MADELINE HUGHES HAIKALA, District Judge.
Pro se plaintiff Charlie Barber is a former employee of defendant Cellco Partnerhsip d/b/a Verizon Wireless. Mr. Barber contends that Verizon violated the Americans with Disabilities Act, i.e., the ADA, by failing to promote him because of his disability. Mr. Barber also asserts state law claims against Verizon for intentional infliction of emotional distress and outrage.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Mr. Barber asks the Court to enter judgment as a matter law on Verizon's affirmative defenses. (Doc. 47). Pursuant to Rule 56, Verizon asks the Court to enter judgment as a matter of law in its favor on all of Mr. Barber's claims against the company. (Doc. 65).
For the reasons explained below, the Court grants Verizon's motion for summary judgment on Mr. Baber's ADA claim and declines to exercise supplemental jurisdiction over Mr. Baber's state law claims for intentional infliction of emotional distress and outrage.
"The 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). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite "to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A). "The court need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3).
When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). "In practice, cross motions for summary judgment may be probative of the nonexistence of a factual dispute, but this procedural posture does not automatically empower the court to dispense with the determination whether questions of material fact exist." Georgia State Conference of NAACP v. Fayette Cty. Bd. of Comm'rs, 775 F.3d 1336, 1345 (11th Cir. 2015) (internal quotation marks and brackets omitted) (quoting Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir. 1983)). "If both parties proceed on the same legal theory and rely on the same material facts," then " the case is ripe for summary judgment." Georgia State Conference of NAACP, 775 F.3d at 1345 (internal quotation marks omitted) (quoting Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)).
Because the Court resolves this matter on the basis of Mr. Barber's ADA claim, the Court presents the evidence in the light most favorable to Mr. Barber. The evidence demonstrates that Verizon hired Mr. Barber in 2005 as a coordinator of customer technical support. (Doc. 67-1, p. 49). On August 1, 2007, Verizon promoted Mr. Barber to a "Member—Technical Staff" position at Verizon's call center in Huntsville, Alabama. (Doc. 67-1, p. 50; Doc. 67-6, ¶ 5). On November 25, 2012, Mr. Barber's job title changed to Member Technical Support I or MTS I—End User Support. (Doc. 67-1, p. 50; Doc. 67-4, p. 8). Mr. Barber reported to IT Manager Todd Schumacher, and Mr. Schumacher reported to Mike Dohar, Associate Director—End User Support. (Doc. 67-7, ¶ 3).
Mr. Barber's job responsibilities did not change when his job title changed. (Doc. 67-1, p. 51). In his role as MTS I—End User Support, Mr. Barber was responsible for providing technical support services to call center employees. These services included installing servers, computers, computer components, and telephones; transferring equipment to varying offices; and troubleshooting devices. (Doc. 67-1, pp. 51-52). Installing servers involved "putting [the server] in a Clocation where it needs to go, plugging it in and wiring it up." (Doc. 67-1, p. 51). Mr. Barber also replaced computers and monitors and removed cords from telephones. This work required him to lift, bend, and stoop. (Doc. 67-1, p. 51). As part of his MTS I—End User Support position, Mr. Barber also participated in optional new hire orientation sessions for call center employees. (Doc. 67-1, pp. 51-52).
Mr. Barber also was responsible for assisting "front-facing" or internal call center employees who handle service calls from Verizon customers. (Doc. 67-1, p. 52). If a call center employee encountered a technical problem, the employee could seek assistance by sending a "trouble ticket" to End User Support. (Doc. 67-1, p. 52). Mr. Barber and other MTS I employees reviewed the tickets to identify the problem and determine whether to resolve the issue from the MTS I employee's desk or whether the problem required face-to-face contact. (Doc. 67-1, p. 52). Mr. Barber spent the majority of his time providing face-to-face assistance to call center employees, and Verizon managers encouraged face-to-face support. (Doc. 67-1, pp. 52-53).
