Filed: May 05, 2005
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT May 5, 2005 No. 04-11325 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket Nos. 01-00380-CV-1-CB and 02-00304-CV-CB-C ELVIE MELISSA WALLACE, Plaintiff-Appellant, versus TELEDYNE CONTINENTAL MOTORS, et al., Defendants-Appellees. _ Appeals from the United States District Court for the Southern District of Alabama _ (May 5, 2005) Before EDMONDSON, Chief Judge, BLACK
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT May 5, 2005 No. 04-11325 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket Nos. 01-00380-CV-1-CB and 02-00304-CV-CB-C ELVIE MELISSA WALLACE, Plaintiff-Appellant, versus TELEDYNE CONTINENTAL MOTORS, et al., Defendants-Appellees. _ Appeals from the United States District Court for the Southern District of Alabama _ (May 5, 2005) Before EDMONDSON, Chief Judge, BLACK ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
May 5, 2005
No. 04-11325 THOMAS K. KAHN
Non-Argument Calendar CLERK
_________________________
D. C. Docket Nos. 01-00380-CV-1-CB
and 02-00304-CV-CB-C
ELVIE MELISSA WALLACE,
Plaintiff-Appellant,
versus
TELEDYNE CONTINENTAL
MOTORS, et al.,
Defendants-Appellees.
____________________________
Appeals from the United States District Court
for the Southern District of Alabama
____________________________
(May 5, 2005)
Before EDMONDSON, Chief Judge, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Elvie Melissa Wallace appeals pro se the district court’s
grant of summary judgment in favor of her former employer, Teledyne Continental
Motors (Teledyne), and her union, Local Union 1639 International Union of
United Automobile, Aerospace, and Agricultural Implement Workers of America
(the Union). No reversible error has been shown; we affirm.
BACKGROUND
Plaintiff, a black female, alleged that Teledyne discriminated against her
based on her race and gender, in violation of Title VII, 42 U.S.C. §§ 2000e et seq.,
when Teledyne refused several times to promote her. Plaintiff also claimed that
the Union discriminated against her, in violation of Title VII, and breached its
duty of fair representation, in violation of the Labor Management Relations Act,
29 U.S.C. § 301, by refusing to file a grievance on her behalf over Teledyne’s
failure to promote her. And Plaintiff alleged that Teledyne retaliated against her
filing of EEOC complaints when it delayed recalling her after a lay off.
Teledyne manufactures aircraft engines and parts at its Mobile, Alabama,
plant. Plaintiff was hired in September 1999 as a “production helper” (Labor
2
Grade 12) in the cylinders department. Her job was to deburr newly-machined
cylinders. Plaintiff later submitted several bids for advancement to a position as
an “assembler” (Labor Grade 8).1 The duties of an assembler include building
aircraft engines from component parts and pressure testing engines. The position
requires “high mechanical aptitude with general knowledge of internal combustion
engines.” In December 1999, Plaintiff and four white employees did bid on an
assembler position. None were selected.2
Plaintiff alleged that, in January 2000, she saw another job posting for
assembler. Teledyne disputes the existence of this posting. Unlike the December
1999 posting, Plaintiff claimed that the January 2000 posting required the
applicant to have or be eligible for an Aircraft & Powerplant (“A&P”) license.
Plaintiff attended an aviation technical college and claimed she was eligible for an
A&P license. She alleged that she submitted a bid slip for this job. In March
1
Teledyne and the Union have a collective bargaining agreement (“CBA”) that controls the terms
of employment for Teledyne’s production and maintenance employees; the CBA sets forth the
procedure for the formal bidding process for jobs covered by the CBA. If a vacancy or need exists,
a department manager submits an employee requisition form to the human resources department,
which posts a notice of job opening in the plant. Teledyne is required to post this notice at least 48
hours before filling the job. An employee bids for the job by submitting a “bid slip” to the HR
department, which date-stamps the original and a carbon copy and returns the original to the
employee. If no qualified bargaining unit employee bids on the job, Teledyne may hire from outside
the company.
2
Plaintiff does not complain of this failure to promote.
3
2000, Plaintiff asserted that she saw two unfamiliar white men working in the
engine assembly department. She believed that these men were hired in response
to the alleged January posting and that Teledyne had discriminated against her by
promoting these men.
In April 2000, Plaintiff complained to her Union steward, Pleas Evans, a
black male, that she had been passed over for promotion. Plaintiff did not have a
copy of her bid slip; Evans told her that he could not file a grievance without a bid
slip. Evans and Teledyne’s HR coordinator could not locate Plaintiff’s bid slip.
Plaintiff then sought to file a grievance through Evans, who gave her a blank bid
slip to complete. But Evans allegedly would not back date-stamp the bid slip to
January 2000 unless Plaintiff had sex with him. Plaintiff refused.
On 27 April, Plaintiff spoke to Doug Williams, president of the Union, who
advised that a grievance would be difficult to pursue without a bid slip. Plaintiff
thought she had a grievance because she believed Teledyne had lost her bid slip.
