CHARLES R. BUTLER, JR., Senior District Judge.
This action, filed pursuant to 42 U.S.C. § 1981, involves several employment discrimination claims based on "reverse" discrimination and retaliation. The defendant has filed a motion seeking summary judgment on all claims. (Doc. 45.) After due consideration of the motion, plaintiff's response, and all supporting evidence and briefs, the Court finds that the motion is due to be granted.
Plaintiff Carl Vickery was employed by defendant Medtronic, Inc. from 2006 until 2012. Vickery has an associate's degree in
Neuromodulation and Navigation are separate divisions of Medtronic,
According to a Medtronic job description dated September 2010, an ADM "[w]orks in partnership and support of the DBS sales organization to help create new accounts, introduce new therapies/indications, assist with training internal and external people on DBS, and cover difficult cases." (Pl.'s Ex. A., Doc. 52-1). Vickery had more specialized knowledge than regular sales representatives. As part of his ADM duties, Vickery trained surgeons on the use of the DBS Nexframe equipment, which was similar to equipment used in Navigation procedures. He also trained sales representatives, but he had no authority to discipline them. As ADM, Vickery reported to the Neuromodulation division's southeast regional sales manager.
In 2011, Charles Ross, who is African American, replaced Atteberry as sales manager. As manager, Ross was aware of Vickery's background, education and experience. Ross reported to Ellen Frenkel, the Vice President of Sales for DBS. In
According to Vickery, Ross was not a good manager. He "was inconsistent in communication with the team and destructive in the way he interacted with some of the team members," and he "targeted" certain individuals. (Pl.'s Decl. ¶ 7, Doc. 52-15.) On January 12, 2012, Ross gave Vickery a memorandum, known as a "letter of expectations," regarding improvements he wanted to see in Vickery's job performance. (Id. ¶ 9.) Vickery was surprised because this was the first time Ross informed him that he was not meeting expectations. (Id. ¶ 9.) From this point forward, the relationship between Vickery and Ross went downhill. As Vickery describes it,
(Id. ¶ 10.)
Vickery testified that "the way I felt and what I had seen with a couple of others is anybody that stood their ground or — or tried to defend their position, then — and they were white, they were marked [by] Ross." (Pl.'s Dep. 218, Doc. 52-14.) Two of Vickery's coworkers also perceived Ross to behave in a discriminatory manner. Barbara Williams, a former Medtronic sales representative, testified that Ross was hostile to comments by white employees but was not hostile to similar comments by nonwhites. (Williams Decl. ¶ 14, Doc. 52-17.) She also noted that Kelly Robertson (the clinical specialist "of Persian descent") received preferential treatment from Ross. Another former sales representative, Richard Plummer, also complained to Human Resources that Ross had discriminated against him and that he "was being targeted because of [his] race and for [ ] being a witness for [his] Caucasian co-workers who were complaining about Mr. Ross." (Plummer Decl. ¶ 10, Doc. 52-18.)
In April 2012, Ross and Vickery attended a convention in Florida and were staying at the same hotel. They made arrangements to ride together to the convention one morning, but Ross forgot and left Vickery at the hotel. Later, during the same convention when a coworker asked why he was almost late for the
Vickery told Heidi Meyer, who was investigating the matter for Medtronic: "You know, it's almost like I'm being set up here. It's almost like it's a hostile work environment. It's almost like he's trying to push me out. And it's almost like reverse race discrimination going on. It's almost like he's got it against me that, you know, the team likes me. I work well with the team. I — you know, I don't know what the issue is." (Pl.'s Dep. 209) In a follow-up conversation, Vickery thinks he "reiterated it seems like retaliation at this point, that — that it was hostile. I felt like it was violating me in a sense that he was coming after me and targeting me." (Id. 213) Vickery feared retaliation from Ross because "any time you stood up or disagreed with Mr. Ross, you were — you could — you didn't even have to hold your breath; you were getting some kind of negative feedback on something that was not even related to that situation." (Id.)