In August 2013, Mr. Barber injured his back while lifting a server at work. (Doc. 67-1, pp. 7, 12). One day later, he told Mr. Schumacher about the injury and told Mr. Schumacher that his "back was aching." (Doc. 67-1, pp. 12-13). Mr. Schumacher indicated that he would investigate how Mr. Barber could get workers' compensation for the injury. (Doc. 67-1, p. 14). Verizon's Code of Conduct states that the company must "record and report work-related accidents." (Doc. 78-8, p. 13). The Code of Conduct explains:
(Doc. 78-8, p. 13).
Mr. Barber did not complete an incident report concerning his back injury. (Doc. 67-1, p. 14). Mr. Barber contends that Mr. Schumacher was supposed to "get the incident paperwork," but Mr. Schumacher did not give the paperwork to Mr. Barber. (Doc. 67-1, p. 14). Mr. Schumacher denies that Mr. Barber immediately reported that he had injured his back at work. Mr. Schumacher contends that Mr. Barber did not report his back injury until December 2014. (Doc. 67-7, ¶ 4).
An undated audio recording captures a conversation in which Mr. Barber told Mr. Schumacher about his plans to file a disability claim through MetLife. Mr. Barber stated that he "might do workman's comp" as a result of his injury. (Doc. 78-6, at 14:48-14:50). Mr. Schumacher responded that if Mr. Barber planned to pursue workers' compensation, then he (Mr. Schumacher) must know about it, and that "at the time the incident was not reported as workers' comp." (Doc. 78-6, at 15:19-15:22). Mr. Schumacher explained to Mr. Barber that "workers' comp is up to you, I cannot say you cannot file a workers' comp claim, it's up to you." (Doc. 78-6, at 16:09-16:13).
Mr. Barber went to the doctor within a week of the August 2013 injury. (Doc. 67-1, p. 12). Mr. Barber's doctors treated his back pain with medication, epidurals, and physical therapy. (Doc. 67-1, p. 13). According to Mr. Barber, his injury impacted his ability to do his job because he had trouble bending, stooping, and lifting, and he could not replace computers or cords under tables. (Doc. 67-1, p. 46).
At some point, Mr. Barber called Verizon's employee complaint hotline and explained that he "had an incident at work and that [he] was not in a good mood and that [he] need[ed] to see a psychologist. . . [a]nd seek medical attention." (Doc. 67-1, p. 20). Mr. Barber did not tell the hotline representative what type of medical attention he needed. (Doc. 67-1, p. 21). Mr. Barber also did not tell the hotline representative that he had been injured at work or that he believed he was entitled to worker's compensation. (Doc. 67-1, p. 39).
On a number of occasions between August 2013 and April 2014, Mr. Barber emailed Mr. Schumacher after 9:30 a.m. — Mr. Barber's scheduled start time — to let Mr. Schumacher know that he would be late for work. (Doc. 67-4, pp. 34-42).
In September 2013, Mr. Schumacher documented a counseling discussion with Mr. Barber after which Verizon placed Mr. Barber on a performance improvement plan until December 9, 2013. (Doc. 67-7, p. 15). The counseling note states:
(Doc. 67-7, p. 15).
In late 2013, Mr. Barber led a team of IT employees responsible for installing a server, removing old telephones, and replacing new telephones. (Doc. 67-1, pp. 44-45; Doc. 67-7, ¶ 8). The project was known as the IPACD roll-out. (Doc. 67-7, ¶ 8). At the end of the project, Mr. Barber's team did not remove some of the old telephones and cords. (Doc. 67-1, pp. 63-64). Mr. Schumacher and another employee removed the remaining phones and cords. (Doc. 67-7, ¶ 8). Mr. Barber testified that his team was unable to remove all of the old phones and cords because he lacked "manpower" and "resources." (Doc. 67-1, p. 64). Mr. Barber also testified that as the lead on the project, if he "assigned somebody a task and they don't accomplish it, . . . it falls back on the lead." (Doc. 67-1, p. 64).
On December 19, 2013, Marcia Belford, Associate Director—Technical Customer Service, emailed Mr. Schumacher regarding an interaction with Mr. Barber that occurred on December 18, 2013:
Below is the recap of my conversation with Charles on 12/18.
(Doc. 67-1, p. 59; Doc. 67-4, p. 48).
