HUGH LAWSON, Senior District Judge.
Plaintiff Jackie Robinson, an African-American man, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and under the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981") asserts that Defendants Colquitt EMC, Dixie Lightfoot, and Doug Loftis discriminated against him on the basis of his race. Plaintiff alleges that Defendants impermissibly targeted him for discipline based on his race alone and treated him differently than other similarly situated Caucasian employees. Plaintiff also claims that Defendants permitted racially derogatory conduct to permeate the employment landscape, creating a hostile work environment and subjecting Plaintiff to the intentional infliction of emotional distress. Now before the Court is Defendants' Motion for Summary Judgment. (Doc. 54). After reviewing the pleadings, briefs, depositions, and other evidentiary materials presented, and determining that there is no genuine dispute of the material facts, the Court finds that Defendants are entitled to judgment as a matter of law and grants Defendants' motion.
Plaintiff Jackie Robinson ("Plaintiff") worked for Defendant Colquitt EMC ("Defendant") from January 16, 2002 until his termination on July 2, 2012. Defendant maintains a progressive discipline policy and terminated Plaintiff following a documented series of disciplinary actions for substandard work, inappropriate conduct, safety issues, carelessness, and failure to respond timely when on call. Plaintiff contends that Defendant applied its disciplinary procedures unevenly, holding him and other African-American employees to a different standard of conduct than their Caucasian counterparts. Plaintiff further asserts that Defendant permitted certain racially-motivated behaviors to pervade the workplace, creating a hostile work environment for Plaintiff. The facts viewed in the light most favorable to Plaintiff are as follows.
Defendant is a not-for profit consumer-owned electrical distribution system that provides energy to members in Berrian, Brooks, Colquitt, Lowndes, Tift and Worth Counties. The company is headquartered in Moultrie and operates district offices in Valdosta and Tifton and branch offices in Adel, Nashville, and Quitman. Plaintiff began working as a Groundman out of Defendant's Valdosta office on January 16, 2002. Plaintiff worked without incident for the first seven years of his career with Defendant, receiving regular positive performance evaluations accompanied by corresponding raises in pay. Plaintiff gradually moved from Groundman to Lineman Apprentice to Lineman, and finally was promoted to Senior Lineman in April 2009.
Plaintiff received his first written warning in October 2009. Disciplinary action resulted from a September 17, 2009, incident during which Plaintiff failed to follow proper procedures for installing a mechanical jumper while splicing wire. This mistake caused a 20-minute power outage. Defendant placed the written warning in Plaintiff's personnel file. The company took no other disciplinary action against Plaintiff in relation to this event.
Plaintiff was not disciplined again until March 17, 2011, when he received a written warning along with a four day suspension without pay resulting from his failure to secure properly a hot phase while working in the bucket of a truck on March 14, 2011.
Two months later, on May 3, 2011, Plaintiff was involved in a work-related car accident. Plaintiff was driving Defendant's truck #30 when the boom knuckle of his truck hit the rear of truck #2103, driven by Leslie Hunt. Neither Plaintiff nor Hunt reported the accident to their employer. Plaintiff provided inconsistent statements about the cause of the accident. He admits that he possibly made a statement to his crew supervisor that the damage to the truck resulted from hitting a transformer. He also admits that he might have reported that he bumped another truck while driving to the job site. Plaintiff later confessed to his dishonesty and to violating company policy regarding failure to report the accident and lying to cover up the property damage. Consequently, on May 5, 2011, Plaintiff received a written warning and a five day suspension. Additionally, Defendant demoted him from Senior Lineman to Lineman. Plaintiff's co-worker, Leslie Hunt, a Caucasian male, was suspended but for a shorter period of time because he had no recent prior incident and because Defendant determined that Plaintiff was at fault for the accident and initiated the cover-up.
Plaintiff next was written up for tardiness on September 15, 2011.