At a sales meeting that occurred after this investigation, another employee brought up "backstabbing and lying in the Southeast district." (Id. 183-84) In response, Ross looked directly at Vickery and said, "Well, let's discuss the white elephant in the room." (Id. 184) After he made the remark, Ross "went on to discuss how [the group] should work together,... teamwork, how he ... would do a better job in communicating." (Id.) Vickery considered Ross's "white elephant" comment to be "a racist remark." (Id.)
On July 25, 2012, Vickery was at Sacred Heart Hospital in Pensacola along with Michael Tapley, a Medtronic sales representative, and Brian Beck, a new Medtronic employee, for training. Brian Nguyen, a sales representative from the Navigation unit, asked Vickery to cover for him in a spine surgery because he had been called to an emergency at another hospital. Nguyen had already set up the equipment so that all Vickery had to do was to aim the camera for the surgeon. Vickery worked under the direction of the surgeon, and the Navigation camera "operated in the same way as when [Vickery] was a Navigation clinical specialist and in the same way as when using Nexframe [i.e., DBS] technology." (Pl.'s Decl. ¶ 15.) Vickery did not believe he was doing anything wrong when he filled in for Nguyen, and his assistance prevented any delay in the procedure.
Ross learned about this incident on August 23, 2012 in a meeting with Vickery and Tapley. Ross summarized that meeting in a memo to Laura Neuenschwander. (Def.'s Ex. 2, Doc. 49-1.) Tapley told Ross that he "was going over planning software
On August 29, 2012, Vickery told Laura Neuenschwander that Ross "had been hostile towards me and his communication, or lack of communication, that he did not follow up with questions, ... or he was supposed to have a conference call with me on the plan; he never followed up with that. And I felt like I was being set up and that I felt that race was involved; I felt retaliation was involved (Pl.'s Dep. 244.) Vickery requested that he be transferred. (Id.) Medtronic, however, was already moving toward termination and, therefore, did not grant the transfer request. (Neuenschwander Dep. 41, Doc. 48-8.)
On September 11, 2012, Medtronic terminated Vickery's employment. (Ross. Dep. 74-75, Doc. 48-4.) Ross and Ellen Frenkel, Medtronic's Vice President of Sales for DBS, jointly made the termination decision based on: (1) Vickery's poor judgment in assisting with the procedure for which he was not trained (the Sacred Heart spine surgery) and (2) his repeated failure to meet performance expectations outlined by Ross. (Id.) Regarding performance expectations, Ross testified that Vickery failed to work toward account development, failed to "deliver training ... to groups of neurologists," and generally failed to strike a proper balance between providing clinical support and developing new accounts. (Id. 75-78.) Medtronic's written policy required that "prior to providing any technical support a representative must be trained on the products they support." (Def.'s Ex. 6, Doc. 49-2.) Although Vickery had been trained on the equipment used in the spine surgery when he was in the Navigation division, his did not possess current training or credentials to operate Navigation equipment when he took part in the spine surgery at Sacred Heart. (Neuenschwander Dep. 41-43.)
Within days of his termination, Vickery applied for a clinical specialist position in Medtronic's Navigation division. (Pl. Dep. 228.) Erik Bruskotter, a Navigation regional sales director, interviewed two candidates for the job — Vickery and Lori Josey, an African American. Before the interview, Vickery spoke to Bruskotter, whom he had known when he worked in Navigation, via telephone. Vickery told Bruskotter that he was interested in the position and also explained that he had been terminated from Medtronic. (Id.) Vickery asked if that was going to be a problem, and Bruskotter assured him that "[a]s long as you are rehireable, I definitely don't have a problem with you, definitely want you to interview and you would definitely be one of the top candidates." (Id. 230.) At the interview, Bruskotter asked Vickery why he was let go, and Vickery explained that he had some challenges with the sales reps, that there were some conflicts, and that he also had some challenges with his manager. (Bruskotter Dep. 73, Doc. 48-5.)