Mr. Barber denies much of Ms. Belford's account of their interaction. (See Doc. 67-1, p. 61). According to Mr. Barber, Ms. Belford "got hostile and yelled at [him] on the floor in front of people." (Doc. 67-1, p. 60). Mr. Barber testified that Mr. Schumacher told him "don't worry about Marcia." (Doc. 67-1, p. 62). Before Ms. Belford asked Mr. Barber about a new laptop, she had emailed Mr. Schumacher requesting a replacement. (Doc. 78-7, p. 4). Mr. Schumacher emailed Mr. Barber and another IT staff member and instructed them "not to give her anything until we get our broken one back. . . . Once we get it back give her a new one." (Doc. 78-7, p.4). Three days after their encounter, Ms. Belford emailed Mr. Barber, and she copied Mr. Schumacher. (Doc. 78-7, p. 6). The email states, "I wanted to thank you for your help with my laptop on Wed. I know how hectic it was so I appreciate you coming over with a loaner in the afternoon." (Doc. 78-7, p. 6).
On April 21, 2014, Mr. Dohar and Mr. Schumacher received a copy of Verizon's Job Evaluation Review Process for IT career progression and the deadlines for submission of candidates to promote to the next level, MTS II-End User Support. (Doc. 67-7, ¶ 13; Doc. 67-7, pp. 30-34). The process allows supervisors to nominate employees to advance to the next level in the IT career track. (Doc. 67-7, ¶ 13). According to the schedule for promotions, supervisors were to recommend employees for promotion by May 16, 2014. (Doc. 67-7, p. 34). Verizon would review and approve the promotions before communicating decisions to employees by July 3, 2014. (Doc. 67-7, p. 34). Approved promotions would take effect on July 6, 2014. (Doc. 67-7, p. 34).
On April 29, 2014, Samantha Miller, Verizon's Global Enterprise Advisor-Business/Government Customer Operations, emailed Mr. Schumacher regarding an interaction she had with Mr. Barber. (Doc. 67-7, p. 36). Ms. Miller's email reads:
(Doc. 67-7, p. 36).
On May 14, 2014, Mr. Schumacher recommended two MTS I employees for promotion pursuant to Verizon's Job Evaluation Review Process: Adonis Hart and Jay Sadler. Mr. Schumacher did not recommend Mr. Barber for promotion because Mr. Schumacher was concerned about Mr. Barber's "performance and behavioral issues" including "unprofessional exchanges with supervisors and internal customers, frequent tardiness and lack of advance notice, [and] failure to empty his voice mailbox." (Doc. 67-7, ¶ 17).
Beginning on May 21, 2014, Mr. Barber took short term disability leave. He returned to work on August 4, 2014. (Doc. 67-2, p. 10; Doc. 78-2, p. 5). When he returned from leave, Mr. Barber learned that Verizon had promoted Mr. Hart and Mr. Sadler from MTS I to MTS II positions. (Doc. 67-2, p. 10).
On September 2, 2014, Mr. Barber emailed Mr. Dohar and asked about Verizon's new promotion process. Mr. Barber's email reads:
(Doc. 78-3, p. 3).
Mr. Dohar responded to Mr. Barber via email. Mr. Dohar's email states:
(Doc. 78-3, p. 2).
Mr. Barber then emailed Mr. Dohar and stated, "You also stated per our phone convo that promotions stop when we're out as well and that was part of the reason for me not being considered. Is that correct?" (Doc. 78-3, p. 2). Mr. Dohar sent an email to Mr. Barber in response to his question. Mr. Dohar explained:
(Doc. 78-3, p. 2).
On September 22, 2014, at 9:50 a.m., Mr. Barber emailed Mr. Schumacher and asked, "Is it ok, if I work from home for 2 hours, until my back starts feeling a little better?" (Doc. 67-2, p. 12; Doc. 67-5, p. 26). Mr. Schumacher granted the request and asked Mr. Barber to please call him before being late to work, so that he (Mr. Schumacher) could notify other team members regarding changes to Mr. Barber's schedule. (Doc. 67-7, ¶ 20). Mr. Schumacher also told Mr. Barber that he (Mr. Barber) would need to formalize his request for a work accommodation by submitting a workplace arrangement or WPA form. (Doc. 67-1, pp. 29-30, 55; Doc. 67-7, ¶ 20).