The next disciplinary event occurred on October 18, 2011, when Plaintiff failed to secure a neutral line while working in the bucket of a truck. The line fell down the pole and sprang back up, creating the potential for serious injury both to Plaintiff and others on the job site. As a result, on October 27, 2011, Defendant issued Plaintiff another written warning and suspended him for four days. Defendant further cautioned Plaintiff that the "next incident of sub-standard work, conduct, safety, disobedience, or carelessness will result in immediate termination." (Doc. 62, p. 68).
Following the October 2011 incident, Plaintiff met with Doug Loftis, Manager for Human Resources and Corporate Services for Defendant; Dixie Lightfoot, District Manager in Defendant's Valdosta office; Sidney Zipperer, Operations Manager; and Ronnie Caldwell, District Operations Superintendent for the Valdosta office. Management reviewed Plaintiff's recent rash of conduct resulting in disciplinary measures. Loftis inquired why Plaintiff was having difficulty performing his job. Plaintiff responded that the recent death of his sister was on his mind and creating a distraction. At the conclusion of the meeting, Loftis instructed Plaintiff that he would have to be an "exemplary Lineman" for the next several years.
Plaintiff worked without incident from October 2011 until May 2012.
Plaintiff met with Loftis, Lightfoot, and Caldwell on May 11, 2012. Management reviewed Plaintiff's disciplinary history and provided him with a memorandum explaining that he was at the "last chance" stage of Defendant's progressive discipline policy. Plaintiff was told that he was at the point of termination in every aspect of job performance, including substandard work, inappropriate conduct, safety issues, attendance problems, disobedience, and carelessness. Management emphasized that another incident of any sort would result in immediate termination. Loftis again told Plaintiff that he needed to be an exemplary employee in order to keep his job.
On June 30, 2012, Plaintiff again failed to respond to a call in a timely fashion. Plaintiff testified that on that date he had become overheated while cutting grass. (Doc. 59, p. 215). When the dispatcher called at 4:02 p.m., he informed the dispatcher that he was ill. (
As a result of this final incident, Defendant terminated Plaintiff on July 2, 2012. Dixie Lightfoot signed the Separation Notice, but Danny Nichols, the General Manager, and Doug Loftis made the ultimate decision to relieve Plaintiff of his position. Defendant listed Plaintiff's position on July 5, 2012, and promoted Chris Bolling, a Caucasian male and existing employee, to fill the vacancy on August 16, 2012.
Plaintiff alleges that despite Defendant's policy prohibiting discriminatory and harassing conduct, during his tenure working for Defendant he was subject to a barrage of racially discriminatory and offensive conduct from other employees that created a hostile work environment.
In 2004 or 2005, Herman Brasher, a non-supervisory employee of Defendant, told another Caucasian employee that "if the base closes, this will be nothing but a nigger town." Plaintiff was present when Brasher made the comment. Brasher later apologized to Plaintiff. From 2006 through 2007, Plaintiff worked under the supervision of a foreman by the name of Monty Cowart. Cowart regularly referred to Plaintiff as "colored" or "colored boy." Plaintiff at some point during this time frame verbally addressed Cowart's treatment to Lightfoot and Loftis. Following this conversation, the comments ceased. Cowart no longer supervised Plaintiff and eventually was relieved of his position as a foreman on September 16, 2007.
Justin Brown confessed to Plaintiff in 2009 or 2010 that he and Ray Parrish, another Caucasian foreman, burned a cross at Lowndes County High School more than 20 years ago. Plaintiff never raised this conversation with management, and he, Brown, and Parrish never spoke about the matter again.
Plaintiff complains of other intermittent comments made by other employees. He states that Brown regularly addressed him as "hey" or "you" rather than by his name, even though he referred to Caucasian employees by their given names. Parrish made comments along the lines of "What's the matter with you butterfingers?" or "Butterfingers, you can't keep your mind on what you're doing," when Plaintiff would drop something while working in gloves. Plaintiff never instituted any complaint about these remarks and admits that the particular terminology employed by Brown and Parrish was not racially offensive.
Plaintiff heard other co-workers make what he perceived as racially charged declarations. Ronnie Caldwell once said, "I don't trust Nancy Pelosi and the clown that's running this county." Reid Ensley passed around his cell phone to share a picture of President Obama boarding Air Force One carrying a watermelon under his arm. David Sills upon pulling up to a work site once declared, "How in the world are we supposed to get in all this nigger S right here." Sills also joked with Plaintiff that "Pontiac stands for poor niggers think it's a Cadillac."
It is not clear from the record when Plaintiff's co-workers made any of these isolated statements. However, Plaintiff admits that he never complained to anyone in management about the pictures or comments made by other employees either directly to him or in his presence.
Plaintiff completed and submitted an Intake Questionnaire to the Equal Employment Opportunity Commission ("EEOC") on July 19, 2012. Plaintiff alleged that his July 2, 2012 termination was discriminatory. He stated that his crew leader, Justin Brown, discriminated against him by calling him "hey" or "you" but referring to other Caucasian employees by name. (Doc. 62, p. 83). Plaintiff further alleged that "[n]o one else [was] ever terminated for response time to service calls." (
Plaintiff filed a formal Charge of Discrimination on October 12, 2012. (Doc. 62, p. 90). In response to the inquiry regarding the basis of his discrimination claims, Plaintiff marked the box for "Race." (
(Doc. 62, p. 90).
On March 18, 2013, the EEOC wrote to Plaintiff to inform him that Defendant responded to his claims and denied any allegations of race discrimination. (Doc. 62, pp. 91-93). The letter outlined Plaintiff's disciplinary history and provided him with the opportunity to respond. On March 27, 2013, Plaintiff provided the EEOC with additional information concerning his view of the events leading to his termination. (Doc. 62, pp. 94-96). He explained, "I filed my discrimination suit because of unethical treatment of black employees. Whites have had the same or similar incidents not used to pad their file[s] for termination." (Doc. 62, p. 95).
The EEOC issued Plaintiff a Dismissal and Notice of Rights on April 18, 2013. (Doc. 62, p. 97). Plaintiff initiated this lawsuit on July 2, 2013, raising claims under Title VII and § 1981, for race discrimination, disparate treatment, disparate impact, and retaliation.
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c);
When considering a motion for summary judgment, the court must evaluate all of the evidence, together with any logical inferences, in the light most favorable to the nonmoving party.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of a material fact."
Plaintiff alleges that Defendants discriminated against him on the basis of his race in violation of Title VII and § 1981.
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a prima facie case of discrimination through either direct or circumstantial evidence.
To establish a prima face case of discriminatory discharge, Plaintiff must produce circumstantial evidence 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 or was replaced by a person outside of his protected class."
To draw a valid comparison, the plaintiff must demonstrate that he and the comparators "are similarly situated in all relevant aspects."
Plaintiff's conclusory statement that he was treated differently from similarly situated Caucasian employees and that no other employee for Defendants was ever terminated based on failure to respond timely to a call is not sufficient to prove his prima facie case. In support of his contention, Plaintiff states simply that to his knowledge Trent Lasseter, Brent Roe, and Justin Brown all failed to respond to service calls yet were not terminated. Plaintiff cites to no evidence in the record to support this statement. Nor has Plaintiff produced any evidence to show that any of these other employees were similarly situated in terms of the remainder of their disciplinary histories.
Plaintiff also summarily states that Defendants treated him differently from other similarly situated Caucasian employees by not forwarding his incident reports to the safety committee for review and, generally, that other employees were disciplined more leniently. Again, Plaintiff provides no factual basis for this belief. Rather he summarizes that his claims are fact intensive and should proceed to a trier of fact without offering a foundation for the essential facts in dispute. (Doc. 72, p. 7).
Pointing to John Fisher and Ray Parrish
However, the record reflects that Parrish likewise received a four day suspension without pay for failing to notify his supervisors about the hot phase incident and was told that Defendant was evaluating whether Parrish had the ability to maintain his position as a crew foreman. (Doc. 82, p. 24). Defendants further warned Parrish that a similar incident would result in days off without pay, reassignment, demotion, or termination. (
In support of his argument that Defendants unevenly managed the progressive discipline policy, Plaintiff highlights Fisher's disciplinary history. According to Plaintiff, Fisher received a written warning in August 2011 for unacceptable behavior, noting that in the event of future infractions, Fisher would be subject to four days suspension without pay, demotion, or termination. Despite two subsequent incidents, Defendants permitted Fisher to keep his job. The August 2011 warning resulted from Fisher's failure to supervise adequately a Lineman who was doing "Hot Work." (Doc. 67, p. 71). The event resulted in a write-up being placed in Fisher's file and three days suspension without pay. Defendants further informed Fisher that the next incident of substandard work would result in four days off without pay and demotion or termination. (
First, the Court notes that Fisher is not a viable comparator because his disciplinary history shares neither the volume nor severity of Plaintiff's employment record. Second, the record contains no evidence that Defendants strayed from the progressive discipline structure when addressing Fisher's conduct. As explained by Doug Loftis in his Supplemental Declaration, the "next incident" language that appears in each of the written warnings refers to "the next incident of that type." (Doc. 82, p. 5). Thus, had Fisher had another infraction involving his failure to supervise his crew following the August 2011 incident, then the increased disciplinary measures referenced in that particular warning would have applied. However, his next two violations were wholly unrelated and, thus, required different disciplinary measures.
Reviewing Plaintiff's written admonishments, the Court concludes that Defendants applied a similar progressive standard to each of Plaintiff's infractions. For example, Plaintiff's September 17, 2009 write-up for failure to follow proper work procedure by not installing a mechanical jumper while splicing wire, which Defendants categorized as "Substandard Work" and "Carelessness," resulted in a written warning and an admonishment that the next incident would result in a five day suspension. (Doc. 62, p. 54). Plaintiff was disciplined again after a March 14, 2011 incident that Defendants again considered "Substandard Work." (
Plaintiff next was disciplined in May 2011 for dishonesty after being less than forthcoming about hitting another work truck. (
In October 2011, Defendants disciplined Plaintiff again after Plaintiff failed to secure a neutral line. (
Plaintiff has failed to produce any evidence of a similarly situated Caucasian comparator who was disciplined more favorably. Without a proper comparator, Plaintiff cannot establish a prima facie case of discrimination, and Defendants are entitled to summary judgment.
Even if Plaintiff could establish a prima facie case of discrimination, the Court still finds that Defendants are entitled to summary judgment because Plaintiff cannot show that Defendants' legitimate, nondiscriminatory reason for terminating him was merely a pretext for race discrimination. Defendants have carefully outlined Plaintiff's disciplinary history and explained that while Plaintiff worked for a number of years without any performance issues, during the last sixteen months of his employment, Plaintiff committed numerous serious infractions that ultimately led to his termination.
The employer has the burden of production, not persuasion to articulate a nondiscriminatory reason for termination, a burden that has been described as "exceedingly light."
A plaintiff may not recharacterize the employer's proffered nondiscriminatory reasons.
Defendants have met their burden of providing a legitimate, nondiscriminatory reason for terminating Plaintiff. The burden now shifts to Plaintiff to show that Defendants' proffered explanation for Plaintiff's termination is but pretext for race discrimination. Plaintiff first calls into question Defendants' decision to hold Plaintiff accountable for the last instance of sub-standard conduct, failing to respond to a service call in an appropriate amount of time. Plaintiff claims that the subjective application of the Defendants' unwritten response time policy is proof of pretext. As the Court has already noted, there has been inconsistent testimony about the response time requirement and whether there is an expectation for an employee to respond within 15 or 30 minutes of receiving a call from dispatch. However, even applying the longer time frame to the benefit of Plaintiff does not absolve Plaintiff of his misconduct, as the evidence reflects that while Plaintiff immediately answered the first dispatcher's call, he ultimately took just shy of two hours to respond when a second dispatcher roused him from sleep.