Vickery was actually Bruskotter's second interview. (Bruskotter Dep. 58.) Bruskotter had already interviewed Josey, whom he found to be a solid candidate. Josey's training and experience made her a good fit for the position. She had clinical experience working with hospital staffs that involved supporting other types of surgical equipment, experience with a radiology device that had some similarities to Navigation equipment, and a degree in computer information systems, which would obviously be of value working with computers and software. (Id. 60-63.)
Immediately after Vickery's interview, Bruskotter decided that Vickery would be a better fit for the position because he had a background with Navigation. (Id. 74.) That same day, Bruskotter sent an email to Veronica Lambert, the HR person assigned to his group informing her that he wanted to put together an offer letter for Vickery. In the email Bruskotter also explained that Vickery had been "let go" by Activa but that he was eligible for rehire. (Id. 81-82.) Lambert had some questions about why Vickery had been "let go," which led to a telephone conversation the following day between Bruskotter and Lambert. (Id. 84.) Between the time of the email exchange and the time of his conversation with Lambert, Bruskotter began to rethink his decision. (Id. 85.) Bruskotter talked about the situation with Lambert and told her that he had begun to have "a lot of concerns ... given the friction that [Vickery] had mentioned ... with the sales rep and the manager." Id. By the end of the conversation, Bruskotter decided "to move forward with [Josey] instead of [Vickery]." (Id. 86.) Bruskotter subsequently had a telephone conversation with Vickery to inform him of the decision. (Id. 90.) According to Vickery, Bruskotter told him "HR had put a kibosh on me coming on board." (Vickery Dep. 231.)
Vickery subsequently filed the instant action against Medtronic, asserting numerous employment discrimination and retaliation claims under 42 U.S.C. § 1981. Specifically, Vickery claims that Medtronic terminated his employment because of his race, that Medtronic failed to rehire him because of his race and that Medtronic subjected him to a hostile work environment because of his race. Further, Vickery alleges that Medtronic retaliated against him for complaining of race-based discrimination by terminating his employment, by refusing to transfer him to a different position prior to his termination, and by refusing to rehire him following his termination.
On summary judgment, Medtronic argues that Vickery cannot produce sufficient evidence to support any of the six claims he has asserted. In his response brief, Vickery addresses only four of those claims, omitting his claims for discriminatory failure to rehire and retaliatory termination. In reply, Medtronic asserts that those unaddressed claims have been abandoned. In surreply, Vickery argues that he did not intentionally abandon those claims. Below, the Court sets out the applicable legal standards and explains why certain claims are deemed abandoned before addressing the sufficiency of the evidence as to each of the remaining claims — discriminatory termination, hostile work environment, retaliatory refusal to transfer, and retaliatory refusal to rehire.
Summary judgment should be granted only if "there is no issue as to any material
"In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). "However, we draw these inferences only `to the extent supportable by the record.'" Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir.2010) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (emphasis omitted)). Furthermore, "[a] dispute over a fact will only preclude summary judgment if the dispute `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))
For more than 30 years, federal courts have relied on the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), to analyze employment discrimination and retaliation claims based on circumstantial evidence. See, e.g., Chapman v. A1 Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (en banc) (analyzing ADEA claim using McDonnell Douglas/Burdine analysis); Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997) (racial discrimination).