On October 17, 2014, Mr. Schumacher sent an email to Mr. Barber. The subject line is "Alternate work request," and the email states:
(Doc. 67-5, p. 27).
On October 26, 2014, Mr. Barber submitted an on-line application for an Alternative Work Arrangement or AWA in which he requested that Verizon allow him to telecommute full-time. (Doc. 67-1, p. 57; Doc. 67-4, p. 32). Mr. Schumacher discussed the request with Mr. Dohar and Mr. Vader. The three decided that Mr. Barber's job duties required that he be onsite at the call center. (Doc. 67-7, ¶ 22). Mr. Schumacher told Mr. Barber that he must work onsite, and Mr. Schumacher also advised Mr. Barber that the AWA was not the proper form to request a medical accommodation. (Doc. 67-7, ¶ 22). Instead, Mr. Schumacher told Mr. Barber that he needed to complete a WPA form. (Doc. 67-7, ¶ 22). Mr. Schumacher reminded Mr. Barber to complete the WPA and to have his doctor complete the relevant sections of the form. (Doc. 67-2, p. 15; Doc. 67-7, ¶ 22).
On October 31, 2014, Mr. Schumacher emailed Mr. Barber. The subject line is "For our meeting," and the email states:
Updates for our meeting:
(Doc. 78-9, p. 6).
On November 17, 2014, Mr. Barber emailed Mr. Schumacher. The email states: "I have the paperwork you requested from my Doctor in reference to my condition and my limitations. I placed it on your desk. I'm still waiting for my Doctor to complete the Workplace Arrangements form and I will get that to you as well." (Doc. 78-9, p. 6).
The paperwork that Mr. Barber provided was a progress note from a June 16, 2014 visit with his doctor. (Doc. 67-7, ¶ 23; Doc. 67-7, p. 44; see Doc. 78-9, p. 6). The progress note indicates that Mr. Barber had lumbar radiculopathy. (Doc. 67-7, p. 44). Mr. Barber's doctor stated that Mr. Barber should "avoid bending over and avoid lifting more than 5 lbs to prevent complications in low back area. . .." (Doc. 67-7, p. 44). Mr. Schumacher gave the progress note to Mr. Vader, and Mr. Vader sent to Mr. Schumacher another WPA form for Mr. Barber to complete. (Doc. 67-7, ¶ 24).
On November 18, 2014, Verizon denied Mr. Barber's request to telecommute full-time. (Doc. 67-5, p. 32). Mr. Schumacher explained to Mr. Barber via email that:
(Doc. 67-5, p. 32).
On December 8, 2014, Mr. Barber informed Mr. Schumacher that he was working from home and would be in around noon. (Doc. 67-7, ¶ 25). On December 9, 2014, in an effort to accommodate Mr. Barber's back issues, Mr. Schumacher ordered Mr. Barber a foot stool and lumbar cushion. (Doc. 67-2, p. 15; Doc. 67-7, ¶ 26). On December 17, 2014, Mr. Barber emailed Mr. Schumacher and told him that he was having an issue with pain management and was running late. Mr. Barber had not returned an updated WPA form. (Doc. 67-7, ¶ 27).
On December 18, 2014, Mr. Barber emailed Mr. Schumacher and asked about the time frame for Verizon promotions. Mr. Barber copied Mr. Dohar on the email. Mr. Barber's email states:
(Doc. 78-3, p. 8).
(Doc. 78-3, p. 7).
Mr. Barber responded and asked:
(Doc. 78-3, p. 7).
Mr. Dohar then responded:
(Doc. 78-3, p. 7). Mr. Schumacher replied to Mr. Dohar's email and stated:
(Doc. 78-3, p. 7).
On December 31, 2014, Mr. Barber emailed Mr. Schumacher and asked:
(Doc. 67-7, p. 12). Mr. Schumacher responded on January 2, 2015. Mr. Schumacher's email reads:
(Doc. 67-7, p. 12). Mr. Schumacher states that Mr. Barber did not provide documentation from a doctor stating that he (Mr. Barber) had injured himself at work. (Doc. 67-7, ¶ 5). Mr. Barber has not provided evidence to contradict Mr. Schumacher's assertion.
On January 15, 2015, Mr. Barber took a leave of absence and applied for Short Term Disability and FMLA leave. (Doc. 67-5, pp. 33-34; Doc. 67-6, ¶ 12). MetLife denied Mr. Barber's claim for Short Term Disability leave. (Doc. 67-6, p. 17). Verizon approved Mr. Barber's FMLA claim, and according to Verizon, Mr. Barber exhausted his FMLA leave on January 23, 2015. (Doc. 67-6, ¶ 12. Still, Mr. Barber continued his leave. (Doc. 67-6, ¶ 12). On February 23, 2015, Verizon sent Mr. Barber a return to work letter and requested that Mr. Barber return to work on March 2, 2015 and provide documentation demonstrating his need for a continued absence. (Doc. 67-6, ¶ 12). Verizon also gave Mr. Barber another WPA form to complete. (Doc. 67-6, ¶ 12).
On March 2, 2015, Mr. Barber submitted a WPA form that he and his physician completed. The WPA was dated December 2 and 5, 2014. (Doc. 67-2, p. 17; Doc. 67-6, ¶; Doc. 67-6, pp. 23-25). On March 4, 2015, a human resources representative advised Mr. Barber that he had not provided enough information to excuse his absences from work in January and February 2015 because the WPA form was dated before these absences. (Doc. 67-6, ¶ 13).
Mr. Barber returned to work on March 10, 2015. (Doc. 78-9, p. 5). On March 13, 2015, Mr. Barber submitted a new WPA. (Doc. 67-6, ¶ 14; Doc. 67-6, pp. 28-30). In the WPA, Mr. Barber's doctor noted that his medical condition was "temporary" and does not substantially limit a major life activity. (Doc. 67-6, p. 29). Mr. Barber's doctor stated that Mr. Barber should "be careful" with lifting, twisting motions, and bending. (Doc. 67-6, p. 29). The WPA form stated that if Mr. Barber's back hurt, then he should sit periodically and avoid "heavy lifting." (Doc. 67-6, p. 29). Mr. Barber's doctor released him to work on March 6, 2015 with no additional restrictions. (Doc. 67-6, p. 30).
In his March 13, 2015 WPA, Mr. Barber included a request to "occasionally work from home remotely." (Doc. 67-6, p. 28). Because Mr. Barber's doctor's portion of the WPA form did not address Mr. Barber's request to work from home, Verizon followed-up with Mr. Barber's doctor. (Doc. 67-6, ¶ 15). Mr. Barber's doctor responded: "[A]s per previous note, Mr. Barber needs to refrain from heavy lifting, twisting, or excessive bending. If his back is hurting being able to sit periodically would help." (Doc. 67-6, p. 32).
Based on the March 13, 2015 WPA, Verizon approved the following accommodations for Mr. Barber: (1) excused Mr. Barber's time out of work from January 26, 2015 through March 6, 2015; (2) permitted Mr. Barber to avoid lifting more than 5 pounds, twisting, or excessive bending; and (3) permitted Mr. Barber to sit periodically if his back was hurting. (Doc. 67-6, ¶ 16; Doc. 78-9, pp. 2-4). Verizon denied Mr. Barber's request to work from home because his doctor's report did not support the request. (Doc. 67-6, ¶ 16; Doc. 78-9, pp. 2-4).
On April 20, 2015, Mr. Barber emailed Mr. Dohar with questions about the workplace arrangement that Verizon approved. Mr. Barber's email states:
(Doc. 67-5, p. 49).
Mr. Dohar responded:
(Doc. 67-5, p. 49).
According to Verizon, Mr. Barber continued to call in late, so Verizon changed Mr. Barber's work schedule. (Doc. 67-6, ¶ 16). On May 14, 2015, after a discussion with Mr. Barber, Mr. Dohar sent an email to Mr. Barber explaining the schedule change. The email states:
(Doc. 67-5, p. 50).
On July 9, 2015, Mr. Barber emailed Brent Vader. (Doc. 67-4, p. 1). Mr. Vader was a regional human resources representative for Verizon. (See Doc. 67-4, p. 2; Doc. 67-6, ¶¶ 1-2). The email states:
(Doc. 67-4, p. 1).
In his declaration, Mr. Vader stated that before he received Mr. Barber's email, he did not know that Mr. Barber had injured himself at work. (Doc. 67-6, ¶ 7). When Mr. Vader received Mr. Barber's email, Mr. Vader "immediately contacted Mr. Barber by telephone and searched for records related to any report injury." (Doc. 67-6, ¶ 8). Mr. Vader found no record of a workplace injury. Mr. Vader interviewed Mr. Schumacher and determined that Mr. Schumacher "was not made aware of a workplace injury in August 2013." (Doc. 67-6, ¶ 8). Mr. Vader then responded to Mr. Barber's email and stated:
Here is the information I have:
(Doc. 67-4, p. 2).
In the fall of 2015, Verizon's Payroll Department emailed Mr. Barber about two short term disability claims that MetLife had denied, causing Mr. Barber to be overpaid in various pay periods in 2015. (Doc. 67-6, p. 20). The Payroll Department explained that Verizon granted "pending benefits" compensation to Mr. Barber which increased Mr. Barber's net pay during four pay periods. (Doc. 67-6, p. 20). The Payroll Department informed Mr. Barber that he had been overpaid by $4,148.08 because MetLife denied Mr. Barber's short term disability claims. (Doc. 67-6, pp. 17-20). Payroll notified Mr. Barber that it would deduct 20% of his future paychecks until the company had recouped the overpayment. (Doc. 67-6, p. 20).
On December 28, 2015, Mr. Barber forwarded to Mr. Vader emails he (Mr. Barber) had received regarding his investigation of MetLife's denial of short term disability claims. (Doc. 67-6, pp. 17-18). Within an hour, Mr. Vader responded to Mr. Barber's email and explained that the short term disability claims were not related to workers' compensation. Mr. Vader stated:
(Doc. 67-6, p. 16). Mr. Vader reminded Mr. Barber that Verizon had approved FMLA leave for August 13-18, 2015. Finally, Mr. Vader stated, "I want to make sure we answer any additional questions to address your concerns. Let me know what your availability looks like tomorrow and I would be happy to review further with you." (Doc. 67-6, p. 16).
On December 29, 2015, Mr. Barber contacted Mr. Vader regarding a short term disability claim. Mr. Barber's email reads:
(Doc. 67-6, p. 16).
Mr. Vader responded to Mr. Barber's email later in the day on December 29, 2015. Mr. Vader stated:
(Doc. 67-6, p. 15).
Later in the evening on December 29, 2015, Mr. Barber emailed Mr. Vader again and forwarded his December 31, 2014 email to Mr. Schumacher. (Doc. 78-2, pp. 2-3). Mr. Barber's email states:
(Doc. 78-2, p. 2). Mr. Vader responded to Mr. Barber's email on December
30, 2015. Mr. Vader's email reads:
(Doc. 78-2, p. 2).
As of January 2016, Mr. Barber no longer was employed by Verizon. (Doc. 67-2, p. 28, tr. p. 371).
Under the ADA, "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees [or] other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). In this case, Mr. Barber contends that Verizon discriminated against him because of his disability when Verizon promoted two other MTS I employees and did not promote Mr. Barber.
Where, as here, a plaintiff relies on circumstantial evidence to establish discriminatory intent, a district court may use the McDonnell Douglas analytical framework to evaluate the sufficiency of the plaintiff's evidence. Flowers v. Troup Cty., Ga. School Dist., 803 F.3d 1327, 1335-36 (11th Cir. 2015); Cusick v. Yellowbook, Inc., 607 Fed. Appx. 953 (11th Cir. 2015) (applying Title VII burden-plaintiff shifting framework to ADA claims).
If a plaintiff presents a prima facie case, then the burden shifts to the defendant to articulate a non-discriminatory basis for the employment action at issue. If the defendant carries this light burden, then the burden returns to the plaintiff to prove that the defendant's stated reason for its conduct is pretext for intentional discrimination. Flowers, 803 F.3d at 1336.
Though it is one tool for examining evidence of discriminatory intent, "`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 Title VII cases." Flowers, 803 F.3d at 1336 (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). "The critical decision that must be made is whether the plaintiff has `create[d] a triable issue concerning the employer's discriminatory intent.'" Flowers, 803 F.3d at 1336 (quoting Lockheed-Martin Corp., 644 F.3d at 1328). A convincing mosaic of circumstantial evidence may be sufficient to allow a jury to infer that discriminatory intent motivated an employment decision. Lockheed-Martin Corp., 644 F.3d at 1328. "Whatever form it takes, if the circumstantial evidence is sufficient to raise `a reasonable inference that the employer discriminated against the plaintiff, summary judgment is improper.'" Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012) (quoting Lockheed-Martin Corp., 644 F.3d at 1328).
For purposes of this opinion, the Court assumes without deciding that Mr. Barber can establish a prima facie case of disability discrimination.
Therefore, to survive Verizon's motion for summary judgment, Mr. Barber must show that Verizon's proffered explanations for the employment action are "false, and that discrimination was the real reason for the adverse action." King v. Ferguson Enters., Inc., 568 Fed. Appx. 686, 689 (11th Cir. 2014) (citing Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)). Mr. Barber can demonstrate that the reasons that Verizon gave for not promoting him were pretext "directly, by persuading the court that a discriminatory reason more likely than not motivated the employer, or indirectly, by showing `such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.'" Paschal v. United Parcel Serv., 573 Fed. Appx. 823, 825 (11th Cir. 2014) (quoting Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)). Mr. Barber cannot demonstrate pretext by "simply quarrelling with the wisdom" of Verizon's proffered reasons; instead, he must meet each proffered reason "head on and rebut it . . . ." Alvarez, 610 F.3d at 1266. Because Verizon has offered more than one legitimate non-discriminatory reason, Mr. Barber "must rebut each of the reasons to survive a motion for summary judgment." Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007).
Mr. Barber argues that Verizon's articulated reasons for not promoting him are pretext for disability discrimination because his "performance ratings were consistently, adequately and proficiently higher than the IT employees Todd Schumacher promoted" (Doc. 77, p. 22) and because his "job performance was stellar and consistently exceeded Verizon Wireless's IT departmental standards" (Doc. 77, p. 25). The record generally supports Mr. Barber's contention that he received positive performance evaluations.
For 2011 through 2014, Mr. Barber's supervisors, including Mr. Schumacher, rated Mr. Barber as "performing" which means that Mr. Barber "sustained performance meeting objectives, requirements and expectations and periodically exceeded them." (Doc. 67-4, pp. 20, 30; Doc. 67-5, p. 10).
In Mr. Barber's 2011 review, Mr. Schumacher stated that "Charles is constantly walking the floor provid[ing] that face to face interaction with his end users which was key to our success." (Doc. 67-4, p. 16). Mr. Barber's 2011 review also contains the following remarks:
(Doc. 67-4, pp. 18-19).
In Mr. Barber's 2012 review, Mr. Schumacher made the following comments:
(Doc. 67-4, pp. 24, 27-29). This review concludes: "Charles has proven and shown that he is ready for the next level MTSII. Thanks for a great year Charles. Looking forward to 2013." (Doc. 67-4, p. 29).
In Mr. Barber's 2013 review, Mr. Schumacher highlighted Mr. Barber's performance in a number of areas. For example, Mr. Schumacher stated:
(Doc. 67-5, pp. 7, 9). Mr. Schumacher also discussed Mr. Barber's difficulty reporting to work on time. Mr. Schumacher wrote: "[o]ne key thing that I would like to touch on is a trend of not being at work ontime [sic] as outlined." (Doc. 67-5, p. 9). Mr. Schumacher explained that Mr. Barber's team members "count on hi[m] to assist when needed (which he did a majority of the year) but not being ontime [sic] means that work falls back on them." (Doc. 67-5, p. 9). This review concludes: "From a technical standpoint Charles is ready for the next level to MTSII but would like him to focus on ensuring he is ontime [sic] when scheduled. Thank you for all your hard work and dedication in 2018." (Doc. 67-5, p. 9).
Mr. Barber's strong technical skills do not diminish or require Verizon to discount performance concerns that Mr. Schumacher expressed to Mr. Barber. To the extent that Mr. Barber attempts to establish pretext by arguing that his strong performance made him more qualified than the MTS-I employees who Mr. Schumacher recommended for promotion in 2014, Mr. Barber's evidence falls short of the applicable legal standard.
"In the context of a promotion, `a plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the [person] who received the position he coveted.'" Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal quotations omitted)). Rather, "a plaintiff must show that the disparities between the successful applicant's and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff." Springer, 509 F.3d at 1349 (internal quotations omitted).
In support of his argument that he was more qualified than Mr. Hart and Mr. Sadler, the employees who Mr. Schumacher recommended for promotion in 2014, Mr. Barber points to the results of customer satisfaction surveys. (Doc. 78-4, pp. 2-5). In 2012, Mr. Barber's average score was 5.00 out of 5.00; Mr. Hart's average score was 4.97 out of 5.00; and Mr. Sadler's average score was 4.97 out of 5.00. (Doc. 78-4, p. 2). In 2013, Mr. Barber's average score was 4.98 out of 5.00; Mr. Hart's average score was 4.97 out of 5.00; and Mr. Sadler's score was 4.95 out of 5.00. (Doc. 78-4, p. 3). In 2014 and 2015, Mr. Barber's average score was 5.00, and Mr. Sadler's average score was 4.99. (Doc. 78-4, pp. 4-5).
Mr. Barber testified Mr. Schumacher verbally told him about complaints concerning one of the MTS I employees who received a promotion. According to Mr. Barber, this employee took laptops from call center employees "when they didn't want him to." (Doc. 67-2, p. 12). This one general complaint, without additional context, does not establish that Verizon promoted less qualified applicants over Mr. Barber.
Mr. Barber makes no other specific arguments regarding pretext. Neither Mr. Barber's strong technical performance nor other evidence in the record creates "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" that would lead reasonable jurors to conclude that Verizon's stated reasons for its decision not to promote Mr. Barber were pretext masking discriminatory intent. Paschal, 573 Fed. Appx. at 825. Mr. Barber offers no evidence to rebut these legitimate non-discriminatory reasons. For example, it is undisputed that on nine occasions between August 2013 and April 2014, Mr. Barber emailed Mr. Schumacher after his (Mr. Barber's) scheduled start time to let Mr. Schumacher know that he would be late. (Doc. 67-4, pp. 34-42). Mr. Schumacher documented his concern with Mr. Barber's attendance problems in a September 2013 counseling note and in Mr. Barber's 2013 annual review. (Doc. 67-7, p. 15; Doc. 67-5, p. 9). As Mr. Schumacher stated in the 2013 annual review, these attendance issues were Mr. Barber's hurdle to promotion. Accordingly, Mr. Barber has not demonstrated that Verizon's decision not to promote him in 2014 because of his unpredictable attendance is pretext for unlawful discrimination.
Mr. Barber has not presented evidence that demonstrates suspicious timing, ambiguous statements, systematically better treatment of similarly situated employees who are not disabled, or other circumstantial evidence from which a jury could infer that discriminatory intent motivated Verizon's decision not to promote him. Thus, because Mr. Barber cannot rebut Verizon's legitimate, non-discriminatory reasons for passing over Mr. Barber for promotion in 2014, Mr. Barber "has not raised a genuine issue of material fact about whether those reasons were pretext for discrimination." Crawford, 482 F.3d at 1309.
For the reasons explained above, Mr. Barber has not created a question of fact regarding Verizon's proffered reasons for not promoting him to an MTS II position in 2014. Accordingly, Verizon is entitled to judgment as a matter of law on Mr. Barber's ADA claim. Therefore, the Court
There no longer is an independent basis for subject matter jurisdiction over this action. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction over Mr. Barber's state law claims for intentional infliction of emotional distress and outrage.
Because the Court will not exercise supplemental jurisdiction over his state law claims, the Court
The Court will enter a separate final order consistent with this memorandum opinion.