Plaintiff further alleges in reference to this incident that Defendants failed to follow their own policy of calling the next employee on call if unable to reach the first. On this particular date, the dispatcher had no reason to call the second person in line. Even though Plaintiff purportedly informed the dispatcher that he was ill, he also stated that he still could make the call and led her to believe that he would head in that general direction. Plaintiff did not say that he was too sick to report to work; therefore, Defendants had a reasonable expectation that
Plaintiff could complete his assignment timely and reacted as a reasonable employer by holding Plaintiff accountable for his greatly delayed response time. Plaintiff next asserts that Defendants' proffered explanation is pretext for discrimination on the basis of Plaintiff's unequal treatment and subjugation to harsher penalties for his mistakes. Plaintiff claims that Defendants specifically targeted him for discipline and left him to shoulder the burden of others' mistakes. As thoroughly discussed above, however, Plaintiff has failed to produce any evidence beyond his own beliefs and impressions that Defendants disciplined him differently than any other employee.
Based on the ample evidence in the record, Plaintiff has failed to carry the burden of showing that Defendants' reason for terminating him was a pretext for discrimination. Plaintiff has pointed to no direct evidence of outward discrimination by Defendants and can draw no appropriate comparisons to other employees Plaintiff thinks were treated less harshly to create an inference of intentional discrimination. Defendants thus are entitled to judgment as a matter of law.
Plaintiff claims that he was subject to a constant barrage of verbal abuse and unfair disciplinary procedures that created a hostile work environment and impeded his ability to perform his job efficiently. The Court finds no validity to Plaintiff's claim.
Title VII is violated "when the workplace is permeated with racially 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."
The court will consider "the frequency and severity of the conduct, whether it is physically threatening or humiliating, and to what degree it reasonably interferes with the plaintiff's job performance."
Without dispute, Plaintiff as an African-American is a member of a protected group who was subjected to unwanted harassment and commentary on the basis of his race. However, the evidence does not warrant a finding that the off-color commentary and inappropriate jokes of Plaintiff's co-workers were so severe and pervasive to alter the conditions of Plaintiff's employment. The most offensive conduct described by Plaintiff is that of Monty Cowart, who regularly referred to Plaintiff as "colored" or "colored boy." Plaintiff did report Cowart's conduct to management and, while Plaintiff perceived that Defendants took no action against Cowart because management never informed Plaintiff of any remedial measures, the evidence shows that Defendants no longer scheduled Plaintiff to work under Cowart and eventually stripped Cowart of his supervisory position. These events transpired during 2006 and 2007, five or six years before Plaintiff's termination and seven years before Plaintiff initiated this lawsuit.
Plaintiff complains a great deal about being addressed as "you" or "hey you" and being called "butterfingers." But he admits that, while he felt these comments were meant derogatorily, the statements themselves are not racially charged. The majority of the other statements and behaviors highlighted by Plaintiff in support of his hostile work environment claim while certainly inappropriate and insensitive were unreported, isolated comments of co-workers, not supervisors, uttered over an undefined period of time, and do not rise to an actionable level. The Court consequently grants Defendants' motion for summary judgment on Plaintiff's hostile work environment claim.
Plaintiff's final claim is for intentional inflection of emotional distress. He alleges that years of humiliation, embarrassment, and malicious targeting of disparate disciplinary measures culminating in Plaintiff's termination, amount to intentional and reckless conduct on the part of Defendants. Plaintiff's claim lacks merit and is unsupported by any facts.
To recover on an intentional infliction of emotional distress claim, a plaintiff must show that "(1) defendants' conduct was intentional or reckless; (2) defendants' conduct was extreme and outrageous; (3) a causal connection existed between the wrongful conduct and the emotional distress; and (4) the emotional harm was severe.
Georgia is an at-will employment state, and Georgia law does not recognize wrongful discharge of at-will employees.
Plaintiff has produced no evidence that Defendants' actions were intentionally discriminatory or in any way extreme or outrageous. Viewing the available facts in a light most favorable to Plaintiff, no reasonable person could conclude otherwise. Defendants' motion for summary judgment on Plaintiff's claim for intentional infliction of emotional distress is accordingly granted.
For the foregoing reasons, Defendants' Motion for Summary Judgment (Doc. 54) is granted, and this case is dismissed with prejudice.