But neither she nor the Union filed a grievance about the January 2000 assembler
position. She did not make another complaint about the position to the Union and
did not complain of Evans’s alleged sexual harassment.
4
In mid-April 2000, Teledyne’s president had ordered a reduction in force;
Plaintiff believed that she would be laid off or bumped into another position.3 But
on 27 April, after Plaintiff spoke to Williams, her supervisor informed her that she
was being terminated, rather than laid off. Plaintiff was recalled about ten days
later, along with several other employees who had been laid off. During this lay-
off, Plaintiff filed an EEOC discrimination charge based on the alleged January
2000 posting.
Teledyne posted notices for two assembler positions in late May and early
June 2000. No bargaining unit employee bid on these postings; so Teledyne
advertised outside and eventually hired two white males in late June 2000.4
Plaintiff admitted that she did not apply for these jobs. And in July 2000, Plaintiff
applied for another assembler position; but Teledyne selected a black male
employee with more seniority. Plaintiff’s supervisor decided that Plaintiff was
3
Under the CBA, Teledyne conducts lay-offs based on employees’ seniority rights: more senior
employees in higher job classifications can avoid being laid off by “bumping” less senior employees
in Labor Grades 12 and 13 in Job Group 7 (including Plaintiff’s position as Production Helper).
Teledyne then recalls laid-off employees based on seniority.
4
Teledyne also claimed that it posted another assembler opening in late May 2000, but that it
could not fill the position with a bargaining unit employee. Teledyne eventually hired a previous
employee, Leonard Staehle, a white male. The district court denied Plaintiff’s attempt to amend her
complaint to add another claim of failure to promote based on the Staehle hire.
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unqualified to be an assembler: he determined that she had no readily applicable
previous work experience or education.
On 1 March 2001, Teledyne instituted a large-scale lay-off of many
employees, including Plaintiff. In March 2001, Plaintiff filed two grievances
claiming that she was laid off in retaliation for filing her previous EEOC charge.
The Union did not process her grievances further: it determined that her
grievances did not violate the CBA. In September 2001, Plaintiff filed a second
EEOC charge claiming retaliatory delay in recall. Teledyne recalled Plaintiff in
February 2002.
DISCUSSION
We review the district court’s rulings on a motion for summary judgment de
novo; we view all evidence and factual inferences therefrom in the light most
favorable to the non-moving party. Miller v. King, 384 F.3d 1248, 1258-59 (11th
Cir. 2004). Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(c).
6
Plaintiff first argues that she established a prima facie case that Teledyne
discriminated against her by failing to promote her to the assembler position in
January 2000. And she claims that Teledyne’s proffered explanation about the
two white men she saw working in the assembly department -- that they could
have been any of a number of salaried employees assigned to work as assemblers
on a short term basis -- is unworthy of belief.
To evaluate this claim, we use the familiar burden-shifting framework
established by the Supreme Court in McDonnell Douglas Corp. v. Green, 93
S. Ct. 1817 (1973). In this framework, Plaintiff must establish a prima facie case
of discrimination, which creates a presumption of discrimination. Teledyne then
must offer a legitimate, nondiscriminatory reason for the employment action to
rebut the presumption. If Teledyne successfully rebuts the presumption, the
burden shifts back to Plaintiff to discredit the proffered nondiscriminatory reason
by showing that it is pretextual.
Id. at 1824-25.
To establish a prima facie case of discriminatory failure to promote,
Plaintiff must show (1) that she is a member of a protected class under Title VII,
(2) that she was qualified for the assembler position, (3) that she applied for
position and was rejected, and (4) that the position remained open or was filled by
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a person outside the protected class to which Plaintiff belongs. Walker v.
Mortham, 158 F.3d 1177, 1179 n.2, 1185-86 (11th Cir. 1998).
As the district court noted, Plaintiff’s evidence on the second and fourth
elements of the prima facie case is weak. Her claim that she was qualified for the
assembler position is based solely on her subjective testimony: she presented only
her conclusory testimony that she was eligible for an A&P license. See Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (stating that “conclusory
allegations without specific supporting facts have no probative value”, even in
summary judgment context). And even assuming the existence of the January
2000 posting, Plaintiff’s subjective belief -- without more -- that the two white
males she saw two months later were hired as assemblers pursuant to this job
posting is not enough to satisfy her burden of proof on the fourth prima facie
element, or to rebut as pretextual Teledyne’s explanation for the presence of these
men. See Grigsby v. Reynolds Metals Co.,
821 F.2d 590, 597 (11th Cir. 1987)
(stating that plaintiff’s conclusory allegations not sufficient to raise inference of
pretext or discrimination where employer offers extensive evidence of legitimate,
nondiscriminatory reasons for its acts).
To the extent Plaintiff also challenges the hiring of two white male
assemblers in June 2000, Plaintiff did not apply for this position. Also, other than
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the alleged January 2000 posting that referred to an A&P license, the assembler
position required “high mechanical aptitude with general knowledge of internal
combustion engines.” Plaintiff has presented no evidence challenging her
supervisor’s rejection of her application for the July 2000 posting pursuant to his
determination that she was unqualified to be an assembler based on her previous
work experience and education. Plaintiff provides us with no reason to believe
that, had she applied for the earlier June 2000 posting, her supervisor would have
deemed her qualified.5
Plaintiff also argues that Teledyne retaliated against her for complaining of
discrimination when it delayed recalling her after the March 2001 lay-off. She
maintains that Teledyne improperly placed more senior, but unqualified,
employees into her position of production helper; she asserts that her particular job
5
Plaintiff also seemingly challenges the district court’s refusal to allow her to amend her
complaint to add more claims of retaliation and discrimination by Teledyne: (1) hiring Staehle as
assembler in May 2000 without following the proper job posting procedures, (2) not promoting
Plaintiff to assembler in June 2000, despite her failing to bid for that position, based on Plaintiff’s
new contention that unsuccessful, prior bids for a position (i.e., her bid in December 1999 and her
alleged bid in January 2000) were good for one year, and (3) failing to offer Plaintiff a temporary
position in the assembly department in May 2000. Plaintiff attempted to add these claims after that
court had ruled on Defendants’ first motions for summary judgment and shortly before the case was
scheduled for trial. The district court did not abuse its discretion in refusing to allow Plaintiff to add
claims at such a late date or based on facts in her possession long before. See Best Canvas Prods.
& Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 622-23 (11th Cir. 1983) (no abuse of
discretion for district court to refuse to allow amendment of complaint based on movant’s undue
delay).
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of deburring cylinder heads is unique and that the recalled employees lacked
deburring experience.
Assuming without deciding that Plaintiff established a prima facie case of
retaliation,6 Teledyne presented a legitimate, nondiscriminatory reason for not
recalling her sooner: its reliance on the lay-off and recall procedures in the CBA.
See E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000)
(employer may proffer legitimate, nondiscriminatory reason for adverse
employment act). Before recalling Plaintiff, Teledyne recalled employees (1)
whose job classifications were higher than production helper and (2) whose job
classifications were the same, but who were more senior. Teledyne produced
evidence that it considered material handlers (Labor Grade 13) and production
helpers (Labor Grade 12), to be equivalent for purposes of recall. Based on
seniority, all employees were entitled to recall as material handler or production
helper, the lowest-skilled positions at the plant. Plaintiff’s argument that Teledyne
should not have recalled more senior, but purportedly unqualified, material
6
A plaintiff establishes a prima facie case of retaliation under Title VII by showing (1) that she
engaged in statutorily protected expression, (2) that she suffered an adverse employment action, and
(3) that some causal relation exists between the two events. Cooper v. Southern Co., 390 F.3d 695,
740 (11th Cir. 2004).
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handlers and production helpers before recalling her thus amounts to nothing more
than a disagreement with Teledyne’s interpretation of the CBA.7
Finally, Plaintiff argues (without much detail) that the Union discriminated
against her and failed to represent her adequately in her grievances against
Teledyne. But Plaintiff has adduced no facts showing that the Union’s refusal to
pursue her grievances, based on either the January 2000 assembler posting or the
March 2001 lay-off, was based on race or gender.8 Nor has Plaintiff shown that
the Union failed in its duty to represent her adequately and fairly: her argument is
based on her disagreement both with the Union’s unwillingness to file a grievance
without a job bid slip and with its interpretation of the CBA. See Turner v. Air
Transp. Dispatchers’ Ass’n, 468 F.2d 297, 300 (5th Cir. 1972) (opining that union
refusal to file employee’s grievance when it believes grievance to be without merit
“does not amount to perfunctory or arbitrary treatment”).
7
To the extent Plaintiff challenges as retaliatory the initial May 2000 lay-off, Teledyne’s
president ordered the lay-off before Plaintiff filed her first EEOC charge. And Plaintiff was recalled
after only ten days. She cannot show a causal link between the lay-off and the filing of her EEOC
charge.
8
Plaintiff also has not shown why the Union should be held liable for Evans’s alleged sexual
harassment. Evans was not a Union officer. And because Plaintiff did not complain to the Union
of his offer to exchange a fake bid slip for sexual favors, she did not show that the Union was aware
of Evans’s act until she testified about it much later.
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In sum, the district court properly granted summary judgment in favor of
Defendants on all of Plaintiff’s claims.9
AFFIRMED.
9
Plaintiff mentions in the issues section of her initial brief that the Union retaliated against her
and that the district court erred in denying her post-judgment Fed.R.Civ.P. 60(b) motions. But she
offers no substantive argument on these issues in her initial brief; they are abandoned. See Irwin v.
Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (stating that a pro se litigant abandons an issue by
failing to challenge it on appeal); Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6
(11th Cir. 1989) (deeming an issue waived where a party fails to include substantive argument and
only makes a passing reference to the order appealed from).
12
