chemicals took place in "dipping rooms." "`Dipping' is a term of art used in the [drug production and distribution] industry meaning to weigh the drugs according to specifications for a particular canister or bottle. While dipping drugs, the employee is in a sealed, contained room by him or herself," i.e., the "dipping room."
The "Team Lead" or "Lead Technician" in plaintiff's work group was Chasity Davis, a white female. Davis reported directly to John Evans.
Plaintiff is biracial. He never discussed that fact with any of his co-workers until approximately two to three weeks after he was hired, while he was working in the labeling room with Demetria White (a black female), Jessica Riddle (a white female), and possibly also Sabrina McCaulley (a black female). Demetria White asked plaintiff if he was biracial, and when he responded affirmatively, the conversation ended. Jessica Riddle did not contribute to that conversation, and plaintiff could not recall discussing his biracial status on any other occasions with any other co-workers.
Plaintiff testified that, after he disclosed to Demetria White and Jessica Riddle (and possibly also Sabrina McCaulley) that he was biracial, all of the employees in his work area began to treat him differently. They stopped conversing with him on a daily basis.
Plaintiff also witnessed other black employees being treated unfavorably. There was a "group" or "clique" of white employees, including Chasity Davis, Todd Dryer, D.J. Allen, Jessica Riddle, and Nate Dryer, who were friends. That group made an outcast of Demetria White by blaming problems on her, talking about her behind her back, leaving her out of their conversations, and saying that she was slow at her work. When plaintiff first observed this treatment of Demetria White, White was the only fully African-American employee in the chemical repacking work area.
Demetria White, one of plaintiff's African-American co-workers at Harvard Drug, observed that white employees resisted training Sabrina McCaulley when she first started work.
Plaintiff asked Darlene White, a white female, for a ride to Hartselle, Alabama, after work one unspecified day, so that he could meet his probation officer. He also stated to Darlene White and Sabrina McCaulley that, if he missed his probation meeting, a warrant could be issued for his arrest.
Evans did not ask plaintiff about those allegations, attempt to verify the allegations, or attempt to determine whether the police were, in fact, looking for plaintiff. Instead, he immediately reported the allegations to his supervisor, Gabe Peluso, the Vice-President of Operations.
Evans communicated the termination decision to Julie Mathis, who served as the "liaison" between Harvard Drug and Aerotek.
Scott Urquhart informed plaintiff that his job assignment had ended, but he did not do so until the end of the day on Monday, May 7, because Julie Mathis "didn't want a big scene" in the work area during the work day.
Plaintiff effectively abandoned his claim for a racially offensive hostile work environment at the summary judgment stage. He offered no response to defendant's well-founded arguments that summary judgment should be granted on that claim. Issues and contentions not raised in a party's brief are deemed abandoned. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc) ("Parties opposing summary judgment are appropriately charged with the responsibility of marshaling and presenting their evidence before summary judgment is granted, not afterwards."); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (holding that a district court can "properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment") (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269 (7th Cir. 1986) (holding that a ground not pressed in opposition to a motion for summary judgment is to be treated by the district court as abandoned)).
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations and internal quotation marks omitted).
Although plaintiff's complaint stated separate claims for racially discriminatory termination and race-based "disparate treatment," the court can discern no basis for any discrimination claim based on any action other than the termination of plaintiff's employment. Accordingly, the court will consider both of plaintiff's race discrimination claims under the umbrella of his termination claim.
Plaintiff's race discrimination claims are asserted under Title VII and § 1981, both of which "have the same requirements of proof and use the same analytical framework. . . ." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The essential element under each statute is proof that the employer intentionally inflicted the adverse employment action complained of because of the plaintiff's race. See, e.g., Vessels v. Atlanta Independent School System, 408 F.3d 763, 767 (11th Cir. 2005) (observing that disparate treatment claims based upon a plaintiff's race and "brought under Title VII, § 1981, and § 1983, all require proof of discriminatory intent").
Here, there is no direct evidence of defendant's discriminatory intent. Thus, plaintiff bears the initial burden of establishing that a racial animus was a substantial factor motivating the contested employment action through the use of circumstantial evidence, pursuant to the analytical framework announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and subsequently elaborated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under that familiar framework, a plaintiff must first establish a prima facie case of disparate treatment, which gives rise to a presumption of discrimination. To rebut that presumption, the employer must articulate a legitimate, nondiscriminatory reason for the contested employment action. If the employer does so, the presumption of discrimination drops from the case, and the burden shifts back to the plaintiff to show that the defendant's proffered reason is merely a pretext for unlawful discrimination. See, e.g., McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-56.