Vickery's summary judgment response fails to address his claims for discriminatory failure to rehire and retaliatory termination. The Eleventh Circuit has long held that "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment." RTC v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995); accord Clark v. City of Atlanta, 544 Fed.Appx. 848 (11th Cir.2013) (district court properly treated as abandoned claims not addressed in opposition to summary judgment motion). Vickery asserts, in surreply, that he should not be penalized for the "lack of clarity" in his summary judgment response. Plaintiff's problem is more than a lack of clarity. He has failed to address the claims at all. Plaintiff's counsel points to last-minute difficulties she encountered in filing the summary judgment response and to her "good faith belief" that the submission entitled "Plaintiff's Statement of Disputed Facts Requiring Trial" would be sufficient to preserve the claims not addressed in Plaintiff's summary judgment response brief. But a statement of disputed facts — even one as extensive as this — does not explain how the facts relate to any specific legal claim, much less the legal sufficiency of the claims. "[T]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Dunmar, 43 F.3d at 599. Because Plaintiff provided no argument to support his claims for discriminatory failure to rehire and retaliatory termination, those claims are deemed abandoned.
Medtronic argues that it is entitled to summary judgment, first, because Vickery cannot prove a prima facie case of discrimination. Most often an employee asserting discriminatory discharge demonstrates a prima facie case by proving that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was treated less favorably than a similarly-situated individual outside his protected class. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir.2003). However, "[t]he methods of presenting a prima facie case are not fixed; they are flexible and depend to a large degree upon the employment situation." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004). A plaintiff's discrimination claim is not doomed simply because there are no similarly-situated employees who may be used as comparators. Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir.2011). Recognizing that Vickery relies on "other evidence" to prove discrimination, Medtronic argues that Vickery's evidence is not sufficient to raise an inference of intentional discrimination.
Vickery's response is two-fold. First, citing Smith, Vickery argues that the entire McDonnell Douglas framework can be cast aside and that he need only
Vickery cites to his own declaration and that of Williams, a former sales representative who worked with Robertson. In his own declaration, Vickery avers that "Mr. Ross knew Kelly Robertson had performed work without certification without disciplining her." (Pl.'s Decl. ¶ 12, Doc. 52-15.) Because Vickery does not identify the work Robertson did without certification, it is impossible to say that it was similar in all relevant respects to the conduct for which Vickery was terminated. Williams' declaration does not identify any work Robertson performed without certification. Instead, Williams complains that Robertson did not perform her job and Ross did nothing about it. (Williams Decl., ¶ 14, Doc. 52-15.)
Whether the Eleventh Circuit in Smith created an alternative to the McDonnell Douglas paradigm in its entirety or merely an alternative method of proving the fourth element of a prima facie case is the subject of debate. See, e.g., Bell v. Crowne Mgmt, LLC, 844 F.Supp.2d 1222, 1232 (S.D.Ala.2012) (to extent Smith suggests burden-shifting paradigm of McDonnell Douglas can be ignored in circumstantial evidence case, "it is in tension with a long line of Eleventh Circuit precedent" and "with McDonnell Douglas itself"); Williams v. Cleaver-Brooks, Inc., 2012 WL 6151141, *7 n. 9 (M.D.Ga. Dec. 11, 2012) (noting with interest the relevant portion of Bell). This Court need not wade into the debate, however, because Vickery's "other evidence" does not amount to the type of "convincing mosaic of circumstantial evidence" that would allow a jury to infer intentional discrimination.
As circumstantial evidence of discriminatory intent Vickery argues, first, that "[p]roof of bias by a decision-maker against other employees is probative of discriminatory animus even if those employees are not similarly situated." (Pl.'s Brf. 15, Doc. 53.) Vickery's potential "bias" evidence is of two types.
As additional circumstantial evidence of discrimination, Vickery points again to Kelly Robertson, arguing that she engaged in conduct outside the scope of her employment and was not disciplined. But that vague claim, supported by no specific information as to conduct, provides no basis for any inferences.
Vickery's final piece of circumstantial evidence of discriminatory termination is his claim that "he did not violate any policy or engage in any misconduct." (Pl.'s Brf. 17.) The evidence does not support Vickery's claim. At the time Vickery covered the spine surgery at Sacred Heart Hospital, Medtronic had a policy that required its employees to be trained on the products they support. Vickery did not possess current training or credentials for the Navigation equipment. Vickery asserts that the training he had was sufficient, but that is nothing more than a disagreement with Medtronic's policy. It is not evidence that the policy did not exist, nor is it evidence that he did not engage in misconduct.
In summary, Vickery has presented evidence that Ross was vindictive toward employees who stood up to him and that Ross
The Supreme Court has defined a hostile work environment as "[a] workplace [ ] permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). An employment discrimination claim based on hostile work environment has both an objective and a subjective component. It requires proof of an environment that "a reasonable person would find [it] hostile or abusive" and that the "victim ... subjectively perceive[d] ... to be abusive. Id. 510 U.S. at 21, 114 S.Ct. 367." It is a `bedrock principle that not all objectionable conduct or language amounts to discrimination under Title VII.' Therefore, only conduct that is `based on' a protected category, such as race, may be considered in a hostile work environment analysis. Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir.2012) (quoting Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir.2010) (en banc)). Vickery's evidence falls short.
Vickery's hostile work environment argument relies heavily on evidence that Ross mistreated him, held him to unrealistic standards and, generally, made his work life miserable. Even if this could be considered evidence of harassment, anti-discrimination laws "do[ ] not prohibit harassment alone, however severe and pervasive." Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1302 (2007). And Vickery's evidence does not demonstrate that this mistreatment was based on race.
Vickery's primary argument is that white subordinates who stood up to or challenged Ross became targets of Ross's abuse. This evidence has no probative value in proving a racially hostile work environment because the workforce under Ross's command was overwhelmingly white. Thus, the modifier "white" to describe "employee" is almost redundant.
Although Vickery does not specifically cite it as part of his hostile work environment argument, Ross's "white elephant in the room" comment might be considered evidence racial bias. However, as the Supreme Court has pointed out, "`mere utterance of an ... epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment" to support a hostile work environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Svgs. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). On the spectrum of objectionable conduct — from severe to merely offensive — the "white elephant" comment falls squarely at the low end. The comment — even when considered in the totality of the circumstance (i.e., Ross was a difficult boss who did not treat Vickery well and targeted employees who stood up to him)
Vickery has asserted retaliation claims based on: (1) Medtronic's refusal to transfer him prior to his termination and (2) Medtronic's refusal to rehire him to a different position shortly after his termination. The parties agree that these retaliation claims should be evaluated under the McDonnell Douglas burden-shifting framework. Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.2006). First, the plaintiff must establish a prima facie case of retaliation. Id. If the plaintiff meets this burden, the defendant must articulate a legitimate non-retaliatory reason for its action. If the defendant does so, then the plaintiff must prove that the proffered reason is pretextual. The success or failure of Vickery's retaliation claims depends on his ability to prove a prima facie case, since that is the only challenge Medtronic has raised on summary judgment. "To establish a prima facie case of retaliation under Title VII, `the plaintiff must show (1) that [he] engaged in statutorily protected expression; (2) that [he] suffered an adverse employment action; and (3) that there is some causal relation between the two events.'" Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.2007) (per curiam).
Medtronic argues that Vickery cannot establish a causal connection between
Medtronic contends that no causal connection exists between Vickery's August 2012 complaint and the retaliatory failure to transfer claim because the transfer request was made after it had begun moving toward Vickery's termination. Vickery offers no coherent response to this argument.
With respect to the retaliatory refusal to hire claim, Medtronic argues that no causal connection exists because there is no evidence that Erik Bruskotter, the person who made the hiring decision, was aware of Vickery's protected conduct. Vickery does not dispute Bruskotter's lack of knowledge, but he does dispute that Bruskotter was the decisionmaker. Vickery points to his own testimony that Bruskotter told him the Human Resources "put the kibosh" on his hiring. Thus, according to Vickery, "Human Resources" made the decision. But in the absence of evidence that the person or persons in Human Resources who vetoed Vickery's hiring also knew about his protected conduct, his claim fails.
In sum, Vickery has failed to meet his burden on summary judgment as to any of