Plaintiff contends that Harvard Drug terminated his employment because he is biracial. Ordinarily, to establish a prima facie case of a racially-discriminatory discharge, a plaintiff must prove that: he belongs to a protected class; he was qualified for the position he held, but was fired; and his employer treated similarly situated employees outside his protected class more favorably. See, e.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011); McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008); Burke-Fowler v. Orange County, Florida, 447 F.3d 1319, 1323 (11th Cir. 2006); Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999).
There is no question that plaintiff was a member of protected class, or that his assignment at Harvard Drug was terminated. Even so, plaintiff did not satisfy a prima facie case of race discrimination because he has presented no evidence of similarly situated individuals outside his protected class who were treated more favorably.
Despite being unable to satisfy the prima facie case, plaintiff argues that he is entitled to survive summary judgment because there is other evidence of defendant's discriminatory intent. Plaintiff relies upon the Eleventh Circuit's decision in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011). There, the Eleventh Circuit stated that "establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case." Id. at 1328. The white plaintiff in that case was unable to establish a prima facie case of race discrimination because he could not identify a similarly situated black comparator who was treated more favorably than he was. Id. at 1327-28. Even so, the Eleventh Circuit held that the "convincing mosaic of circumstantial evidence" in the record gave rise to an inference of discrimination. Id. at 1328 (quoting Silverman v. Board of Education of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011)). That "convincing mosaic of circumstantial evidence" included: (1) a backdrop of racial tension in the company following a racially-motivated shooting less than two years earlier; (2) an upcoming television news special expected to portray the company's handling of racism at the workplace, both before and after the shooting, in an extremely unflattering light; and (3) the company's inclusion of race in a human resources spreadsheet used in determining the appropriate disciplinary action for each employee (including the plaintiff) implicated in the distribution of a racist email. Id. at 1329-40. Those factors demonstrated that the employer "had a substantial incentive to discipline white employees more harshly than black employees," and "consciously injected race considerations into its discipline decision making without an adequate explanation for doing so." Id. at 1341.
The "mosaic" of circumstantial evidence upon which the plaintiff in this case relies to save his discrimination claim from summary judgment consists of the following facts and allegations: (1) he never actually had an outstanding warrant for his arrest; (2) "[m]ultiple employees stated that Chasity Davis could get someone fired if she didn't like someone";
Most of the negative treatment plaintiff allegedly experienced — including his coworkers not socializing with him, the comment about tattoos, and the failure of his coworkers to immediately answer when he knocked on the dipping room door — had little or nothing to do with race, except for the fact that plaintiff did not observe white employees receiving the same treatment. The same is true for the negative treatment plaintiff observed being inflicted upon other black employees, including excluding those employees from conversations, calling them "slow," blaming work problems on them, and writing the names of employees on the white board. Even considering other actions or comments that have a clearer racial connection — like the use of the word "ebonics" or references to "Black Angie" — the facts identified by plaintiff come nowhere near demonstrating the sort of racially-charged work environment that was present in Smith.
Demetria White's testimony also does not establish a "convincing mosaic" of race discrimination. As an initial matter, the circumstances described by Ms. White, even if taken as a whole, do not rise to the level of the discriminatory environment discussed in Smith. Further, as with plaintiff's own observations, some of the behavior Ms. White witnessed — including the reluctance to train Sabrina McCaulley, the white employees' attitudes toward rap music, and Jessica Riddle's tendency to leave plaintiff with most of the work — had little or nothing to do with race. Additionally, most of the negative treatment Ms. White observed did not happen to plaintiff, or even while plaintiff was employed at Harvard Drug. It is true, as plaintiff points out, that a court can consider the decisionmaker's past discriminatory actions against others as evidence of the decisionmaker's discriminatory intent against the plaintiff. See Smith, 644 F.3d at 1341 (citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)). But none of the situations described by Ms. White involved John Evans, the person who made the decision to terminate plaintiff's assignment. Plaintiff asserts that Chasity Davis influenced Mr. Evans's employment decisions, but the only support he offers for that assertion is the conclusory statement that Ms. Davis "systematically got rid of all the black employees who came to the department." Even without considering whether Ms. Davis had the power to make employment decisions (of which there is no evidence), Ms. White's conclusory statement about Ms. Davis's past actions is insufficient to establish a "convincing mosaic of circumstantial evidence" of discrimination.
Finally, and perhaps most importantly, it must be emphasized that there is no evidence that John Evans, who made the decision to terminate plaintiff's employment, knew that plaintiff was bi-racial. Cf. Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1306 (11th Cir. 2002) ("[A]n employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual's religion.") (citing Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987)) (alteration supplied). Plaintiff asserts that Chasity Davis influenced Evans's decision,
In accordance with the foregoing, defendant's motion to strike is DENIED, and defendant's motion for summary judgment is GRANTED. All of plaintiff's claims are DISMISSED with prejudice. Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED.